ARBITRATION, in the Law of England (according to Blackstone), is "where the parties, injuring and injured, submit all matters in dispute, concerning any personal chattels or personal wrong, to the 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 (imperator), to whose sole judgment it is then referred; or frequently there is only one arbitrator originally appointed." The decision must be in writing (unless otherwise expressly provided in the submission), and is called an award; and thereby the question is as fully determined, and the right transferred or settled, as it could have been by the agreement of the parties or the judgment of a court of law or equity.
There were, however, many inconveniences attending this mode of proceeding; and in the year 1698, the legislature accordingly interfered and passed the act 9th and 10th Will. III., cap. 15, which enacted that, "for promoting trade, and rendering the awards of arbitrators the more effectual in all cases, for the final determination of controversies referred to them by merchants and traders, or others, concerning matters of account or trade, or other matters; all merchants and others, desiring to end any controversy, suit, or quarrel (for which there is no other remedy but by personal action or suit in equity), by arbitration, may agree that their submission of their suit to the award or umpirage of any person shall be made a rule of any of the courts of record, and may insert such agreement in their submission; which agreement being proved by the affidavit of one of the witnesses thereto, the court shall make a rule that such arbitration or umpirage pursuant to such submission shall be conclusive; and, after such rule made, the parties disobeying the award shall be liable to be punished, as for a contempt of court; unless such award shall be set aside, as procured by corruption or undue means in the arbitrators or umpire, to be proved on oath to the court, before the last day of the next term after the award is made.
An application for an attachment for not performing an award, may be resisted at any time for defects appearing on the face of the award itself; for such an award, after that time, might be pleaded in bar to any action brought upon it, although it cannot be set aside for such defects after the end of the next term. Submissions of disputes to arbitration may be by consent of the parties, or with the interposition of a court of justice; by rule of court, or order of a judge, when a cause is pending, either by bond, agreement in writing, or by parol. A verbal agreement, however, to abide by an award cannot be made a rule of court. Nor can matters purely criminal be submitted to the decision of an arbitrator. And by the 12th and 13th Vict. c. 45, §§ 12-15, the provisions of the former statutes as to arbitrations are extended to "controversies and disputes, for which the remedy is by appeal to a court of general or quarter sessions of the peace." Lastly, although the right of real property cannot pass by a mere award, yet if a party be awarded to convey land, and refuse, he will be liable to an action, or to an attachment for not performing the award.
The agreement of reference must be expressed with great care and accuracy;—provisions should be inserted giving power to either party to make the submission a rule of court, to enable the court to refer the matter back to the same or to another arbitrator; and in case of the death of either party before award, for its making and delivery to his representatives; and also as to the costs, which are usually directed to
be in the discretion of the arbitrator as to those of the reference, and as to those of the cause to abide the event of the award; and a certain day should be appointed on or before which the arbitrator is to make his award, with a power to such arbitrator to enlarge the time.
When arbitrators have the power of electing an umpire, they may choose him, and call in his assistance as soon as they begin to take the subject into consideration; and this is the more convenient practice, as it secures a decision upon a single investigation of the controversy.
As to the award; it must be in pursuance of the submission, and embrace all the matters submitted, and not extend beyond it in the subject-matter, in persons, in time, or in particular circumstances; it must be certain; it must make a final end and determination of all matters contained in the submission; it must be mutual, that is, it must not be entirely of things to be performed by one party, without such things being in satisfaction of the matters in difference; and finally, it must not be unreasonable, illegal, or impossible to be effectuated.
Formerly, a submission to arbitration, being a mere authority, might be revoked at any time before execution, by an instrument of as high a nature as that by which the submission was created. But now, by the Law Amendment Act (3d and 4th Will. IV., cap. 42), the submission to arbitration by Rule of Court, or Judge's order, or order of Nisi Prius, or if there be an agreement to make the submission a Rule of Court, cannot be revoked by any party thereto, without leave of the court or a judge. The death, however, of either party, before award is a revocation of the authority, unless otherwise provided in the submission; and so also is the marriage of a female before award; the marriage operating as a civil death to all her rights as a feme sole.
Under this statute the attendance of witnesses, or production of documents before the arbitrator, may be compelled by a rule of court, or order of a judge, on payment of expenses and loss of time; and the arbitrators are empowered to administer oaths to the witnesses, where it is so agreed or ordered by the rule or order of reference. Any witnesses failing to attend are deemed to be guilty of contempt of court, or giving false evidence guilty of perjury.
The court or judge may also, in the cases within the statute, enlarge the time for an arbitrator to make his award.
As to the mode of enforcing an award, see ATTACHMENT. (R. M.—M.)