A Workshop of the « Mediterranean Reconfigurations » ERC program, 17 January 2014, École française de Rome. Pre-registration : <wolfgang.kaiser[ad]univ-paris1.fr>].
This workshop will examine arbitration, one of merchants’ favorite ways of resolving disputes, within the frame of the ERC project “Mediterranean reconfigurations. Intercultural Trade, Commercial Litigation and Legal Pluralism, 15th-19th Centuries”. Arbitration was popular amongst pre-modern traders not only because of its speed, but also because it allowed to maintain the confidentiality of transactions and family disputes. This workshop aims to provide a broad picture of the different sources, institutions, procedures and uses of arbitration in the early modern Mediterranean, thus dealing with many of the core issues of the “Mediterranean Reconfigurations” project:
- First of all, we are interested in the dialectic between arbitration and commercial disputes (and more broadly, between arbitration and litigation). Far from being considered an imperfect procedure symptomatic of weak political and legal powers, arbitration and local tribunals commonly complemented each other. We will try to properly analyse the articulation between the procedures which came under the respective jurisdiction of private arbitration, public arbitration and local courts in order to solve disputes.
- As part of the ongoing debate on the existence and specificity of a lex mercatoria or ius mercatorum, we shall also focus on the speed and irrevocability of arbitrations: was it possible to appeal an arbitration sentence? Where and to whom was it possible to address an appeal if a decision was considered unfair or unsatisfactory by the litigants? How did, in actual practice, work the system of guarantees and bails ensuring the respect for arbitration judgments?
- Did merchants and sailors involved in cross-cultural litigation rather opt for compromissory procedure? Or, on the contrary, was the arbitration procedure disregarded by traders belonging to different normative frameworks because of the uncertainty of the system of adjudication and of the lack of enforcement? Did litigants attempt to find a common norm to settle disputes? Did the arbitration procedure favor the conventional settling of a “third norm”, understood as a mix of different conceptions of law? In other words, did the flexibility of the arbitration procedure allow the articulation of different laws and legal cultures? This point is directly linked to one of the score issues behind “Mediterranean Reconfigurations”: “normative pluralism”.
- In the Levant disputes were often decided by consuls through arbitration (or “rodes”). Was this option restricted only to merchants and sailors belonging to the consuls’ own nation? It would be useful to assess if there was any room for maneuver in such cases, and what was the jurisdictional autonomy of community arbitrators, trying to make a typology of the several forms of disputes leading to arbitration.
- We shall also investigate the sociocultural profiles of arbitrators by focusing in particular on relations between arbitration and legal expertise of the mercantile and maritime world. The issue of the language of arbitrators (not only the idiom, but also the language of jurists or the language of traders) will be specifically scrutinized.