PUBLIC AND PRIVATE JUSTICE- DISPUTE RESOLUTION IN MODERN SOCIETIES Establishing a Fair and Efficient Justice System
Arbitration as the Primary Form of Civil Proceedings? Marko PETRAK∗
The aim of lecture is to analyse the Schiedsgerichtstheorie: the theory on arbitration as the primary form of civil proceedings.
The view that arbitration is the original and oldest form of civil proceedings is commonly encountered in the writings of civil procedure scholars and thus became the important part of history of ideas of procedural legal science. In order to understand the basic features of this theory and its significance for contemporary civil procedural law, we shall, exempli gratia, analyse some observations regarding the origin and development of civil proceedings in the classic Croatian and European manuals on the civil procedure.
However, the Schiedsgerichtstheorie did not originally emerge and develop within the field of civil procedural law, but in the writings of Roman law scholars during the first half of the 20th century in response to complex issues regarding the origin and development of Roman civil proceedings based on the very precise legal-theoretical (Jhering) and philosophical foundations (Hobbes). More recent romanistic studies, on the contrary, have refuted the Schiedsgerichtstheorie as a set of rationalist speculations devoid of any essential compatibility with historical reality and advocated with convincing arguments the idea that the ancient Romans, like all other peoples, settled disputes in their community by turning to the supernatural powers of their deities, in the form of various types of trials by ordeal or prophecies.
Thus, it is also necessary that contemporary civil procedure scholars abandon the obsolete Schiedsgerichtstheorie as one legal-theoretical “rationalistic myth” of 20th century and take into account the more recent reconstructions of the origin and development of Roman civil proceedings as the essential part of European procedural legal tradition.
Materials: M. PETRAK, Arbitration as the Primary Form of Civil Proceedings? Contribution to the Criticism of the Schiedsgerichtstheorie, Croatian Arbitration Yearbook 11 (2004) pp. 83-98.
Dr. Marko Petrak, Associate Professor, Chair of Roman Law, University of Zagreb, Croatia.