481 



ARBITRATION. 



ARBITRATION. 



433 



Their authority also ceased by what we should call an implied revoca- 

 tion, if the subject matter of the reference perished, or if the parties 

 settled the dispute in some other way, referred it to other arbitrators, 

 or proceeded with an action respecting it. The death of the arbitrator, 

 too, put an end to the reference, fi>r the principle on which the appoint- 

 ment of arbitrators rested, was that the arbitration was a personal 

 matter, and did not pass to a suece.-isor. Besides the cases hi which his 

 authority was thus at an end, an arbitrator could not be compelled to 

 proceed with the reference if he could allege any sufficient excuse, as, 

 for instance, that the submission was void, that there had arisen a 

 deadly enmity between him and one of the parties, or that he had been 

 prevented by ill-health, or by an appointment to some public office in 

 the state ; but all these excuses were referred to the praetor for his 

 consideration, to whose jurisdiction belonged all questions connected 

 with the reference. 



The extent of the arbitrator's authority depended upon the terms of 

 the submission, which might be either special or general. The sub- 

 mission usually appointed a certain day for the making of the award, 

 but power was generally given to the arbitrators to enlarge the time if 

 necessary, but they could not give then- award on an earlier day without 

 the consent of the parties. On the day originally appointed, or on that 

 subsequently fixed by the arbitrators, they formally pronounced then- 

 award, and (unless it hail been agreed otherwise) the parties were 

 required to be present, and if one of them failed to appear, the award 

 was not binding, but the party who had thus prevented the arbitration 

 being completed incurred the penalty specified in the submission. If 

 there were several arbitrators, all were bound to attend : they were not, 

 however, required to be unanimous, but the opinion of the majority 

 prevailed ; and if they were equally divided, it is said that they might 

 of their own authority appoint an umpire, and, in case of their refusing, 

 the praetor hail the power of compelling them to do so. When their award 

 was pronounced, their authority expired, and they could neither retract 

 nor alter their decision. 



The award when made had not the authority of the sentence of a 

 court of justice, nor was there any direct method of enforcing the 

 performance of it ; but as the parties had bound themselves to abide 

 by the arbitrator's decision, if either of them refused to perform it, or 

 in any other way committed a breach of his engagement, he was liable 

 to an action; and however unsatisfactory the award might appear, 

 there was no appeal to any other court. If, indeed, the arbitrators had 

 been guilty of corruption, fraud or misconduct, or if they had not 

 adhered to their authority, their award was not binding : there was, 

 however, no direct method of setting it aside ; but if an action was 

 brought to enforce the award, such misconduct might be insisted on as 

 an answer to it. (Heineccii ' Elem. Jur. Civ.' part i. 531-543 ; Voetii 

 ' Commentarius ad Pandect.' vol. i. pp. 290-300. 



The Roman law was, with Borne alight modifications, adopted in 

 France (Domat's ' Civil Law,' jiart i. book i. tit. 14 ; and ' Public Law,' 

 book ii. tit. 7 ; Pothier, ' Trait^ de Procedure Civile,' part ii. chap. iv. 

 art. 2), and notwithstanding the changes which have been introduced 

 from time to time, it still forms the groundwork of the system. There 

 are at present three kinds of arbitration ; the first is voluntary arbitra- 

 tion, which is founded, as in the Roman law, upon an agreement of the 

 parties. The mode of proceeding in this case i.i treated of at con- 

 siderable length, and with minute attention to details, in the ' Code de 

 Procedure Civile,' art. 1003-1028. 



The ordinary courts exercise a much greater control over the pro- 

 ceedings in references than they do in England, but they have never 

 had the power which the magistrates had at Rome of compelling a 

 person who had once undertaken the office of arbitrator to proceed 

 with it ; nevertheless, if he fail to do so, without a sufficient excuse, 

 he is liable to an action for the damages occasioned by his neglect of 

 duty. In order to understand clearly the peculiarities of the French 

 system, it will be necessary to bear hi mind that the proceedings before 

 the arbitrators are much more nearly on the same footing with the 

 regular administration of justice than is the case with us, and that 

 many of the details are merely adopted from the practice of the ordi- 

 nary courts : for instance, there is a system of local judicature esta- 

 blished in France, and as the judge is resident in the neighbourhood of 

 the suitors, it has been found necessary in order to guard against 

 partiality or the suspicion of partiality to allow either party to refuse 

 or.challenge a judge, as in England they would challenge a juryman ; 

 and in the same manner an arbitrator may be challenged, but this can 

 only be in respect of some objection which has arisen since his appoint- 

 ment, for the very act of appointing him is an implied waiver of any 

 objections which might have existed up to that time ; but if there is 

 "Mini fur challenge, the arbitrator's authority cannot be revoked 

 without the consent of both parties. 



An arbitrator's decision or award is considered as a judgment, and all 

 the formalities required for the validity of a judgment must therefore 

 be observed ; but execution of it cannot be enforced until it has re- 

 ceived the sanction of the public authority ; this sanction is con- 

 ferred by a warrant of execution granted by the president of the tri- 

 bunal within the jurisdiction of which the cause of the action arose : 

 the granting of this warrant is called the homologation of the award. 

