ARBITRATION. 



ARBITRATION. 



Minority of the arbitrator ha* oaased. H is not in general pmniary to 

 wt it. aside, a* it is incapable of being enforced. 



Won the amid hu been made and delivered, if one of the parties 

 rafmes to comply with it. the other may bring n action against him 

 on Uw award. But the most prompt and efficient remedy is to apply 

 to the court for an attachment, grounded on the contempt of court 

 which he ban bern guilty of by disobeying the order of reference, lint 

 then the award must contain an order for the arbitrator to pny the 

 money or do the act awarded, for otherwiao the not doing of it will lie- 

 no loach of the rule, and the court cannot grant the attachment 

 [ATTACBMEXT, CONTEMPT.] In opposing thi* application, the other 

 party may insist on any objection apparent on the award itself ; but if 

 there were any other objections affecting ita validity, and he him neg- 

 lected to apply to the court to aet it aside within tliv time fixed by 

 them fur that purpose, it is too late for him to avail himself of them. 

 It would appear, from some recent rasni, that where there is a doubt 

 as to the validity of an award, the court will neither enforce it by 

 attachment nor aet it aside, but leave the party to his remedy by 



Whim, in the original action, a verdict has been taken, subject to an 

 award or certificate, the party in whose favour the award is afterwards 

 nude, or certificate granted, may have the postea indorsed on the 

 Nii Prius record ; and may, without any personal service of the award, 

 sign judgment and sue out execution, without any previous application 

 to the court, unless the reference is of the cause and all matters in 

 difference, in which case the defendant is allowed the whole of the term 

 after the *"**!' "g of the award to move to set it aside, until which time 

 the award cannot be enforced. 



J. Where no action has been commenced, the parties may refer their 

 differences to arbitration by mutual agreement, either by mutual bonds 

 of submission, or by deed, or by agreement not under seal, or by 

 parol (but a parol or verbal submission cannot be made a rule of court, 

 even with the consent of the parties). In these instruments it is <>f 

 importance that the consent clause under 9 & 10 Will. HI. c. !,">, $ 1 

 (referred to below) be introduced in order that the submission may be 

 made a rule of court. Every person capable of making a disposition of 

 his property may be party to such an agreement : no peculiar form is 

 necessary for its validity. 



Whether the submission be verbal or in writing, it is in the power 

 of either of the parties to revoke it, and thus put an end to the autho- 

 rity of the arbitrator at any time before the award is made. In order 

 to prevent this, it is usual for the parties to moke it a part of their 

 agreement, that they will abide by and perform the award ; and if 

 after this either of them should, without sufficient reason, revoke his 

 submission, or otherwise prevent the arbitrator from proceeding with 

 the arbitration, he will be liable to an action for the breach of his 

 agreement 



The time for making the award may be enlarged, if there be a clause 

 to that effect in the agreement of submission, or if all the parties 

 consent to it, but not otherwise. But now, by 17 & 18 Viet c. 125, 15, 

 the parties may, by consent in writing, enlarge the term for making 

 the award ; and if no period for the enlargement be mentioned, it shall 

 be deemed to be an enlargement for one month. There are no means 

 of compelling the attendance of witnesses, nor has the arbitrator the 

 power of administering an oath ; but the witnesses and if they have 

 agreed to be examined the parties are sworn i-itlin U-tore a judge, or, 

 in the country, before a commisxioner. They may, however, be 

 examined without having been swom, if no objection is made to it at 

 the time. 



The courts cannot enforce performance of the award by attachment ; 



the only remedy is an action on the award itself, or rather nn the 

 agreement of submission ; unless where the submission being in writing 

 either contains the consent clause above mentioned, or does not contain 



unless where the submission being in writing 

 it clause above mentioned, or does not contain 

 that the parties intended it should not be made a 

 rule of court : in which case the party in whose favour the award is 

 made may have his remedy upon it by attachment The defendant 

 may insist on any objection apparent on the award itself, but h.-n- 

 there is any other ground fur setting it aside, his only remedy in by a 

 bill in equity. 



Thus it will be seen that where the reference is by agreement, many 

 inconveniences occur, particularly from the deficiency of the remedies ; 

 but the legislature has enabled parties to put such references on the 

 same footing as those which are made where a cause is depending, by 

 enacting, by * 10 WilL III. c. 16, 1 1, that they may agree that their 

 submission (which it is helrl iu this cose must be in writing) shall be 

 made a rule of any of her majesty's courts of record (and in practice 

 courts of equity have long enjoyed concurrent jurisdiction,), and insert 

 snob agreement in their submission ; and this submission may at any 

 time afterward* lie made a rule of court, by producing the affidavit of 

 iu execution made by a witness thereto. Moreover, by the stat 1 7 * 18 

 Viet c. 125, | 17, there is a further pn.vii.ion on this subject, by 

 which any agreement or submission in writing may be made a rule 

 of court, unlem a contrary intention sp|>ear in such agreement or 

 submission. The provisions of the statutes 8 & 4 Win. IV. c. 41, and 

 17 A 18 Viet c. 125, apply as well to arbitrations mode in pursuance of 

 suoh agreement) of submission, as to those made by order of court ; 

 and the law is the same in both cams, except in some few points of 

 practice. 



The settlement of disputes by arbitration seems to have enjnynd in 

 all ages a high degree of public favour. Aristotle, to give an instance 

 of a metaphor that is appropriate without being obvious, quotes a 

 passage from Archytw, in which he coni|>area an arbitrator to an altar, 

 as being a refuge for the injured. (Arist ' Rhetor.' lib. iii. ch. xi.) 

