Arbitration

“ But it must be borne in mind that this arbitration was made under a rule of court. Not only that, but special provision was made for the action of the court in deciding questions of law arising upon the report of the arbitrator, so that the arbitration was not an outside and independent proceeding, but simply one had in court, for the purpose of facilitating the disposition of the case. ”

“ Hence, who—court or arbitrator—has the primary authority to decide whether a party has agreed to arbitrate can make a critical difference to a party resisting arbitration.
We believe the answer to the "who" question (i.e., the standard of review question) is fairly simple. Just as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, see, e.g., Mastrobuono v. ”

“ In the first Arbitration the offendor may offer reasonable terms of peace, and the offended may exact upon him and refuse and trouble men beyond reasonable satisfaction; so for the last arbitrators to judge where the fault was, in not agreeing in the first, to pay the charge of the last.
IV. Agreed, that if any person damnify any man, either in goods of good name, and the person offended follow not the cause uppon the offendor, that if any person give notice to the 5 Disposers, they shall call the party delinquent to answer by Arbitration. ”

“ To be sure, since arbitration is a creature of contract, a court must always inquire, when a party seeks to invoke its aid to force a reluctant party to the arbitration table, whether the parties have agreed to arbitrate the particular dispute. ”

“ There is one other thing we should do if we are true champions of arbitration. We should make all arbitral awards judgments by record of a court of law in order that their interpretation and enforcement may lie, not with one of the parties to the arbitration, but with an impartial and authoritative tribunal. ”

“ An arbitrator (and the following observations apply mutatis mutandis to an umpire after he has entered on his duties) has power to administer oaths to, or take the affirmations of, the parties and their witnesses; and any person who wilfully and corruptly gives false evidence before him may be prosecuted and punished for perjury (Arbitration Act 1889, sched. i. and s. 22) . At any stage in the reference he may, and shall if he be required by the court, state in the form of a special case for the opinion of the court any question of law arising in the arbitration. ”

“ In American, the Court deals with a request to enforce the 'standard' form of arbitration clause, one that provides for the arbitration of ' (a) ny disputes, misunderstandings, differences or grievances arising between the parties as to the meaning, interpretation and application of * * * this agreement * * *.' Since the arbitration clause itself is part of the agreement, it might be argued that a dispute as to the meaning of that clause is for the arbitrator. ”

“ Industrial arbitration is no better; it is manifestly worse, and any law enforcing it and enforcing compliance with its decisions, is absurd and mischievous. "Compulsory arbitration" is not arbitration, the essence whereof is voluntary submission of differences and voluntary submission to judgment. If either reference or obedience is enforced the arbitrators are simply a court with no powers to do anything but apply the law. ”

“ And it is far better that the relationship be disclosed at the outset, when the parties are free to reject the arbitrator or accept him with knowledge of the relationship and continuing faith in his objectivity, than to have the relationship come to light after the arbitration, when a suspicious or disgruntled party can seize on it as a pretext for invalidating the award. The judiciary should minimize its role in arbitration as judge of the arbitrator's impartiality. ”

“ The court will refuse to stay proceedings where the subject-matter of the litigation falls outside the scope of the reference, or there is some serious objection to the fitness of the arbitrator, or some other good reason of the kind exists.
An arbitrator is not liable to be sued for want of skill or for negligence in conducting the arbitration (Pappa v. Rose, 1872, L.R. 7 C.P. 525) . ”

“ We can perceive no way in which the effectiveness of the arbitration process will be hampered by the simple requirement that arbitrators disclose to the parties any dealings that might create an impression of possible bias. ”

“ 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 of which is human passion and sentiment. ”

“ And, given the principle that a party can be forced to arbitrate only those issues it specifically has agreed to submit to arbitration, one can understand why courts might hesitate to interpret silence or ambiguity on the "who should decide arbitrability" point as giving the arbitrators that power, for doing so might too often force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide. ”

“ But even if it were constitutionally sound, it bears all the marks of that practical inexperience which leads men to believe that arbitration either costs nothing or is at least cheaper than law. Who is to pay for the time of the three arbitrators, presumably men of high professional standing? ”

“ This talk of arbitration is very fine for the one who is in the wrong. Suppose a set of employees refuse to work any longer unless their wages are doubled. The employer, knowing it means his ruin, refuses, and the strikers demand that the dispute shall be referred to arbitration. ”

“ Thus, when a complaint contains both arbitrable and nonarbitrable claims, the Act requires courts to "compel arbitration of pendent arbitrable claims when one of the partiesfiles a motion to compel, even where the result would be the possibly inefficient maintenance of separate proceedings in different forums." ”

“ A party shall not be precluded from raising the plea that the arbitral tribunal does not have jurisdiction by the fact that he has appointed, or participated in the appointment of, an arbitrator.
(6) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitration proceedings. ”

