Chapter 3

Law of France.—Voluntary arbitration has always been recognized in France. In cases of mercantile partnerships, arbitration was formerly compulsory; but in 1856 (law of the 17th of July 1856) jurisdiction in disputes between parties was conferred on the Tribunals of Commerce (as to which seeCode de Commerce, arts.615 et seq.), and arbitration at the present time is purely voluntary. The subject is very fully dealt with in theCode de Procédure Civile(arts. 1003-1028). The submission to arbitration (compromis) must, on pain of nullity, be acted upon within three months from its date (art. 1007). The submission terminates (i.) by the death, refusal, resignation or inability to act of one of the arbitrators; (ii.) by the expiration of the period agreed upon, or of three months if no time had been fixed; (iii.) by the disagreement of two arbitrators, unless power be reserved to them to appoint an umpire (art. 1012). An arbitrator cannot resign if he has once commenced to act, and can only be relieved on some ground arising subsequently to the submission (art. 1014). Each party to the arbitration is required to produce his evidence at least fifteen days before the expiration of the period fixed by the submission (art. 1016). If the arbitrators, differing in opinion, cannot agree upon an umpire (tiers arbitre), the president of the Tribunal of Commerce will appoint one, on the application of either party (art. 1017). The umpire is required to give his decision within one month of his acceptance of the appointment; before making his award, he must confer with the previous arbitrators who disagreed (art. 1018). Arbitrators and umpire must proceed according to the ordinary rules of law, unless they are specially empowered by the submission to proceed asamiables compositeurs(art. 1019). The award is rendered executory by an order of the president of the Civil Tribunal of First Instance (art. 1020). Awards cannot be set up against third parties (art. 1022), or attacked by way of opposition. An appeal against an award lies to the Civil Tribunal of First Instance, or to the court of appeal, according as the subject-matter, in the absence of arbitration, would have been within the jurisdiction of the justice of the peace, or of the Civil Tribunal of First Instance (art. 1023). In the manufacturing towns of France, there are also boards of umpires (Conseils de Prud’hommes) to deal with trade disputes between masters and workmen belonging to certain specified trades.Other Foreign Laws.—The provisions of French law as to arbitration are in force in Belgium (Code de Proc. Civ., arts. 1003 et seq.); and a convention (8th of July 1899) between France and Belgium regulates,inter alia, the mutual enforcement of awards. The law of France has also been reproduced in substance in the Netherlands (Code of Civil Procedure, arts. 620 et seq.). The German Imperial Code of Procedure did not create any system of arbitration in civil cases. But this omission was supplied in Prussia by a law of the 29th of March 1879, which provided for the appointment, in each commune, of an arbitrator (Schiedsmann) before whom conciliation proceedings in contentious matters might be conducted. The procedure was gratuitous and voluntary; and the functions of the arbitrator were not judicial; he merely recorded the arrangement arrived at, or the refusal of conciliation. This law was followed in Brunswick by a law of the 2nd of July 1896, and in Baden by a law of the 16th of April 1886. In Luxemburg, compulsory arbitration in matters affecting commercial partnerships was abolished in 1879 (law of the 16th of April 1879). A system of conciliation, similar to the Prussian, exists in Italy (laws of the 16th of June 1892, and the 26th of December 1892) and in some of the Swiss cantons (law of the 29th of April 1883). Spain (Code of Civil Proc., arts. 1003-1028; Civil Code, arts. 1820-1821) and Sweden and Norway (law of the 28th of October 1887) have followed the French law. In Portugal, provision has been made for the creation in important industrial centres, on the application of the administrative corporations, of boards of conciliation (decrees of the 14th of August 1889, and the 18th of May 1893).Authorities.—Russell,Arbitration(London, 1906);Annual Practice(London, yearly); Redman,Arbitration(London, 1897); Crewe,Arbitration Act of 1889(London, 1898); Pollock,On Arbitrators(London, 1906). As to Scots law: Bell,On Arbitration(2nd ed., Edinburgh, 1877); Erskine,Principles(20th ed., Edinburgh, 1903). As to American law: Morse,Law of Arbitration(Boston, 1872). As to foreign law generally: the texts of the laws cited, and theAnnuaire de législation étrangère.

Other Foreign Laws.—The provisions of French law as to arbitration are in force in Belgium (Code de Proc. Civ., arts. 1003 et seq.); and a convention (8th of July 1899) between France and Belgium regulates,inter alia, the mutual enforcement of awards. The law of France has also been reproduced in substance in the Netherlands (Code of Civil Procedure, arts. 620 et seq.). The German Imperial Code of Procedure did not create any system of arbitration in civil cases. But this omission was supplied in Prussia by a law of the 29th of March 1879, which provided for the appointment, in each commune, of an arbitrator (Schiedsmann) before whom conciliation proceedings in contentious matters might be conducted. The procedure was gratuitous and voluntary; and the functions of the arbitrator were not judicial; he merely recorded the arrangement arrived at, or the refusal of conciliation. This law was followed in Brunswick by a law of the 2nd of July 1896, and in Baden by a law of the 16th of April 1886. In Luxemburg, compulsory arbitration in matters affecting commercial partnerships was abolished in 1879 (law of the 16th of April 1879). A system of conciliation, similar to the Prussian, exists in Italy (laws of the 16th of June 1892, and the 26th of December 1892) and in some of the Swiss cantons (law of the 29th of April 1883). Spain (Code of Civil Proc., arts. 1003-1028; Civil Code, arts. 1820-1821) and Sweden and Norway (law of the 28th of October 1887) have followed the French law. In Portugal, provision has been made for the creation in important industrial centres, on the application of the administrative corporations, of boards of conciliation (decrees of the 14th of August 1889, and the 18th of May 1893).

Authorities.—Russell,Arbitration(London, 1906);Annual Practice(London, yearly); Redman,Arbitration(London, 1897); Crewe,Arbitration Act of 1889(London, 1898); Pollock,On Arbitrators(London, 1906). As to Scots law: Bell,On Arbitration(2nd ed., Edinburgh, 1877); Erskine,Principles(20th ed., Edinburgh, 1903). As to American law: Morse,Law of Arbitration(Boston, 1872). As to foreign law generally: the texts of the laws cited, and theAnnuaire de législation étrangère.

(A. W. R.)

ARBITRATION, INTERNATIONAL. International arbitration is a proceeding in which two nations refer their differences to one or more selected persons, who, after affording to each party an opportunity of being heard, pronounce judgment on the matters at issue. It is understood, unless otherwise expressed, that the judgment shall be in accordance with the law by which civilized nations have agreed to be bound, whenever such law is applicable. Some authorities, notably the eminent Swiss jurist, J.K. Bluntschli, consider that unless this tacit condition is complied with, the award may be set aside. This would, however, be highly inconvenient since international law has never been codified. A fresh arbitration might have to be entered on to decide (1) what the law was, (2) whether it applied to the matter in hand. Arbitration differs from Mediation (q.v.) in so far as it is a judicial act, whereas Mediation involves no decision, but merely advice and suggestions to those who invoke its aid.

Arbitral Tribunals.—An international arbitrator may be the chief of a friendly power, or he may be a private individual. When he is an emperor, a king, or a president of a republic, it is not expected that he will act personally; he may appoint a delegate or delegates to act on his behalf, and avail himself of their labours and views, the ultimate decision being his only in name. In this respect international arbitration differs from civil arbitration, since a private arbitrator cannot delegate his office without express authority. The analogy between the two fails to hold good in another respect also. In civil arbitration, the decision or award may be made a rule of court, after which it becomes enforceable by writ of execution against person or property. An international award cannot be enforced directly; in other words it has no legal sanction behind it. Its obligation rests on the good faith of the parties to the reference, and on the fact that, with the help of a world-wide press, public opinion can always be brought to bear on any state that seeks to evade its moral duty. The obligation of an ordinary treaty rests on precisely the same foundations. Where there are two or any other even number of arbitrators, provision is usually made for an umpire (Frenchsur-arbitre). The umpire may be chosen by the arbitrators themselves or nominated by a neutral power. In the “Alabama” arbitration five arbitrators were nominated by the president of the United States, the queen of England, the king of Italy, the president of the Swiss Confederation, and the emperor of Brazil respectively. In the Bering Sea arbitration there were seven arbitrators, two nominated by Great Britain, two by the United States, and the remaining three by the president of the French Republic, the king of Italy, and the king of Sweden and Norway respectively. In neither of these cases was there an umpire; nor was any necessary, since the decision, if not unanimous, lay with the majority. (See separate articles onBering Sea Arbitrationand“Alabama” Arbitration.)

