Alternative dispute resolution in the BRICS nations: A comparative labour law perspective

Abstract

Alternative dispute resolution refers to forms of dispute resolution, other than traditional and formal court based litigation. A notable benefit of alternative dispute resolution is that different processes are available for resolving a particular dispute in the most effective and efficient manner possible. Alternative dispute resolution includes but is not limited to arbitration, mediation, negotiation, conciliation and facilitation. The Constitution of the Republic of South Africa, 1996, lists human dignity, equality and the advancement of human rights and freedoms as the founding values of the Republic of South Africa. In terms of section 9(1) of the Constitution everyone is regarded as equal before the law and has the right to equal protection and benefit of the law in South Africa. Often it is however argued that traditional court based litigation hinders the full enjoyment of these rights by individuals. Consequently, alternative dispute resolution is attractive as an alternative to court based litigation as it is regarded as less expensive, more time effective and results in less conflict when it comes to resolving disputes in the most accessible, effective and efficient manner possible, in both developed and developing countries. The study will first focus on the pitfalls to traditional court based litigation in South Africa. The relevant legislation and processes which provide for alternative dispute resolution processes in South Africa, with specific focus on alternative dispute resolution in labour disputes, will be considered. Consideration will be given to the provision of alternative dispute resolution as contained in the Constitution, the Labour Relations Act 66 of 1995, the Rules for the Conduct of Proceedings before the CCMA of 2003 and the Arbitration Act 42 of 1965. The study will thereafter proceed to consider the use of alternative dispute resolution in labour disputes in Brazil, Russia, India and China, who, together with South Africa, are collectively referred to as BRICS. These five nations are considered the world’s leading emerging economies, with similar economic capabilities and demographics.