Arbitration

Arbitration (Lat. arbitrari, to examine or judge), a term derived from the nomenclature of Roman law, and applied to an arrangement for taking, and abiding by, the judgment of a selected person in some disputed matter, instead of carrying it to the established courts of justice. In disputes between states, arbitration has long played an important part (see Arbitration, International). The present article is restricted to arbitration under municipal law; but a separate article is also devoted to the use of arbitration in labour disputes (see Arbitration and Conciliation).

Roman Law.—Arrangements for avoiding the delay and expense of litigation, and referring a dispute to friends or neutral persons, are a natural practice, of which traces may be found in any state of society; but it is from Roman Law that we derive arbitration as a system which has found its way into the practice of European nations in general, and has even evaded the dislike of the English common lawyers to the civil law. The praetor, who had the arrangement of all trials or private suits and the formal appointment of judges for them, referred the great majority of such cases for decision to a judge who was styled usually judex but sometimes arbiter. The phrase judex arbiterve frequently occurs. The judex and the arbiter had the same functions, and apparently the only express basis for the distinction between the two words is that there might be several arbitri but never more than one judex in a cause. The term arbiter seems, however, to have been sometimes used when the referee had a certain degree of latitude, and was entitled to give weight to equitable considerations (Roby, Inst. Rom. Law, i. 318; Hunter, Roman Law (1897), p. 48; and see Cicero pro Rosc. Com. 4, ss. 10-13; Gaius, Inst. iv. s. 163). Apart from this system of compulsory reference by the praetor, Roman law recognized a voluntary reference (compromissum) to an arbiter or arbitrator by the parties themselves. The arbitrator ex compromisso sumptus had no coercive jurisdiction, and in order to make his award effective, the agreement of reference was confirmed by a stipulation and usually provided a penalty (poena, pecunia compromissa) in case of disobedience. The sum agreed on by way of penalty might be either specific or unliquidated, e.g. “whatever the matter may be worth” (Dig. iv., tit. 8, s. 28). The arbitrator ex compromisso sumptus, like the judicial arbiter, was expected to take account of equitable considerations in coming to a decision. If three arbitrators were appointed, a majority could decide; in case of two being appointed and not agreeing, the praetor would compel them to choose a third (Roby, ubi sup., i. 320, 321; Dig. iv., tit. 8, s. 17). As in English law, it was necessary that the award should cover all the points submitted (Dig. iv., tit. 8, s. 21).

Law of England.—The law of England as to arbitration is now practically summed up in the Arbitration Act of 1889. This statute is an express code as to proceedings in all arbitration, but “criminal proceedings by the crown” cannot be referred under it (ss. 13, 14). The statute subdivides its subject-matter into two headings. I. References by consent out of court; II. References under order of court.

(1) Here the first matter to be dealt with is the submission. A submission is defined as a written agreement (it need not be signed by both parties) to submit present or future differences to arbitration, whether a particular arbitrator is References by consent of the court. named in it or not. The capacity of a person to agree to arbitration, or to act as arbitrator, depends on the general law of contract. A submission by an infant is not void, but is voidable at his option (see Infant). A counsel has a general authority to deal with the conduct of an action, which includes authority to refer it to arbitration, but he has no authority to refer an action against the wishes of his client, or on terms different from those which his client has sanctioned; and if he does so, the reference may be set aside, although the limit put by the client on his counsel’s authority is not made known to the other side when the reference is agreed upon (Neale v. Gordon Lennox, 1902, A.C. 465). The committee of a lunatic, with the sanction of the judge in lunacy, may refer disputes to arbitration. As an arbitrator is chosen by the parties themselves the question of his eligibility is of comparatively minor importance; and where an arbitrator has been chosen by both parties, the courts are reluctant to set the appointment aside. This question has arisen chiefly in contracts, for works, which frequently contain a provision that the engineer shall be the arbitrator, in any dispute between the contractor and his own employer. The practical result is to make the engineer judge in his own cause. But the courts will not in such cases prevent the engineer from acting, where the contractor was aware of the facts when he signed the contract, and there is no reason to believe that the engineer will be unfair (Ives and Barker v. Willans, 1894, 2 Ch. 478). Even the fact that he has expressed an opinion on matters in dispute will not of itself disqualify him (Halliday v. Hamilton’s Trustees, 1903, 5 Fraser, 800). So, too, where a barrister was appointed arbitrator, the court refused to stop the arbitration on the mere ground that he was the client of a firm of solicitors, the conduct of one of whom was in question (Bright v. River Plate Construction Co., 1900, 2 Ch. 835).