Arbitral tribunals may have to deal with questions either of law or fact, or of both combined. When they have to deal with law only, that is to say, to lay down a principle or decide a question of liability, their functions are judicial or quasi-judicial, and the result is arbitration proper. Where they have to deal with facts only,e.g.the evaluation of pecuniary claims, their functions are administrative rather than judicial, and the term commission is applied to them. “Mixed commissions,” so called because they are composed of representatives of the parties in difference, have been frequently resorted to for delimitation of frontiers, and for settling the indemnities to be paid to the subjects of neutral powers in respect of losses sustained by non-combatants in times of war or civil insurrection. The two earliest of these were nominated in 1794 under the treaty negotiated by Lord Grenville with Mr John Jay, commonly called the “Jay Treaty,” their tasks being (1) to define the boundary between Canada and the United States which had been agreed to by the treaty signed at Paris in 1783; (2) to estimate the amount to be paid by Great Britain and the United States to each other in respect of illegal captures or condemnation of vessels during the war of the American Revolution.

Although arbitrations proper may be thus distinguished from “mixed commissions,” it must not be supposed that any hard or fast theoretical line can be drawn between them. Arbitrators strictly so called may (as in the “Alabama” case) proceed to award damages after they have decided the question of liability; whilst “mixed commissions,” before awarding damages, usually have to decide whether the pecuniary claims made are or are not well founded.

Awards.—International awards, as already pointed out, differ from civil awards in having no legal sanction by which they can be enforced. On the other hand, they resemble civil awards in that they may be set aside,i.e.ignored, for sufficient reason, as, for example, if the tribunal has not acted in good faith, or has not given to each party an opportunity of being heard, or has exceeded its jurisdiction. An instance under the last head occurred in 1831, when it was referred to the king of the Netherlands as sole arbitrator to fix the north-eastern boundary of the state of Maine. The king’s representativeswere unable to draw the frontier line by reason of the imperfection of the maps then in existence, and he therefore directed a further survey. This direction was beyond the terms of the reference, and the award, when made, was repudiated by the United States as void for excess. The point in dispute was only finally disposed of by the Webster-Ashburton treaty of 1842.

Subject-matter.—The history of international arbitration is dealt with in the articlePeace, where treaties of general arbitration are discussed, both those which embrace all future differences thereafter to arise between the contracting parties, and also those more limited conventions which aim at the settlement of all future differences in regard to particular subjects,e.g.commerce or navigation. The rapid growth of international arbitration in recent times may be gathered from the following figures. Between 1820 and 1840, there were eight such instances; between 1840 and 1860, there were thirty; between 1860 and 1880, forty-four; between 1880 and 1900, ninety. Of the governments which were parties in these several cases Great Britain heads the list in point of numbers, the United States of America being a good second. France, Portugal, Spain and the Netherlands are the European states next in order. The present article is concerned exclusively with arbitration in regard to such existing differences as are capable of precise statement and of prompt adjustment. These differences may be arranged in two main groups:—

(a) Those which have arisen between state and state in their sovereign capacities;(b) Those in which one state has made a demand upon another state, ostensibly in its sovereign capacity, but really on behalf of some individual, or set of individuals, whose interests it was bound to protect.

(a) Those which have arisen between state and state in their sovereign capacities;

(b) Those in which one state has made a demand upon another state, ostensibly in its sovereign capacity, but really on behalf of some individual, or set of individuals, whose interests it was bound to protect.

To group (a) belong territorial differences in regard to ownership of land and rights of fishing at sea; to group (b) belong pecuniary claims in respect of acts wrongfully done to one or more subjects of one state by, or with the authority of, another state. To enumerate even a tenth part of the successful arbitrations in recent times would occupy too much space. Some prominent examples (dealt with elsewhere under their appropriate titles) are the dispute between the United States and Great Britain respecting the “Alabama” and other vessels employed by the Confederate government during the American Civil War (award in 1872); that between the same powers respecting the fur-seal fishery in Bering Sea (award in 1893); that between Great Britain and Venezuela respecting the boundary of British Guiana (award in 1899); that between Great Britain, the United States and Portugal respecting the Delagoa railway (award in 1900); that between Great Britain and the United States respecting the boundary of Alaska (award in 1903). The long-standing Newfoundland fishery dispute with France (finally settled in 1904) is dealt with under Newfoundland. Other examples are shortly noticed in the tables on p. 329, which although by no means exhaustive, sufficiently indicate the scope and trend of arbitration during the years covered. The cases decided by the permanent tribunal at the Hague established in 1900 are not included in these tables. They are separately discussed later.

The Hague Tribunal.—The establishment of a permanent tribunal at the Hague, pursuant to the Peace convention of 1899, marks a momentous epoch in the history of international arbitration. This tribunal realized an idea put forward by Jeremy Bentham towards the close of the 18th century, advocated by James Mill in the middle of the 19th century, and worked out later by Mr Dudley Field in America, by Dr Goldschmidt in Germany, and by Sir Edmund Hornby and Mr Leone Levi in England. The credit of the realization is due, in the first place, to the tsar of Russia, who initiated the Hague Conference of 1899, and, in the second place to Lord Pauncefote (then Sir Julian Pauncefote, British ambassador at Washington), who urged before a committee of the conference the importance of organizing a permanent international court, the service of which should be called into requisition at will, and who also submitted an outline of the mode in which such a court might be formed. The result was embodied in the following articles of the Convention, signed on behalf of sixteen of the assembled powers on the 29th of July 1899.

