OF ARBITRA 5 IV. GEO. C. 96. Law of Eng Scotland as extra-judi II. BOARDS But the important question remains as to what they will do to TION UNDER help out the extra-judicial arbitration of parties after an award has been pronounced. Here, again, the laws of the two countries recognize pretty much the same principles. By the seventeenth land and section of the 17 & 18 Vict. c. 125, every agreement or subto enforcing mission to arbitration by consent, whether by deed or instrument cial awards. in writing not under seal, may be made a rule of any one of the superior courts of law or equity at Westminster on the application of any party thereto, unless such agreement or submission contain words purporting that the parties intend that it should not be made a rule of court. This privilege does not, however, apply to parole submissions (c). Law of summary diligence in consent In Scotland this result was arrived at about two centuries ago, by the insertion in deeds of submission of a clause called a clause Scott toy of registration, consenting to the submission and award following registration. thereon being recorded "in the books of council and session or others competent," and providing that "a charge" to implement proceeding upon a decree or judgment interponed by the judge within six days, should have the same force and effect as if such charge proceeded upon a judgment originally pronounced by such judge himself (d). As a matter of course, such a privilege could not follow upon verbal submissions or awards (e). (e) Russell on Arbitration, 61. (e) This mode of procedure in Scot- party charged to pay has a good defence against payment, he can be heard upon it by presenting a note of suspension in the Bill Chamber of the Court of Session, a mode of staying proceedings at common law not known in England, except in some cases called prohibitions, but which in Chancery is known as a bill or motion for injunction or stay of proceedings. Suspension in Scotland is usually granted on security being found by bond, when the grounds of defence are at once heard and determined. It is believed that there is a strong objection in England to this summary mode of recovering bills; but when a man puts his name to a bill or bond, he should not have the power of compelling his creditor to raise an ordinary action in a court of law. and subject him to all the delay and expense of establishing his debt, as if it had not been previously constituted. This old principle of the law of Scotland, of registration for judgment, is the foundation of the bill lately intro OF ARBITRA 5 GEо. IV. The laws of both countries, however, recognize such submis- II. BOARDS sions, but they are only adapted for matters of little importance. TION UNDER To have the full benefit, however, of efficient aid from courts of c. 96. law, it is necessary that the submission and award should be in Submissions writing, and also that there should be a special nomination of and awards certain arbiters to whom the disputes which may arise are to be writing. referred. This has been accomplished in Wolverhampton by the adoption in the trade rules of what is called an arbitration rule, in the following terms: should be in rule as to arbitra Rule That if any trade dispute shall arise between master and work- Trade men, such dispute shall be settled by the award of A. B. C. D., &c., on the part tion. of the masters, and E. F. G. H., &c., on the part of the workmen (an equal number of masters and men), who are hereby appointed trade arbitrators, or by a majority of them, or in case they or a majority of them cannot agree, then by the award of Y. Z., who is hereby appointed umpire. That in case any or either of the masters' arbitrators shall happen to die or cease to carry on business in the town of or be ill and unable to attend to the business of arbitrator during the continuance of these rules, then the survivor or remaining masters' arbitrators shall appoint another or other masters then carrying on business in the town of , in the place of him or them who shall have so died or ceased to carry on business, or become incapable of acting; and in case any or either of the workmen's arbitrators shall happen to die or cease to work as a in or become ill and incapable of attending to the business of arbitration during the continuance of these rules, then the survivors or remaining workmen's arbitrators shall appoint other journeymen the town of in the town of then working in the place of those who shall have so died or ceased to work or become incapable of acting. duced into the House of Commons by Mr. Crawfurd, M.P. for the Ayr burghs, intituled the "Judgments Extension Bill," by which it is proposed to make the judgments of certain of the courts of each of the three countries effectual in the other, by simply recording them in the books of the courts referred to in the bill. It is a remarkable instance of the slow progress of legal improvement in these islands, that a judgment obtained in London is at the present day of no force in Edinburgh or Dublin; and that although the action in which it was obtained may have exhausted the whole facts of the case, and perhaps the fortune of the party succeeding in it, he would require, should the defendant choose to cross the Scottish Border or the Irish Channel, to follow his debtor and go over the whole con tention again! It may sound strange II. BOARDS TION UNDER C. 96. masters or men appointed arbitrators shall be a party or parties to the dispute OF ARBITRA- to be decided, other arbitrators shall, for the purpose of that arbitration only, be 5 GEO. IV. appointed in manner herein before provided for filling up vacancies, and notice of every new appointment shall be given to the umpire immediately after it is made. That upon any dispute arising, either the master or workmen may forthwith give notice to the umpire of the same, who shall thereupon summon the arbitrators to meet at some convenient time and place within seven days, for the purpose of hearing and determining the said dispute. At the meeting so to be held, both parties and such others as the arbitrators or umpire may think necessary shall be heard, and both parties shall produce before the arbitrators and umpire such documents in their possession relating to the dispute as they or either of them shall require. The award of the said arbitrators, or a majority of them, or if they or a majority of them cannot agree, then the award of the umpire, shall be