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Historic English Arbitration Act 1698

Historic English Arbitration Act 1698
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Oldham/Kim, Arbitration In America: The Early History, 31 Law & Hist. Rev. 241, 246 et seq.:
'In England in 1698, Parliament enacted an arbitration statute that had been drafted by John Locke. In drafting the statute, Locke was executing an assignment for the Board of Trade, of which he was a member. He clearly was seeking a formula that would encourage private dispute settlement between merchants without legal entanglement. Locke was not an admirer of the legal profession. In his journal for 1674, he listed among those who hindered trade, “Multitudes of lawyers.” The formula produced by Locke, which became the 1698 statute, was ingenious. The foundation upon which it stood was the well-understood practice of consensual referrals of litigated cases to arbitration. Referrals, or “references,” as they were called, had an important advantage that private arbitration lacked. When a reference was agreed to, the agreement was made a rule, that is, an order, of court. This made the arbitration agreement, and often the award as well, enforceable through the contempt power.' ( references omitted).
'We have attempted to identify all of the statutory adoptions [of the English statute of 1698]. There are at least twenty-two, some from the colonial era, some after statehood, and some from the territories. All of these contain the basic formula that permitted an arbitration agreement to be entered in court rule books as if an actual lawsuit had been filed, and to be given the same effect as any other court order. Some are direct copies of the Locke statute, and in some jurisdictions other than the twenty-two with statutory adoptions, there is evidence that the 1698 statute was tacitly adopted by usage.' (references omitted)

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Recital that References made by Rule of Court have contributed to the Ease of the Subject

Merchants, &c., where Remedy only by Personal Action or Suit in Equity, may agree that Award may be made a Rule of Court, and may insert the same in their Submission.

Whereas it hath been found by Experience That References made by Rule of Court have contributed much to the Ease of the Subject in the determining of Controversies because the Parties become thereby obliged to submitt to the Award of the Arbitrators under the Penalty of Imprisonment for their Contempt in case they refuse Submission Now for promoting Trade and rendring the Awards of Arbitrators the more effectual in all Cases for the final Determination of Controversies referred to them [by 1 ] Merchants and Traders or others concerning Matters of Account or Trade or other Matters Be it enacted by the Kings most Excellent Majesty by and with the Advice and Consent of the Lords Spiritual and Temporal and Co[m]mons in Parliament assembled and by Authority of the same That from & after the Eleventh Day of May which shall be in the yeare of our Lord One thousand six hundred ninety eight Itt shall and may be lawfull for all Merchants and Traders & others desiring to end any Controversie Suit or Quarrel Controversies Suits or Quarrels (for which there is no [other 1 ] Remedy but by Personal Action or Suit in Equity) by Arbitration to agree that their Submission of their Suit to the Award or Umpirage of any person or persons should be made a Rule of any of His Majesties Courts of Record which the Parties shall choose and to insert such their Agreement in their Submission or the Condition of the Bond or Promise whereby they oblidge themselves respectively to submitt to the Award or Umpirage of any Person or Persons which Agreement being so made and inserted in their Submission or Promise or Condition of their respective Bonds shall or may upon producing an Affidavit thereof made by the Witnesses thereunto or any one of them in the Court of which the same is agreed to be made a Rule & reading and filing the said Affidavitt in Court be entred of Record in such Court and a Rule shall thereupon be made by the said Court that the Parties shall submitt to & finally be concluded by the Arbitration or Umpirage which shall be made concerning them by the Arbitrators or Umpire pursuant to such Submission And in case of Disobedience to such Arbitration or Umpirage the Party neglecting or refusing to performe and execute the same or any part thereof shall be subject to all the Penalties of contemning a Rule of Court when hee is a Suitor or Defendant in such Court and the Court on Motion shall issue Processe accordingly which Processe shall not be stopt or delayed in its Execution by any Order Rule Co[m]mand or Processe of any other Court either of Law or Equity unlesse it shall be made appeare on Oath to such Court that the Arbitrators or Umpire misbehaved themselves and that such Award Arbitration or Umpirage was procured by Corruption or other undue Means.

II. Arbitration unduly procured, void.

And be it further enacted by the Authority aforesaid That any Arbitration or Umpirage procured by Corruption or undue Means shall be judged and esteemed void and of none Effect and accordingly be sett aside by any Court of Law or Equity so as Complaint of such Corruption or undue Practise be made in the Court where the Rule is made for Submission to such Arbitration or Umpirage before the last Day of the next Terme after such Arbitration or Umpirage made and published to the Parties Any thing in this Act contained to the contrary notwithstanding.

1 interlined on the Roll.

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