Page:The New International Encyclopædia 1st ed. v. 01.djvu/829

ARBITRATION. such a case from llic jurisdictiiiii of the or(linar tribunals." On the other lianil. if a property- owner ami an insurer enter into an agreement that- the former shall i)ay a certain premium, in consideration of which the latter, upon the destruction of the property, shall pay the former such a sum of money as shall he settled and ascertained by arbitration, the contract is bind- ing in all of its provisions, and the insured has no cause of action until an arbitration has been had, or it has been ])rcvented or dispensed with by the insurer. The legal distinction between these two classes of cases is well established, but it is not always easy to determine within which class a particular controversy falls. If it falls within the first class, either party has the power to revoke the arbitration, even after his sub- mission of the dispute to the arbitrator: although by so doing he subjects himself to an action for damages for breach of contract, if his agreement to arbitrate was ujion a valuable con- sideration.

This power of revoking a submission has been modified by statute in England and in many American jurisdictions. It is provided, in some of our State constitutions, that the legislature shall enact laws providing for arbitration, or shall establish courts of conciliation. The ten- dency of modern statutes is to extend the limits of private arbitration, to conform the pro- ceedings therein, so far as practicable, to those of a court or an official referee, and to give to an award of arbitrators the force and effect of a judicial decision. In the absence of legislation, however, a jmlgment cannot be entered on an award, nor can the determination of an arbi- trator be enforced by execution. If the defeated party refuses to carry out the award, his opponent must sue upon it. There is no appeal from an award, as there is from the decision of an inferior court; but it may be corrected in some cases, and it may be set aside for various reasons, such as fraud practiced by the prevail- ing party, or misconduct on the ])art of the arbitrators, or their failure to conform to the terms of the submission. As a rule, however, an award will not be set aside for purely technical or formal defects. Unless some flagrant error in the proceedings is disclosed, courts are disposed to uphold an award in an arbitration to which the parties have assented, and on which they have been fairly heard. Consult: Morse, Law of Ar- hitrnfion and An-ard (Boston, 1872): Watson, Trratise on the Law of Arbitration and Aivards, third edition (Philadelphia. 1848); Russell, A Trentisr on the Pou-er and Duty of an Arbitrator and the Ijaw of fSubmissions and Aivards, eighth edition (London, inOO). AR'BITRA'TION, International. The settlement of disputes between states by judges of their own choosing and in conformity with their respective rights. Arbitration tribunals may be special or general, temporar.y or perma- nent, restricted or open. It is essential thiit the contracting states formally agree to refer their difTercnces to an independent tribunal and bind themselves to aliide by its award. The persons or states chosen as arbitrators should formally accord their consent and accept the obligation. The reference is usually made by special agreement signed on behalf of the con- tending parties, stating the questions to be submitted, summarizing the points of law or fact involved, defining the limits of the arbitration, and in many cases indicating the course of procedure. It ma.v result either from a general treaty, a special or arbitration treaty, or an arbitral clause inserted in a treaty providing for this method of settlement of disputes, or a jirutocol (q.v. ) of an international congress to which the particular states were parties. Arbitration, while not unknown to the ancient world, is largely an outgrowth of the complex in- ternational relations of the Xineteenth Century, and the consequent development and recognition of international duties and liabilities. The atti- tude of Greek civilization toward the barbarian world rendered the application of methods of conciliation impossible; while the employment of arbitration among the Greeks themselves was confined rather to disputed questions touching upon religion, commerce, boundaries, and the possession of contested territory between the several states than to great political questions. The Amphictyonic Council, while primarily a deliberative body, later assumed distinct polit- ical functions, and became the tribunal for the settlement of various difl'erences, though its sen- tences lost their effectiveness through the im- potence of that body to enforce their execution. The foreign policy of Rome aimed at universal conquest, and so from the outset precluded the eniplo3'ment of referendum methods, since arbitra- tion presupposes a conflict between independent states. During the Middle Ages, under the in- fluence of religious and feudal ideas, arbitra- tions were frequent. With the breaking up of the Roman EmiJire, the predominance of the I)opes, as delegates of God, from whom all sov- ereignty emanates, constituted them the natural judges of all international causes, and brought to their tribunal many of the difl'erences between kings and peoples. So strongly did this idea impress itself upon the times that the great prel- ates were often chosen .as voluntary arbitrators, though perhaps oftener on occasions involving l)rivate interest and internal policy than on those of actual international conflict. One of the most celebrated of arbitration decis- ions is that of Pope Alexander YI., tracing an imaginary line from pole to pole in his division of all lands discovered in the New World between Spain and Portugal. Even after the decline of papal supremacy, Gregory XV. acted as arbi- trator of the question of the "Valtelline" forts in the Seventeenth Century, and Pope Clement XI. gave the casting vote as umpire between Louis XIV. and Leopold I., the chosen arbitra- tors by Article 8, of the Treaty of Ryswick. I'nder the feudal system, vassals were natural- ly predisposed to look to their lords for the determination of their csnflicting claims. The ertorts of the emperors of the Holy Roman Empire to succeed to the position of the popes in this regard never resulted in more than an occasional recognition of their jurisdiction — never of their supremacy. With the establish- ment of absolute monarchies, arbitration as a method of settlement of difl'erences naturally declined.

The change in international relations produced by modern means of transportation, with the resultant complex social and political intercourse and the vast economic loss involved in modern war, has tended more and more to the employment of the method of arbitration in in-