Definition
An agreement or submission to arbitration is a contract by which two or more parties consent to refer a present dispute, or a class of future disputes, to the decision of one or more private persons (arbitrators) rather than to a court of law. The agreement operates both as a grant of authority to the arbitrators and as a binding commitment by the parties to accept the outcome of the arbitral process.
Two forms are recognized in practice:
1. Submission agreement: An agreement entered into after a dispute has arisen, referring that specific, existing controversy to arbitration.
2. Arbitration clause (agreement to arbitrate future disputes): A contractual provision, entered before any dispute arises, committing the parties to arbitrate any disputes that may emerge from their relationship.
The distinction between these two forms has carried significant legal consequences throughout history, particularly regarding revocability and enforceability.
Common Confusion
The terms "submission" and "agreement to arbitrate" are often used interchangeably, but historically they referred to distinct instruments. A submission was typically a post-dispute document referring an existing, identified controversy. An agreement or arbitration clause was a pre-dispute commitment. Courts and legislatures treated these differently for much of the nineteenth and early twentieth centuries — pre-dispute clauses were frequently held revocable or unenforceable at common law, while a formal submission, once executed, carried more immediate effect. Modern arbitration statutes have largely collapsed this distinction, but researchers working in historical sources must remain alert to it, as the same word may carry different operative meaning depending on era and jurisdiction.
Core Elements
For an agreement or submission to arbitration to be legally operative, the following elements are generally required:
— Parties: Identifiable persons or entities with capacity to contract.
— Consent: Mutual agreement, expressed with sufficient clarity to show intent to arbitrate rather than litigate.
— Subject matter: The dispute or class of disputes referred must be described with enough specificity to define the arbitrators' authority.
— Appointment mechanism: The agreement typically specifies how arbitrators are to be selected, or incorporates institutional rules that supply this.
— Finality: An intention that the arbitral award will be binding, not merely advisory, is essential to distinguish arbitration from other forms of alternative dispute resolution.
Why It Matters in Research
This term sits at the threshold of arbitration law and its meaning is unstable across time. Researchers face at least three distinct periods:
Pre-statutory common law: Courts in England and early American jurisdictions were hostile to pre-dispute arbitration clauses, treating them as attempts to oust the jurisdiction of the courts. An agreement to arbitrate future disputes was often unenforceable or revocable at will by either party before the award was made. A submission to an existing dispute stood on firmer ground but was still subject to revocation before the award.
Statutory reform era: Beginning with the English Arbitration Act 1889 and accelerating through the twentieth century (including the U.S. Federal Arbitration Act of 1925), legislatures progressively reversed the common-law hostility and gave pre-dispute arbitration agreements full contractual enforceability. Research in this period requires close attention to which statute, if any, applies to the instrument at issue.
Modern corpus: Contemporary materials treat the two forms as functionally equivalent for enforceability purposes, though procedural rules may differ. International commercial arbitration adds a further layer, with the New York Convention (1958) governing recognition and enforcement across signatory states.
Trap for researchers: An older source describing an "agreement to arbitrate" as void or revocable is almost certainly describing the pre-statutory common-law rule, not the modern position. Context and date are critical.
Historical Dictionary Support
Rapalje and Lawrence's entry for this term is notably sparse, directing the reader to L.R. 6 Q.B. 332 without substantive elaboration. That citation points to the English Law Reports, Queen's Bench Division — consistent with the late nineteenth century period when English arbitration law was in active judicial development and the question of what constituted a valid submission was a live issue in reported cases. The brevity of the entry reflects a pattern common to nineteenth-century legal dictionaries: terms whose meaning was being actively contested or refined in the courts were sometimes defined by reference to cases rather than by a stable doctrinal statement. This underscores the need for researchers to treat Rapalje and Lawrence as a pointer to primary sources rather than a final word on this term. Blackstone's Commentaries and later treatises by Russell on Arbitration supply fuller historical treatment of the submission as a common-law instrument.
Jurisdictional Note
In the United States, the Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs agreements affecting interstate commerce and has preemptive force over state law hostility to arbitration, though questions of contract formation remain governed by state law. In England, the Arbitration Act 1996 is the controlling instrument. Researchers working in international contexts must identify whether the New York Convention applies to the enforcement question.
Encyclopedia Cross-Reference
See: ARBITRATION | SUBMISSION | ALTERNATIVE DISPUTE RESOLUTION