Under the law prior to the act of 1889 (a) an agreement to refer disputes generally, without naming the arbitrators, was always irrevocable, and an action lay for the breach of it, although the court could not compel either of the parties to proceed under it; (b) an agreement to refer to a particular arbitrator was revocable, and if one of the parties revoked that particular arbitrator’s authority he could not be compelled to submit to it; (c) when, however, the parties had got their tribunal fixed, and were proceeding to carry out the agreement to refer, the act 9 and 10 Will. III. c. 15 provided that the submission might be made a rule of court, a provision which gave the court power to assist the parties in the trial of the case, and to enforce the award of the arbitrators; (d) the statute 3 and 4 Will. IV. c. 42 (s. 39) put an end to the power to revoke the authority of a particular arbitrator after the reference to him had been made a rule of court; and—a liability which existed also under the act of 9 and 10 Will. III. c. 15—any person revoking the appointment of an arbitrator after the submission had been made a rule of court might be attached. The Arbitration Act 1889 provides that a submission, unless a contrary intention is expressed in it, is irrevocable except by leave of the court or a judge, and is to have the same effect in all respects as if it had been made an order of court. The object of this enactment was to save the expense of making a submission a rule of court by treating it as having been so made, and it leaves the law in this position, that while the authority of an arbitrator, once appointed, is irrevocable, there is no power—any more than there was under the old law—to compel an unwilling party to proceed to a reference, except in cases specially provided for by sections 5 and 6 of the act of 1889. The former of these sections deals with the power of the court, the latter with the power of the parties to a reference, to appoint an arbitrator in certain circumstances. Section 5 provides that where a reference is to be to a single arbitrator, and all the parties do not concur in appointing one, or an appointed arbitrator refuses to act or becomes incapable of acting, or where the parties or two arbitrators fail, when necessary, to appoint an umpire or third arbitrator, or such umpire or arbitrator when appointed refuses to act, or becomes incapable of acting, and the default is not rectified after seven clear days’ notice, the court may supply the vacancy. Under section 6, where a reference is to two arbitrators, one to be appointed by each party, and either the appointed arbitrator refuses to act, or becomes incapable of acting, and the party appointing him fails, after seven clear days’ notice, to supply the vacancy, or such party fails, after similar notice, to make an original appointment, a binding appointment (subject to the power of the court to set it aside) may be made by the other party to the reference. The court may compel parties to carry out an arbitration, not only in the above cases by directly appointing an arbitrator, &c., or by allowing one appointed by a party to proceed alone with the reference, but also indirectly by staying any proceedings before the legal tribunals to determine matters which come within the scope of the arbitration. Where the agreement to refer stipulates that the submission of a dispute to arbitration shall be a condition precedent to the right to bring an action in regard to it, an action does not lie until the arbitration has been held and an award made, and it is usual in such cases not to apply for a stay of proceedings, but to plead the agreement as a bar to the action (Viney v. Bignold, 1887, 20 Q.B.D. 172). The court will refuse to stay proceedings where the subject-matter of the litigation falls outside the scope of the reference, or there is some serious objection to the fitness of the arbitrator, or some other good reason of the kind exists.

