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ARBITRATION AND CONCILIATION

which is human passion and sentiment. Although religious animosities between Christian nations have died out, although dynasties may now rise and fall without raising half Europe to arms, the springs of warlike enterprise are still to be found in commercial jealousies, in imperialistic ambitions and in the doctrine of the survival of the fittest which lends scientific support to both. These must one and all be cleared away before we can enter on that era of universal peace towards the attainment of which the tsar of Russia declared, in his famous circular of 1898, the efforts of all governments should be directed. Meanwhile it is legitimate to share the hope expressed by President Roosevelt in his message to Congress of December 1905 that some future Hague conference may succeed in making arbitration the customary method of settling international disputes in all save the few classes of cases indicated above, and that—to quote Mr Roosevelt’s words—“these classes may themselves be as sharply defined and rigidly limited as the governmental and social development of the world will for the time being permit.”

Authorities.—Among special treatises are: Kamarowsky, Le Tribunal international (traduit par Serge de Westman) (Paris, 1887); Rouard de Card, Les Destinées de l’arbitrage international, depuis la sentence rendue par le tribunal de Genève (Paris, 1892); Michel Revon, L’Arbitrage international (Paris, 1892); Ferdinand Dreyfus, L’Arbitrage international (Paris, 1894) (where the earlier authorities are collected); A. Merignhac, Traité de l’arbitrage international (Paris, 1895); Le Chevalier Descamps, Essai sur l’organisation de l’arbitrage international (Bruxelles, 1896); Feraud-Giraud, Des Traités d’arbitrage international général et permanent, Revue de droit international (Bruxelles. 1897); Pasicrisie International, by Senator H. Lafontaine (Berne, 1902); Recueils d’actes et protocols de la cour permanente d’Arbitrage, Langenhuysen Frères, the Hague.
Of works in English there is a singular dearth. The most important is by an American, J. B. Moore, History of the International Arbitrations to which the United States has been a Party (Washington, 1898). The appendices to this work (which is in six volumes) contain, with much other matter of great value, full historical notes of arbitrations between other powers. Arbitration and mediation will be found briefly noticed in Phillimore’s International Law; in Sir Henry Maine’s Lectures, delivered in Cambridge in 1887; in W. E. Hall’s International Law, and more at length in an interesting paper contributed by John Westlake to the International Journal of Ethics, October 1896, which its author has reprinted privately. A London journal, The Herald of Peace and International Arbitration, issued some years ago a list of instances in which arbitration or mediation had been successfully resorted to during the 19th century. David Dudley Field, of New York, subsequently enlarged this list, which has been continued under the title International Tribunals, by Dr W. Evans Darby, and is published, along with the texts of several projects for general arbitration, at the offices of the Peace Society, 47 New Broad Street, London.

 (M. H. C.) 

ARBITRATION AND CONCILIATION. The terms “arbitration and conciliation” as employed in this article, are used to describe a group of methods of settling disputes between employers and work-people or among two or more sets of work-people, of which the common feature is the intervention of some outside party not directly affected by the dispute. If the parties agree beforehand to abide by the award of the third party, the mode of settlement is described as “arbitration.” If there be no such agreement, but the offices of the mediator are used to promote an amicable arrangement between the parties themselves, the process is described as “conciliation.” The third party may be one or more disinterested individuals, or a joint-board representative of the parties or of other bodies or persons.

The process here termed “arbitration” is rarely an arbitration in the strict legal sense of the term (at least in the United Kingdom), because of the defective legal personality of the associations or groups of individuals who are usually parties to labour disputes, and the consequent absence in the great majority of cases of a valid legal “submission” of the difference to arbitration. Whether or not trade unions of employers or workmen in the United Kingdom are capable of entering through their agents into contracts which are legally binding on their members it is fairly certain that the great majority of the agreements actually made by the representatives of employers and workmen to submit a dispute to the decision of a third party are of no legal force except as regards the actual signatories. Broadly speaking, therefore, the provisions of the Arbitration Act 1889, which consolidated the law relating to arbitration in general, would as a rule have no application to the settlement of collective disputes between employers and workmen, even if the act had not been expressly excluded by section 3 of the Conciliation Act of 1896 in the case of disputes to which that act applies. Besides the absence of a legal “submission,” labour arbitrations differ from ordinary arbitrations in the fact that the questions referred often (though by no means always) relate to the terms on which future contracts shall be made, whereas the vast majority of ordinary arbitrations relate to questions arising out of existing contracts. The defective “personality” of the parties to labour disputes also prevents the enforcement of an award by legal penalties. Since, however, difficulties of enforcement affect not only settlements arrived at by arbitration, but all agreements between bodies of employers and work-people with regard to the terms of employment, they are most appropriately considered at a later stage of this article.

The term “conciliation” is ordinarily used to cover a large number of methods of settlement, shading off in the one direction into “arbitration” and in the other into ordinary direct negotiation between the parties. In some cases conciliation only differs from arbitration in the absence of a previous agreement to accept the award. The German “Gewerbegerichten,” when dealing with labour disputes, communicate a decision to both parties, who must notify their acceptance or otherwise (see below). Some of the state boards in America take similar action. The conciliation boards established under the New Zealand Arbitration Act of 1894 (see below) make recommendations, though either side may decline to accept them and may appeal to the court of arbitration, which in that colony has compulsory powers. Most frequently, however, in Great Britain, the mediating party abstains from pronouncing a definite judgment of his own, but confines himself to friendly suggestions with a view of removing obstacles to an agreement between the parties. On the other hand, it is not easy to define how far the “outside party” must be independent of the parties to the dispute, in order that the method of settlement may be properly described as “conciliation.” There is a sense in which a friendly conversation between an employer or his manager and a deputation of aggrieved workmen is rightly described as “conciliation,” but such an interview would certainly not be covered by the term as ordinarily used at the present day. Again, when the parties are represented by agents (e.g. the officials of an employers’ association and of a trade union) the actual negotiators or some of them may not personally be affected by the particular dispute, and may often exercise some of the functions of the mediator or conciliator in a manner not clearly to be distinguished from the action of an outside party. It seems best, however, to exclude such negotiations from our purview so long as those between whom they are carried on merely act as the authorized agents for the parties affected. In the same way, a meeting arranged ad hoc between delegates of an employers’ association and a trade union, for the purpose of arranging differences as to the terms on which the members of the association shall employ members of the union is not usually classed as “conciliation,” unless the meeting is held in the presence of an independent chairman or conciliator, or in pursuance of a permanent agreement between the associations laying down the procedure for the settlement of disputes. If, however, the dispute is considered and arranged not by a casual meeting between two committees and deputations appointed ad hoc, but by a permanently organized “joint committee” or board with a constitution, rules of procedure and officers of its own, the process of settlement is by ordinary usage described as “conciliation,” even though the board be entirely representative of the persons engaged in the industry. Such joint boards, as will be seen, play a most important part in conciliation at the present day, and they almost always have attached to them some machinery for the ultimate decision by arbitration of questions on which they fail to agree. Another form of conciliation is that in which the mediating board represents a wider group of industries than those affected by the dispute (e.g. the London