Arbiter, arbitrator and amicabilis compositor
From the Middle Ages, however, another problem occupied the minds of thejurists. Secular as well as ecclesiastical arbitration practice had developed in a way that was not always in conformity with the sources of Roman Law.
In particular, certain persons were now acceptable as arbitrators who had been disqualified under the provisions of the Corpus Juris Civilis.[2732] Hence the attempts to distinguish between two types of arbitrator.[2733] [2734] [2735] They found a textual basis in a fragment taken from the epistulae of Proculus:"[A]rbitrorum cnim genera sunt duo, unum eiusmodi, ut sive aequum sit sive iniquuum, parere debeamus [quod observatur, cum ex compromisso ad arbitrum itum est], alterum eiusmodi, ut ad boni viri arbitrium redigi debeat, etsi nominatim persona sit comprehensa, cuius arbitratu fiat."134
This text makes it clear, first of all, that in classical Roman law the arbiter (ex compromisso) was entirely free in his decision; he was not bound by any rules of substantive law.135 Thus, his award was binding, even if it was unjust or inequitable. Apart from that, the parties could also leave the settlement of certain points to a third party who had to decide according to an objective standard, namely that of the arbitrium boni viri. This second type of "arbiter" was now (i.e. in medieval science) equated with the amicabilis compositor of Nov. 86, 2: a bishop, to whom the parties under certain circumstances had to refer their dispute and who acted as a kind of conciliator. This second type of "arbiter" also came to be termed "arbitrator", and in one of the most famous procedural treatises of the Middle Ages, Durantis' Speculum iudiciale, he is defined as follows:
"Arbitrator vero est amicabilis compositor, ncc sumitur super re litigiosa, vel ut cognoscat: sed ut pacificet, et quod certum est, dividat....
Nee tenetur iuris ordinem servare: nee statur eius sententiae, si sit iniqua: sed reducitur ad arbitrium boni viri."[2736] [2737]The regular arbiter, on the other hand, was now taken to perform the function of a judge: "Est enim arbiter, qui causam examinat in iudicii forma, sicut index.1,137 He was chosen by the parties not merely in order to restore the peace between the parties or to determine, ex aequo et bono, points which the parties had left open in their agreement, but to decide a dispute ("Nam arbiter est, quern partes eligunt ad cognoscendum de quaestione, vel lite");[2738] [2739] he was however bound to follow the rules of civil procedure ("Et debet iuris ordinem servare" )134 and had to apply the law ("Arbiter debet sequi iuris rigorem, et aequitatem scriptam" ).[2740] Many authors in later times maintained this distinction between arbiter and arbitrator, as, for example, Joost van Damhouder ("Een Arbiter procedeert gerechtelijck as een Rechter, Een arbitrateur procedeert vrundelijck")141 or Johannes Voet ("Est vero arbiter, qui compromisso partium electus est, ut lites dirimat; diversus ab arbitratoribus, nomine quidem in jure nostro ignotis, re ipso notis; quippe qui absque ulla judicii forma ex aequo et bono lites componere suo consilio suaque auctoritate allaborant").142 Others introduced, in effect, a new type of arbitrator, the "arbiter ex aequo et bono"; he not only had to conciliate but also had to make a decision, and yet he proceeded extra iudicium and decided ut bonus vir, i.e. without being bound by the ins.143 This latter type of arbitrator lives on in modern German law, where the parties may in their arbitration agreement144 authorize the "Schiedsrichter"145 to decide in accordance with fairness and equity rather than to apply the substantive law.146 IV.
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