477 



ARBITRATION. 



ARBITRATION. 



478 



enter into the merits of the case, and decide according to what seemed 

 to him to be just and equitable between the parties. For the object 

 of these actions wag to obtain the fulfilment of such agreements as 

 every honest man ought to be willing to execute, an object expressed 

 in the formula, ' Quidquid dari filii oportet ex fide bona." 



To the third class, namely, that of arbitrary actions, belonged those 

 chiefly in which the restitution of property, or some specific perform- 

 ance, was required of the defendant. In these cases the arbiter had 

 authority to estimate the just claims of the plaintiff, and to condemn 

 the defendant to some greater penalty, as, for instance, to pay fourfold 

 in case of his not performing the judgment. Properly speaking they 

 were actions not tied down by the utrielum ju*, but capable of receiving 

 such modifications as the arbiter pleased, therefore they did not include 

 the conditiones, or the actiones eivilea ex delicto, whilst they did 

 include those bonte fidei, in rem, and prsetoriae ; at the same time it is 

 a* well to bear in mind that these arbitrary actions did not embrace 

 all unrestricted actions whatever, in spite of the modifications of which 

 thev were susceptible by means of the arbitraria formula ; for though 

 every arbitraria actio was an arbitrium, every arbitrium was not an 

 arbitraria actio. 



(Just. Institut. lib. iv. tit. 6 ; Heineccii, Elem. Jur. Civ. 1181, 

 1198 ; Idem, Antic/. Bum, iv. 6, 36; Abdy, On the Roman Law of Civil 

 Procedure, chaps, iii. iv.) 



ARBITRATION is the adjudication upon a matter in controversy 

 by private individuals selected and appointed by the parties. This 

 mode of settling differences is very frequently resorted to as a species 

 of amicable litigation, and a means of avoiding the delay and expense 

 of a lawsuit, and the publicity of a trial. It has the further advantage 

 of providing an efficient tribunal for the decision of many causes 

 such, for instance, as involve the examination of long and complicated 

 accounts, which our ordinary courts of law are, from their mode 

 of proceeding and the want of proper machinery, incompetent to 

 investigate. 



The person appointed to adjudicate is called an arbitrator, or referee. 

 The matter on which he is appointed to adjudicate is said to be referred 

 or submitted to arbitration. His judgment or decision is called an 

 arbitrament, or, more usually, an award. 



Any matter actually in controversy between private persons may be 

 referred to arbitration. By the llth section of the Common Law 

 Procedure Act, 1854, provision has been made in the case of pro- 

 spective agreements to refer any differences which may hereafter arise. 

 By that section, whenever, in spite of such agreement to refer, an 

 action or a suit in equity has been commenced, power is given to the 

 court, on the application of the defendant or defendants after appear- 

 ance and before plea or answer, if satisfied that there is no reason why 

 such reference to arbitration as agreed on should not be made, and 

 that the defendant is ready and willing to concur in all acte necessary 

 for causing such matters to be decided by arbitration, to make a rule 

 or order staying all proceedings in such action or suit, on such terms 

 as the court may think fit. No injury can be the subject of an arbi- 

 tration, 'unless it is such as may be a matter of civil controversy 

 lettcten the parties : a felony, for instance, which is a wrong, not to the 

 party injured merely but to society in general, is incapable of being 

 referred. 



There are no particular qualifications required for an arbitrator. In 

 matters of complicated accounts, mercantile men are usually preferred. 

 In other cases, it is generally considered advisable to appoint barristers, 

 who, being accustomed to judicial investigations, are able to estimate 

 the evidence properly, to confine the examination strictly to the points 

 in question, and, in the making of the award, to avoid those informalities 

 for which it might afterwards be set aside. Both time and expense 

 are thus saved by fixing on a professional arbitrator. Any number of 

 persons may be named as arbitrators : if the number is even, it is 

 usually provided that, if they are divided in opinion, a third person 

 shall be appointed, called an umpire, to whose sole decision the matter 

 is then referred. [UMPIRE.] 



A dispute may be referred to arbitration, either 1. When there 

 is an action already pending between the parties relating thereto, or 

 '2. When there is no such action. 



1. In the former case, the parties to the action, if mi jtcrig, are in 

 general competent to submit to arbitration. The reference may be 

 mode at any stage of the proceedings ; if an action is pending, it is 

 effected by a rule of the court in which the action is brought, or by a 

 judge's order, in which case it may be made a rule of court even after 

 the submission has been revoked by one of the parties ; if at the trial, by 

 an order of JSiiA Prius, with the consent of both parties by their counsel 

 and attorneys. The usual mode of proceeding then is for the parties 

 to have the jury sworn, and to consent that a verdict shall be given 

 for the plaintiff for the damages kid in the declaration, subject to the 

 award of the arbitrator. This is essentially necessary in bailable 

 actions, otherwise the bail would be discharged by the reference. By 

 the 17 ft 18 Viet. c. 125, among other important alterations on the 

 subject of arbitration, the third and sixth clauses have given extended 

 powers to the judge engaged upon the trial of any issue of fact ; by 

 the third section the court or judge, upon the application of either 

 party at any time after the issuing of the writ, may, if satisfied that 

 the matter in dispute consists wholly or in part of accounts, order it 

 to be referred to arbitration ; and by the sixth clause, if it shall appear 



to him that the questions arising thereon involve matter of account 

 which cannot conveniently be tried before him, he may, at his discre- 

 tion, order it to be referred to arbitration either as to all or part of the 

 matters in dispute. 