binding or conclusive upon all parties to the dispute arbitrated. The award shall be made within three days after the sitting, or if more than one, the last sitting of the arbitrators. The award shall not be void or voidable for want of form, and may be referred back for amendment in form to the arbitrators or umpire, as the case may be, by any judge or magistrate. No proceedings whatever, at law or in equity, shall be taken against either arbitrators or umpire, or any of them, for anything done under this rule. And lastly, that the arbitrators herein before provided are intended, between masters and workmen, to be, and for all intents and purposes shall be, taken and held to be under the provisions of section 13 of the 5 Geo. IV. c. 96. That a printed copy of these rules, signed by the umpire, shall be taken as a Trade rule true copy thereof in any court, or before any judge or magistrate, and shall in as to arbitra- all civil proceedings be read as and for the original, without requiring any further consent from either party for so reading such copy in evidence. tion. Another rule which was found to be useful in practice is the following: That in case any trade dispute or difference of a private nature shall arise between any individual master and any workman or workmen, by which the before general interests of the trade are not directly affected, then in such case, proceeding to arbitration under Rule the master shall nominate one of the herein before appointed masters' arbitrators, and the workman or workmen one of the herein before appointed workmen's arbitrators, who shall, as soon as conveniently may be, meet together and endeavour, if possible, to arrange such private dispute or difference without proceeding to a formal reference; and in case the contending parties cannot so arrange such difference to the mutual satisfaction of both parties, the matter in dispute shall be determined by arbitration under Provided, Kule as though no such meeting for conciliation had been held. always, that Rule shall for all purposes be taken to be entirely independent of and shall not be in any way affected by this rule. A code of trade regulations having been agreed upon, embracing a rule upon the matter of arbitration, it only remains to consider the terms of the individual contract between each master and OF ARBITRA 5 GEO. IV. workman. When men work in a shop or factory it is considered II. BOARDS to be sufficient if a printed copy of the rules is posted up in some TION UNDER conspicuous place in the shop or factory, and that the parties c. 96. verbally agree to the terms. The rules should, however, be read over to the men, so that there may be no pretext for afterwards pleading ignorance of them. In some colliery districts it is understood that it is usual to insert at the end of the rules printed under the Mines Inspection Act the special rules of the particular colliery, and to give a copy of both printed in a small book to each man upon his hiring. If these special rules con- Suggestions tained an ordinary arbitration clause, it has been suggested that this giving and accepting the book of the terms of the contract and commencing work under it, would operate in law as a perfectly good submission to arbitration. In the case of illiterate parties, of course, it would be absolutely necessary to read over the rules, and when the contract was in writing and subscribed by mark, to have the subscription attested by witnesses. The necessary forms will be found in the Appendix. The thirtysecond section of the Act enacts as follows: as to rules. 8. 32. 'Provided, always, and be it enacted, that any agreement, submission, award, Clause as to ticket, matter, or thing under and by virtue of this Act, or relating to any other Stamp Duty, mode of arbitration as aforesaid, shall and may be drawn up and written upon unstamped paper." An agreement by A. to employ B., and by B. to serve A., under such a rule as that before referred to, may fairly be held to be covered by this clause. 18 CILS OF CON CILIATION CHAPTER III. COUNCILS OF CONCILIATION UNDER THE ACT 30 & 31 VICT. c. 105 (1867). III. COUN- As formerly observed, the Arbitration Act of 1824 disappointed the expectations which had been formed with regard to it. This result has been attributed to the fact of its being mixed up with justice of peace jurisdiction and forms of procedure, and being otherwise cumbrous and roundabout in its design. It does not seem to have struck masters and workmen, however, that it was capable of being made available for furthering their extra-judicial agreements with regard to arbitration, by enforcing the awards pronounced therein, for no advantage seems to have been taken of it for that purpose. It is worthy of consideration, however, whether the Act is not fitted to be beneficial in this respect. With the intention, apparently, of giving greater encouragement to arbitration, it was for years a subject of consideration among some of our most prominent statesmen, and was one of the favourite speculations of Lord Brougham (a), whether it would not be possible to introduce some such system into this country as the Courts of Prud'hommes in France. With the view of promoting this object, it is understood that his lordship had sug (a) This work would in all probability not have been written but for a suggestion thrown out by Lord Brougham, which the author observed some time ago in the Illustrated London News, to the effect that it would be desirable that some lawyer should make himself acquainted with the working of the Courts of Prud'hommes, and explain it for the public benefit. This the author did in a series of articles published some time ago in one of the Glasgow daily papers. Since then the present work has been written. Just as the last corrections were being made upon this chapter, at the very place where the name of Lord Brougham occurs, the author became suddenly aware, by casually glancing at the conspicuous type of a morning paper, that the great and gifted being was no more whose inspiration had first originated its design, and whose example had sustained through many difficulties and discouragements its execution. Some weeks before, the note at page 61 had been printed. That note could still be recast, or even cancelled, death having changed the state of then existing facts; but what is writ is writ. A mighty man has left the earth, but a great name and memorable deeds remain to be recorded in the pages of history. |