2017-03-25 00:24

谈判不一定是阿德事实上的纠纷解决制度,因为它一般不包括三分之一方的参与,但它应该是任何形式的争端解决的起点。事实上,一个明确规定的谈判制度可以写进一个合同争议条款,以使双方事先设定的谈判条件,双方之间的争端后出现。肯德尔[ 1 ]指出,一些合同(特别是那些合资企业)体现的规定,要求各方谈判在特定级别的资历之前采取任何形式的正式行动。通常,这类条款要求行政长官在短时间内开会。肯德尔认为,这种“升级”条款的地方管理责任,对于一个给定的纠纷在一个较高的水平,也因此阻碍低(ER)-成为从事纠纷由于他们对高层次的管理知识和管理员工的关心程度之反应。此外,它表明,可以预见,高级管理人员可能处理水平下不同管理给予客观的框架,可以应用在试图解决争端的潜在变化的任何纠纷公平(同上)。它可能遵循这种“升级”条款,这反过来又阻止人们通过加强争端的管理性质的争端避免
Negotiation is not necessarily a de facto system of dispute resolution as it does not generally include the involvement of a third party, however it should be the starting point for any form of dispute resolution. Indeed, an expressly defined system of negotiation may be written into a contractual dispute clause to enable both parties to set the terms of negotiation in advance, should a dispute between the parties later arise. Kendall[1] observes that some contracts (in particular those for joint ventures) embody provisions requiring the parties to negotiate at a particular level(s) of seniority before taking any type of formal action. Frequently, such a clause will require chief executive officers to meet within a short period of time. As Kendall contends, this type of ‘escalation’ clause places the management responsibility for a given dispute at a higher level and in turn may consequently discourage low(er)-level management employees from becoming engaged in a dispute as a result of their concern about high-level management knowledge about and reaction to their dispute. Moreover, it is fair to suggest that it might be anticipated that senior management would likely deal with any disputes differently from lower level management given the potential variance in objective frameworks that might be applied in attempting to resolve the dispute (ibid.). It may follow that ‘escalation’ clauses of this nature in turn deter people from proceeding with disputes through reinforcement of the managerial nature of dispute avoidance