“ The office of arbitrator may also be entrusted to tribunals of justice, to scientific bodies, to public officials, or to private individuals, whether citizens or not of the States selecting them.
Article VIII.—The court of arbitration may consist of one or more persons. If of one person, he shall be selected jointly by the nations concerned. If of several persons, their selection may be jointly made by the nations concerned. Should no choice be made, each nation claiming a distinct interest in the question at issue shall have the right to appoint one arbitrator on its own behalf. ”

“ If the parties have not been able to come to an understanding on all or on some of the points necessary to enable the arbitration to be carried out, it lies with the Council to settle the unsettled points, with the exception of the formulation of the questions to be answered, which the arbitrators must seek in the claims set out by the parties or by one of them if the others make default. ”

“ Finally we turn to Section 4, which permits 'a party aggrieved by the alleged failure' of his opponent to arbitrate as agreed, to petition any federal court of appropriate jurisdiction at law, in equity or in admiralty, for an order directing that arbitration proceed. Provision is made for framing an issue and trying it as to whether the parties are bound to arbitrate and the entry of an order accordingly. From this provision it is clear that the parties may proceed in an admiralty case without the customary libel and seizure. ”

“ On the contrary, if respondent's claims are not reached by his promise to arbitrate, or if the promise to arbitrate is unenforceable, a master or owner could pay off wages in full, but grossly late, secure in the knowledge that the obligation to pay the penalty would not be susceptible of the quick and informal arbitration process, but must await the attention of a federal district court which may be thousands of miles away. ”

“ As already hinted, this was not a board of arbitrators. An arbitration implies a difference, a dispute, and involves ordinarily a hearing and all thereby implied. The right to notice of hearings, to produce evidence and cross-examine that produced, is implied when the matter to be decided is one of dispute and difference. But when, as here, the parties had agreed that one should sell and the other buy a specific thing, and the price should be a valuation fixed by persons agreed upon, it cannot be said that there was any dispute or difference. ”

“ The system of compulsory arbitration which the Act establishes is intended to compel, and, if sustained, will compel, the owner and employees to continue the business on terms which are not of their making. ”

“ After hearing and upon consideration of the evidence, the court ordered the parties to proceed to arbitration, stayed trial of the action pending the filing of the award, and retained jurisdiction to make orders and enter decrees contemplated by the act or otherwise permitted or required by law. ”

“ We relegated the courts to their narrow field, leaving arbitration to the new expertise. [5]
An arbiter is not of course free 'to dispense his own brand of industrial justice' but is admonished 'to reach a fair solution of a problem' within the letter and spirit of the collective bargaining agreement. ”

“ 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. ”

“ Unless otherwise agreed by the parties, the Court may, on the application of a party to the arbitration proceedings who has given notice to the other parties, determine any question of law arising in the course of the proceedings which the Court is satisfied substantially affects the rights of one or more of the parties. ”

“ The end to be reached in good faith determined upon, a work able machinery will soon be devised, be it a permanent arbitration tribunal, or the adoption of an organic rule for the appointment of a special tribunal for each case. We may trust to experience to develop the best system. ”

“ The defendant set up in its answer, as a special defense, that prior to the commencement of the action a dispute had arisen concerning the construction of the contract, the rights and duties of the respective parties thereunder, and its performance, that the contract contained an arbitration clause, and that prior to the commencement of the action the defendant had notified the plaintiff of its readiness and willingness to submit the dispute to arbitration and ever since had been ready and willing to do so, but that the plaintiff had refused to proceed with the arbitration. ”

“ Arbitration clauses, the Court has decreed, may preclude judicial remedies even when submission to arbitration is made a take-it-or-leave-it condition of employment or is imposed on a consumer given no genuine choice in the matter. ”

“ An arbitration is a reference to the decision of one or more persons, either with or without an umpire, of some matter or matters in difference between the parties. It is very true that in one sense it must be implied that although there is no existing difference, still that a difference may arise between the parties ”

“ Considerable time would be required in arbitrating difficult261 cases, but on that account much good could result, as during the period of delay the anger of the disputants would undoubtedly abate, and with the addition of good advice from the arbitration court, pointing out the errors of the disputants, a satisfactory settlement would probably be the consequence. We imagine that some people will call the foregoing foolish and silly talk. ”

“ The shift in the Court's views on arbitration away from those adopted in Wilko is shown by the flat statement in Mitsubishi: "By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum." ”

“ This assistance both sides often 410accept, although they are under no obligation to do so. By arbitration is meant an agreement to submit the dispute to some one man or group of men, and to abide by whatever decision may be rendered. An arbitration board is commonly made up of three members, one chosen by the employers, one by the workers, and a third mutually agreed upon as neutral. Some states maintain official boards of arbitration to which industrial disputes may be referred at any time by consent of the disputants. ”

“ To appoint an agent to participate in arbitration, a letter of attorney signed or sealed by the appointing party shall be submitted to the labor-dispute arbitration commission, in which shall clearly be stated the entrusted matters and the limit of authority.
Article 25
⁠A worker who fully or partially losses the capability of civil conduct shall have his statutory agent participate in arbitration. ”