An arbitrator is not liable to be sued for want of skill or for negligence in conducting the arbitration (Pappa v. Rose, 1872, L.R. 7 C.P. 525). When a building contract provides that a certificate of the architect, showing the final balance due to the contractor, shall be conclusive evidence of the works having been duly completed, the architect occupies the position of an arbitrator, and enjoys the same immunity from liability for negligence in the discharge of his functions (Chambers v. Goldthorpe, 1901, 1 Q.B. 624). An arbitrator cannot be compelled to act unless he is a party to the submission.

An arbitrator (and the following observations apply mutatis mutandis to an umpire after he has entered on his duties) has power to administer oaths to, or take the affirmations of, the parties and their witnesses; and any person who wilfully and corruptly gives false evidence before him may be prosecuted and punished for perjury (Arbitration Act 1889, sched. i. and s. 22). At any stage in the reference he may, and shall if he be required by the court, state in the form of a special case for the opinion of the court any question of law arising in the arbitration. The arbitrator may also state his award in whole or in part as a special case (ib. s. 19), and may correct in an award any clerical mistake or error arising from an accidental slip or omission. The costs of the reference and the award—which, under sched. i. of the act, must be in writing, unless the submission otherwise provides—are in the arbitrator’s discretion, and he has a lien on the award and the submission for his fees, for which—if there is an express or implied promise to pay them—he can also sue (Crampton v. Ridley, 1887, 20 Q.B.D. 48). An arbitrator or umpire ought not, however, to state his award in such a way as to deprive the parties of their right to challenge the amount charged by him for his services; and accordingly where an umpire fixed for his award a lump sum as costs, including therein his own and the arbitrators’ fees, the award was remitted back to him to state how much he allotted to himself and how much to the arbitrators (in Re Gilbert v. Wright, 1904, 20 Times L.R. 164). But in the absence of evidence to show that the fees charged by arbitrators or umpire are extortionate, or unfair and unreasonable, the courts will not interfere with them (Llandrindod Wells Water Co. v. Hawksley, 1904, 20 Times L.R. 241).

If there is no express provision on the point in the submission, an award under the Arbitration Act 1889 must be made within three months after the arbitrator has entered on the reference, or been called upon to act by notice in writing from any party to the submission. The time may, however, be extended by the arbitrator or by the court. An umpire is required to make his award within one month after the original or extended time appointed for making the award of the arbitrators has expired, or any later day to which he may enlarge it. The court may by order remit an award to the arbitrators or umpire for reconsideration, in which case the reconsidered award must be made within three months after the date of the order.

An award must be intra vires: it must dispose of all the points referred; and it must be final, except as regards certain matters of valuation, &c. (see in Re Stringer and Riley Brothers, 1901, 1 K.B. 105). An award may, however, be set aside where the arbitrator has misconducted himself (an arbitrator may also be removed by the court on the ground of misconduct), or where it is ultra vires, or lacks any of the other requisites—above mentioned—of a valid award, or where the arbitrator has been wilfully deceived by one of the parties, or some such state of things exists. An award may, by leave of the court, be enforced in the same manner as a judgment or decree to the same effect. Under the Revenue Act 1906, s. 9, a uniform duty of ten shillings is payable on awards in England or Ireland, and on decreets arbitral in Scotland.

Provisions for the arbitration of special classes of disputes are contained in many acts of parliament, e.g. the Local Government Acts 1888, 1894, the Agricultural Holdings (England) Acts 1883 to 1906, the Small Holdings and Allotments Act 1907, the Light Railways Act 1896, the Housing of the Working Classes Act 1890, the Workmen’s Compensation Act 1906, &c.

The Conciliation Act 1896 provides machinery for the prevention and settlement of trade disputes, and in 1892 a chamber of arbitration for business disputes was established by the joint action of the corporation of the city of London and the London chamber of commerce. At the time when the London chamber of arbitration was established, there was considerable dissatisfaction among the mercantile community with the delays that occurred in the disposal of commercial cases before the ordinary tribunals. But the special provision made by the judges in 1895 for the prompt trial of commercial causes to a large extent destroyed the raison d’être of the chamber of arbitration, and it did not attain any great measure of success.