(Art. 23). Each of the signatory powers is to designate within three months from the ratification of the convention four persons at the most, of recognized competence in international law, enjoying the highest moral consideration, and willing to accept the duties of arbitrators. Two or more powers may agree to nominate one or more members in common, or the same person may be nominated by different powers. Members of the court are to be appointed for six years and may be re-nominated. (Art. 25). The signatory powers desiring to apply to the tribunal for the settlement of a difference between them are to notify the same to the arbitrators. The arbitrators who are to determine this difference are, unless otherwise specially agreed, to be chosen from the general list of members in the following manner:—each party is to name two arbitrators, and these are to choose a chief arbitrator or umpire (sur-arbitre). If the votes are equally divided the selection of the chief arbitrator is to be entrusted to a third power to be named by the parties. (Art. 26). The tribunal is to sit at the Hague when practicable, unless the parties otherwise agree. (Art. 27). “The signatory powers consider it a duty in the event of an acute conflict threatening to break out between two or more of them to remind these latter that the permanent court is open to them. This action is only to be considered as an exercise of good offices.” Several of the powers nominated members of the permanent court pursuant to Art. 25, quoted above, those nominated on behalf of Great Britain being Lord Pauncefote, Sir Edward Malet, Sir Edward Fry and Professor Westlake. On the death of Lord Pauncefote, Major-General Sir John C. Ardagh was appointed in his place.Hague Cases.—(1) The first case decided by the Hague court was concerned with the “Pious Fund of the Californias.” A fund bearing this name was formed in the 18th century for the purpose of converting to the Catholic faith the native Indians ofThe pious fund of the Californias.Upper and Lower California, both of which then belonged to Mexico, and of maintaining a Catholic priesthood there. By a decree of 1842 this fund was transferred to the public treasury of Mexico, the Mexican government undertaking to pay interest thereon in perpetuity in furtherance of the design of the original donors. After the sale of Upper California to the United States, effected by the treaty of Guadalupe Hidalgo (1848), the Mexican government refused to pay the proportion of the interest to which Upper California was entitled. The question of liability was then referred to commissioners appointed by each state, and, on their failing to agree, to Sir Edward Thornton, British minister at Washington, who by his award, in 1875, found there was due from Mexico to Upper California, or rather to the bishops there as administrators of the fund, an arrear of interest amounting to nearly $100,000, which was directed to be paid in gold. This award was carried out, but payment of the current interest was again withheld as from the 24th of October 1868. Claim was thereupon made on Mexico by the United States on behalf of the bishops, but without success. Ultimately, in May 1902, an agreement was come to between the two governments which provided for the settlement of the dispute by the Hague tribunal. The points to be determined were (1) whether the matter wasres judicataby reason of Sir E. Thornton’s award; (2) whether, if not, the claim for the interest was just. The arbitrators selected by the United States were Sir E. Fry and Professor F. de Martens, and by Mexico, Professor Asser and Professor de Savornin Lohman, both of Amsterdam. These four (none of whom, it will be observed, was of the nationality of either party in difference) chose for their umpire Professor Matzen, of Copenhagen, president of the Landsthing there. In October 1902, the court decided both questions in the affirmative, awarding the payment by Mexico of the annual sum claimed, not in gold, buten monnaie ayant cours légal au Mexique. The direction to pay in gold made by Sir E. Thornton was held to be referable only to the mode of the execution of the award, and therefore not to bechose jugée.(2) The second arbitration before the Hague court was more important than the first, not only because so many of the great powers were concerned in it, but also because it brought about the discontinuance of acts of war. The facts mayGreat Britain, Germany and Italy versus Venezuela.be stated shortly thus. By three several protocols signed at Washington in February 1903, it was agreed that certain claims by Great Britain, Germany and Italy, on behalf of their respective subjects against the Venezuelan government should be referred to three mixed commissions, and that for the purpose of securing the payment of these claims 30 percent of the customs revenues at the ports of La Guayra and Puerto Caballo should be remitted in monthly instalments to the representative of the Bank of England at Caracas. Prior to the date of these protocols, an attempt had been made by Great Britain, Germany and Italy to enforce their claims by blockade, and a further question arose as between these three powers on the one hand, and the United States of America, France, Spain, Belgium, the Netherlands, Sweden and Norway, and Mexico (all of whom had claims against Venezuela, but had abstained from hostile action) on the other hand, as to whether the blockading powers were entitled to preferential treatment. By three several protocols signed in May1903 this question was agreed to be submitted to the Hague court, three members of which were to be named as arbitrators by the tsar of Russia, but no arbitrator was to be a subject or citizen of any of the signatory or creditor powers. The arbitrators named by the tsar were M. Muraviev, minister of justice and attorney-general of the Russian empire; Professor Lammasch, member of the Upper House of the Austrian parliament; and M. de Martens, then member of the council of the ministry of foreign affairs at St Petersburg. The arbitrators by their award in February 1904 decided unanimously in favour of the blockading powers and ordered payment of their claims out of the 30% of the receipts at the two Venezuelan ports which had been set apart to meet them.Dates ofagreementsto refer.Parties.Arbitrating Authority.Subject-Matter.Date of award.Table I.Territorial Disputes(Ownership)1857Holland and VenezuelaQueen of SpainIsland of Aves in Venezuela18651869Great Britain and PortugalPresident of United StatesIsland of Bulama on West Coast of Africa18701872Great Britain and PortugalPresident of French RepublicDelagoa Bay (part of), Inyack and Elephant Is., S.E. Africa18751876Argentine Republic and ParaguayPresident of United StatesTerritory between the Verde and Pilcomayo river of Paraguay18781885Great Britain and GermanyMixed CommissionIslets and guano deposits on S.W. Coast of Africa18861886Bulgaria and ServiaMixed CommissionTerritory near the village of Bergovo18871902Austria and HungaryMixed Commission (with President of Swiss Federal tribunal as umpire)Territory in the district of Upper Tatra1902Table II.Delimitation of Frontiers.1869Great Britainand the TransvaalLieutenant Governor of NatalThe southern boundary of the S. African Republic18701871Great Britain and the United StatesThe German EmperorThe San Juan water boundary18721873Italy and SwitzerlandMixed Commission (with U.S. Minister at Rome as umpire)The Canton of Ticino18741885Great Britain and RussiaMixed CommissionNorth-western Afganistan18871890France and HollandTsar of RussiaFrench Guiana and Dutch Guiana18911895Great Britain and PortugalPresident of the Italian Court of AppealManicaland18971897France and BrazilPresident of the Swiss ConfederationRiver Yapoe named in the Treaty of Utrecht 181319001901Great Britain and BrazilKing of ItalyBritish Guiana19041903Great Britain and PortugalKing of ItalyBarotseland1905Table III.Pecuniary Claims in respect of Seizures and Arrests.1851United States and PortugalPresident of French RepublicSeizure of the American privateer “General Armstrong”18521863Great Britain and BrazilKing of the BelgiansArrest of three British officers of the ship “La Forte”18631863Great Britain and PeruSentate of HamburgArrest at Callao of Capt. Melville White, a British subject18641870United States and SpainMixed CommissionThe American S.S. “Col. Lloyd Aspinwall”18701873Japan and PeruTsar of RussiaThe Peruvian barque “Maria Luz”18751874United States and ColombiaMixed CommissionThe American S.S. “Montijo”18751879France and NicaraguaFrench Court of CassationThe French ship “La Phare”18801885United States an SpainItalian Minister at MadridThe American S.S. “The Masonic”18851888The United States and DenmarkBritish Minister at AthensThe S.S. “Benjamin Franklin” and the barque “Catherine Augusta”18901895Great Britain and NetherlandsTsar of Russia, who delegated his duties to Professor F. de MartensArrest of the master of the “Costa Rica” packet (a British subject)1897(3) The third case before the Hague court was heard in 1904-1905. A controversy not amenable to ordinary diplomatic methods arose between Great Britain, France and Germany on the one hand and Japan on the other hand as to the legality of a house-tax imposed by Japan onGreat Britain, France and Germany versus Japan.certain subjects of those powers who held leases in perpetuity. The question upon the true construction of certain treaties between the European powers and Japan which had been made a few years previously. By three protocols signed at Tokyo in August 1902 this question was agreed to be submitted to arbitrators, members of the court at the Hague, one to be chosen by each party with power to name an umpire. The arbitrators chosen were M. Renault, professor of the law faculty in Paris, and M. Montono, the Japanese envoy to the French capital. They named as their umpire and president M. Gram, ex-minister of the state of Norway. In May 1905, an award was pronounced by the majority (M. Gram and M. Renault) in favour of the European contention, M. Montono dissenting both from the conclusion of his colleagues and from the reasons on which it was based.(4) Barely two months had elapsed since the date of the last award when the Hague court was again called into requisition. The scene of dispute this time was on the S.E. coast of Arabia. Muscat, the capital of the kingdom of Oman on that coast, is ruled by a sultan,Great Britain and the French flag at Muscat.whose independence both Great Britain and France had, in March 1862, “reciprocally engaged to respect.” Notwithstanding this, the French republic had issued to certain native dhows, owned by subjects of the sultan, papers authorizing them to fly the French flag, not only on the Oman littoral but in the Red Sea. A question thereupon arose as to the manner in which the privileges thereby purported to be conferred affected the jurisdiction of the sultan over such dhows, the masters of which, as was alleged, used their immunity from search for the purpose of carrying on contraband trade in slaves, arms and ammunition. In October 1904 the two governments agreed to refer this question to the Hague court. Chief Justice Melville W. Fuller, of the Supreme Court of the United States, was named as arbitrator on the part of Great Britain, M. de Savornin Lohrnan, who had acted in the case of the Californias (No. 1), as arbitrator on the part of France. The choice of an umpire was entrusted to the king of Italy. He named Professor Lammasch, who, as we have seen, had acted in the arbitration with Venezuela in 1903.A unanimous award was made in August 1905. It was held that although generally speaking every sovereign may decide to whom he will accord the right to fly his flag, yet in this case such right was limited by the general act of the Brussels conference of July 1890 relative to the African slave trade, an act which was ratified by France on the 2nd of June 1892; that accordingly the owners and master of dhows who had been authorized by France to fly the French flag before the last-named date retained this authorizationso long as France chose to renew it, but that after that date such authorization was improper unless the guarantees could establish that they had been treated by France as her protégés within the meaning of that term as explained in a treaty of 1863 between France and Morocco. A further point decided was that the owners or master of dhows duly authorized to fly the French flag within the ruling of the first point, did not enjoy, in consequence of that fact, any such right of extra-territoriality as would exempt them from the sovereignty and jurisdiction of the sultan. Such exemption would be contrary to the engagement to respect the independence of the sultan solemnly made in 1862.

