Arbitral Reliance on "Precedent"

Authors

Ariana R. Levinson, University of Louisville Brandeis School of Law

Abstract

We conclude that "precedent" may not be the most appropriate term for arbitrators' reliance on other awards. While the term "precedent" might be used loosely in the sense that any past event is a precedent for any future event, the doctrines of stare decisis, collateral estoppel, and res judicata do not apply in labor arbitration. Only if a contract explicitly states or is interpreted by arbitrators to require past awards between the same parties to bind them into the future until a change is negotiated to the contract will these doctrines be utilized by arbitrators. Much more often, including in cases between different parties, arbitrators will treat past awards as persuasive, not in the sense that they should be followed, but that they provide helpful information. While labor arbitrators likely rely on prior awards more often than some other types of arbitrators, our findings indicate that they do so in less than 17% percent of disputes. Most of the disputes involve contract rather than statutory interpretation. And there is no sense that an arbitrator should look for similar cases with similar contract provisions and lean toward reaching the same conclusion as was reached in the prior cases. One hypothesis is that "weak precedent is the basis of arbitration," but that does not explain the large majority of cases where no precedent is cited. Some have argued arbitrators may be following "known to them" arbitral principles without citing to them, but that is not empirically verifiable and, if happening, does not seem equivalent to the use of precedent. The analogy to a civil law system is an apt one. Arbitrators do rely on past awards in certain cases and tend to interpret certain baseline terms or principles, such as "just cause," in similar ways. This is not because of any fidelity to the binding nature of past awards but because continuity aids the parties, unions and employers, understanding of and ability to apply the terms for which they have negotiated and agreed.

Keywords

Arbitration, Dispute Resolution, Labor Law, Collateral Estoppel, Legal Practice and Procedure, Estoppel, Jurisprudence, Res Judicata

Disciplines

Dispute Resolution and Arbitration | Jurisprudence | Labor and Employment Law | Law

Recommended Citation

Ariana R. Levinson, Arbitral Reliance on "Precedent", 26 Cardozo J. Conflict Resol. 25 (2024).
Available at: https://larc.cardozo.yu.edu/cjcr/vol26/iss1/5