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PUBLIC AND PRIVATE JUSTICE- DISPUTE RESOLUTION IN MODERN SOCIETIES Establishing a Fair and Efficient Justice System

Arbitration as the Primary Form of Civil Proceedings? A Contribution to Criticism of the Schiedsgerichtstheorie

Marko PETRAK

UDK 347.918:939.5](091) 347.99(091) original scientific paper

The aim of this paper 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. 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. More recent romanistic studies, on the contrary, have refuted the Schiedsgerichtstheorie 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, in the opinion of this author, it is also necessary that contemporary civil procedure scholars abandon the obsolete Schiedsgerichtstheorie and take into account the more recent reconstructions of the origin and development of Roman civil proceedings.

I.

Introductory Remarks

The aim of this paper is to analyse the Schiedsgerichtstheorie: the theory on arbitration as the primary form of civil proceedings. The view that arbitration is the original and the oldest form of civil proceedings is commonly encountered in civil procedural law scholarship. In order to understand the basic features of this theory and its significance for contemporary civil procedural law, we shall briefly, exempli gratia, analyse some observations regarding the origin and development of civil proceedings in the classic Croatian work in this discipline – Građansko parnično procesno pravo (Civil Litigation Procedural Law) by professor Siniša Triva. At the very beginning of his book, in analysing the forms of protection of private rights, Triva gives a brief overview of the development of the various forms in which legal protection is rendered.11 In his opinion, the protection of private rights has not always been regulated by law. Initially, protection was provided only by means of private and unregulated self-help. "An individual would undertake the measures he considered to be adequate and applicable in realising his presumed right".12 In the next stage of development, individuals were obliged to cooperate, and eventually started to settle their disputes by means of agreements. Their disputes were settled by a third person in whom both parties had confidence. This person assumed the role of a chosen judge or arbitrator by whose decision the conflicting parties would voluntarily abide. Eventually, the state sanctioned this form of the private protection of rights, yet in subsequent stages of development, it gradually "imposed on everyone an organised judicial apparatus, thus replacing private protection with organised state protection".13 However, this transition from private arbitration to the system of protection offered by the state did not take place ‘overnight’; rather, it was a long historical process. The transition period was characterised by some specific forms combining elements of private

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Dr. Marko Petrak, Associate Professor, Faculty of Law, University of Zagreb, Croatia. S. Triva, Građansko parnično procesno pravo (Civil Litigation Procedural Law) (Zagreb 1983), at pp. 9 et seq. Ibid., at p. 9. S. Triva, op. cit. n. 11, at p. 10.

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