engleski

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

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 procedure scholarship. However, the Schiedsgerichtstheorie did not originally emerge and develop within the field of civil procedural law, but within Roman law scholarship 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, to the contrary, have refuted the Schiedsgerichtstheorie and advocated with convincing arguments the idea that the ancient Romans, like all other peoples, were wont to settle 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 scholarship abandons the obsolete Schiedsgerichtstheorie and takes into account the more recent reconstructions of the origin and development of Roman civil proceedings.

arbitration; civil procedure; Schiedsgerichtstheorie

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