INTRODUCTION
D. Attending the Court Hearing
V. CONCLUDING COMMENTS
In the United States, there will sometimes be deliberate ambiguity left within a labor contract just to reach settlement. It is assumed that these ambiguities will be resolved within arbitration. This state of events is foreclosed within Kenya and Zambia. In both instances the agreement before being approved must be submitted to the Industrial Court for examination and final approval. Many prob- lems are thus averted because of this ultimate review. Questions of the power of external law are also dealt with through this review.
In the United States there is a stronger onus on the unions to practice the duty of fair representation. This leads shop stewards to sometimes pursue even the most trivial case to arbitration which is contrary to practice in Kenya and Zambia. Many can represent themselves. The union can decide whether or not to go to court, but the individual is not foreclosed from proceeding individually.
Hearings on individual grievances can take months or even years but the people seem accepting of this delay.
American observers may well question the approach of having a single body deliberate the merits and provide final and binding decisions for the country.
The U.S. model of individual arbitrators rendering decisions based on the issues at hand within the particular organization is an alien one to Kenya and Zambia.
Yet even in the United States there are opponents to dispute resolution that takes place outside of the courts, even if it does initially seem more expeditious.
It is sometimes claimed that there are those who subscribe to the ADR move- ment because they view efficient and inexpensive dispute resolution as an
important societal goal without regard for the substantive results reached (Edwards 1985:669).
This is not to say that private settlements can never produce results that are consistent with the public interest; rather, it is to say that private settlements are troubling when we have no assurance that the legislative- or agency- mandated standards have been followed, and when we have no satisfactory explanation as to why there may have been a variance from the rule of law.
. . . Inexpensive, expeditious, and informal adjudication is not always synony- mous with fair and just adjudication. The decision-makers may not under- stand that values at stake and parties to disputes do not always possess equal power and resources (Edwards 1985:678).
This view seems reasonable especially for a developing country where the na- tional good must sometimes preempt individual benefits.
Some might suggest that mediation between the parties might be a valuable mechanism. Yet here too, for these countries at this time, there might well be serious hindrances.
The principal thrust of recent criticism of ADR has been aimed primarily at mediation, perhaps because that process blends third party facilitation with disputant control of outcome, and hence is inherently imprecise and manipu- lable. In theory, mediation is a voluntary process whereby two or more dispu- tants arrive at a mutually acceptable solution with the help of a neutral third party.
In a recent piece. Professor Owen Fiss of Yale Law School launched a ringing attack on one of the fundamental premises of the alternatives move- ment—that settlement as a general rule is a social good. Fiss contends that settlement necessarily involves a compromise of legal entitlements, which is of particular concern when there is a sharp power disparity between the parties (Goldberg et al. 1986:292–293).
It is also argued that by focusing resolution of individual disputes, aggregate solutions are minimized.
It has also been observed that:
This segregation of alternatives from the judicial process also has other ad- verse consequences, such as the common absence of public funding, which sometimes requires disputants to pay for alternative dispute resolution ser- vices even as the judicial ones are provided free. More subtle discouragement derives from the distrust that often accompanies processes that are new and unfamiliar and that appear to be unaccompanied by the legal protections that disputants have been taught over the years to value so highly. A related deter- rent may be the absence of mechanisms for ensuring high standards in the provision of alternatives (Goldberg et al. 1985:291).
The method of dispute resolution in both Kenya and Zambia is quite cen- tralized. Although both of the industrial judges emphasize the importance of set- tlement at the workplace level, there still tends to be a great reliance on bringing the hearing to the highest level possible. Despite the attendant delay because of the crowded court calendars, the system appears well accepted by the individual grievants, the union, and the managers. It is perhaps the very formality and sense of ceremony that makes this approach more desirable. The outstanding reputation of both judges may make it difficult to separate the system from its individual leaders. The first incumbent in a position has a unique ability to mold the organi- zation. The countries will be well served if the successors to these individuals will earn the same high degree of eminence and national regard.
The reliance on alternative dispute resolution becomes more relevant when the existing dispute resolution systems are easily and efficiently used. Given the small number of employees working for wages, the absence of full literacy, and the varying tribal allegiances at this time, the Industrial Court may well be the most responsive solution.
