Report No. 76

1.6. Common law policy against ouster of jurisdiction.-

This approach of the ancient world and Roman law may be contrasted with the common law. At common law, there was said to be a policy against agreements ousting the courts jurisdiction. In the beginning1 it was necessary to establish the jurisdiction of the courts of politically organised society to replace the institutions of kin-organised society, self-help and the help of one's kinsmen, self-redress, and private war. In the Middle Ages, there was a contest for jurisdiction between the courts of the king and the courts of the Church.

In England, after the Conquest, the King's courts acquired jurisdiction at the expense of the old customary and feudal local tribunals. The common law grew up in the King's courts in and after the thirteenth century. Not unnaturally, the common law courts looked jealously at agreements to submit private disputes to extra-judicial determination instead of to the appointed tribunals of politically organised society.2 A doctrine that a contract to arbitrate on existing dispute or such disputes as might thereafter arise, either generally or under a particular transaction, was void as against public policy, was taken to be well settled.

But the exigencies of business brought about an increasing demand for commercial arbitration. In 1856, the House of Lords limited the common-law bars on arbitration agreements, by distinguishing an arbitration clause which made a condition precedent in a contract, so that there could be no claim to enforce judicially until after performance of the condition, from a contrast to submit an existing claim to arbitration.3

1. Pound jurisprudence, (1959), Vol. 5, pp. 357, 358.

2. Pound Jurisprudence, (1959), Vol. 5, p. 358.

3. Scott v. Avery, (1856) 5 HLC 811.