not in general necessary to set it aside, fortering an oath; but the witnesses and it is incapable of being enforced.

- if they have agreed to be examinedWhen the award has been made and the parties are sworn either before a delivered, if one of the parties refuses to judge, or, in the country, before a comcomply with it, the other may bring an missioner. They may, however, be exaction against him on the award. But amined without having being sworn, if the most prompt and efficient remedy is no objection is made to it at the time. to apply to the court for an attachment, The courts cannot enforce performance grounded on the contempt of court which of the award by attachment; the only he has been guilty of by disobeying the remedy is an action on the award itself, order of reference. In opposing this or rather, on the agreement of submission. application, the other party may insist on The defendant may insist on any objection any objection apparent on the award itself; apparent on the award itself, but where but if there were any other objections there is any other ground for setting it affecting its validity, and he has neglected aside, his only remedy is by a bill in to apply to the court to set it aside within equity. the time fixed by them for that purpose,

Thus where the reference is by agreeit is too late for him to avail himself of ment, many inconveniences occur, partithem.

cularly from the deficiency of the When, in the original action, a verdict remedies: but the statute 9 & 10 Will. has been given for the plaintiff subject III. c. 15, enables parties to put such to a reference, if the defendant does not references on the same footing as those abide by and perform the award, the which are made where a cause is dependplaintiff may, by leave of the court, en- ing. The statute enacts that all merter a judgment and sue out execution chants and others, who desire to end any for the whole damages mentioned in the controversy, suit, or quarrel (for which verdict.

there is no other remedy but by personal 2. Where no action has been com- action or suit in equity), may agree that menced, the parties may refer their their submission of the suit to arbitration differences to arbitration by mutual or umpirage shall be made a rule of any agreement. Every person capable of 1 of the king's courts of record, and may making a disposition of his property may insert such agreement in their submission, be party to such an agreement: no pecu- or promise, or condition of the arbitration liar form is necessary for its validity. bond; which agreement being proved on

Whether the submission be verbal or oath by one of the witnesses thereto, the in writing, it is in the power of either of court shall make a rule that such submisthe parties to revoke it, and thus put an sion and award shall be conclusive; and end to the authority of the arbitrator at after such rule made, the parties disobeyany time before the award is made. In ing the award shall be liable to be order to prevent this, it is usual for the punished as for a contempt of the court; parties to make it a part of their agree- unless such award shall be set aside for ment, that they will abide by and perform corruption or other misbehaviour in the the award ; and if after this either of them arbitrators or umpire, proved on oath to should, without sufficient reason, revoke the court, within one term after the his submission, or otherwise prevent the award is made. The provisions of the arbitrator from proceeding with the arbi- new statute 3 & 4 Will. IV. c. 42, apply tration, he will be liable to an action for as well to arbitrations made in pursuance the breach of his agreement.

of such agreements of submission, as to The time for making the award may those made by order of court; and the be enlarged, if there be a clause to that law is the same in both cases, except in effect in the agreement of submission, or some few points of practice. if all the parties consent to it, but not Previously to the 3 & 4 Will. IV. c. otherwise. There are no means of com- 42, the authority of the arbitrator was pelling the atteudance of witnesses, nor revocable by either party at any time behas the arbitrator the power of adminis-fore the award was made; but by that statute it is declared that the authority of English Trans.) When their year of office an arbitrator cannot be revoked by any of expired, the arbitrators were liable to be the parties, without the leave of the court called to account for their conduct, and if or a judge: but it is still determined by found guilty of corruption or misconduct, the death of any of the parties, unless a were punished with infamy (dziuía). clause to obviate this is inserted in the In the other mode of proceeding, which submission; and if one of the parties is was strictly in accordance with the defia single woman, her marriage will have nition which we have given of arbitration, the same effect.