The person named as arbitrator is not bound to accept the office, 

 nor, having accepted, can he be compelled to proceed with it. In 

 either case, if the arbitrator refuses or ceases to act, the reference is at 

 an end, unless the contingency has been provided for in the submission, 

 or unless both parties consent to appoint some other person as arbi- 

 trator in his stead. 



Previously to the statute 3 & 4 Will. IV. c. 42, the authority of the 

 arbitrator was revocable by either party at any time before the award 

 was made ; but by that statute it is declared that the authority of an 

 arbitrator cannot be revoked by any of the parties without the leave of 

 the court or a judge : but it is still determined by the death of any of 

 the parties, unless a clause to obviate this is inserted in the submission ; 

 and if one of the parties is a single woman, her marriage, being in law 

 a civil death of all her rights, will have the same effect. The order of 

 reference usually provides that the award shall be made within a certain 

 period; and if the arbitrator lets the day slip without making his 

 award, his authority ceases, but a clause has usually been inserted to 

 enable the arbitrator to enlarge the term : and now also by 17 & 18 

 Viet. c. 125 15, where an arbitrator is acting under any document 

 or compulsory order of reference, he is directed to make his award 

 within three months after the period of his appointment, unless the 

 parties themselves have by consent enlarged the term for making the 

 award, or the court or any judge thereof have from time to time en- 

 larged the term. The authority of an arbitrator likewise ceases as 

 soon as he has made or declared his award; but by statute 17 & 18 

 Viet. c. 125 8, power is given to the court or judge at any time, 

 and from time to time, to remit the matters referred to the recon- 

 sideration and redetermination of the arbitrator. 



When the arbitrator has accepted his office, he fixes the time and 



Elace for the parties to appear before him. Each of them furnishes 

 ini with a statement of his case, which is usually done by giving him 

 a copy of the briefs on each side ; and on the day appointed he pro- 

 ceeds to hear them (either in person, or by their counsel or attorneys), 

 and to receive the evidence on each side, nearly in the same manner as 

 a judge does at an ordinary trial : he is' also invested by the order of 

 reference with a power of examining the parties themselves if he think 

 fit ; but as by recent legislation the parties to suits, actions, or other 

 proceedings in courts of law, are not merely competent, but are coni- 

 pellable, to give evidence for or against each other, it would appeal- to 

 be the arbitrator's duty to examine the parties if required, even, it 

 would seem, in cases where no action is pending. 



No means existed of compelling the attendance of witnesses, or the 

 production of documents, before an arbitrator, until the statute 3 & 4 

 Will. IV. c. 42, authorised the court or a judge to make an order to 

 that effect ; disobedience to which order, if served with proper notice 

 of the time and place of attendance, becomes a contempt of court. 

 The witnesses, thus compelled to attend, are entitled to their expenses 

 in the same manner as at a trial. And where the order requires the 

 witnesses to be examined upon oath, the arbitrator is by the same 

 statute authorised to administer an oath or affirmation, as the case may 

 require ; and any person giving false evidence may be indicted for 

 perjury. 



The extent of an arbitrator's authority depends on the terms of the 

 reference : it may either be confined to the action pending between 

 the parties, or it may include any other specified grounds of dispute, 

 or all disputes and controversies whatever existing between them at 

 the time of the reference. Where the matters referred to him are 

 specified, it is his duty to decide upon them all : where they are not 

 specified, it is his duty to decide upon as many as are laid before him. 

 In no case is an arbitrator authorised to adjudicate upon anything not 

 in fact comprehended in the reference ; such, for instance, as any 

 claims or disputes which may have arisen after the reference was made, 

 or, where the reference is specific, anything not expressly included in 

 it. As nothing can be referred by the parties but the differences 

 existing between themselves, an arbitrator can have no authority to 

 bind any one who is not a party to the reference. 



An arbitrator being a judge appointed by the parties themselves for 

 the final settlement of their differences, his decision on the merits of 

 the ease submitted to him is conclusive ; the question is set at rest, 

 and never can be agitated between them again. But if his award be 

 partially or illegally made, the superior courts have the power of 

 setting it aside, upon application being made within the first seven 

 days of the term next following the publication of the award to the 

 parties. This happens either, 1. Where the award is not co-extensive 

 with the arbitrator's authority ; or 2. Where it appears on the face of it 

 to proceed on .mistaken views of law, or to fail in some of the qualities 

 required for its validity [AWARD] ; or, 3. Where any misconduct has 

 been committed. This may happen in two cases : 1st, Where the 

 arbitrators have been guilty of corruption or other misbehaviour, as, if 

 they have proceeded to arbitrate without giving notice of the meeting, 

 have improperly refused to receive evidence, or committed any other 

 gross irregularity in practice ; 2dly, Where it is proved that the 

 arbitrator has been misled by fraud used by either of the parties. 

 Where an award is absolutely void, as where it is made after the 



