COMMERCIAL AND INDUSTRIAL ARBITRATION.

Otago Witness, Issue 2087, 22 February 1894, Page 35

COMMERCIAL AND INDUSTRIAL ARBITRATION.

INTERVIEW WITH MR H, CLARKE, OF LONDON.

Mr Henry Clarke, a member of the London County Council and of the Corporation of the City of London, is at present on a visit to Dunedin, and as he is the author of the scheme for the Chamber of Arbitration which is at present in operation in London, a member of our reporting staff waited upon him at the Grand Hotel, where he is staying, with the view of ascertaining if he would be willing to furnish any information on the subject. Mr Clarke at once expressed his readiness to do so, and the result of the interview is as follows :—: —

Reporter : I understand that you are the author of the scheme for the Chamber of Arbitration in London. Would you kindly tell me something about your connection with the chamber P In the first place, how did the idea of establishing such an institution originate P Mr Clarke : It really originated in this way : I was appealed to to act as arbitrator between persons engaged in business, and then the idea suggested itself to me that if there were a proper organisation it might answer a public want. I then proceeded to consult some of the foremost men in the city of London engaged in commerce, all of whom held out hopes of such an institution proving eminently useful. I subsequently consulted some of the best of the solicitors practising in London, and most of them informed me that they had always discouraged litigation when consulted by clients ; and that ', they should certainly recommend clients to have recourse to a tribunal of arbitration if one were properly organised, and if the legal assessor who should be appointed should be a man entitled to their confidence. Subsequently the proposition was brought before the Corporation of the City of London by me, and as members of the corporation are, with the exception of a few lawyers and other professional men, all engaged in trade, a resolution was passed referring the subject to a committee, of which I was a member. I was invited by the committee to lay before them a scheme, and this scheme, after great deliberation, was subsequently adopted, and formed the basis of he existing Chamber of Arbitration, which is under tbe joint management of the Chamber of Commerce and the Corporation.

Reporter : How long has it been in existence P Mr Clarke : The chamber has been in existence only one year last November, but the scheme itself was prepared in 1882. A very long time elapsed, as you will see, from the origination of the scheme to its final adoption. This was owing to a very great amount of opposition which was offered to it by persons who considered their interests were imperilled by it. Reporter : Is the object of the scheme to adjust differences between employers and employees ?

Mr Clarke : No ; it is simply for the settlement of disputes arising in the course of business ; and a vast number of disputes arise — such as whether bulk corresponds with sample in contracts for merchandise ; disputes as to the time occupied for delivery of goods, and so forth ; disputes between partners ; — and in fact you may imagine what a large number of disputes do arise in | business when I tell you that in one ef the | marts of London alone — namely, the Corn Exchange— tb/: re are many hundreds during the year. Now until recent times if disputes arose between traders the only remedy was an action at law, involving as we all know great expense, much delay, and a vast amount of vexation, provoking sometimes life-long enmity. J Then traders got into the habit of putting a clause in agreements referring disputes to arbitration, but these arbitrations have not been uniformly satisfactory. There has been wrangling over the appointment of arbitrators, and then further discussion over the appointment of the umpire ; or if only one arbitrator were appointed he has been more often than not a lawyer, and the result has been that many arbitration cases have been as unsatisfactory in regard to the time occupied and the cost incurred as ordinary litigation in courts of law. The institution of tribunals of arbitration, therefore, is intended to alter all this. Reporter: And how is it found to work in practice ? Mr Clarke : Admirably. In every case that has come before the Guildhall Chamber of Arbitration the disputants, the arbitrators, and the professional men that have been employed have expressed to the registrar, who is the executive officer, their great admiration of its working. The fees have been small, averaging a little over £5. Cases have been decided — some of them very intricate — within 15 days of the lodging of the " submission," which is the document signed by the disputants agreeing to abide by the award. There has been no hanging about the court, as is invariably the case when the High Court is appealed to, waiting for a case to come on, as an hour is appointed, and every one is punctually in attendance, the case is proceeded with forthwith, and rarely have the eases occupied more than two or three hours. In only one cage has there been any^ appeal against the award, and that w&s because of a legal technicality, which was immediately set right.

Reporter : Has the chamber been taken advantage of to auy great extent by traders ? Mr Clarke : It has not been taken advantage of to such a great extent as some imagined would be the case, but quite as much as the originators anticipated, and for this reason : that all existing contracts and agreements

having an arbitration clause provide for other methods of arbitration, and it will not be until the new contracts, with a clause referring to the Guildhall Chamber of Arbitration, come into operation that it will be resorted to so much as we would like. The arrangements are made so that five cases can be heard in five different rooms at the same time, and the court is open every day except the public holidays — that is Christmas, Good Friday, and bank holidays. There is no vacation. Reporter : How is the chamber constituted ?

