COURTS OF INQUIRY

The British Minister of Labor may, under Part II of the Industrial Courts Act, 1919, appoint a Court of Inquiry to investigate existing or apprehended disputes. Under the authority thus vested in him, the Minister of Labor may inquire into the causes and circumstances of any trade dispute, whether reported to him or not, and, if he thinks proper, to appoint a Court of Inquiry to examine the matter and to submit a report to him.

In 1937, two Courts of Inquiry of the foregoing kind were appointed by the Minister of Labor. The first of these had its origin in a dispute between the London Passenger Transport Board, and the Transport and General Workers Union. The question in dispute was that of the conditions of employment of drivers and conductors in the London central omnibus services.

After hearings which lasted almost a month, arrangements were made for the resumption of work on the condition that a new agreement be negotiated, that machinery be set up for the joint examinations of various questions arising out of scheduled duties, and that an investigation be made of conditions of employment and their effect upon the employees. It will be recalled that this dispute resulted in the stoppage of all bus line services in London during the Coronation celebrations. The Minister of Labor also appointed a Court of Inquiry to inquire into and to report upon a dispute between plasterers and joiners which was delaying essential building work. As a result of the Court's investigations, an agreement was reached which was accepted by the majority of the interested parties.

STATE ASSISTANCE FOR PREVENTING AND

SETTLING INDUSTRIAL DISPUTES

Provision has been made by the British Government for assistance to be rendered in the prevention and settlement of industrial disputes. This assistance is given by the Minister of Labor under statutory powers derived from the Conciliation Act, 1896, and from the Industrial Courts Act, 1919.

Various bodies have been set up to render assistance of the foregoing kind. The activities in 1937 of some of these bodies will be mentioned briefly below.

The Industrial Court. Twenty awards were issued by the Court during 1937, thus bringing the total number of awards rendered since the establishment of the Court up to 1691.

Cases of various kinds were referred to the Court in 1937.* Among these was an application by a number of trade unions for increases in wage rate scales of clerical, sales, warehouse and general staff of the Cooperative Wholesale Society Limited. The Court also considered other cases involving wage increases and working conditions. For details regarding these awards reference is made to the Ministry of Labor's Annual Report for 1937. *For a complete list of the 1937 awards of this Court reference may be made to the following publication: "Industrial Court and Civil Service Arbitration Tribunal Awards, 1937." Part 1, Industrial Court Awards, 1672 to 1691; Part 11, Civil Service Arbitration Tribunal Awards, 1 to Ministry of Labor. (S. O. Publication: Price 2s. 6d.).

15.

Civil Service Arbitration Tribunal. An arrangement was recently made under which questions affecting Civil Service workers are now being referred to a Civil Service Arbitration Tribunal and not to the Industrial Court as was previously the case. Information regarding the constitution of this Tribunal was submitted in a recent report from the American Consulate General in London.

In 1937, this Tribunal rendered 15 awards. The latter dealt with scales of pay of officers of various grades in various public departments. In certain cases, questions pertaining to allowances for special work, overtime rates of pay, annual leave, et cetera, were involved.

SINGLE ARBITRATORS AND AD HOC BOARDS OF ARBITRATION

Labor disputes and differences are sometimes referred to an independent arbitrator chosen and appointed by the Minister of Labor.

The extent of the use of this form of arbitration is illustrated by the fact that in 1937 six cases were referred to single arbitrators. Three of these cases dealt with differences between the employers' and workers' sides of certain local boards of conciliation and arbitration in the boot and shoe industry. The remaining cases related to wages and hours of employment in various undertakings.

Differences are likewise referred from time to time to socalled ad hoc Boards of Administration. Two boards of this kind were appointed in 1937. Of these one referred to the zoning of areas of certain municipal undertakings, the second related to the wages, of wood cutting machinists employed in the sawmilling industry in a certain area. In the latter case the two parties were unable to reach a settlement and a decision was, therefore, rendered by the chairman acting as umpire. Conciliation Settlements. It is reported that in 1937 officers of the Industrial Relations Branch of the British Ministry of Labor, were directly associated with the settlement of 66 industrial disputes. Ten of these cases were connected with representations made under the Road Traffic Act. Only two of the 36 industrial settlements of an industrial character made arrangements for reference to arbitration.