 If the arbitrator has not strictly pursued his authority, the warrant of 

 execution may be superseded, and the award declared null by an appli- 

 .11 to the tribunal from which tlie warrant issued. Besides this, 



AHTS AND SCI. DIV. VOL. t. 



the same modes of obtaining relief may be resorted to in the case of 

 an award, as in that of any other judgment. If any misconduct or 

 irregularity has occurred, the award may be set aside by what is called 

 a requite cicile ; and even where nothing can be alleged against the 

 formal correctness of the proceedings, if one of the parties be dis- 

 satisfied with the judgment, he is at liberty (unless the right has been 

 expressly renounced) to appeal to a superior court : when this happens, 

 the whole case is re-opened before the tribunal of appeal, and the 

 merits investigated anew ; and when an award is brought under the 

 consideration of a court in any of these ways, any final judgment which 

 the court may have pronounced may be brought before the Court of 

 Cassation, and there quashed if erroneous in point of law. 



The second kind, which is called 'compulsory arbitration,' and 

 treated of in the ' Code de Commerce,' div. i. tit. iv. art. 53-64, is where 

 the parties are by law required to submit to a reference, and arc pre- 

 cluded from having recourse to any other mode of litigation. The 

 ancient laws of France introduced this species of arbitration very ex- 

 tensively for the settlement of disputes respecting either mercantile 

 transactions or family arrangements ; but by the codes now in force, it 

 is admitted in one case only, that of differences between partners. 

 Over such differences the ordinary courts have no jurisdiction what- 

 ever in the first instance, even by the consent of the parties ; but the 

 commercial courts exercise a superintending and controlling authority 

 over the proceedings. Thus the arbitrators may either be appointed 

 by the deed of partnership, or afterwards nominated by the partners ; 

 but if, when a dispute has arisen, one of the partners refuses to nomi- 

 nate an arbitrator, or nominates an improper person, the commercial 

 court, upon application made by the other partner, will appoint one for 

 him ; but the authority of the person so appointed will lie superseded, 

 if at any time before he enters upon his functions an arbitrator is duly 

 nominated by the partner in delay : and when the firm consists of 

 several partners, upon an application being made by any one of them, 

 the court, after taking into consideration how far their respective inte- 

 rests are identical and how far they are conflicting, will regulate accord- 

 ingly the number of arbitrators to be appointed by each. The sen- 

 tence of the arbitrators, howsoever appointed, is decided by the majority 

 of votes. 



The authority of the arbitrators in this case partakes more of the 

 judicial character than it does in voluntary arbitration ; they are con- 

 sidered as being substituted for the ordinary commercial tribunal ; their 

 sentence is accordingly registered among the records of the court ; and 

 for the same reason also they stand upon the same footing with the 

 court, both in the power of sentencing the parties to imprisonment, 

 and, unless the right has been renounced by the parties, in the liability 

 of appeal from their decision. (' Code de Commerce,' art. 51-64.) 



Besides the compulsory arbitration in matters of partnership, the 

 parties who enter into any engagement are at liberty to stipulate that 

 all differences arising between them shall be submitted to arbitration. 

 This stipulation is compulsory, and the court will, if requisite, appoint 

 an arbitrator ex officio for the party who should refuse to do so ; but it 

 is not exclusive, so as to take away the jurisdiction of the ordinary 

 tribunals ; it may be rescinded by the consent of the parties, or waived 

 by their acts. 



The third kind of arbitration is distinguished by the appellation of 

 the persons to whom the reference is made ; they are not called, as in 

 the other cases, arbitres, but aimabUs eompotiteun, or, in the older law, 

 arbitrateurs. The peculiar characteristics of this amicable composition 

 are, that the referees are not, as in other cases, bound to adhere 

 rigorously to the rules of law, but are authorised to decide according to 

 what they conceive to be the real merits of the case ; and that in the exer- 

 cise of this discretion their decision is final, and without appeal to any 

 other tribunal. In case of irregularity or misconduct, the award may 

 be set aside by the judgment of a court, but this judgment cannot be 

 further questioned in the Court of Cassation. This modification of the 

 general law may be introduced into all arbitrations, whether volun- 

 tary or compulsory. (See Pardessus, ' Cours de Droit Commercial,' 

 1386-1419.) 



In Denmark and its dependencies, Court* of Arbitration or Conciliation 

 were established about the year 1795, and are said to have been attended 

 with extremely beneficial effects. In Copenhagen the court is composed 

 of one of the judges of the higher courts of judicature, one of the 

 magistrates of the city, and one of the representatives of the com- 

 monalty. In other towns, the chief magistrate proposes five or six of 

 the more respectable citizens for arbitrators, of whom the commonalty 

 of the town elect two, advocates being excluded from the list of candi- 

 dates. In the country, the bailiffs or sheriffs are the arbitrators, and 

 generally act as such personally ; but in extensive districts they have 

 authority to appoint deputies. All matters of civil litigation may be 

 referred to these official arbitrators, who in the country sit once in 

 every week, and in the capital as often as occasion requires. It appears 

 that, after investigating a disputed case, the arbitrators in these tribunals 

 have no power to cotnpel the parties to settle their differences in the 

 manner proposed by the court. If they agree, the terms of the arrange- 

 ment are registered, and it has then the force of a judicial decree ; if, 

 after stating their differences and hearing the suggestions of the arbi- 

 trators, the parties still disagree, no record is made of the proceeding, 

 and they are at liberty to discuss their respective rights in the ordinary 

 courts of justice. It is necessary, however, that before a suitor com- 