Hague Cases.—(1) The first case decided by the Hague court was concerned with the “Pious Fund of the Californias.” A fund bearing this name was formed in the 18th century for the purpose of converting to the Catholic faith the native Indians ofThe pious fund of the Californias.Upper and Lower California, both of which then belonged to Mexico, and of maintaining a Catholic priesthood there. By a decree of 1842 this fund was transferred to the public treasury of Mexico, the Mexican government undertaking to pay interest thereon in perpetuity in furtherance of the design of the original donors. After the sale of Upper California to the United States, effected by the treaty of Guadalupe Hidalgo (1848), the Mexican government refused to pay the proportion of the interest to which Upper California was entitled. The question of liability was then referred to commissioners appointed by each state, and, on their failing to agree, to Sir Edward Thornton, British minister at Washington, who by his award, in 1875, found there was due from Mexico to Upper California, or rather to the bishops there as administrators of the fund, an arrear of interest amounting to nearly $100,000, which was directed to be paid in gold. This award was carried out, but payment of the current interest was again withheld as from the 24th of October 1868. Claim was thereupon made on Mexico by the United States on behalf of the bishops, but without success. Ultimately, in May 1902, an agreement was come to between the two governments which provided for the settlement of the dispute by the Hague tribunal. The points to be determined were (1) whether the matter wasres judicataby reason of Sir E. Thornton’s award; (2) whether, if not, the claim for the interest was just. The arbitrators selected by the United States were Sir E. Fry and Professor F. de Martens, and by Mexico, Professor Asser and Professor de Savornin Lohman, both of Amsterdam. These four (none of whom, it will be observed, was of the nationality of either party in difference) chose for their umpire Professor Matzen, of Copenhagen, president of the Landsthing there. In October 1902, the court decided both questions in the affirmative, awarding the payment by Mexico of the annual sum claimed, not in gold, buten monnaie ayant cours légal au Mexique. The direction to pay in gold made by Sir E. Thornton was held to be referable only to the mode of the execution of the award, and therefore not to bechose jugée.

(2) The second arbitration before the Hague court was more important than the first, not only because so many of the great powers were concerned in it, but also because it brought about the discontinuance of acts of war. The facts mayGreat Britain, Germany and Italy versus Venezuela.be stated shortly thus. By three several protocols signed at Washington in February 1903, it was agreed that certain claims by Great Britain, Germany and Italy, on behalf of their respective subjects against the Venezuelan government should be referred to three mixed commissions, and that for the purpose of securing the payment of these claims 30 percent of the customs revenues at the ports of La Guayra and Puerto Caballo should be remitted in monthly instalments to the representative of the Bank of England at Caracas. Prior to the date of these protocols, an attempt had been made by Great Britain, Germany and Italy to enforce their claims by blockade, and a further question arose as between these three powers on the one hand, and the United States of America, France, Spain, Belgium, the Netherlands, Sweden and Norway, and Mexico (all of whom had claims against Venezuela, but had abstained from hostile action) on the other hand, as to whether the blockading powers were entitled to preferential treatment. By three several protocols signed in May1903 this question was agreed to be submitted to the Hague court, three members of which were to be named as arbitrators by the tsar of Russia, but no arbitrator was to be a subject or citizen of any of the signatory or creditor powers. The arbitrators named by the tsar were M. Muraviev, minister of justice and attorney-general of the Russian empire; Professor Lammasch, member of the Upper House of the Austrian parliament; and M. de Martens, then member of the council of the ministry of foreign affairs at St Petersburg. The arbitrators by their award in February 1904 decided unanimously in favour of the blockading powers and ordered payment of their claims out of the 30% of the receipts at the two Venezuelan ports which had been set apart to meet them.

Holland and Venezuela

Queen of Spain

Island of Aves in Venezuela

Great Britain and Portugal

President of United States

Island of Bulama on West Coast of Africa

Great Britain and Portugal

President of French Republic

Delagoa Bay (part of), Inyack and Elephant Is., S.E. Africa

Argentine Republic and Paraguay

President of United States

Territory between the Verde and Pilcomayo river of Paraguay

Great Britain and Germany

Mixed Commission

Islets and guano deposits on S.W. Coast of Africa

Bulgaria and Servia

Mixed Commission

Territory near the village of Bergovo

Austria and Hungary

Mixed Commission (with President of Swiss Federal tribunal as umpire)

Territory in the district of Upper Tatra

Great Britainand the Transvaal

Lieutenant Governor of Natal

The southern boundary of the S. African Republic

Great Britain and the United States

The German Emperor

The San Juan water boundary

Italy and Switzerland

Mixed Commission (with U.S. Minister at Rome as umpire)

The Canton of Ticino

Great Britain and Russia

Mixed Commission

North-western Afganistan

France and Holland

Tsar of Russia

French Guiana and Dutch Guiana

Great Britain and Portugal

President of the Italian Court of Appeal

Manicaland

France and Brazil

President of the Swiss Confederation

River Yapoe named in the Treaty of Utrecht 1813

Great Britain and Brazil

King of Italy

British Guiana

Great Britain and Portugal

King of Italy

Barotseland

United States and Portugal

President of French Republic

Seizure of the American privateer “General Armstrong”

Great Britain and Brazil

King of the Belgians

Arrest of three British officers of the ship “La Forte”

Great Britain and Peru

Sentate of Hamburg

Arrest at Callao of Capt. Melville White, a British subject

United States and Spain

Mixed Commission

The American S.S. “Col. Lloyd Aspinwall”

Japan and Peru

Tsar of Russia

The Peruvian barque “Maria Luz”

United States and Colombia

Mixed Commission

The American S.S. “Montijo”

France and Nicaragua

French Court of Cassation

The French ship “La Phare”

United States an Spain

Italian Minister at Madrid

The American S.S. “The Masonic”

The United States and Denmark

British Minister at Athens

The S.S. “Benjamin Franklin” and the barque “Catherine Augusta”

Great Britain and Netherlands

Tsar of Russia, who delegated his duties to Professor F. de Martens

Arrest of the master of the “Costa Rica” packet (a British subject)

(3) The third case before the Hague court was heard in 1904-1905. A controversy not amenable to ordinary diplomatic methods arose between Great Britain, France and Germany on the one hand and Japan on the other hand as to the legality of a house-tax imposed by Japan onGreat Britain, France and Germany versus Japan.certain subjects of those powers who held leases in perpetuity. The question upon the true construction of certain treaties between the European powers and Japan which had been made a few years previously. By three protocols signed at Tokyo in August 1902 this question was agreed to be submitted to arbitrators, members of the court at the Hague, one to be chosen by each party with power to name an umpire. The arbitrators chosen were M. Renault, professor of the law faculty in Paris, and M. Montono, the Japanese envoy to the French capital. They named as their umpire and president M. Gram, ex-minister of the state of Norway. In May 1905, an award was pronounced by the majority (M. Gram and M. Renault) in favour of the European contention, M. Montono dissenting both from the conclusion of his colleagues and from the reasons on which it was based.

(4) Barely two months had elapsed since the date of the last award when the Hague court was again called into requisition. The scene of dispute this time was on the S.E. coast of Arabia. Muscat, the capital of the kingdom of Oman on that coast, is ruled by a sultan,Great Britain and the French flag at Muscat.whose independence both Great Britain and France had, in March 1862, “reciprocally engaged to respect.” Notwithstanding this, the French republic had issued to certain native dhows, owned by subjects of the sultan, papers authorizing them to fly the French flag, not only on the Oman littoral but in the Red Sea. A question thereupon arose as to the manner in which the privileges thereby purported to be conferred affected the jurisdiction of the sultan over such dhows, the masters of which, as was alleged, used their immunity from search for the purpose of carrying on contraband trade in slaves, arms and ammunition. In October 1904 the two governments agreed to refer this question to the Hague court. Chief Justice Melville W. Fuller, of the Supreme Court of the United States, was named as arbitrator on the part of Great Britain, M. de Savornin Lohrnan, who had acted in the case of the Californias (No. 1), as arbitrator on the part of France. The choice of an umpire was entrusted to the king of Italy. He named Professor Lammasch, who, as we have seen, had acted in the arbitration with Venezuela in 1903.

A unanimous award was made in August 1905. It was held that although generally speaking every sovereign may decide to whom he will accord the right to fly his flag, yet in this case such right was limited by the general act of the Brussels conference of July 1890 relative to the African slave trade, an act which was ratified by France on the 2nd of June 1892; that accordingly the owners and master of dhows who had been authorized by France to fly the French flag before the last-named date retained this authorizationso long as France chose to renew it, but that after that date such authorization was improper unless the guarantees could establish that they had been treated by France as her protégés within the meaning of that term as explained in a treaty of 1863 between France and Morocco. A further point decided was that the owners or master of dhows duly authorized to fly the French flag within the ruling of the first point, did not enjoy, in consequence of that fact, any such right of extra-territoriality as would exempt them from the sovereignty and jurisdiction of the sultan. Such exemption would be contrary to the engagement to respect the independence of the sultan solemnly made in 1862.