 There were at Athens two modes of proceeding which passed by the 

 name of arbitration the Greek word fr which is dueta (Sfcura). In 

 the first of these the proceedings were of two kinds, first, when two 

 parties agreed by a regular contract to refer a matter in dispute to a 

 judge or judges selected by them ; secondly, when a cause was brought 

 before a public arbitrator in regular course of Uw. Except in one 

 point, that of non apjxnl, which seems to have been the rule applicable 

 to the former of these two kinds, there was no difference between them ; 

 the arbitrator in each case being subject to the same liabilities, and 

 standing in the same relation to the parties, and the form of proceeding 

 being the same (Dem. ' c. Meid.'). The arbitrators appear to have con- 

 stituted what in modem jurisprudence would be called a Court of 

 Reconcilement. A certain number of persons, of a specified age, were 

 annually chosen from each tribe, as official referees ; and from among 

 these the arbitrators to decide upon each particular case were after- 

 words also chosen (Petit ' Leges AtticiC,' p. 345 ; Dem. ' c. Meid. ; ' 

 HiM.ddi de Rerum jiidicatarum auctoritate,' lil>. ii. e. iv. s. iv..) and 

 were then bound to act under pain of infamy. They sat in a publii 

 and their judgments were subscribed by the archons. (Petit p. 34(5.) 

 An appeal lay from their decision to the ordinary courts ; and sometimes 

 the arbitrator referred the cause to their judgment nt mn <, without pro- 

 nouming any sentence of his own. (' Heraldi dc Rer. judic. am tor.' 

 lib. ii. c. iv. s. iv.) In either case, oil the writings connected with the 

 trial were sealed up and delivered to the court before which the cause 

 was brought And it is said that originally no action could be intro- 

 duced into the ordinary courts without having been first carried before 

 the Court of Arbitrators. (Petit, p. 345 ; Pollux, viii. 10.) Their 

 jurisdiction, however, was confined to Athenian citizens, and they took 

 no cognizance of suits in which the sum in dispute was less than ten 

 drachma 1 , such smaller actions being disposed of in a summary manner 

 by a special tribunal. (Ibid.) The litigant parties paid the expenses 

 of the arbitration. (Boeckh, ' Public CEcon. of Athens,' i. 316, English 

 Trans.) When their year of office expired, the arbitrators were liable 

 to be called on for an account of their conduct, and if found guilty of 

 corruption or misconduct, were punished with infamy. 



In the other mode of proceeding, which was strictly in accordance 

 with the definition which we have given of arbitration, the parties were 

 at liberty to refer their differences to whomsoever they chose, and such 

 referees were therefore distinguished by the title aiprroi, who were 

 not, however, selected from the ditctetto of the tribe*. The submission 

 was generally mode by a written agreement signed by the parties, 

 which frequently contained an engagement by third persons to become 

 sureties for its performance. (Demosthenes's 'Speech against Apa- 

 turiu8,'4 chap. 4.) The arbitrator was not required to adhere to a 

 rigid interpretation of the law, but might decide according to the 

 individual merits of the case before him. (Arist. ' Hhet.' i. 14.) There 

 lay no appeal from his award to any other tribunal whatever. Though 

 on instance is to be found in Demoeth. (' c. Apat') of a party having 

 persuaded his opponent to leave a matter to the arbitration of three 

 persons, anil afterwards finding that they were likely to decide against 

 himself, going before one of the public arbitrators. (See the law quoted 

 by Demosthenes against Meidias, chap. 20.) On the subject of the 

 Uiictettt, see ' Dictionary of Qreek and Roman Antiquities,' art Diic- 



tette, and Hudtwalcher ' Ueber die offentlichen mid privat Schieds- 

 richtvr Diiiteten in A then, und den Process vor denselU'ii.' 



The Roman law upon this subject is much better understood, and in 

 of infinitely greater importance. Its influence has extended over the 

 whole of Europe, and even in our own country it is evident that refe- 

 rences made by virtue of a mutual agreement apparently the first 

 species of arbitration known in our law are mainly founded upon the 

 doctrines contained in the ' Digests ' of Justinian, HI i. iv. tit. 8. The mly 

 mode of referring a matter to arbitration in the Roman law, was by an 

 agreement called compromiatuit, which contained the names of the 

 arbitrators (hence called arbilri rom/>rcni'an'i), the matters intended 

 to be referred, and an undertaking by both parties to abide by the 

 award, or in default thereof to pay to the other a certain sum of money 

 as a penalty. The rule which forbids matters of public interest t be 

 MI) .nutted to tin- judgment of a private referee, was not confined in it* 

 operation to criminal prosecutions and penal actions only, but extended 

 to these arbitrations, by allowing the arbitrator the power of refusing 

 to entertain (m-inr mm rnin/ir/lnli/r rmlmlinm ilirrre), any question 

 affecting the civil condition (*M/*> of any Individual, his freedom, for 

 instance, as well as by withdrawing from hia decixion all questions 

 arising out of the ariiona y></;>/ar, and out of actions in which on 

 adverse verdict would result in infamin. 



The persons named as arbitrators were not bound to undertake the 

 office, but having once done so, they might, by an application to the 

 praetor, INJ compiled to go through with it Their authority was, 

 r, terminated by the death of cither of the parties, unless his 

 heirn were included in the submission ; by the expiration of the time: 

 limited for the decision ; by either party having broken the agreenn nt , 

 and so incurred the penalty; or by his becoming insolvent, nml hi* 

 property in consequence of a canto tivnorum being vested in his creditors. 