the parties were at liberty to refer their The settlement of disputes by arbitra- differences to whomsoever they chose. tion was usual among the Athenians. The submission was generally made by a Aristotle, in giving an instance of a me- written agreement, which frequently contaphor that is appropriate without being tained an engagement by third persons obvious, quotes a passage from Archytas, to become sureties for its performance. in which he compares an arbitrator to an (Demosthenes, Speech against Apaturius, altar, as being a refuge for the injured. chap. 4.) There lay no appeal from the He also (Rhetor. i. 13) contrasts arbitra- award of the arbitrator to any other trition with legal proceedings, and adds that bunal, unless probably such a right of the arbitrator regards equity, but the dis- appeal was reserved in the agreement. cast (judge in the courts) regards the (See the law quoted by Demosthenes law (Aristotle, Rhetor. ii. 11.) There against Meidas, chap. 26.) were at Athens two modes of proceeding The Roman law upon this subject is which passed by the name of arbitration much better understood, and is of infi-the Greek word for which is diæta nitely greater importance. Its influence (díaita). In one of these the arbitrators has extended over the whole of Europe, (Olaitatal) appear to have constituted and even in our own country it is evident what in modern jurisprudence would be that references made by virtue of a mucalled a Court of Reconcilement. A tual agreement — apparently the first certain number of persons, of a specified species of arbitration known in our law age, were chosen by each tribe, and pro- -are mainly founded upon the doctrines bably for one year only, as official referees, contained in the Digest, iv. tit. 8. The and from among these the arbitrators to only mode of referring a matter to arbidecide upon each particular case were tration in the Roman law was by an afterwards also chosen (Petit, Leges Atti- agreement called compromissum, which ca, p. 345; Heraldus, Animadversiones, contained the names of the arbitrators p. 370), and were then bound to act, (hence called arbitri compromissarii), the under the pain of infamy. They sat in matters intended to be referred, and an public, and their judgments were sub- undertaking by both parties to abide by scribed by the proper authorities, though the award, or in default thereof to pay to it does not appear who those authorities the other a certain sum of money as a were. (Petit, p. 346.) An appeal lay penalty. The rule which forbids matters from their decision to the ordinary of public interest to be submitted to the courts; and sometimes the arbitrator re- judgment of a private referee, was not ferred the cause to their judgment at confined in its operation to criminal proonce, without pronouncing any sentence secutions and penal actions, but extended of his own. (Heraldus, Animadversiones, to preclude arbitrators as well from enterp. 372). The jurisdiction of the arbi- taining any question affecting the civil trators was confined to Athenian citizens, condition (status) of any individual,-his and they took no cognizance of suits in freedom, for instance,-as from deciding which the sum in dispute was less than on the validity of any contract which it ten drachmæ, such smaller actions being was attempted to set aside on the ground disposed of in a summary manner, by a of its having been obtained by fraud or special tribunal. The litigant parties force. paid the expenses of the arbitration. The persons named as arbitrators were (Boeckh, Public Econ. of Athens, i. 316, not bound to undertake the office, but


having once done so, they might, by an | they could neither retract nor alter their application to the prætor, be compelled to decision. go through with it. Their authority was The award when made had not the auterminated by the death of either of the thority of the sentence of a court of jusparties, unless his heirs were included in the tice, nor was there any direct method of submission; by the expiration of the time enforcing the performance of it; but as limited for the decision; by either party the parties had bound themselves to abide having broken the agreement, and so in- by the arbitrator's decision, if either of curred the penalty; or by his becoming them refused to perform it, or in any insolvent, and his property, in consequence other way committed a breach of his enof a cessio bonorum, being vested in his gagement, he was liable to an action; and creditors. Their authority also ceased however unsatisfactory the award might by what we should call an implied revo- appear, there was no appeal to any other cation, if the subject matter of the re

If, indeed, the arbitrators had ference perished, or if the parties settled been guilty of corruption, fraud, or misthe dispute in some other way, referred conduct, or if they had not adhered to it to other arbitrators, or proceeded with their authority, their award was not bindan action respecting it. Besides the cases ing: there was, however, no direct method in which his authority was thus at an end, of setting it aside; but if an action was an arbitrator could not be compelled to brought to enforce the award, such misproceed with the reference if he could conduct might be insisted on as an anallege any sufficient excuse, as for in-swer to it. (Heineccius, Elem. Jur. Civ. stance, that the submission was void, that pars i. $ 531-543; Voetius, Commentarius there had arisen a deadly enmity between al Pandect. vol. i. pp. 290-300.) him and one of the parties, or that he had The Roman law was, with some slight been prevented by ill-health, or by au modifications, adopted in France (Domat, appointment to some public office. Civil Law, part i. book i. tit. 14; and