Arbitral Procedure.—Not the least of the benefits of the Hague convention of 1899 (strengthened by that of 1907) is that it contains rules of procedure which furnish a guide for all arbitrations whether conducted before the Hague court or not. These may be summarized as follows:—The initial step is the making by the parties of a special agreement clearly defining the subject of the dispute. The next is the choice of the arbitrators and of an umpire if the number of arbitrators is even. Each party then by its agents prepares and presents its case in a narrative or argumentative form, annexing thereto all relevant documents. The cases so presented are interchanged by transmission to the opposite party. The hearing consists in the discussion of the matters contained in the several cases, and is conducted under the direction of the president who is either the umpire, or, if there is no umpire, one of the arbitrators. The members of the tribunal have the right of putting questions to the counsel and agents of the parties and to demand from them explanation of doubtful points. The arbitral judgment is read out at a public sitting of the tribunal, the counsel and agents having been duly summoned to hear it. Any application for a revision of the award must be based on the discovery of new evidence of such a nature as to exercise a decisive influence on the judgment and unknown up to the time when the hearing was closed, both to the tribunal itself and to the party asking for the revision. These general rules are universally applicable, but each case may require that special rules should be added to them. These each tribunal must make for itself.

One special and necessary rule is in regard to the language to be employed. This rule must vary according to convenience and is therefore madead hoc. In case No. 1 noted above, the court allowed English or French to be spoken according to the nationality of the counsel engaged. The judgment was delivered in French only. In case No. 2 it was agreed that the written and printed memoranda should be in English but might be accompanied by a translation into the language of the power on whose behalf they were put in. The oral discussion was either in English or French as happened to be convenient. The judgment was drawn up in both languages. In case No. 3 French was the official language throughout, but the parties were allowed to make any communication to the tribunal, in French, English, German or Japanese. In case No. 4 French was again the official language, but the counsel and agents of both parties were allowed to address the tribunal in English. The protocols and the judgment were drawn up in French accompanied by an official English translation.

Limits of International Arbitration.—Of the numerous treaties for general arbitration which have been made during the 20th century that between Great Britain and France (1903) is a type. This treaty contains reservations of all questions involving the vital interests, the independence or the honour of the contracting parties. The language of the reservation is open to more interpretations than one. What, for instance, is meant by the phrase “national independence” in this connexion? If it be taken in its strict acceptation of autonomous state sovereignty, the exception is somewhat of a truism. No self-respecting power would, of course, consent to submit to arbitration a question of life or death. This would be as if two men were to agree to draw lots as to which should commit suicide in order to avoid fighting a duel. On the other hand, if the exception be taken to exclude all questions which, when decided adversely to a state, impose a restraint on its freedom of action, then the exception would seem to exclude such a question as the true interpretation of an ambiguous treaty, a subject with which experience shows international arbitration is well fitted to deal. Again, we may ask, what is meant by the phrase “national honour”? It was thought at one time that the honour of a nation could only be vindicated by war, though all that had happened was the slighting of its flag, or of its accredited representative, during some sudden ebullition of local feeling. France once nearly broke off peaceful relations with Spain because her ambassador at London was assigned a place below the Spanish ambassador, and on another occasion she despatched troops into Italy because her ambassador at Rome had been insulted by the friends and partisans of the pope. The truth is that the extent to which national honour is involved depends on factors which have nothing to do with the immediate subject of complaint. So long as general good feeling subsists between two nations, neither will easily take offence at any discourteous act of the other. But when a deep-seated antagonism is concealed beneath an unruffled surface, the most trivial incident will bring it to the light of day. “Outraged national honour” is a highly elastic phrase. It may serve as a pretext for a serious quarrel whether the alleged “outrage” be great or small.

The prospects of the expansion of international arbitration will be more clearly perceived if we classify afresh all state differences under two heads:—(1) those which have a legal character, (2) those which have a political character. Under “legal differences” may be ranged such as are capable of being decided, when once the facts are ascertained, by settled, recognized rules, or by rules not settled nor recognized, but (as in the “Alabama” case) taken so to be for the purpose in hand. Boundary cases and cases of indemnity for losses sustained by non-combatants in time of war, of which several instances have already been mentioned, belong to this class. To the same class belong those cases in which the arbitrators have to adapt the provisions of an old treaty to new and altered circumstances, somewhat in the way in which English courts of justice apply the doctrine of “cy-près.” “Political differences” on the other hand, are such as affect states in their external relations, or in relation to their subjects or dependants who may be in revolt against them. Some of these differences may be slight, while others may be vital, or (which amounts to the same thing) may seem to the parties to be so. All differences falling under the first of these two general heads appear to be suitable for international arbitration. Differences falling under the second general head are, for the most part, unsuitable, and may only be adjusted (if at all) through the mediation of a friendly power.

The interesting problem of the future is—are we to regard this classification as fixed or as merely transitory? The answer depends on several considerations which can only be glanced at here. It may be that, just as the usages of civilized nations have slowly crystallized into international law, so there may come a time when the political principles that govern states in relation to each other will be so clearly defined and so generally accepted as to acquire something of a legal or quasi-legal character. If they do, they will pass the line which at present separates arbitrable from non-arbitrable matter. This is the juridical aspect of the problem. But there is also an economic side to it by reason of the conditions of modern warfare. Already the nations are groaning under the burdens of militarism, and are for ever diverting energies that might be employed in the furtherance of useful productive work to purposes of an opposite character. The interruption of maritime intercourse, the stagnation of industry and trade, the rise in the price of the necessaries of life, the impossibility of adequately providing for the families of those—call them reservists, “landwehr,” or what you will—who are torn away from their daily toil to serve in the tented field,—these are considerations that may well make us pause before we abandon a peaceful solution and appeal to brute force. Lastly, there is the moral aspect of the problem. In order that international arbitration may do its perfect work, it is not enough to set up a standing tribunal, whether at the Hague or elsewhere, and to equip it with elaborate rules of procedure. Tribunals and rules are, after all, only machinery. If this machinery is to act smoothly we must improve our motive power, the source ofwhich is human passion and sentiment. Although religious animosities between Christian nations have died out, although dynasties may now rise and fall without raising half Europe to arms, the springs of warlike enterprise are still to be found in commercial jealousies, in imperialistic ambitions and in the doctrine of the survival of the fittest which lends scientific support to both. These must one and all be cleared away before we can enter on that era of universal peace towards the attainment of which the tsar of Russia declared, in his famous circular of 1898, the efforts of all governments should be directed. Meanwhile it is legitimate to share the hope expressed by President Roosevelt in his message to Congress of December 1905 that some future Hague conference may succeed in making arbitration the customary method of settling international disputes in all save the few classes of cases indicated above, and that—to quote Mr Roosevelt’s words—“these classes may themselves be as sharply defined and rigidly limited as the governmental and social development of the world will for the time being permit.”

Authorities.—Among special treatises are: Kamarowsky,Le Tribunal international(traduit par Serge de Westman) (Paris, 1887); Rouard de Card,Les Destinées de l’arbitrage international, depuis la sentence rendue par le tribunal de Genève(Paris, 1892); Michel Revon,L’Arbitrage international(Paris, 1892); Ferdinand Dreyfus,L’Arbitrage international(Paris, 1894) (where the earlier authorities are collected); A. Merignhac,Traité de l’arbitrage international(Paris, 1895); Le Chevalier Descamps,Essai sur l’organisation de l’arbitrage international(Bruxelles, 1896); Feraud-Giraud,Des Traités d’arbitrage international général et permanent, Revue de droit international(Bruxelles. 1897);Pasicrisie International, by Senator H. Lafontaine (Berne, 1902);Recueils d’actes et protocols de la cour permanente d’Arbitrage, Langenhuysen Frères, the Hague.Of works in English there is a singular dearth. The most important is by an American, J.B. Moore,History of the International Arbitrations to which the United States has been a Party(Washington, 1898). The appendices to this work (which is in six volumes) contain, with much other matter of great value, full historical notes of arbitrations between other powers. Arbitration and mediation will be found briefly noticed in Phillimore’sInternational Law; in Sir Henry Maine’sLectures, delivered in Cambridge in 1887; in W.E. Hall’sInternational Law, and more at length in an interesting paper contributed by John Westlake to theInternational Journal of Ethics, October 1896, which its author has reprinted privately. A London journal,The Herald of Peace and International Arbitration, issued some years ago a list of instances in which arbitration or mediation had been successfully resorted to during the 19th century. David Dudley Field, of New York, subsequently enlarged this list, which has been continued under the titleInternational Tribunals, by Dr W. Evans Darby, and is published, along with the texts of several projects for general arbitration, at the offices of the Peace Society, 47 New Broad Street, London.

