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PROFESSIONAL ETHICS IN RELATION TO TRADE ASSOCIATIONS.
“ Trade Associations” are playing an important part in our economic life. An interesting book on the subject has just been issued by Mr. Emmet Hay Naylor, President of the American Trade Association Executives, which is very enlightening on the general subject of Trade Associations. There are now more than one thousand of these associations whose activities are either national in their scope or touch subjects of national importance. There are many others which are either state wide or local. In view of the fact that counsel for these associations are usually attorneys for members of such associations many interesting questions of professional ethics are presented when conflicting interests arise. The Committee on Professional Ethics of the New York County Lawyers' Association has prepared an interesting document bearing thereon. This document was considered in an open public meeting of the committee in New York on May 4, 1921.
The committee has since taken up the subject in conjunction with Mr. Edward A. Harriman, Chairman of the Committee on Professional Ethics of the American Bar Association, and his committee will present as a part of its report said document.
The subject is one worthy of very careful consideration. There are also other interesting questions not covered by this document and upon which the committee desires more light. The committee is now working in conjunction with Mr. Harriman's committee on this subject.
XI. FEDERAL COMMERCIAL COURTS. The great extension of federal power has overwhelmed the judges of the United States District Courts of which judges there are not a sufficient number for the rapid disposition of commercial causes. This has caused the committee to consider the matter of the creation of federal district commercial courts along the lines of English commercial courts. Sir Frederick Pollock has written the committee as follows:
COMMERCIAL COURT. See the article under this title in Encyclopedia of the Laws of England, 2d ed., Vol. 3, p. 203. Lond. & Edinb. 1907.
(There is no new court or jurisdiction, only a special cause list in which proceedings are expedited and technicality dispensed with.)
Also the title Commercial Causes in the Annual Practice, commonly called the White Book, Vol. 2.
There is no exclusive official definition of a commercial cause. A series of Reports of Commercial Cases is published in the Times (not confined to cases in the commercial list) from 1895 onwards.
There are no special rules of the Supreme Court on the matter: it is an internal departmental arrangement among the judges of the King's
Jersey. It was drawn by the New Jersey State Chamber of mittee submits a bill for a uniform state arbitration as follows:
Be it enacted by the.... Validity of arbitration agreements.
Bench Division: Barry vs. Peruvian Corporation (1896), Q. B. 208; the explanation there given by Lord Esher still holds good.
Pollock, The Genius of the Common Law, New York, 1912, pp. 61-62, gives a summary statement which may be handy for some purposes.
The essence of the procedure is reduction of pleading to exchange of short points of claim and defence, discouragement of interlocutory applications, and admission of all substantially undisputed facts.
The method is quite compatible with the existence of serious questions of law on which the court may give a considered judgment if thought fit, subject to appeal like any other judgment.
It is obviously not applicable to cases turning mainly on complex and contentious questions of fact-2.g., underground boundaries of mining claims-or involving conflict of expert opinions.
A learned friend rather especially familiar with commercial causes tells me that the system works quite smoothly and gives general satisfaction: for that very reason there is not much talk about it.
An interesting description of the English commercial courts can be found in Scrutton on Charter Parties and Bills of Lading (Ninth Edition, 1919) pages 402 to 409, both inclusive.
The Chicago Association of Commerce has instituted a trade court to settle commercial disputes.
XII. UNIFORM STATE ACT ON ARBITRATION. The proceedings of the American Bar Association at its annual meeting held in St. Louis, Mo., beginning August 25, 1920 (Volume XLV of the Reports of the American Bar Association, page 75) show the following:
Charles A. Boston:
Now, I have a second motion. I ask that this be referred without debate to the Committee on Commerce, Trade and Commercial Law of the American Bar Association. It is that that committee be requested to consider and report at the next annual meeting of this Association upon the further extension of the principle of commercial arbitration.
The motion was carried.
a uniform state act and a federal act on arbitration. It has taken as the basis of its work as to a uniform state arbitration act, the New Jersey Bill Assembly No. 412, which passed the II ouse of New Jersey, but did not pass the Senate of New Commerce and was modeled on the New York law. The com
.of the State 1. A provision in a written contract to settle by arbitration a controversy thereafter arising between the parties to the contract, or a sub
mission hereafter enterer into of an existing controversy to arbitration pursuant to Section 2 hereof, shall be valid, enforcible and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.
2. Save in the case of an infant, or a person incompetent to manage his affairs, two or more persons may, by an instrument in writing, duly acknowledged or proved, and certified, in like manner as a deed to be recorded, submit, to the arbitration of one or more arbitrators, any controversy existing between them at the time of the submission, which might be the subject of an action. They may, in the submission, agree that a judgment of a court of record, specified in the instrument, shall be rendered upon the award, made pursuant to the submission. If the court is thus specified, the submission may also specify the county in which the judgment shall be entered. If it does not, the judgment may be entered in any county.
Remedy in case of default.