Mr Clarke : In this way : The disputants go to the offices o( the chamber, and they signify to the registrar whether they want their case decided by one arbitrator alone or by three arbitrators (the decision of any two of them being accepted), or two arbitrators with an umpire. They are then asked if they wish that the arbitrator or arbitrators should be selected from any particular trade or calling. As a matter of practice most people are satisfied to have one arbitrator, and generally he is selected for some special knowledge, or, if not, because of his reputation as a man of judgment and good sound common sense. The registrar puts himself in communication with the arbitrator nominated, and if that gentleman is willing to act — and, of course, it is quite optional with him — a day is fixed and the several parties to the dispute appear with their witnesses. The case is conducted in private, because most of the cases involve trade secrets or secrets of a firm, and therefore only the disputants, the arbitrator, with such witnesses as the disputants wish to be present are there. The arbitrator has power to examine on oatb. Each party sets his case before the arbitrator, and tenders what evidence he thinks proper. There are no long speeches, and the whole proceedings are Conducted in a prosaic and business-like manner. The parties retire, the arbitrator draws up his award, which is sometimes a work of considerable difficulty. There is no appeal against the award, except on the plea of fraud or on the ground of non-observance of some legal technicalities before adverted to. The award in fact has the value of the verdict of a jury, or the decision of a judge of the High Court. I should state that when the form of "submission" is lodged at the office of the registrar neither of the parties can withdraw, and the case can be heard in the absence of either party. Reporter: What provision is made for the payment of the expenses of witnesses, arbitrators, &c. ?

Mr Clarke : The "submission" is in itself a contract which binds the disputants to pay the fees, which can therefore be recoverable by law. Not only has there been no hesitation in paying the fees, but parties have been amazed at their moderation. I need not say that many of the gentlemen who act as arbitrators would not give their time for the stipulated fee of two guineas for the Drr.t hour and one guinea for each subsequent hour, unless they were influenced by a wish to promote public welfare. In one instance the registrar mentioned to me, as chairman of the committee, that one of the solicitors brought £50 to pay expenses, and learnt that all be had to pay to the chamber was four guineas. In more than half the number of cases tho disputants have not been represented by lawyers. .When they are represented by solicitors, these gentlemen have just the same standing as barristers in the chamber. It must not be expected that these institutions can be of rapid growth. People have to get accustomed to them; but as to their being permanent institutions of the country, and adopted in all large centres of trade, I have not the slightest doubt, because the advantages are so obvious that, notwithstanding any opposition of the lawyers, traders will be sure to recognise the advantages to them of settling disputes in a common sense and practical way. Up to the present time no one seeking redress from the High Court has been able to foretell what the decision would be, because it has depended so much upon the forensic ability of counsel employed, and upon the capability of the judge to understand the technicalities of trade. On the other hand, however, it is scarcely necessary to state that disputes which involve questions of law, and not mere questions of fact, will be taken to the High Courts and settled by the lawyers. We don't seek to interfere with that branch of disputes. Reporter : Have you a list of arbitrators from whom you can select P Mr Clarke : We have a panel of arbitrators numbering over 1100, and this is always increasing by the addition of persons connected with other trades and callings not already represented. We expect that in the course of time it will be regarded as a great honour to be elected on this list of arbitrators, as in fact the members of the tribunals of commerce on the Continent are always held in the highest respect. The arbitrators of the London Chamber I may say are appointed annually. Reporter : How do you think a somewhat similar chamber would work for the settlement of industrial disputes P Mr Clarke : As regards disputes between capital and labour, it appears to me absolute folly to pursue the present plan of having lengthy locksout or strikes, to the great imI poverishment of all parties immediately concerned, and very often to the great injury of persons outside the particular trades affected. Of course the great difficulty in dealing with this branch of disputes is how to enforce the decision of arbitrators, but I really think that the time has come, the interests involved beiDg so great, for the Legislature to step in and make it imperative that before any strike or lockout should be declared the subject in dispute should be referred to arbitrators taken from a panel elected by the masters and also by the men, and possibly under some official recognition and control of the Board of Trade. In a great number of cases the mere fact of a dispute being referred to and investigated by disinterested persons would elicit some facts having a tendency to reconcile the parties, and to make them more amenable to concession. Perhaps that is as far as it would be safe to go in the first instance. I think if this plan were tried it might be found in practice to answer in^ a large proportion of cases. For instance, in the case of a coal dispute, I should make it absolutely illegal for any men to strike or for any masters to lockout men owing to some dispute between the parties until the matter had been referred in the way I have mentioned. When I get Home I shall elaborate this idea, unless it be already done. Of courso, you are aware that in France there are courts of conciliation, and they have no doubt done a great deal of good in settling internal disputes ; but you know by the public journals that the gravest possible strikes have occurred in France notwithstanding these courts.

Reporter : What is your opinion with regard to such a provision as exists in our Industrial Conciliation and Arbitration Bill, which was brought before Parliament last session, giving the court of arbitration power to enforce its decision in cases of industrial disputes ? Mr Clarke : I have not seen the bill, and therefore am absolutely ignorant of its provisions ; but I quite fail to see how any legislation could compel any individual man to work against his will, or an employer to pay a wage higher than he could afford. My proposition

only goes this length .• Neither masters nor men should, as I have already said, declare a strike or lockout until after arbitration in any case of dispute. The practical consequence of this would be that it would be illegal for any body of men to combine together for such a purpose, and_ therefore it would prevent open rupture until third parties had employed their powers to effect an arrangement. This proposition appears so reasonable that I fail to see how anyone should oppose it ; but lam not prepared to go a step farther and propose legislation for compelling either masters or men to do that which they absolutely refuse to do.