Of works in English there is a singular dearth. The most important is by an American, J.B. Moore,History of the International Arbitrations to which the United States has been a Party(Washington, 1898). The appendices to this work (which is in six volumes) contain, with much other matter of great value, full historical notes of arbitrations between other powers. Arbitration and mediation will be found briefly noticed in Phillimore’sInternational Law; in Sir Henry Maine’sLectures, delivered in Cambridge in 1887; in W.E. Hall’sInternational Law, and more at length in an interesting paper contributed by John Westlake to theInternational Journal of Ethics, October 1896, which its author has reprinted privately. A London journal,The Herald of Peace and International Arbitration, issued some years ago a list of instances in which arbitration or mediation had been successfully resorted to during the 19th century. David Dudley Field, of New York, subsequently enlarged this list, which has been continued under the titleInternational Tribunals, by Dr W. Evans Darby, and is published, along with the texts of several projects for general arbitration, at the offices of the Peace Society, 47 New Broad Street, London.

(M. H. C.)

ARBITRATION AND CONCILIATION. The terms “arbitration and conciliation” as employed in this article, are used to describe a group of methods of settling disputes between employers and work-people or among two or more sets of work-people, of which the common feature is the intervention of some outside party not directly affected by the dispute. If the parties agree beforehand to abide by the award of the third party, the mode of settlement is described as “arbitration.” If there be no such agreement, but the offices of the mediator are used to promote an amicable arrangement between the parties themselves, the process is described as “conciliation.” The third party may be one or more disinterested individuals, or a joint-board representative of the parties or of other bodies or persons.

The process here termed “arbitration” is rarely an arbitration in the strict legal sense of the term (at least in the United Kingdom), because of the defective legal personality of the associations or groups of individuals who are usually parties to labour disputes, and the consequent absence in the great majority of cases of a valid legal “submission” of the difference to arbitration. Whether or not trade unions of employers or workmen in the United Kingdom are capable of entering through their agents into contracts which are legally binding on their members it is fairly certain that the great majority of the agreements actually made by the representatives of employers and workmen to submit a dispute to the decision of a third party are of no legal force except as regards the actual signatories. Broadly speaking, therefore, the provisions of the Arbitration Act 1889, which consolidated the law relating to arbitration in general, would as a rule have no application to the settlement of collective disputes between employers and workmen, even if the act had not been expressly excluded by section 3 of the Conciliation Act of 1896 in the case of disputes to which that act applies. Besides the absence of a legal “submission,” labour arbitrations differ from ordinary arbitrations in the fact that the questions referred often (though by no means always) relate to the terms on which future contracts shall be made, whereas the vast majority of ordinary arbitrations relate to questions arising out of existing contracts. The defective “personality” of the parties to labour disputes also prevents the enforcement of an award by legal penalties. Since, however, difficulties of enforcement affect not only settlements arrived at by arbitration, but all agreements between bodies of employers and work-people with regard to the terms of employment, they are most appropriately considered at a later stage of this article.

The term “conciliation” is ordinarily used to cover a large number of methods of settlement, shading off in the one direction into “arbitration” and in the other into ordinary direct negotiation between the parties. In some cases conciliation only differs from arbitration in the absence of a previous agreement to accept the award. The German “Gewerbegerichten,” when dealing with labour disputes, communicate a decision to both parties, who must notify their acceptance or otherwise (see below). Some of the state boards in America take similar action. The conciliation boards established under the New Zealand Arbitration Act of 1894 (see below) make recommendations, though either side may decline to accept them and may appeal to the court of arbitration, which in that colony has compulsory powers. Most frequently, however, in Great Britain, the mediating party abstains from pronouncing a definite judgment of his own, but confines himself to friendly suggestions with a view of removing obstacles to an agreement between the parties. On the other hand, it is not easy to define how far the “outside party” must be independent of the parties to the dispute, in order that the method of settlement may be properly described as “conciliation.” There is a sense in which a friendly conversation between an employer or his manager and a deputation of aggrieved workmen is rightly described as “conciliation,” but such an interview would certainly not be covered by the term as ordinarily used at the present day. Again, when the parties are represented by agents (e.g.the officials of an employers’ association and of a trade union) the actual negotiators or some of them may not personally be affected by the particular dispute, and may often exercise some of the functions of the mediator or conciliator in a manner not clearly to be distinguished from the action of an outside party. It seems best, however, to exclude such negotiations from our purview so long as those between whom they are carried on merely act as the authorized agents for the parties affected. In the same way, a meeting arrangedad hocbetween delegates of an employers’ association and a trade union, for the purpose of arranging differences as to the terms on which the members of the association shall employ members of the union is not usually classed as “conciliation,” unless the meeting is held in the presence of an independent chairman or conciliator, or in pursuance of a permanent agreement between the associations laying down the procedure for the settlement of disputes. If, however, the dispute is considered and arranged not by a casual meeting between two committees and deputations appointedad hoc, but by a permanently organized “joint committee” or board with a constitution, rules of procedure and officers of its own, the process of settlement is by ordinary usage described as “conciliation,” even though the board be entirely representative of the persons engaged in the industry. Such joint boards, as will be seen, play a most important part in conciliation at the present day, and they almost always have attached to them some machinery for the ultimate decision by arbitration of questions on which they fail to agree. Another form of conciliation is that in which the mediating board represents a wider group of industries than those affected by the dispute (e.g.the Londonand other “district” boards referred to below). Moreover, in some of the most important cases of settlement of disputes by conciliation, the mediating party has not been a permanent board but a disinterested individual,e.g.the mayor, county court judge, government official or member of parliament. As will be seen below, the Conciliation Act now provides for the appointment of “conciliators” by the Board of Trade.

Voluntary trade boards, however (i.e.permanent joint boards representing employers and work-people in particular trades), are at once the most firmly established and the most important agencies in Great Britain for the prevention and settlement of labour disputes. Among the earliest of such bodies was the board of arbitration in the Macclesfield silk trade, formed in 1849, in imitation of the French “Conseils de Prud’hommes,” but which only lasted four years. The first board, however, which attained any degree of permanent success was that established for the hosiery and glove trade in Nottingham in 1860, through the efforts of A.J. Mundella. In 1864 a board was established in the Wolverhampton building trades, with Rupert Kettle as chairman, and in 1868 boards were formed for the pottery trade, the Leicester hosiery trade and the Nottingham lace trade. In 1869 there was formed one of the most important of the still existing boards, viz. the board of arbitration and conciliation in the manufactured iron and steel trades of the north of England, with which the names of Rupert Kettle, David Dale and others are associated. In 1872 and 1873 joint committees were formed in the Durham and Northumberland coal trades to deal with local questions. The Leicester boot and shoe trade board, the first of an elaborate system of local boards in this trade, was founded in 1875. From about 1870 onwards there was a great movement for the establishment of “sliding scales” in the coal and iron and steel trades, which by regulating wages automatically rendered unnecessary the settlement of general wages by conciliation or arbitration. These sliding scales, however, usually had attached to them joint committees for dealing with disputed questions. A sliding scale arranged by David Dale was attached to the manufactured iron trade board in 1871. A sliding scale for the Cleveland blast furnacemen came into force in 1879. Sliding scales were also adopted in the coal trade in many districts,e.g.South Wales (1875), Durham (1877) and Northumberland (1879). The movement was, however, followed by a reaction, and several of the sliding scales in the coal trade were terminated between 1887 and 1889. In 1902 the last surviving sliding scale in the coal trade, viz. in South Wales, ceased to exist and was replaced by a conciliation board.

The formation on a large scale of conciliation boards in the coal trade to fix the rate of wages dates from the great miners’ dispute of 1893, one of the terms of settlement agreed to at the conference held at the foreign office under Lord Rosebery being the formation of a conciliation board covering the districts affected. Northumberland followed in 1894, Durham in 1895, Scotland in 1900 and South Wales in 1903.

In 1907 an important scheme for the formation of conciliation boards for railway companies and their employees was adopted as the result of the action taken by the president of the Board of Trade to prevent a general strike of railway servants in that year. Under this scheme separate boards (sectional and general) were to be formed for the employees of each railway company which adhered to the scheme, with provision for reference in case of a deadlock to an umpire.

The first general district board to be formed was that established in London in 1890, through the London chamber of commerce, as a sequel to the Mansion House committee which mediated in the great London dock strike of 1889. The example was followed by several large towns, but the action taken by the boards in most of these provincial districts has been very limited.

