Discussion on the Insertion of an Arbitration Clause in Individual Labour Contract

Abstract

Every employment contract contains two types of terms: essential clauses which are included in all contracts and covenants, the latter forming the conventional left to the agreement of the parties, but with legal compliance, and to a collective agreement, to public order and morality. The insertion of such clauses in individual employment contract content "is not legally possible, penalty that comes being nullity of the contract either or of that clause," for example, the clause that would prohibit the parties to address the court.But, many optional clauses, although are not covered by the Labour Code and labour law as special provisions they may be used in practice.On those terms, in the context of relieving the courts, is of a real interest the discussion if it is possible an arbitration clause (arbitration) that the individual labour contract parties undertake to settle by arbitration disputes which may arise between them.The main effect of the arbitration agreement is the exclusion of jurisdiction of the court which would, in the absence of the arbitration clause, able to resolve the dispute between the parties. It must be stressed however that this is not a definite exclusion of the jurisdiction of state courts because to admit otherwise it would be a violation of free access to justice.Are exempt, subject inter alia to the arbitration clause according to art. 542 para. 1 of the Civil Procedure Code, disputes concerning rights which the parties may have. Might say that, given the provisions of art. 38 para. 2 of the Labour Code, according to which, the employees can not waive their rights are recognized by law. Any transaction that seeks waiver of rights recognized by law or limit these rights is invalid, an arbitration clause is inadmissible, at the conclusion of the individual labor contract negotiations and its subsequent insertion through an addendum in such a contract, according to art. 549 of the Code of Civil Procedure.