Report No. 76

1.5. Roman law.-

In the Western world, arbitration has been known for centuries. An ancient authority on arbitration stated1:

"It is commendable at the outset of a trial to inquire of the litigants whether they desire adjudication according to law or settlement by arbitration. If they prefer arbitration, their will is granted. A court that always resorts to arbitration is praiseworthy, concerning such a court, it is said, 'Execute the justice of peace in your gates' (zech. 8:16).

What is the kind of justice that carries peace with it? Undoubtedly, it is arbitration: So too, with David, it is said, "And David executed justice and charity unto all his people" (II Sam, 8:15). What is the kind of justice which carries charity with it? Undoubtedly, it is arbitration, i.e., compromise (thus), even if the judge has already heard the arguments of the litigants and knows in whose favour the verdict will be, it is commendable to effect an arbitration. The (moral) power of arbitration is greater than that of adjudication."

In the Western world, some form of arbitration has been in existence for a long period; but two rival trends have clamoured for supremacy in this field in the course of history-the supremacy of the Courts and the supremacy of private tribunals. In Roman law, there was no struggle to establish the jurisdiction of the ordinary courts as against rival tribunals. Accordingly, contracts for the submission of disputes to the decision of persons were recognised, and there were rules as to their effect and enforcement. This was further developed in the civil law, and in Continental Codes of Civil Procedure.2

Arbitration, called "compromise (compromissum)", was a mode of terminating controversies much favoured in the civil law.3

Amongst the Greeks, international arbitration was a recognised practice. It is mentioned as such by Herodotus and Thucydides.4 The Roman Senate, and later the Roman emperor, arbitrated between subject peoples. In the city-states in Greece back in the sixth, fifth and fourth centuries B.C., disputes were settled by arbitration. The nature of the disputes included "boundary delimitation, ownership of colonies, ownership of particular pieces of territory, assessment of damages suffered through a hostile invasion, (and) in recovery of money owned by one state to another, and in all sorts of religious matters.5

1. The Book of Judges-Code of Maimonides (1949), 66, quoted in Tiewul and Tsegah Arbitration and Settlement of Commercial Disputes, (July 1975) 24 ICLQ 93, 394.

2. Pound Jurisprudence, (1959), Vol. 5, p. 360.

3. Story Equity Jurisprudence, 2nd Edn., p. 1001, cited in Chandabassappa v. BaslIngayaya, AIR 1927 Born 565 (567).

4. International Encyclopaedia of Social Sciences, Vol. 1, p. 50.

5. Wehringer Arbitration: Precepts and Principles, (1969), p. 5.