3. A party aggrieved by the failure, neglect or refusal of another to perform under a contract or submission providing for arbitration, described in section one or two hereof, may petition the... ...... Court, for an order directing that such arbitration proceed in the manner provided for in such contract or submission. Twenty days' notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by law for personal service of a summons. The court shall hear the parties, and upon being satisfied that the making of the contract or submission or the failure to comply therewith is not in issue, the court hearing such application, shall make an order directing the parties to proceed to arbitration in accordance with the terms of the contract or submission. If the making of the contract or submission or the default be in issue, the court, or the justice thereof, shall proceed summarily to the trial thereof. If no jury trial be demanded by either party, the court shall hear and determine such issue. Where such an issue is raised, any party may, on or before the return day of the notice of application, demand a jury trial of such issue, and if such demand be made, the court shall make an order referring the issue or issues to a struck jury in the manner provided by law for referring to a jury issues in an equity action. If the jury find that no written contract providing for arbitration was made or submission was entered into as the case may be, or that there is no default, the proceeding shall be dismissed. If the jury find that a written contract providing for arbitration was made or submission was entered into and there is a default in the performance thereof, the court shall make an order summarily directing the parties to the contract or submission to proceed with the arbitration in accordance with the terms thereof.
Provision in case of failure to name arbitrator or umpire.
4. If, in the contract for arbitration or in the submission, provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed, but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, or for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then, upon application by either party to the controversy, the ..... Court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said contract or submission with the same force and effect as if he or they
Motion to vacate award.
had been specifically named therein; and unless otherwise provided, the arbitration shall be by a single arbitrator. Stay of proceedings brought in violation of an arbitration agreement
or submission. 5. If any suit or proceeding be brought upon any issue otherwise referable to arbitration under a contract or submission, the Court, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under a contract containing a provision for arbitration or under a submission described in section two, shall stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement. Application to be heard as motions.
6. Any application to the court hereunder shall be made and heard in the manner provided by law for the making and hearing of motions, except as otherwise herein expressly provided. Attendance of witnesses, etc.
7. The arbitrators selected either as prescribed in this act, or otherwise, or a majority of them, may require any person to attend before them as a witness and in a proper case to bring with him or them a book or paper; they shall have power to summon in writing to testify before, or any of them, any person or persons. The fees for such attendance shall be the
same as the fees of witnesses in courts of record in this state. Said summons shall issue in the name of the arbitrator or arbitrators, or a majority of them, and shall be signed by the arbitrators, or a majority of them, and shall be directed to the said person and shall be served in the same manner as subpænas to testify before a court of record of this
if any person or persons so summoned to testify shall refuse or neglect to obey said summons upon petition the ,
Court may com pel the attendance of such person or persons before said arbitrator or arbitrators, or punish said person or persons for contempt in the same punishment of them in the manner now provided for the attendance of witnesses or the
.. Court of this state. Motion to confirm awards.
8. At any time within one year after the award is made, which award must be in writing and acknowledged or proved in like manner as a deed for the conveyance of real estate, and delivered to one of the parties or his attorney any party to the submission may apply to the court, specified in the submission, for an order confirming the award; and thereupon the court must grant such an order, unless the award is vacated, modified, or corrected, as prescribed in the next two sections. Notice of the motion must be served, upon the adverse party to the submission, or his attorney, as prescribed by law for service of notice of a motion upon an attorney in an action in the same court.
9. In either of the following cases, the court, specified in the submission, must make an order vacating the award, upon the application of
party to the submission: (a) Where the award was procured by corruption, fraud or undue
(b) Where there was evident partiality or corruption in the arbitration, or either of them.
(c) Where the arbitrators were guilty of misconduct, in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence, pertinent and material to the controversy; or of any other misbehavior, by which the rights of any party have been prejudiced.
(d) Where the arbitrators exceeded their powers, or so imperfectly executed them, that a mutual, final, and definite award, upon the subject matter submitted, was not made.
Where an award is vacated and the time, within which the submission requires the award to be made, has not expired, the court may in its discretion, direct a rehearing by the arbitrators. Motion to modify or correct award.
10. In either of the following cases, the court, specified in the submission, must make an order modifying or correcting the award, upon the application of either party to the submission:
(a) Where there was an evident miscalculation of figures, or an evident mistake in the description of any person, thing or property, referred to in the award.
(b) Where the arbitrators have awarded upon a matter not submitted to them, not affecting the merits of the decision upon the matters submitted.
(c) Where the award is imperfect in a matter of form, not affecting the merits of the controversy, and, if it had been a referee's report, the defect could have been amended or disregarded by the court.
The order may modify and correct the award, so as to effect the intent thereof, and promote justice between the parties. Motions; when to be made.
11. Notice of a motion to vacate, modify or correct an award, must be served upon the adverse party to the submission, or his attorney, within three months after award is filed or delivered, as prescribed by law for service of notice of a motion upon an attorney in an action. For the purposes of the motion any judge who might make an order to stay the proceedings, in an action brought in the same court, may make an order to be served with the notice of motion, staying the proceedings of the adverse party to enforce the award. Costs on vacating award.
12. Where the court vacates an award, costs, not exceeding twentyfive dollars and disbursements, may be awarded to the prevailing party; and the payment thereof may be enforced, in like manner as the payment of costs upon a motion in action. Judgment on award; when and how entered; costs.
13. Upon the granting of an order, confirming, modifying or correcting an award, judgment may be entered in conformity therewith as upon a judgment made upon a referee's report in an action, but no exceptions shall be taken, but an appeal may be taken from such order or judgment as hereinafter set forth. Costs of the application, and of the proceedings subsequent thereto, not exceeding twenty-five dollars and disbursements, may be awarded by the court, in its discretion. If awarded, the amount thereof must be included in the judgment. Transcript to be filed.
14. The party moving for an order confirming, modifying or correcting an award shall at the time such order is filed with the clerk for the entry of judgment thereon, also file the following papers with the clerk:
(a) The submission; the selection or appointment, if any, of an additional arbitrator, or umpire; and each written extension of the time, if any, within which to make the award.