(2) The court or a judge may refer any question arising in any cause or matter to an official or special referee, whose report may be enforced like a judgment or order to the same effect. This power may be exercised whether References under order of court. the parties desire it or not. The official referees are salaried officers of court. The remuneration of special referees is determined by the court or judge. An entire action may be referred, if all parties consent, or if it involves any prolonged examination of documents, or scientific or local examination, or consists wholly or partly of matters of account.

Scots Law.—The Arbitration (Scotland) Act 1894, unlike the English Arbitration Act 1889, did not codify the previously existing law, and it becomes necessary, therefore, to deal with that law in some detail. It differs in important particulars from the law of England. Although (as in England apart from the Arbitration Act 1889) there is nothing to prevent a verbal reference, submissions are generally not merely written but are effected by deed. The deed of submission first defines the terms of the reference, the name or names of the arbiters or arbitrators, and the “oversman” or umpire, whose decision in the event of the arbiters differing in opinion is to be final. Formerly, where no oversman was named in the submission, and no power given to the arbiters to name one, the proceedings were abortive if the arbiters disagreed, unless the parties consented to a nomination. But under the Arbitration (Scotland) Act 1894, s. 4, here arbiters differ in opinion, they, or, if they fail to agree on the point, the court, on the application of either party, may nominate an oversman whose decision is to be final. The deed of submission next gives to the arbiters the necessary powers for disposing of the matters referred (e.g. powers to summon witnesses, to administer oaths and to award expenses), and specifies the time within which the “decreet arbitral” is to be pronounced. If this date is left blank, practice has limited the arbiter’s power of deciding to a year and a day, unless, having express or clearly implied power in the submission, he exercises this power, or the parties expressly or tacitly agree to its prorogation. The deed of submission then goes on to provide that the parties bind themselves, under a stipulated penalty to abide by the decreet arbitral, that, in the event of the death of either of them, the submission shall continue in force against their heirs and representatives, and that they consent to the registration, for preservation and execution, both of the deed itself and of the decreet arbitral. The power to enforce the award depends on this last provision. Under the common law of Scotland, a submission of future disputes or differences to an arbiter, or arbiters, unnamed, was ineffectual except where the agreement to refer did not contemplate the decision of proper disputes between the parties but the adjustment of some condition, or the liquidation of some obligation, contained in the contract of which the agreement to submit formed a part. And by the Arbitration (Scotland) Act 1894, s. 1, an agreement to refer to arbitration is not invalid by reason of the reference being to a person not named, or to be named by another, or to a person merely described as the holder for the time being of any office or appointment. An arbiter who has accepted office may be compelled by an action in court of session to proceed with his duty unless he has sufficient cause, such as ill-health or supervening interest, for renouncing. The court may name a sole arbiter, where provision is made for one only and the parties cannot agree (Arbitration [Scotland] Act 1894, s. 2); and may name an arbiter where a party having the right or duty to nominate one of two arbiters will not exercise it (ib. s. 3). Scots law as to the requisites of a valid award is practically identical with the law of England. The grounds of reduction of a decreet arbitral are “corruption,” “bribery,” “false hold” (Scots Act of Regulations 1695, s. 25). An attempt was made to include, under the expression “constructive corruption,” among these statutory grounds of reduction, irregular conduct on the part of an arbitrator, with no suggestion of any corrupt motive. But it was definitely overruled by the House of Lords (Adams v. Great North of Scotland Railway Co., 1891, A.C. 31). The statutory definition of the grounds of reduction was intended, however, merely to put an end to the practice which had previously obtained of reviewing awards on their merits, and it does not prevent the courts from setting aside an award where the arbitrator has exceeded his jurisdiction, or disregarded any one of the expressed conditions of the submission, or been guilty of misconduct. A private arbiter cannot demand remuneration except in virtue of contract, or by implication from the nature of the work done, or if the reference is in pursuance of some statutory enactment (e.g. the Lands Clauses [Scotland] Act 1845, s. 32).