The extent of the arbitrator's authority Public Law, book ii. tit. 7; Pothier, depended upon the terms of the submis- Traité de Procedure Civile, part ii. sion, which might be either special or chap. iv. art. 2), and notwithstanding the general. The submission usually ap- changes which have been introduced from pointed a certain day for the making of time to time, it still forms the groundthe award, but power was generally given work of the system. There are at preto the arbitrators to enlarge the time if sent three kinds of arbitration; the first necessary, and they could not give their is voluntary arbitration, which is founded, award on an earlier day without the con- as in the Roman law, upon an agreement sent of the parties. On the day originally of the parties. The mode of proceeding appointed, or on that subsequently fixed in this case is treated of at considerable by the arbitrators, they formally pro- length, and with minute attention to denounced their award, and (unless it had tails, in the Code de Procédure Civile, been agreed otherwise) the parties were art. 1003-1028. required to be present, and if one of them The ordinary courts exercise a much failed to appear, the award was not bind- greater control over the proceedings in ing, but the party who had thus prevented references than they do in England, but the arbitration being completed incurred they have never had the power which the the penalty specified in the submission. magistrates had at Rome-of compelling If there were several arbitrators, all were a person who had once undertaken the bound to attend, and the opinion of the office of arbitrator to proceed with it; majority prevailed; and if they were nevertheless, if he fail to do so, without equally divided, it is said that they might a sufficient excuse, he is liable to an acof their own authority appoint an um- tion for the damages occasioned by his pire, and in case of their refusing, the neglect of duty. In order to understand prætor had the power of compelling clearly the peculiarities of the French them to do so. When their award was system, it will be necessary to bear in pronounced, their authority expired, and mind that the proceedings before the arbitrators are much more nearly on the brought under the consideration of a same footing with the regular administra- court in any of these ways, any final tion of justice than is the case with us, judgment which the court may have proand that many of the details are merely nounced may be brought before the Court adopted from the practice of the ordinary of Cassation, and there quashed if errocourts: for instance, there is a system of neous in point of law. local judicature established in France, The second kind, which is called “comand as the judge is resident in the neigh- pulsory arbitration," is where the parties bourhood of the suitors, it has been found are by law required to submit to a renecessary, in order to guard against par- ference, and are precluded from having tiality or the suspicion of partiality, to recourse to any other mode of litigation. allow either party to refuse or challenge The ancient laws of France introduced a judge, as in England they would chal- this species of arbitration very extenlenge a juryman; and in the same manner sively for the settlement of disputes rean arbitrator may be challenged, but this specting either mercantile transactions or can only be in respect of some objection family arrangements; but by the law which has arisen since his appointment, now in force, it is admitted in one case for the very act of appointing him is an only, that of differences between partners. implied waiver of any objections which Over such differences the ordinary courts might have existed up to that time; but have no jurisdiction in the first instance, if there is no ground for challenge, the even with the consent of the parties; but arbitrator's authority cannot be revoked the commercial courts control the prowithout the consent of both parties. ceedings. Thus the arbitrators may

An arbitrator's decision or award is either be appointed by the deed of partconsidered as a judgment, and all the nership or afterwards nominated by the formalities required for the validity of a partners ; but if, when a dispute has judgment must therefore be observed; arisen, one of the partners refuses to but execution of it cannot be enforced nominate an arbitrator or nominates an until it has received the proper sanction: improper person, the commercial court this sanction is conferred by a warrant upon application made by the other partof execution granted by the president ner, will appoint one for him. The of the tribunal within the jurisdiction of authority of the person so appointed will which the cause of the action arose: the be superseded, if before he enters upon granting of this warrant is called the his functions an arbitrator is duly nomihomologation of the award. If the arbi- nated by the partner in delay: and when trator has not strictly pursued his au- the firm consists of several partners, upon thority, the warrant of execution may be an application being made by any one of superseded, and the award declared null them, the court, after taking into consiby an application to the tribunal from deration how far their respective interests which the warrant issued. Besides this, are identical and how far they are conthe same modes of obtaining relief may ficting, will regulate accordingly the be resorted to in the case of an award, as number of arbitrators to be appointed by in that of any other judgment. If any each. The sentence of the arbitrators, misconduct or irregularity has occurred, howsoever appointed, is decided by the the award may be set aside by what is majority of votes. called a requête civile; and even where The authority of the arbitrators in this nothing can be alleged against the formal case partakes more of the judicial characcorrectness of the proceedings, if one of ter than it does in voluntary arbitration; the parties be dissatisfied with the judg- they are considered as substituted for the ment, he is at liberty (unless the right ordinary commercial tribunal; their sen. has been expressly renounced) to appeal tence is registered among the records of to a superior court: when this happens, the court; and they stand upon the same the whole case is re-opened before the footing with the court in the power of tribunal of appeal, and the merits inves- sentencing the parties to imprisonment; tigated anew; and when an award is and unless the right has been renounced by the parties, there is an appeal from deputies. All matters of civil litigation their decision. (Code de Commerce, art. may be referred to these official arbitra51-64.)

