Arbitration is as old as mankind. It was known in ancient times. There is proof of its existence in Greek ancient comedies, Phoenician tradition, and philosophical studies on the origins of society. Whenever I think of Friedrich Engels’ book “The Origin of the Family, Private Property and the State”[1] (once a must-read in Communist Poland), it occurs to me that arbitration must have come into being after the emergence of the family, as well as ancestral and tribal communities. Decidedly after the emergence of private ownership, but clearly before the creation of the State. After all, there were disputes between members of ancestral communities, nomadic tribes and the Aborigines, who never established the State. Someone had to resolve those disputes. At the risk of oversimplification, I might just as well imagine an arbitration between the Flintstones. Or in the Neolithic Age. There is no scientific proof, but the very thought of it sends your imagination soaring. After all, someone had to resolve a controversy over the distribution of loot, a disputed club or a fair and buxom cave dweller?

There is ample proof of arbitration in the writings of various peoples, long before the dawn of our era. Belles lettres, including ancient literature, yield interesting examples in this regard. There is an ancient Greek comedy entitled “Men at Arbitration” (Epitrepontes)[2] originating from the turn of the third century B.C. We do not know exactly when the play was written, but we have long sections of it. The author, Menander, was active at the same time as Philemon, although he was less known. He died prematurely, apparently drowning while bathing in the harbor of Piraeus in 291 B.C. 

The dispute is between two slaves. One of them (Daos the shepherd) finds an abandoned infant and gives the foundling to another shepherd (Syriskos). However, Daos wants to keep the valuable jewellery found along with the child. They refer the dispute to a passer-by (Smikrines) for resolution. The dialogue between the dramatis personae is a classic example of an ad hoc arbitration agreement. It features all the indispensable elements, such as the conclusion of an arbitration agreement, the appointment of an arbitrator and even a query about his availability, a public order clause and, last but no least, the finality of the award. For reasons unknown, only the arbitrator’s fee is mysteriously missing.

At a certain arbitration conference I heard a Lebanese arbitrator asserting with pride in his voice: “We, the Phoenicians, have devised arbitration.” It must be borne in mind that the Lebanese are extremely proud of the historical traditions of ancient Phoenicia. On hearing this assertion, an exasperated Italian conference participant retorted: “What do you mean, the Phoenicians? You, the Phoenicians, devised money, but not banks or banking law. What makes you think your people devised arbitration?” “Of course, it was us,” – said the Lebanese – “because we had to immediately resolve disputes at our ports. The ship is loaded with merchandize, the captain wants to sail away, the sun is setting, the wind is changing, and suddenly a trade representative of the recipient disputes the quality of the merchandize. Three impartial specialists had to be found immediately to resolve the matter.”

Apparently, that was the way in which merchants resolved their disputes not only in Phoenician ports. In ancient times, arbitration courts were set up at ports, market squares and fairs.

Arbitrators enjoyed a well-established status in Roman law. This is where the Latin term arbitrarium comes into play. An arbitrator (arbiter ex compromisso) appointed by the parties accepted the appointment (receptum arbitri). The enforceability of the award was monitored by the preator. For the purpose of enforceability, the praetor could apply measures of enforcement ex officio.  The parties secured the enforcement of an arbitral award by a peculiar promise. They took an oath and paid a specified amount of money as security deposit. This is how com-promissum – an obligation that could even be subject to compulsory enforcement – came into being. With the passage of time, an amicable settlement of disputes became the domain of private (civil) law and ius gentium – international public law.[3] 

However, the State gradually restricted and even eliminated arbitration, firstly from criminal law, then gradually from civil law too.  The development of modern institutions entailed the burgeoning of public courts. Arbitration became something of an exclusive and elitist alternative form of dispute resolution.  And there have been good reasons for that.  As the eminent author put it: “An institution which has survived and prospered for so long in competition with the courts administered by the state can only have done so because it offered, or at least was believed to offer, a real alternative to the system of dispute resolution administered in the ordinary courts of the land. Procedurally it has never really been in doubt that arbitration does offer a real alternative to the courts. Privacy, informality and the ability to choose one’s own tribunal would be high on most people’s list of the perceived advantages of arbitration; others might mention the more doubtful supposed benefits of speed and economy. From these points of view there is little doubt that arbitration offers a real procedural alternative to litigation: not necessarily better, but certainly different”[4].

[1] Friedrich Engels, Der Unsprung der Familie, des Privateigenthums und des Staats, Im Anschluss an Lewis H. Morgans Forschungen, Erstmalig veröffentlicht Hottingen-Zürich 1884.

[2] Menander (ca. 342–291 BC), Epitrepontes (“Men at Arbitration”); Polish version (“Sąd Rozjemczy”) by Jerzy Manteuffel, Ossolineum (BN II 67, 1951) and by Jerzy Łanowski, Ossolineum; BN II 203, 1982.

[3] See: Jacek Kaczmarek, Rozjemca sporu, Twój Biznes, No. 5, May 2009, p. 16.

[4] See S. Boyd, „Arbitrator not to be bound by the Law Clauses”, Arbitration International, Vol. 6, No. 2, 1990, p. 122.