Judicial References have been long known to the law of Scotland. When an action is in court the parties may at any stage withdraw it from judicial determination, and refer it to arbitration. This is done by minute of reference to which the court interpones its authority. When the award is issued it becomes the judgment of the court. The court has no power to compel parties to enter into a reference of this kind, and it is doubtful whether counsel can bind their clients in such a matter. A judicial reference falls like the other by the elapse of a year; and the court cannot review the award on the ground of miscarriage. By the Court of Session Act 1850, s. 50, a provision is introduced whereby parties to an action in the supreme court may refer judicially any issue for trial to one, three, five or seven persons, who shall sit as a jury, and decide by a majority.

Law of Ireland.—The Common Law Procedure Act (Ireland) 1856, which is incorporated by s. 60 of the Supreme Court of Judicature Act (Ireland) 1877, and thereby made applicable to all divisions of the High Court of Justice, provides, on the lines of the English Common Law Procedure Act 1854, for the conduct of arbitrations and the enforcement of awards. Irish statute law, like that of England and Scotland, contains numerous provisions for arbitration under special enactments.

Indian and Colonial Law.—The provisions of the English Arbitration Act 1889 have in substance been adopted by the Indian Legislature (see Act ix. of 1899), and by many of the colonies (see, e.g., Act No. 13 of 1895, Western Australia; No. 24 of 1898, Natal; c. 20 of 1899, Bahamas; No. 10 of 1895, Gibraltar; No. 29 of 1898, Cape of Good Hope: s. 7 of this last statute excludes from submission to arbitration criminal cases, so far as prosecution and punishment are concerned, and, without the special leave of the court, matters relating to status, matrimonial causes, and matters affecting minors or other perons under legal disability; Trinidad and Tobago, No. 35 of 1898).

United States.—The common law and statute law of the United States as to arbitration bear a general resemblance to the law of England.

All controversies of a civil nature, and any question of personal injury on which a suit for damages will lie, although it may also be indictable, may be referred to arbitration; but crimes, and perhaps actions on penal statutes by Voluntary submissions. common informers may not. The submission may be effected sometimes by parol, sometimes by written instrument, sometimes by deed or deed poll. Capacity to refer depends on the general law of contractual capacity. The law of England as to the capacity to act as an arbitrator and as to objections to an arbitrator on the ground of interest has been closely followed by the American courts. The same observation applies as to the requisites of an award, the mode of its enforcement and the grounds on which it will be set aside. The arbitrator has a lien on the award for his fees; and—a point of difference from the English law—he may sue for them without an express promise to pay (cf. Goodall v. Cooley, 1854, 29 New Hamp. 48). At common law, a submission is generally revocable at any time before award; and it is also, in the absence of stipulation to the contrary, revoked by the death of one of the parties. Provision has been made in Pennsylvania for compulsory arbitration by an act of the 16th of June 1836 (see Pepper and Lewis, Pennsylvania Digest, tit. “arbitration”).

The rules of court also of many of the states of the United States provide for reference through the intervention of References by rule of court. the court at any stage in the progress of a litigation. Such submissions are usually declared irrevocable by the rules providing for them.

In addition to voluntary submissions and references by rules of court there are in America, as in the United Kingdom, various statutes which provide for arbitration in particular cases. Most of these statutes are founded on the 9 and Statutory arbitrations. 10 Will. III., c. 15, and 3 and 4 Will. IV. c. 42, s. 49, “by which it is allowed to refer a matter in dispute (not then in court) to arbitrators, and agree that the submission be made a rule of court. This agreement, being proved on the oath of one of the witnesses thereto, is enforced as if it had been made at first a rule of court” (Bouvier, Law Dict. s.v. “Arbitration”).

Ample provision is made in America for the arbitration of labour disputes.