tors; who in the country sit once in every Besides the compulsory arbitration in week, and in the capital as often as occamatters of partnership, the parties who sion requires. It appears that, after invesenter into any engagement are at liberty tigating a disputed case, the arbitrators in to stipulate that all differences arising these tribunals have no power to compel between them shall be submitted to ar- the parties to settle their differences in bitration. This stipulation is compulsory, the manner proposed by the court: if and the court will, if requisite, appoint they agree, the terms of the arrangement an arbitrator ex officio for the party who are registered, and it has then the force should refuse to do so; but it is not ex- of a judicial decree; if, after stating their clusive, so as to take away the jurisdic- differences and hearing the suggestions tion of the ordinary tribunals; it may be of the arbitrators, the parties still disrescinded by the consent of the parties, or agree, no record is made of the proceedwaived by their acts.

ing, and they are at liberty to discuss The third kind of arbitration is distin-their respective rights in the ordinary guished by the appellation of the persons courts of justice. It is necessary, howto whom the reference is made ; they are ever, that before a suitor commences an not called, as in the other cases, arbitres, action in the superior courts, he should but aimables compositeurs, or in the old prove that he has already applied to one law, arbitrateurs. The peculiar charac- of the courts of conciliation. These courts, teristics of this amicable composition are, which are attended with very small exthat the referees are not, as in other cases, pense to the suitors, were, soon after bound to adhere rigorously to the rules their establishment, multiplied rapidly of law, but are authorized to decide ac- in Denmark and Norway, and are said cording to the real merits of the case ; to have produced an astonishing decrease that their decision is final, and without in the amount of contentious litigation. appeal to any other tribunal. In case of (Tableau des Etats Danois, par Catteau, irregularity or misconduct, the award tome i. p. 296.) may be set aside by the judgment of a Courts of mutual agreement are concourt

, but this judgment cannot be further stituted in every parish in Norway. questioned in the Court of Cessation. Every third year the resident houseThis modification of the general law may holders elect from among themselves be introduced into all arbitrations, whe- a person to be the commissioner of muther voluntary or compulsory. (Par- tual agreement, who must not practise dessus, Cours de Droit Commercial, | law in any capacity. His appointment $ 1386-1419.)

is subject to the approval of the amtman, In Denmark and its dependencies, or highest executive officer of the district. Courts of Arbitration or Conciliation In towns, or large and populous parishes, were established about the year 1795, there are one or more assessors or assistand are said to have been attended with ants to the commissioner, and he has extremely beneficial effects. In Copen- always a clerk. He holds his court once hagen the court is composed of one of a month within the parish, and receives the judges of the higher courts of judica- a small fee of an ort (ninepence) on enterture, one of the magistrates of the city, ing each case. Every case or law-suit and one of the representatives of the whatever must pass through this prelicommonalty. In other towns, the chief minary, court, where no lawyer or atmagistrate proposes five or six of the torney is allowed to practise. The parties more respectable citizens for arbitrators, must appear personally or by a person of whom the commonalty of the town not in the legal profession. The stateelect two. In the country, the bailiffs or ment of each party is entered fully and sheriffs are the arbitrators, and generally to his own satisfaction in writing by the act as such personally; but in extensive commissioner, who proposes some course districts they have authority to appoint on which they may both agree. If both

« ForrigeFortsett »