AR'BITRA'TION (Las. arbitratio, judg ment, from arbiter, umpire, judge). The submis sion of a dispute, which might otherwise be the subject-matter of a civil litigation, to the de cision of a private person instead of a court of justice. This is not permitted in criminal cases; nor are the parties to a civil dispute necessarily bound by an agreement to arbitrate, even though the agreement be upon a valuable consideration. At common law, contracts for the adjustment and settlement by arbitration of all disputes and differences between the contracting parties are not treated as binding so as to oust the jurisdic tion of the courts. For example, if a landowner grants to another the privilege of laying water pipes across certain land, in consideration of the Iatter's payment of a specified sum, and of his agreement to pay all damages caused by the breaking or lea-king of the pipe, a stipulation that the damages shall be fixed by arbitration is not enforceable. The landowner can maintain an action at law for any damages so caused, and refuse to abide by his agreement to arbitrate them. This, it has been judicially declared, both in England and the United States, rests "upon . the general policy of the law, that parties cannot enter into a contract which gives rise to a right of action for the breach of it, and then withdraw such a ease the jurisdietion of the ordinar tribunals." On the other hand, if a property. owner and an insurer enter into an agreement that•the former shall Imy a certain premium, in consideration of which the latter, upon the destruction of the property, shall pay the former such a sum of money as shall be settled and ascertained by arbitration, the contract is bind ing in all of its provisions, and the insured has no cause of action until an arbitration has been had, or it has been prevented or dispensed with by the insurer. The legal distinction between these two classes of eases is well established, but it is not always easy to determine within which class a particular controversy falls. If it falls
within the first class, either party has the power to revoke the arbitration, even after his sub mission of the dispute to the arbitrator; although by so doing he subjects himself to an action for damages for breach of contract, if his agreement to arbitrate was upon a valuable con sideration.
This power of revoking a submission has been modified by statute in England and in many American jurisdictions. It is provided, in some of our State constitutions, that the legislature shall enact laws providing for arbitration, or shall establish courts of conciliation. The ten dency of modern statutes is to extend the limits of private arbitration, to conform the pro ceedings therein, so far as practicable, to those of a court or an official referee, and to give to an award of arbitrators the force and effect of a judicial decision. In the absence of legislation, however, a judgment cannot lie entered on an award, nor can the determination of an arbi trator be enforced by execution. If the defeated party refuses to carry out the award, his opponent must sue upon it. There is no appeal from an award, as there is from the decision of an inferior court; but it may be corrected in sonic cases, and it may be set aside for various reasons, such as fraud practiced by the prevail ing party, or misconduct on the part of the arbitrators, or their failure to conform to the terms of the submission. As a rule, however, an award will not lie set aside for purely technical or formal defects. Unless some flagrant error in the proceedings is disclosed, courts are disposed to uphold an award in an arbitration to which the parties have assented, and on which they have been fairly heard. Consult: Norse, Law of Ar bitration and (Boston, 1872) ; Watson, Treatise on the Law of Arbitration and Awards, third edition (Philadelphia. 1843) ; Russell, A Treatise on the Power and Duty of an Arbitrator end the Law of Submissions and Awards, eighth edition (London, 1900).