Law of France.—Voluntary arbitration has always been recognized in France. In cases of mercantile partnerships, arbitration was formerly compulsory; but in 1856 (law of the 17th of July 1856) jurisdiction in disputes between parties was conferred on the Tribunals of Commerce (as to which see Code de Commerce, arts. 615 et seq.), and arbitration at the present time is purely voluntary. The subject is very fully dealt with in the Code de Procédure Civile (arts. 1003-1028). The submission to arbitration (compromis) must, on pain of nullity, be acted upon within three months from its date (art. 1007). The submission terminates (i.) by the death, refusal, resignation or inability to act of one of the arbitrators; (ii.) by the expiration of the period agreed upon, or of three months if no time had been fixed; (iii.) by the disagreement of two arbitrators, unless power be reserved to them to appoint an umpire (art. 1012). An arbitrator cannot resign if he has once commenced to act, and can only be relieved on some ground arising subsequently to the submission (art. 1014). Each party to the arbitration is required to produce his evidence at least fifteen days before the expiration of the period fixed by the submission (art. 1016). If the arbitrators, differing in opinion, cannot agree upon an umpire (tiers arbitre), the president of the Tribunal of Commerce will appoint one, on the application of either party (art. 1017). The umpire is required to give his decision within one month of his acceptance of the appointment; before making his award, he must confer with the previous arbitrators who disagreed (art. 1018). Arbitrators and umpire must proceed according to the ordinary rules of law, unless they are specially empowered by the submission to proceed as amiables compositeurs (art. 1019). The award is rendered executory by an order of the president of the Civil Tribunal of First Instance (art. 1020). Awards cannot be set up against third parties (art. 1022), or attacked by way of opposition. An appeal against an award lies to the Civil Tribunal of First Instance, or to the court of appeal, according as the subject-matter, in the absence of arbitration, would have been within the jurisdiction of the justice of the peace, or of the Civil Tribunal of First Instance (art. 1023). In the manufacturing towns of France, there are also boards of umpires (Conseils de Prud’hommes) to deal with trade disputes between masters and workmen belonging to certain specified trades.

Other Foreign Laws.—The provisions of French law as to arbitration are in force in Belgium (Code de Proc. Civ., arts. 1003 et seq.); and a convention (8th of July 1899) between France and Belgium regulates, inter alia, the mutual enforcement of awards. The law of France has also been reproduced in substance in the Netherlands (Code of Civil Procedure, arts. 620 et seq.). The German Imperial Code of Procedure did not create any system of arbitration in civil cases. But this omission was supplied in Prussia by a law of the 29th of March 1879, which provided for the appointment, in each commune, of an arbitrator (Schiedsmann) before whom conciliation proceedings in contentious matters might be conducted. The procedure was gratuitous and voluntary; and the functions of the arbitrator were not judicial; he merely recorded the arrangement arrived at, or the refusal of conciliation. This law was followed in Brunswick by a law of the 2nd of July 1896, and in Baden by a law of the 16th of April 1886. In Luxemburg, compulsory arbitration in matters affecting commercial partnerships was abolished in 1879 (law of the 16th of April 1879). A system of conciliation, similar to the Prussian, exists in Italy (laws of the 16th of June 1892, and the 26th of December 1892) and in some of the Swiss cantons (law of the 29th of April 1883). Spain (Code of Civil Proc., arts. 1003-1028; Civil Code, arts. 1820-1821) and Sweden and Norway (law of the 28th of October 1887) have followed the French law. In Portugal, provision has been made for the creation in important industrial centres, on the application of the administrative corporations, of boards of conciliation (decrees of the 14th of August 1889, and the 18th of May 1893).

Authorities.—Russell, Arbitration (London, 1906); Annual Practice (London, yearly); Redman, Arbitration (London, 1897); Crewe, Arbitration Act of 1889 (London, 1898); Pollock, On Arbitrators (London, 1906). As to Scots law: Bell, On Arbitration (2nd ed., Edinburgh, 1877); Erskine, Principles (20th ed., Edinburgh, 1903). As to American law: Morse, Law of Arbitration (Boston, 1872). As to foreign law generally: the texts of the laws cited, and the Annuaire de législation étrangère.

(A. W. R.)

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