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Report No. 76

1.7. History of control by courts.-

Though arbitration was recognised by the common law in England, from the very nature of an arbitration, some degree of control by the King's courts has been inevitable from Stuart times onwards. The growth of British overseas trade, and the expansion of the Empire from the time of the Treaty of Paris (1763), enlarged greatly the work of merchants and traders. Consequently, matters in dispute between such persons became increasingly frequent, and of major importance in the mercantile affairs of the realm. At first, these disputes were, in practice, decided under the common law, and related originally to chattels personal, or torts to the person. In more recent times, disputes were referred to arbitration in questions on real property, and more frequently, questions in the law of contract.1

Thus, from the passing of the Arbitration Act, 1897, the legislature in England became aware of the necessity of provisions which would aid the common law. A number of enactments were added to the Statute Book, culminating in the Common Law Procedure Act, 1854. The advent of railways, tramways and other mechanical means of transport led to an enormous increase of cases held in arbitrations in the second half of the nineteenth century, and as a result, Parliament passed the Arbitration Act of 1889. This statute has been the bedrock of statutory arbitration ever since, and codified the general law as it then stood.2

The English Act of 1889 was mainly declaratory of previous legislation, or of commercial and conveyancing practice. Many substantial changes in the previous law were made by the Arbitration Act, 1934. On 1st September, 1950, there came into force the Arbitration Act, 1950, which purports to consolidate without amendment all the earlier Acts on Arbitration. We shall have occasion to refer to its various provisions when we discuss the corresponding provisions of our law.

1. Gill Law of Arbitration, (1975), p. 1.

2. Gill Law of Arbitration, (1975), p. 2.

Arbitration Act, 1940 Back

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