The language of contract should ideally cover all possible situations in the relations between a university and a faculty-member, however this is practically impossible. Any contract can cause situations which may be resolved only by a court or arbitrator’s decision. Thusly, exclusion of a fair review procedure from the contract would undermine a right to a fair trial – one of the most basic fundamentals in human rights law. In order to protect the university administration and the peers, the parties may include some additional provisions to the “representations and warranties” clause establishing grievant obligation to recognize the administration and peers’ decision in good faith and not to apply for judicial or arbitration judgment without extreme necessity. On the other hand, in order to protect the employee’s interests, a specific clause may be introduced to a contract reading like: “in case the court or an arbitration body ruled in favor of the employee by finding that there existed sufficient grounds for application, the University undertakes to provide tenure”.
Such construction makes it possible for an arbitrator to provide tenure without a direct order. Tenure is not a remedy in fact, rather it is a kind of academic recognition, which an arbitrator is not capable to award. On the other hand, in case an arbitrator finds that discriminative practices did occur, it can just rule in favor of a grievant thusly creating an obligation for a university, which can be later supported in another trial. Some alternative decisions like order to repeat the tenure procedure by the same body or apply to an independent colleagues in other universities and ask them to render a decision on tenure based on provided information are also possible.
