An arbitrator's decision or award is considered as a judgment, and all the formalities required for the validity of a judgment must therefore be observed; but execution of it cannot be enforced until it has received the proper sanction : this sanction is conferred by a warrant of execution granted by the president of the tribunal within the jurisdiction of which the cause of the action arose : the granting of this warrant is called the homologation of the award. If the arbi trator has not strictly pursued his au thority, the warrant of execution may be superseded, and the award declared null by an application to the tribunal from which the warrant issued. Besides this, the same modes of obtaining relief may be resorted to in the case of an award, as in that of any other judgment. If any misconduct or irregularity has occurred, the award may be set aside by what is called a requete civile; and even where nothing can be alleged against the formal correctness of the proceedings, if one of the parties be dissatisfied with the judg ment, he is at liberty (unless the right has been expressly renounced) to appeal to a superior court : when this happens, the whole case is re-opened before the tribunal of appeal, and the merits inves tigated anew; and when an award is brought under the consideration of a court in any of these ways, any final judgment which the court may have pro nounced may be brought before the Court of Cassation, and there quashed if erro neous in point of law.
The second kind, which is called " com pulsory arbitration," is where the parties are by law required to submit to a re ference, and are precluded from having recourse to any other mode of litigation. The ancieut laws of France introduced this species of arbitration very exten sively for the settlement of disputes re specting either mercantile transactions or family arrangements; but by the law now in force, it is admitted in one case only, that of differences between partners. Over such differences the ordinary courts have no jurisdiction in the first instance, even with the consent of the parties ; but the commercial courts control the pro ceedings. Thus the arbitrators may either be appointed by the deed of part nership or afterwards nominated by the partners ; but if, when a dispute has arisen, one of the partners refuses to nominate an arbitrator or nominates an improper person, the commercial court, upon application made by the other part ner, will appoint one for him. The authority of dieperson so appointed wil. be superseded, if before he enters upon his functions an arbitrator is duly nomi nated by the partner in delay : and when the firm consists of several partners, upon an application being made by any one of them, the court, after taking into consi deration how far their respective interests are identical and how far they are con flicting, will regulate accordingly the number of arbitrators to be appointed by each. The sentence of the arbitrators, howsoever appcinted, is decided by the majority of votes.
The authority of the arbitrators in this case partakes more of the judicial charac ter than it does in voluntary arbitration; they are considered as substituted for the ordinary commercial tribunal ; their sen tence is registered among the records of the court ; and they stand upon the same footing with the court in the power of sentencing the parties to imprisonment •, and unless the right has been renounced by the parties, there is an appeal from their decision. (Code de Commerce, art. 51-64.) Besides the compulsory arbitration in matters of partnership, the parties who enter into any engagement are at liberty to stipulate that all differences arising between them shall be submitted to ar bitration. This stipulation is compulsory, and the court will, if requisite, appoint an arbitrator ex officio for the party who should refuse to do so ; but it is not ex clusive, so as to take away the jurisdic tion of the ordinary tribunals ; it may be rescinded by the consent of the parties, or waived by their acts.
The third kind of arbitration is distin guished by the appellation of the persons to whom the reference is made ; they are not called, as in the other cases, arbitres, but aimables compositeurs, or in the old law, arbitrateurs. The peculiar charac teristics of this amicable composition are, that the referees are not, as in other cases, bound to adhere rigorously to the rules of law, but are authorized to &vide ac cording to the real merits of the case ; that their decision is final, and without appeal to any other tribunal. In case of
irregularity or misconduct, the award may be set aside by the judgment of a court, but this judgment cannot be further questioned in the Court of Cessation. This modification of the general law may be introduced into all arbitrations, whe ther voluntary or compulsory. Par deans, Coors de Droit Commercial, § 1386-1419.) In Denmark and its dependencies, Courts of Arbitration or Conciliation were established about the year 1795, and are said to have been attended with extremely beneficial effects. In Copen hagen the court is composed of one of the judges of the higher courts of judica tare, one of the magistrates of the city, and one of the representatives of the commonalty. In other towns, the chief magistrate proposes five or six of the more respectable citizens for arbitrators, of whom the commonalty of the town elect two. In the country, the bailiffs or sheriffs are the arbitrators, and generally act as such personally ; but in extensive districts they have authority to appoint deputies. All matters of civil litigation may be referred to these official arbitra tors; who in the country sit once in every week, and in the capital as often as occa sion requires. It appears that, after inves tigating a disputed case, the arbitrators in these tribunals have no power to compel the parties to settle their differences in the manner proposed by the court : if they agree, the terms of the arrangement are registered, and it has then the force of a judicial decree; if, after stating their differences and hearing the suggestions of the arbitrators, the parties still dis agree, no record is made of the proceed ing, and they are at liberty to discuss their respective rights in the ordinary courts of justice. It is necessary, how ever, that before a suitor commences an action in the superior courts, he should prove that he has already applied to one of the courts of conciliation. These courts, which are attended with very small ex pense to the suitors, were, soon after their establishment, multiplied rapidly in Denmark and Norway, and are said to have produced an astonishing decrease in the amount of contentious litigation. (Tableau des Etats Danois, par Catteau, tome i. p. 296.) Courts of mutual agreement are con stituted in every parish in Norway. Every third year the resident house holders elect from among themselves a person to be the commissioner of mu tual agreement, who must not practise law in any capacity. His appointment is subject to the approval of the amtman, or highest executive officer of the district. In towns, or large and populous parishes, there are one or more assessors or assist ants to the commissioner, and he has always a clerk. He holds his court once a month within the parish, and receives a small fee of an ort (ninepence) on enter ing each case. Every case or law-suit whatever must pass through this preli minary court, where no lawyer or at torney is allowed to practise. The parties must appear personally or by a person not in the legal profession. The state ment of each part is entered fully and to his own satisfaction in writing by the commissioner, who proposes some course on which they may both agree. If both parties acquiesce in his judgment, the case is taken to the local court of law, or Sorenskrivers' court, which is also held within each parish, to be sanctioned, re vised as to rights of any third parties, and registered, when it has the validity of a final decision. If one party agrees and the other does not, the party not agreeing appeals to the local or Sorenskrivers' court, which sits once, at least, in every parish in every quarter of a year ; but he will have the expenses of both parties to pay, if the terms of agreement proposed and rejected are judged not unreasonable. In this higher court, which is, properly speaking, the lowest legal court, the parties may appear, if they choose, by their law agents ; but in this and all the subsequent higher courts no new matter, statements, or reference are received but what stand in the protocol of the commis sioner of the court of mutual agreement (Laing's Journal of a Residence in Nor way, 1836i)