In addition there are two boards composed of representatives of co-operators and trade-unionists for the settlement of disputes arising between co-operative societies and their employees.

The most typical form of machinery for the settlement of disputes by voluntary conciliation is a joint board consisting of equal numbers of representatives of employers and employed. The members of the board are usuallyConstitution and functions of voluntary conciliation boards.elected by the associations of employers and workmen, though in some cases (e.g.in the manufactured iron trade board) the workmen’s representatives are elected not by their trade union but by meetings of workmen employed at the various works. The chairman may be an independent person, or, more usually, a representative of the employers, the vice-chairman being a representative of the workmen. In the arbitration and conciliation boards in the boot and shoe trade, provision is made by which the chair may be occupied by representatives of the employers and workmen in alternate years. An independent chairman usually has a casting vote, which practically makes him an umpire in case of equal voting, but where there is no outside chairman there is often provision for reference of cases on which the board cannot agree to an umpire, who may either be a permanent officer of the board elected for a period of time (as in the case of several of the boards in the boot and shoe trade), or selectedad hocby the board or appointed by some outside person or body. Thus the choice of the permanent chairman or umpire of the miners’ conciliation board, formed in pursuance of the settlement of the coal dispute of 1893 by Lord Rosebery, was left to the speaker of the House of Commons. The nomination of umpires under the Railway Agreement of 1907 was left to the speaker and the master of the rolls. Since the passing of the Conciliation Act, several conciliation boards have provided in their rules for the appointment of umpires by the Board of Trade.

Conciliation boards constituted as described above usually have rules providing that there shall always be equality of voting as between employer and workmen, in spite of the casual absence of individuals on one side or the other. In order to expedite business it is sometimes provided that all questions shall be first considered by a sub-committee, with power to settle them by agreement before coming before the full board. Boards of conciliation and arbitration conforming more or less to the above type exist in the coal, iron and steel, boot and shoe and other industries in the United Kingdom. A somewhat different form of organization has prevailed in the cotton-spinning trade (since the dispute of 1892-1893) and in the engineering trade (since the engineering dispute of 1897-1898). In these important industries there are no permanent boards for the settlement of general questions, but elaborate agreements are in force between the employers’ and workmen’s organizations which among other things prescribe the mode in which questions at issue shall be dealt with and if possible settled. In the first place, if the question cannot be settled between the employer and his workmen, it is dealt with by the local associations or committees or their officials, and failing a settlement in this manner, is referred to a joint meeting of the executive committees of the two associations. In neither agreement is there any provision for the ultimate decision of unsettled questions by arbitration. The agreement in the cotton trade is known as the “Brooklands Agreement,” and a large number of questions have been amicably settled under its provisions. In the building trade, it is very customary for the local “working rules,” agreed to mutually by employers and employed in particular districts, to contain “conciliation rules” providing for the reference of disputed questions to a joint committee with or without an ultimate reference to arbitration. Yet another form of voluntary board is the “district board,” consisting in most cases of representatives elected in equal numbers by the local chamber of commerce and trades council respectively. In the case, however, of the London Conciliation Board the workmen’s representatives are elected, twelve by specially summoned meetings of trade union delegates and two by co-optation. The functions of district boards are to deal with disputes in any trade which may occur within their districts, and of course they can only take action with the consent of both parties to the dispute, in this respect differing from the majority of “trade” boards, which, as a rule, are empowered by the agreement under which they are constitutedto deal with questions on the application of either party. Another interesting type of board is that representing two or more groups of workmen and sometimes their employers, with the object of settling “demarcation” disputes between the groups of workmen (i.e.questions as to the limits of the work which each group may claim to perform). Examples of such boards are those representing shipwrights and joiners on the Clyde, Tyne and elsewhere. While the arrangements for voluntary conciliation and arbitration differ in this way in various industries, there is an equally wide variation in the character and range of questions which the boards are empowered to determine. For example, some boards in the coal trade (e.g.the conciliation boards in Northumberland and the so-called “Federated Districts”) deal solely with the general rate of wages. Others,e.g.the “joint committee” in Northumberland and Durham, confine their attention solely to local questions not affecting the counties as a whole. The Durham conciliation board deals with any general or county questions. This distinction between “general” and “local” questions corresponds nearly, though not entirely, to the distinction often drawn between questions of the terms of future employment and of the interpretation of existing agreements. Some conciliation boards are unlimited as regards the scope of the questions which they may consider. This was formerly the case with the boards in the boot and shoe trade, but under the “terms of settlement” of the dispute in 1895 drawn up at the Board of Trade, certain classes of questions (e.g.the employment of particular individuals, the adoption of piece-work or time-work, &c.) were wholly or partially withdrawn from their consideration, and any decision of a board contravening the “terms of settlement” is null and void. A special feature in the procedure for conciliation and arbitration in the boot and shoe trade, is the deposit by each party of £1000 with trustees, as a financial guarantee for the performance of agreements and awards. A certain class of conciliation boards, mostly in the Midland metal trades, were attached to “alliances” of employers and employed, having for their object the regulation of production and of prices (e.g.the Bedstead Trade Wages Board). None of these alliances, however, have survived.

At all events up to the year 1896, the development of arbitration and conciliation as methods of settling labour disputes in the United Kingdom was entirely independent of any legislation. Previously to the Conciliation Act ofLegislation in the United Kingdom.1896 several attempts had been made by parliament to promote arbitration and conciliation, but with little or no practical result, and the act of 1896 repealed all previous legislation on the subject, at the same time excluding the operation of the Arbitration Act of 1889 from the settlement of “any difference or dispute to which this act applies.” The laws repealed by the Conciliation Act need only a few words of mention. During the 18th century the fixing of wages by magistrates under the Elizabethan legislation gradually decayed, and acts of 1745 and 1757 gave summary jurisdiction to justices of the peace to determine disputes between masters and servants in certain circumstances, although no rate of wages had been fixed that year by the justices of the peace of the shire. These and other laws, relating specially to disputes in the cotton-weaving trade, were consolidated and amended by the Arbitration Act of 1824. This act seems chiefly to have been aimed at disputes relating to piece-work in the textile trades, though applicable to other disputes arising out of a wages contract. It expressly excluded, however, the fixing of a rate of wages or price of labour or workmanship at which the workmen should in future be paid unless with the mutual consent of both master and workmen. The act gave compulsory powers of settling the disputes to which it relates on application of either party to a court of arbitrators representing employers and workmen nominated by a magistrate. The award could be enforced by distress or imprisonment. The act was subsequently amended in detail, and by the “Councils of Conciliation” Act of 1867 power was given to the home secretary to license “equitable councils of conciliation and arbitration” equally representative of masters and workmen, who should thereupon have the powers conferred by the act of 1824. The act contains provisions for the appointment of conciliation committees, and other details which are of little interest seeing that the act was never put into operation. Another amendment of the act of 1824 was made by the Arbitration (Masters and Workmen) Act of 1872, which contemplated the conclusion of agreements between employers and employed, designating some board of arbitration by which disputes included within the scope of the former acts should be determined. A master or workman should be deemed to be bound by an agreement under the act, if he accepted a printed copy of the agreement and did not repudiate it within forty-eight hours. Like the previous legislation, however, the act of 1872 was inoperative. The evidence given before the Royal Commission on Labour (1891-1894) disclosed the existence of a considerable body of opinion in favour of some further action by the state for the prevention or settlement of labour disputes, and some impetus was given to the movement by the settlement through official mediation of several important disputes,e.g.the great coal-miners’ dispute of 1893 by a conference presided over by Lord Rosebery, the cab-drivers’ dispute of 1894 by the mediation of the home secretary (H.H. Asquith), and the boot and shoe trade dispute of 1895 by a Board of Trade conference under the chairmanship of Sir Courtenay Boyle. In these, and a few other less important cases, the intervention of the Board of Trade or other department took place without any special statutory sanction. The Conciliation Act passed in 1896 was framed with a view to giving express authorization to such action in the future.

