Arbitration procedure in England: past, present and future

Abstract

WHEN peering into the future, it is often relevant to study the past, if only because therein lies the explanation of the present. Arbitration, in the sense of a consensual process for the resolution of disputes, was well known to the Romans. Tacitus, Horace and Ovid refer to the ‘arbiter’. One distinguished commentator1 has chosen 280 BC as the earliest documented reference to arbitration, when the chief Roman magistrate (the praetor), who was not necessarily a lawyer, held responsibility for the resolution of civil disputes between citizens. In due time, following the development of international trade in the Roman empire, a second magistrate (the praetor peregrinus) was appointed for the resolution of disputes where foreign merchants were involved. The rules which he applied in this capacity became known as the Jus Gentium , based on the code of conduct developed by the merchants doing business in Rome. This phrase is often translated literally as ‘the Law of Nations’, but the sense of it would be more accurately conveyed by ‘the law of international trade’. Although the Romans occupied the British islands from approximately AD 40 to 400, it is not known how far this system was in common use in Britain during that period. There was an interlude in the dark ages, when trade was non-existent, or minimal at best. However, it can be stated with some certainty that a special form of dispute resolution for merchants was recognised in Britain in the middle ages, and for much the same reason as it had become established in Rome: namely, that international traders, travelling between the markets in Europe, needed a system for the resolution of disputes based on the customs and practices of merchants, and allowing for swift justice. The Chancellor said in 1475, in the famous Star Chamber: …