THE ARBITRATOR'S DILEMMA: External vs. Internal Law? Narrowing the Debate - Dispute Resolution Journal - Vol. 53, No. 2
Steven K. Birch
The author 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 author addresses the question of whether a labor arbitrator should consider external law in attempting to resolve a dispute or grievance. On one side of this issue are the so-called “contractualists,” who believe that the arbitrator must craft his or her decision solely from the terms of the collective-bargaining agreement. The opposing viewpoint, that of the so-called “contextualists,” contends that arbitrators may consider external law in addition to the terms of the collective-bargaining agreement. This article will examine both sides of this dilemma, basing its assertions on the views of highly respected members of the ADR field, as well as key court and NLRB rulings.
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