Steven K. Birch is a member of the American and Ohio Bar Associations, a registered architect in the states of Ohio and Pennsylvania, and a member of the American Arbitration Association’s construction-industry panel.
THE ARBITRATOR’S DILEMMA: EXTERNAL VS. INTERNAL LAW: NARROWING THE DEBATE
I. Introduction Courts, arbitrators and legal scholars have long debated the issue of whether it is appropriate for an arbitrator to consider external law in order to reach a decision in a specific dispute or grievance.1 External law encompasses the entire body of law developed through statutes, regulations and court decisions,2 specifically federal law that the Supreme Court has ruled shall be determinative in controversies involving collective-bargaining agreements.3 Additionally, Congress has empowered the National Labor Relations Board exclusive jurisdiction to adjudicate alleged unfair labor practices—in industries affecting commerce— arising under the National Labor Relations Act.4 Arbitration of labor disputes developed out of the desire of both labor organizations and management to avoid the expense and loss of productivity resulting from the time-consuming traditional litigation process.5
Table of Contents:
II. Brief History of the Debate
III. The Common Law of Collective-Bargaining Theory?