Before one can consider any other alternatives, such as ad hoc arbitrators or mediators, it will be necessary for the population to gain greater experience and ease in dispute resolution at the plant level.
As indicated earlier, both Kenya and Zambia are very much obliged to consider national goals and purposes which is indeed reasonable when the courts are called upon to deal with issues that may have greater implications for different sectors of the economy. The motion of expedited hearings or individual arbitra- tors might be more feasible in those instances where individuals press grievances against companies. But here too, union officials may need to upgrade their persua- sive skills so as to minimize going to court.
Systems develop organically from their own national experience. The in- fluence of England on India places great stress on formalism. Despite the indepen- dence of the Commonwealth, both nations have been exposed to a highly ceremo- nial tradition. In future years there may well emerge new and even more responsive forms of dispute resolution. For now, the system works well largely because of the trust that all parties feel in the Industrial Courts.
REFERENCES
Bedford, S. (1961). The Faces of Justice. New York: Simon & Schuster. Central Organiza- tion of Trade Unions (COTU). (Undated). Kenya Constitution and Rules.
Cockar, S.R. (1981). The Kenya Industrial Court: Origin, Development and Practice.
Kenya: Longman.
———. (1985). Speech before convocation of the Union of Hospitals, Hotels and Domes- tic Workers.
Edwards, H.T. (1986). Alternative dispute resolution: panacea or anathema. Harvard Law Review, 99, 668–684.
Goldberg, S.B., et al. (1986). ADR problems and prospects: looking to the future. Judica- ture, 69(5), 291–299.
Industrial Relations. (Undated). Chapter 517 of the Laws of Zambia. Lusaka, Zambia.
Olsson, U.K. (1980). Prices, wages, and incomes in Zambia: policies and their implemen- tation: Southern African team for employment promotion. Discussion paper.
Report of Industrial Award Categories in Kenya. (1985). Division of Manpower Training 4-15-85.
6
Industrial Policy and Regional Development
A Diachronic Comparison of Japanese and South Korean Economic Strategies
Sang-Chul Park
Go¨teborg University, Go¨teborg, Sweden
I. INTRODUCTION
Since World War II Japan has been regarded as a country of economic miracle.
Following World War II, the Japanese government tried to overcome its technical backwardness to Western countries while at the same time practicing a high pro- ductivity and growth-oriented economic policy. It led to a rapid economic growth during the 1960s. With the collapse of the Bretton Woods system and the two oil crises in the 1970s, Japan faced severe economic problems. Although the external economic environments restrained its economic growth, it handled it wisely. Its reaction was based on industrial rationalization, rationalization of firms, improvement of industrial structure, and industrial restructuring (Komiya 1984). Through these various policies the Japanese industrial structure shifted from capital-energy-intensive sectors such as heavy and chemical industries to knowledge-intensive sectors such as the electronics industry.
On the basis of these policies Japan succeeded in recovering from its eco- nomic recession faster than any other industrialized country and at the same time gained an advantage by expanding its world market shares. Additionally, the Ministry of International Trade and Industry (MITI) created a new phrase, ‘‘in- dustrial policy,’’ which has been internationally recognized as a perception of industrial development strategy.
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South Korea, as a latecomer, has followed the Japanese economic develop- ment. It has imported know-how and capital goods from Japan and has become a competitor in certain industrial sectors such as semiconductors, steel, automo- biles, etc., on the world market.
A theory of economic development by Kaname Akamatsu as the ‘‘flying geese’’ paradigm explains the development of industry from the introduction of its products to an economy through imports through the establishment of local production facilities to the emergence and growth of exports. Akamatsu’s model is a catching-up cycle model based on a latecomer’s point of view. It presupposes dynamic changes in economic relations among advanced and developing coun- tries. The ‘‘lead goose’’ (advanced nation) eventually tires out and falls back.
Its position is taken over by a more vigorous one (developing nation). His analysis focuses on the structural catching-up mechanism of latecomer countries rather than the decline of a lead country. His basic idea is that a developing country industrializes and goes through industrial upgrading by capitalizing on the learning opportunities made available through its external relations with more advanced countries (Akamatsu 1961). In this case, the role of government as a major planner of strategic industrial policy is very important (Korhonen 1994).
This paper focuses on the development of Japanese and South Korean econ- omy, the role of government as planner, and regional development based on high technology.