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An unusual review of Roebuck, Markless and Boorman’s “Arbitration in the Long 18th Century”

My bi-monthly column for Alternatives contains the first part of a slightly unusual essay I have written on arbitration history in England and the USA. The background to it is that I knew and admired both Derek Roebuck and Johnny Veeder. Johnny raised the funds for Derek and his co-authors to do and publish their research.

With a significant nudge from Karyl Nairn, I put together an essay on arbitration in England in the form of a book review with a twist. The twist is a consideration of the things that Derek’s team did not cover – the development of error on the face of the award – and more importantly the impact on later arbitration of the momentous cases of the 18th century featured in Derek’s book.  That may never appear in real life.

So, for my Alternatives pieces (the second is in the editor’s hands at the moment!), I looked at the subject from a  more US perspective and in particular two 20th century cases which repeat the myth of English judicial hostility to arbitration. My position is slightly different from Roebuck and his US friend, James Oldham, namely that the caselaw and results do position English arbitration law in a way that by modern standards would be regarded as distinctly anti-arbitration. At the same time, the judicial attitude to rule-of-court arbitration was at least by the standards of the time quite positive. The picture is in truth quite mixed. In one respect, though, the Roebuck/Oldham school is unquestionably right. Arbitration prospered in the 18th century in all areas of English life. In the same way that the industrial revolution which started in this period created modern Britain, so did dispute resolution in the 18th century shape modern arbitration law and practice.

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