Page:Encyclopædia Britannica, Ninth Edition, v. 2.djvu/332

Rh 312 ARBITRATION or neutral persons, are a natural practice, of which traces may be found in any state of society ; but it is to the Justinian jurisprudence that we owe it 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 eighth section of the fourth book of the Pandects is devoted to this subject. Almost all the advantages, as well as the defects of the system in modern practice, seem to have been anticipated by the Roman jurists. Some of the civilians make a distinction between the arbitrator, the name applic able to a person voluntarily chosen by parties to decide disputes, and the arbiter, an officer to whom the pnetor is supposed to have remitted questions of fact as to a jury. In this sense arbiters appear to have been employed as a substitute for jury trial in some of the old provincial laws of France ; and hence, perhaps, it comes that, by a very remarkable provision in the French code of commerce, all questions between partners touching the partnership must be referred to arbitration. In the code of civil procedure the title dfs arbitrages is treated so fully and minutely, as very forcibly to convey the impression of a separate system of voluntary jurisdiction, being created for performing what ought to be accomplished by the ordinary tribunals in a well-regulated judicial system. In Scotland the practice of arbitration has been imported from the Roman law without requiring, as in England, statutory interven tion. It is one of the advantages of the Scottish system of registration that the decree-arbitral, or decision of the arbiter, when recorded in pursuance of the consent of the parties in their contract of arbitration or submission, can be enforced as the decree of a court. ARBITRATION ix SCOTCH LAW. This term is applied to the contract whereby a dispute is referred to one or more persons by the parties interested, and so withdrawn from the cognisance of the ordinary tribunals. When one person only is chosen he is called sole arbiter or arbitrator ; when more than one, an umpire or oversman is appointed either in the contract or by the arbiters themselves, and his award is final if the arbiters differ in opinion. The contract is properly entered into by deed, duly attested and stamped, and is termed a submission. Submissions are either general or special ; the former including all disputes sub sisting at the time, the latter restricted to certain specified matters. The judgment when promulgated is termed the award or decreerarbitral. The deed of submission contains a clause authorising registration for execution, under which, on registration in the books of a competent court, witnesses may be cited and the decree-arbitral put to execution. The procedure may be by written pleadings, and a formal record may be made up if the arbiters deem that desirable. If the determination of the matter falls on the oversman, he may order further debate before deciding. Unless the submission provides otherwise, the powers of the arbiters fall on the expiry of one year ; but if it contain a power of prorogation, the arbiters may prorogate from year to year; and in all cases the parties themselves may renew the reference after it has fallen. By Act of Regulations, 1G95, c. 25, decrees-arbitral are declared not to be reducible except on the grounds of bribery, corruption, or falsehood ; this has, moreover, been so interpreted as not to exclude reduction when the arbiters have plainly travelled out of the powers conferred on them by the submission, or where their procedure has been grossly irregular, e.g., taking evi dence in absence of one of the parties. An arbiter has the power of awarding costs, even though the deed contain no euch provision. It is the general rule that a reference is ineffectual where the arbiters are not named, or where an arbiter is merely designated as the holder of an office, e.g., the Lord Advocate. To this there is, however, an excep tion, where in a contract the parties bind themselves to refer, and where a reference is necessary to work out the contract. A rule in friendly societies to refer disputes ia binding. Arbiters having once accepted, cannot renounce their office at pleasure ; and if they do so, become liable in damages. 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 interpoues 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 refer ence falls like the other by the elapse of a year ; and the court cannot review the award on the ground of miscarriage. By 13 and 14 Yict. c. 36, 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. The Consolidation Acts in reference to the acquisition of lands, &c., for public undertakings, such as railways, also contain provisions for settlement of disputes by arbitration. ARBITRATION, in the Law of England, is described by Blackstone as an arrangement by which &quot;the parties- injuring and injured submit all matters in dispute con cerning any personal chattels or personal wrong to tha judgment of two or more arbitrators, who are to decide the controversy ; and if they do not agree, it is usual to add that another person be called in as umpire, to whose sole judgment it is then referred ; or frequently there is only one arbitrator originally appointed.&quot; Pro ceedings in arbitration were regulated by the Act 9 and 10 Will III. c. 15, which allowed the submission to be made a rule of any of the courts of record and subsequent statutes. It may be said in general that all questions relating to civil rights may be referred to arbitration, e.g., personal damages, disputes about real property, and pure questions of law. How far questions involving matters of criminal law may be made the subject of arbitration is not quite clear. In many cases the aggrieved person, having a remedy by indictment as well as by action, may compro mise the criminal process by referring his civil rights to an arbitrator ; but the more serious criminal offences of course could not be dealt with in this way. An arbitrator ought to have no personal interest in the subject of dispute, but this is almost the only restriction recognised by the law. Idiots, lunatics, infants, and married women, who are under a general rule of disqualification in law, may all be arbitrators, for it is said, the parties have selected their own judges and must abide by their choice. In certain cases of arbitration under a statute, the arbitrator must be taken from some special class, e.g., in settling disputes about the proportional expense of county prisoners in a borough gaol, the arbitrator must be a barrister. Under the Common Law Procedure Act of 1854, the reference is to the master of the court. The submission to arbitration may be by agreement between the parties, by order of a court or judge, or by compulsion under the Common Law Act, 1S54, or under special statutes. A verbal submission, besides other obvious disadvantages, cannot be made a rule of court. The statute 9 and 10 Will. III. provided that persons, might agree that their submission should be made a rule of court, but the insertion of the consent clause in the sub mission was necessary. The Common Law Procedure Act, 1854, 17, provides that every agreement or submission to arbitration by consent, whether by deed or instrument in writing, not under seal, may be made a rule of any one of the superior courts of equity or law at Westminster, on the