For nearly all the questions on which men deliberate, and on which the deliberative orator harangues, those at least of the highest concernment, are in number five; and these are questions of finance, of war and peace, and again respecting the safeguard of the territory, and respecting imports and exports, and also respecting legislature.

Aristotle, Rhetoric.

ARBITRATION

COMMERCIAL

IN NETHERLAND INDIA

From the Office of the American Trade Commissioner, Batavia1

THE BASIC LAW

The laws of the Netherlands Indies are based on, and in most cases correspond very closely even in wording to, those of the Netherlands, in accordance with the basic law regulating the government of the Netherlands Indies (Reegeeringsreglement var Nederlandsch-Indie)

The basic law states, nowever, that because of the special conditions in the Netherlands Indies the law may be modified insofar as these conditions justify it. In the case of arbitration laws it is believed that there is little difference of importance between those of the Netherlands and those of the Netherlands Indies, although the latter are somewhat differently codified. The legal basis for commercial arbitration in the Netherlands Indies is found in articles 615 to 651 of the Code of Civil Procedure of the Netherlands Indies, itself originally put into force by the Law of September 29, 1849, the code devoting an entire section to detailed regulations regarding the cases which may be arbitrated and the procedure of arbitration. An attempt has been made to summarize the important points of the law in the following paragraphs. The law does not distinguish between commercial and industrial or other arbitration, the same basic rules applying to all.

AGREEMENT TO ARBITRATE AND NAMING OF ARBITRATORS

Anyone may agree to arbitrate disputes concerning rights over which he disposes. Agreements to arbitrate disputes which involve the rights of third parties, legacies, divorces or matters on which the law allows no settlement, may not be made and an arbitration award covering such matters would be null and void. Parties may agree in advance to submit any dispute which may arise to arbitration and need not wait for a dispute to materialize, arbitration clauses in contracts being based on this provision of the law. An agreement to submit disputes to arbitration must contain the names of the persons chosen to be arbitrators, and must state the subjects concerning which arbitration is acceptable to both parties.

CONDUCT OF THE ACTION ITSELF

Certain regulations are laid down by law governing the manner in which arbitrators must conduct their investigation, but none are of great importance to the parties. The arbitrator's power is limited to the extent that he must direct the parties to the courts if an investigation becomes necessary regarding the truth of written testimony or if a question arises during the action involving acts contrary

This article was prepared by Edward A. Dow, Jr., Clerk to the American Trade Commissioner. Mr. Dow lists his sources as follows: Section under "Basic Law" based on the writer's free translation of important sections of the Code of Civil Procedure touching on arbitration, checked on by conversations with Mr. W. G. Peekema, Senior Assistant to the Director of Justice and Dr. J. B. Zeijlemaker, Commercial Laws Expert of the High College of Law at Batavia. Section under "Practice" from interviews with Association of Commerce officials.

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to law committed by one or both of the parties. Should necessary witnesses refuse to testify, the arbitrator does not relinquish the case, but either of the parties is entitled to demand that a court force reluctant witnesses to testify.

THE AWARD

The most important provision of the law with regard to awards is that arbitrators must decide in accordance with "the rules of law, unless the agreement between the parties has granted (the arbitrators) liberty to render a verdict in fairness, as good men." Arbitrators are ordinarily empowered to act with this liberty and need not, therefore, possess any special legal knowledge.

The award must be in writing and properly drawn up to include the names of the parties, their claims, the decision and reasons for it. A copy must then be filed with the clerk of the local court within two weeks of the decision in Java and Madura and within three months of the decision in other parts of the Netherlands Indies. The court then issues a writ ordering that the decision of the arbitrators be carried out, the latter being enforceable by the court and its agents in the same way as a decision handed down by the court itself.

