Commercial Arbitration -- International and Interstate Aspects, 43 Yale Law Journal 716 (1934)
England. The development of commercial arbitration in England was particularly affected by a dictum of Lord Coke in Vynior' s Case, decided in 1609, where plaintiff was permitted to recover on a bond given for the faithful performance of an arbitration agreement. Lord Coke explained that where there is an agreement to submit to arbitration, a party "might countermand it, for a man cannot by his act make such authority, power, or warrant not countermandable which is by the law and of its nature countermandable"; but the bond is thus forfeited because the condition of the bond is broken by such revocation. With the enactment of the Statute of Fines and Penalties, in 1697, the use of a bond in submission was no longer effective, but the fact that the method of making the agreement effective had been abrogated did not induce the courts to abandon the revocability rule. There resulted the irrational situation that a valid agreement was utterly ineffective, for the courts would give only nominal damages for breach of the agreement on the theory that there could be no actual injury in forcing people to litigate in the King's own courts of justice. The view that courts cannot approve irrevocability of arbitration agreements because it "ousts the jurisdiction of the court" did not appear in the early cases, and is not to be found until the case of Kill v. Hollister, decided in 1746. It was created perhaps to justify the maintenance of the revocability rule which could no longer be mitigated by the use of bonds after the passage of the Statute of Fines and Penalties. The doctrine has also been credited to the judicial jealousy of the English courts, whose judges and court officers in early times were paid by fees on the volume of business which came to them.
Date of Authorship for this Version
Lorenzen, Ernest G., "Commercial Arbitration -- International and Interstate Aspects" (1934). Faculty Scholarship Series. Paper 4588.