This act is of a purely voluntary character. Its most important provisions are those of section 2, empowering the Board of Trade in cases “where a difference exists or is apprehended between any employer, or any class of employers, and workmen, or between different classes of workmen,” to take certain steps to promote a settlement of the difference. They may of their own initiative hold an inquiry or endeavour to arrange a meeting between the parties under a chairman mutually agreed on or appointed from the outside, and on the application of either party they may appoint a conciliator or a board of conciliation who shall communicate with the parties and endeavour to bring about a settlement and report their proceedings to the Board of Trade. On the application of both parties the Board of Trade may appoint an arbitrator. In all cases the Board of Trade has discretion as to the action to be taken, and there is no provision either for compelling the parties to accept their mediation or to abide by any agreement effected through their intervention. There are other provisions in the act providing for the registration of voluntary conciliation boards, and for the promotion by the Board of Trade of the formation of such boards in districts and trades in which they are deficient. During the first eleven years after the passage of the act the number of cases arising under section 2 (providing for action by the Board of Trade for the settlement of actual or apprehended disputes) averaged twenty-one per annum, and the number of settlements effected fifteen. In the remaining cases the Board of Trade either refused to entertain the application or failed to effect a settlement, or the disputes were settled between the parties during the negotiations. About three-quarters of the settlements were effected by arbitration and one-quarter by conciliation. A number of voluntary conciliation boards formed or reorganized since the passing of the act provide in their rules for an appeal to the Board of Trade to appoint an umpire in case of a deadlock. At least thirty-six trade boards are known to have already adopted this course. The figures given above show that the Conciliation Act of 1896 has not, like previous legislation, been a dead letter, though the number of actual disputes settled is small compared with the total number annually recorded.

Arbitration and conciliation in labour disputes as practised in the United Kingdom are entirely voluntary, both as regards the initiation and conduct of the negotiations and the carrying out of the agreement resulting therefrom,Proposals for compulsion.In all these respects arbitration, though terminating in what is called a binding award, is on precisely the same legal footing as conciliation, which results in a mutualagreement. Various proposals have been made (and in some cases carried into effect in certain countries) for introducing an element of compulsion into this class of proceeding. There are three stages at which compulsion may conceivably be introduced, (1) The parties may be compelled by law to submit their dispute to some tribunal or board of conciliation; (2) the board of conciliation or arbitration may have power to compel the attendance of witnesses and the production of documents; (3) the parties may be compelled to observe the award of the board of arbitration. The most far-reaching schemes of compulsory arbitration in force in any country are those in force in New Zealand and certain states in Australia. Bills have been introduced into the British House of Commons for clothing voluntary boards of conciliation and arbitration, under certain conditions, with powers to require attendance of witnesses and production of documents, without, however, compelling the parties to submit their disputes to these boards or to abide by their decisions. In the United Kingdom, however, more attention has recently been given to the question of strengthening the sanction for the carrying out of awards and agreements than of compelling the parties to enter into such arrangements. An interesting step towards the solution of the difficulty of enforcement in certain cases is perhaps afforded by the provisions of the terms of settlement of the dispute in the boot and shoe trade drawn up at the Board of Trade in 1895. Under this agreement £1000 was deposited by each party with trustees, who were directed by the trust-deed to pay over to either party, out of the money deposited by the other, any sum which might be awarded as damages by the umpire named in the deed, for the breach of the agreement or of any award made by an arbitration board in consonance with it. Very few claims for damages have been sustained under this agreement. Nevertheless it cannot be doubted that the pecuniary liability of the parties has given stability to the work of the local arbitration boards, and the satisfaction of both sides with the arrangement is shown by the fact that the trust-deed which lapsed in 1900 has been several times renewed by common agreement for successive periods of two years, and is now in force for an indefinite period subject to six months’ notice from either side. Theoretically a trust-deed of this kind can only offer a guarantee up to the point at which the original deposit on one side or the other is exhausted, as it is impossible to compel either party to renew the deposit. A proposal was made by the duke of Devonshire and certain of his colleagues on the Royal Commission on Labour for empowering associations of employers and employed to acquire, if they desired it, sufficient legal personality and corporate character to enable them to sue each other or their own members for breach of agreement. This would give the association aggrieved by a breach of award the power of suing the defaulting organization to recover damages out of their corporate funds, while each association could exact penalties from its members for such a breach. For this reason the suggestion has met with a good deal of support by many interested in arbitration and conciliation, but has been steadily opposed by representatives of the trade unions.

The question is not free from difficulties. The object of the change would be to convert what are at present only morally binding understandings into legally enforceable contracts. But apart from the possibility that some of such contracts would be held by the courts to be void as being “in restraint of trade,” the tendency might be to give a strict legal interpretation to working agreements which might deprive them of some of their effectiveness for the settlement of the conditions of future contracts between employers and workmen, while possibly deterring associations from entering into such agreements for fear of litigation. Individuals, moreover, could avoid liability by leaving their associations. In practice the cases of repudiation or breach of an award or agreement are not common. In countries like New Zealand, where the parties are compelled to submit their differences to arbitration, some of the above objections do not apply.

The following statistics are based on the reports of the Labour department of the Board of Trade. The number of boards of conciliation and arbitration known to be in existence in the United Kingdom is nearly 200, but a good many ofStatistics of existing agencies.these do little or no active work. Only about one-third of these boards deal with actual cases in any one year, the active boards being mainly connected with mining, iron and steel, engineering and shipbuilding, boot and shoe and building trades. During the ten years 1897-1906 the total number of cases considered by these boards averaged about 1500 annually, of which they have settled about half, the remainder having been withdrawn, referred back or otherwise settled. About three-quarters of the cases settled were determined by the boards themselves and only one-quarter by umpires. The great majority of the cases settled were purely local questions. Thus more than half the total were dealt with by the “joint committees” in the Northumberland and Durham coal trades, which confine their action to local questions, such as fixing the “hewing prices” for new seams. The great majority of the cases settled did not actually involve stoppage of work, the most useful work of these permanent boards being the prevention rather than the settlement of strikes and lockouts. A certain number of disputes are settled every year by the mediation or arbitration of disinterested individuals,e.g.the local mayor or county court judge.

The extent to which the methods of arbitration and conciliation can be expected to afford a substitute for strikes and lockouts is one on which opinions differ very widely. The difficulties arising from the impossibility of enforcingFuture scope and limits.agreements or awards by legal process have already been discussed. Apart from these, however, it is evident that both methods imply that the parties, especially the work-people, are organized at least to the extent of being capable of negotiating through agents. In some industries (e.g.agriculture or domestic service) this preliminary condition is not satisfied; in others the men’s leaders possess little more than consultative powers, and employers may hesitate to deal either directly or through a third party with individuals or committees who have so little authority over those whom they claim to represent. And even where the trade organizations are strong, some employers refuse in any way to recognize the representative character of the men’s officials. The question of the “recognition” of trade unions by employers is a frequent cause of disputes (seeStrikes and Lock-outs.) It may be observed, however, that it often occurs that in cases in which both employers and employed are organized into associations which are accustomed to deal with each other, one or both parties entertain a strong objection to the intervention of any outside mediator, or to the submission of differences to an arbitrator. Thus the engineering employers in 1897 were opposed to any outside intervention, though ready to negotiate with the delegates chosen by the men. On the other hand, the cotton operatives have more than once opposed the proposal of the employers to refer the rate of wages to arbitration, and throughout the great miners’ dispute of 1893 the opposition to arbitration came from the men. Naturally, the party whose organization is the stronger is usually the less inclined to admit outside intervention. But there have also been cases in which employers, who refused to deal directly with trade union officials, have been willing to negotiate with a mediator who was well known to be in communication with these officials,e.g.in the case of the Railway Settlement of 1907.

Apart, however, from the disinclination of one or both parties to allow of any outside intervention, we have to consider how far the nature of the questions in dispute may in any particular case put limits to the applicability of conciliation or arbitration as a method of settlement. Since conciliation is only a general term for the action of a third party in overcoming the obstacles to the conclusion of an agreement by the parties themselves, there is no class of questions which admit of settlement by direct negotiation which may not equally be settled by this method, provided of course that there is an adequate supply of sufficiently skilful mediators. As regards arbitration the case is somewhat different, seeing that in this case the parties agree to be bound by the award of a third party. For the successof arbitration, therefore, it is important that the general principles which should govern the settlement of the particular question at issue should be admitted by both sides. Thus in the manufactured iron trade in the north of England, it has throughout been understood that wages should depend on the prices realized, and the only question which an arbitrator has usually had to decide has been how far the state of prices at the time warranted a particular change of wage. On the other hand, there are many questions on which disputes arise (e.g.the employment of non-union labour, the restriction of piece-work, &c.) on which there is frequently no common agreement as to principles, and an arbitrator may be at a loss to know what considerations he is to take into account in determining his award. Generally speaking, employers are averse from submitting to a third party questions involving discipline and the management of their business, while in some trades workmen have shown themselves opposed to allowing an arbitrator to reduce wages beyond a certain point which they wish to regard as a guaranteed “minimum.”

Back to Index Next