APPEALS AGAINST THE AWARD

Either party may appeal against the award of the arbitrators, the appeal being directly to the High Court of Justice of the Netherlands Indies, provided that the matter in dispute involves a sum of 500 guilders or more. The law appears to make no provision for appeal in cases involving smaller sums. The right of appeal may be waived in the original agreement to settle disputes by arbitration and the arbitrators' decision is consequently final in such cases.

The law contains, however, certain provisions allowing parties to demand of the court that the award be declared null and void, "even in cases where there is no right to appeal." The distinction made here between a formal appeal and a demand that the decision be annulled by the court is not entirely clear to the layman, but the cases in which a plea for annulment is permitted mainly involve possible technical flaws in the award. Grounds for an annulment plea are present, for example, when the award contains contradictory provisions, when it is silent on one or more points submitted for decision when the arbitrators are believed to have exceeded their powers, or when fraud can be shown to have been present in the proceedings. A plea for annulment must be entered with the court within six months after the rendering of the award, except when fraud can be shown.

TERMINATION OF AUTHORITY OF ARBITRATORS

The death of one of the parties to an arbitration case has no effect, under the law, on the powers of the arbitrators or on the agreement signed. The agreement continues in force, or if an action is in progress it is simply pursued with the deceased party's heirs in his place. In such a case action is temporarily suspended to allow settlement of the estate of the deceased.

The authority of arbitrators ends in four ways: by their own voluntary retirement, by expiration of a time limit set for their authority in the agreement to arbitrate, by the expiration of a six

month period after acceptance of the position of arbitrator, if no time limit has been set and, finally, by agreement between the two parties concerned to relieve the arbitrators from their duties.

PRACTICE

Arbitration could not be called usual in the Netherlands Indies before the beginning of the present century, and the broad law which was in effect was not often invoked until the development of various branches of trade and shipping began to confuse the courts and the latter were almost unable to render reasonable opinions, in the view of many business men. Legal experts with some memory of early twentieth century conditions are rare in the Netherlands Indies, but it seems clear that the courts were jealous in principle of the power of arbitrators and attempted to conform their decision to changing conditions with, it appears, little success. It is said that the decisions of the courts in commercial disputes were often so obscure that it was questionable which party had won the case, although the size of the expenses attached to the case made both sides the loser from the financial point of view.

DEVELOPMENT OF ARBITRATION

The practice of including arbitration clauses in contracts and of submitting disputes to arbitrators has grown slowly but steadily in the Netherlands Indies, especially since the World War, and most branches of trade not only now include arbitration clauses in contracts, but have drawn up "arbitragereglementen," prescribing the technical procedure of arbitration cases and defining technical terms. The Handelsvereeniging te Batavia (Batavia Association of Commerce) has for example, General Arbitration Regulations and has issued special regulations for various branches of trade, from rubber to citronella oil. The latter are especially intended for the routine arbitration of disputes concerning the quality of produces and are not intended to cover arbitration of other types of commercial disputes.

The General Arbitration Regulations of such an organization as the Batavia Association of Commerce provide that members of the Association may ask for arbitration whether or not such has been specified in the contract. An arbitration committee is appointed each year and consists of from 10 to 20 members, usually nearer the latter figure, so chosen as to represent the various types of trade, and compensated by the parties to the case.

When a dispute arises, the Chairman of the Association of Commerce names three arbitrators and immediately informs the parties of their names. If either side objects to the naming of any of the arbitrators, the Chairman must designate an arbitrator for each party, these two arbitrators to choose a third, the arbitration board so named being final. Appeals from the award are not permitted, although a party cannot be prevented from entering a plea for annulment. The award itself is filed with the court in compliance with the law and unless contested may be executed in the same manner as a court decision.

The majority of commercial arbitration cases take place between parties who are members of an Association of Commerce or who appeal to Association arbitrators and the procedure referred to above therefore summarizes the practical operation of a typical arbitration case in the Netherlands Indies.