The Historical Background of Commercial Arbitration

Abstract

EARL S. WOLAVERt The origin of arbitration is lost in obscurity. At what time or place man first decided submit his chief or his friends for a decision and a settlement with his adversary, instead of resorting violence and self-help, or the public legal machinery available, is not known; and any inquiry of sort would belong more properly in the history of social growth and ethics than in either law or economics. In all religions there are many injunctions be at peace with one's neighbors and be reconciled speedily with an adversary. Aristotle urged the benefits of conciliation.' In Heraldus' Animadversiones 2 there is described a court of reconcilement that existed among the Greeks. It was common among the Romans to put an end litigation by means of arbitration.3 Bell says this amicable private tribunal is of an earlier date than the public courts. 4 The introduction of arbitration seems be coeval with the foundation of our law.5 In the earliest forms of society disputes were tried by the heads of families, whence is derived the patriarchal tribunal noW given the office of arbitrator.6 From the charters that were issued the English gilds, it is clear that these traders recognized the value of some extrajudicial method and, in sonme of the earlier books on the law merchant, it is certain the merchant preferred justice according the Law of Merchants that of the common law. The history of arbitration, unlike the history of law, is not an account of the growth and development of principles and doctrines that have come, through a long use, have a general validity and force. While arbitration probably antedates all the former legal systems, it has not developed any code of substantive principles, but is, with very few exceptions, a matter of free decision, each case being viewed in the light of practical expediency and decided in accord with the ethical or economic norms of some particular group. One case is not authority for another since the decisions are in terms of persons and practices and not in accord with prescribed rules and doctrines. If we assume that arbitration is a substitute for a proceeding at law and that it is governed only by the sense and conscience of the arbitrators, it