Original scientific paper
Enforcement of Arbitral Awards in Roman Law
Ivan Milotić
orcid.org/0000-0002-6766-8609
; Faculty of Law, University of Zagreb, Zagreb, Croatia
Abstract
The main goal of arbitration in Roman law was to render the arbitral award and, afterwards, to assure its enforcement. The problem of its enforcement in Roman law should be observed from the viewpoint of the legal nature of the award. Arbitrations handled by boni viri and those arranged ex compromisso were private proceedings which ended in arbitral awards that were legally unsanctioned. This meant that their enforcement overseen by the authority of the Roman state was not available. From its earliest period Roman law developed a range of legal mechanisms by which the enforcement of such awards was achieved indirectly. In arbitration handled by boni viri this goal was achieved by way of non-legal pressure exerted by the social environment. By using this means the society gave authority and non-legal binding force to arbitrations boni viri. In case of arbitration ex compromisso (the most common type of arbitration in classical and pre-classical Rome) enforcement of an arbitral award was achieved by stipulating a conventional penalty in the arbitral agreement. The conventional penalty was a predictable property loss addressed to the party who had abandoned arbitration or refused to execute the arbitral award. In 530 AD several imperial constitutions of the emperor Justinian recognized arbitration ex compromisso by providing a legal sanction. By introducing this legal regime Justinian proclaimed enforceability of the arbitral awards emerging from arbitration ex compromisso. On the other side, arbitration handled by boni viri continued to exist as a legally unsanctioned category of dispute resolution, which meant that the arbitral awards emerging form this type of procedure were not enforceable by state authority.
Keywords
arbitration; arbitrator; arbitral award; Roman law
Hrčak ID:
176328
URI
Publication date:
30.12.2016.
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