The Changing Role of Arbitration

Arbitration has existed for centuries in parallel with adjudication 1 as a method of obtaining a binding decision of a dispute between private citizens. Although arbitral awards had to be enforced through judicial proceedings, the courts would enforce them "when fairly and lawfully made, without hesitation or question," as Justice Story declared in 1845 in Tobey v. County of Bristol.' In the Anglo-American tradition, however, arbitration would not be compelled by the courts; a contractual commitment to arbitrate was not specifically enforceable. "A court of equity," Justice Story said, "ought not to compel a party to submit the decision of his rights to a tribunal, which confessedly does not possess full, adequate, and complete means, within itself, to investigate the merits of the case, and to administer justice." Justice Story