ARBITRATION, a term derived from the nomenclature of the 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. 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 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, and may be consulted through the commentary of Heineccius, or a more minute critical inquiry by Gerard Noodt, in his commentary on this section (Opera, ii. 135). Almost all the advantages, as well as the defects of the system in modern practice, seem to have been anticipated by the Roman jurists. Thus it is shown that voluntarily selected judges can only properly decide questions which the parties themselves could settle by giving and taking, and that they ought not to be authorized to deal with criminal inquiries or public questions; while, by excluding matters of personal status, such as marriage or legitimacy, the Roman jurists anticipated the principle, that even private questions which may affect the public morals or policy cannot be thus extrajudicially disposed of. They dwell on the principal advantage of the system in excluding appeal from the arbiter's decision on any such ground as erroneous law, or false views of the influence of well-investigated facts. But, on the other hand, they discuss, with their usual scientific subtlety, the many defects, such as excess of authority, neglect of form, and partiality in receiving pleadings or evidence, and the like, by which arbitrations become vitiated; and thus these jurists at once suggest what is ever the defect of a system of arbitration, that the more it performs its function of doing justice, the more it becomes what the established tribunals of the country ought to be, and fosters two systems of judicature where one should be sufficient. Some of the civilians make a distinction between the arbitrator, the name technically applicable to a person voluntarily chosen by parties to decide disputes, and the arbiter an officer to whom the praetor 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 des 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 intervention. From the peculiarities of the Scottish system of registration, 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. (J. H. B.)