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 Roman arbitration: Concepts and Terminology
Ivan MILOTIĆ*
UDK: 347.918.01(37)
34(37)
Original scientific paper
Settling disputes in arbitration in Roman law substantially differed from civil litigation. The parties
to the dispute were prohibited to explicitly exclude judicial jurisdiction in their case, though, they
could avoid trials by arranging arbitration and thereby not explicitly excluding eventual recourse
to courts that may happen in that particular matter. Because until 3rd century AD the court proceed­
ings and arbitrations were predominately private, many conceptual and terminological uncertain­
ties arose when distinction between them was drawn. Roman arbitration itself was designated with
only a few terms (arbitrium, arbitratus) which should be understood as the common denominators.
These term surely do not adequately reflect wide range and varieties of these proceedings, or the
complexity and their roles and functions, because at most occasions they were operated on the
from case to case principle. This paper provides an insight into the Roman arbitration and its basic
concepts which made it different from civil litigation. The author provides references to the vague
nomenclature that constantly followed the dispute resolution in Roman law which was achieved
outside the civil litigation.

Key words: arbitration, civil litigation, dispute resolution, Roman law, arbitrium, arbitratus

I. Introduction – terminological background

Dispute resolution outside the civil litigation in Roman law could be achieved in
variety of forms. There is a considerable body of the Roman legal and non-legal
evidence on the use of different means by which the disputing parties were diverted
from civil litigation into the various modes of dispute settlements that were for cer-
tain reasons and in particular circumstances considered to be more advantageous.1
The bypasses of the Roman courts that resulted at such events were in most cases
self-designed by the disputants and solely adapted for the needs and demands of a
particular dispute and the disputing parties. Such different forms of settling dis-
putes, which represented a result of diverse legal practices and traditions that were
spread throughout the large territories of the Roman State, have never received
standardization or uniformity. Nevertheless, the Roman authors of different prov-
enances, praetor and the Roman jurist universally and consistently denoted them
in a much-standardized way, by using the term arbitrium, rarely arbitratus and
exceptionally arbiterium.

*
Assistant Professor, University of Zagreb, Faculty of Law.
1
E.g. Seneca, De beneficiis, 3, 7, 5.

Croat. Arbit. Yearb. Vol. 26 (2019) 87

I. Milotić: Roman arbitration: concepts and terminology Croat. Arbit. Yearb. Vol. 26 (2019), pp. 87-106

The use of that terminology signified solely a basic concept of settling disputes
that implied two things: exclusion of civil litigation and that the controversies and
differences between the disputing parties were indeed ended.2 Polysemy of the
words arbitrium, arbitratus and arbiterium authentically reflects an idea of their
multiple and diverse forms, functions and techniques which might be employed
for the dispute settlement. Arbitrium or arbitratus was therefore only a senior and
generic legal term which was introduced because of its all-inclusive meaning and
because it was a common denominator of substantially completely different kind
of proceedings. The scholars of Roman law who specifically studied this concept of
dispute resolution pointed out that arbitrium or arbitratus: (a) was inherently flex-
ible in the determination of the decisive facts, especially in pecuniary disputes,3 (b)
was informal and generally private means of dispute resolution which was unbound
by the constraints of ordinary jurisdiction,4 (c) signified a reaction to the disadvan-
tages of civil litigation (which was often de facto inaccessible to non-Roman citi-
zens, risky, expensive, full of formalities and procedural situations that a disputing
party should take his opponent through), (d) lessened complexity and secrecy of a
procedure dominated by writing,5 (e) represented the parties’ consent to whatever
award the arbiter might render,6 (f) diverted the parties from excessive confronta-
tion because causing that the disputing parties “go to war” is not a good thing.7
Means of Roman classical law by which the courts were bypassed did not go un-
noticed in the periods that followed the fall of the Western Roman Empire. Because
Roman law first dealt in the Western World with the problem of settling disputes
in a different way than going through usual controversial rulings constrained by
judicial authority, it founded a culture of extrajudicial dispute resolution which has
in its terminological “toolbox” ever since been relying on the Roman legal tradi-
tion (through the Middle Ages, New Ages and nowadays). The polysemy of these
terms was particularly utilized in the Middle Ages for purpose of expressing the

2
E.g. Ulpianus, Digesta 4.8.1.
3
Stein P, “Roman Arbitration: An English Perspective”, in: Israel Law Review, Vol 29, 1995, pp.
215-216; Ziegler K-H, Das private Schiedsgericht im antiken römischen Recht, Münchener Bei-
träge zur Papyrusforschung und antiken Rechtsgeschichte, No. 58, München, 1971, pp. 84-89;
Roebuck D & De Loynes de Fumichon B, Roman Arbitration, Oxford, 2004, pp. 94-134.
4
Harries J, Law & Empire in Late Antiquity, Cambridge, 1999, p. 73.
5
Metzger E, “Roman Judges, Case Law, and Principles of Procedure”, in: Law and History
Review, 22(2) 2004, p. 164 with reference to Van Caenegem R C, “History of European Civil
Procedure”, u: International Encyclopaedia of Comparative Law, Vol. 16, Part 2, Tübingen,
1973, p. 93.
6
Ibid., p. 175.
7
Milotić I, “An Outline of the Arbitral Procedure in Roman Law”, in: Forum Historiae Iuris,
paras. 2, available at: <https://forhistiur.de/2013-01-milotic/>, last consulted on 1st October 2019.

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 Croat. Arbit. Yearb. Vol. 26 (2019), pp. 87-106

fact that the dispute resolution which took place outside the State judiciary could be
achieved in conceptually different forms.8 For these reasons most of the procedural
treatises of the Middle Ages included the separate chapters entitled “De arbitro et
arbitratore” and “Amicabilis compositio” suggesting that the medieval jurist knew
for at least three different forms of dispute resolution that went beyond constraints
of ordinary jurisdiction: first of these was conducted by arbiter, second by arbitra­
tor and the third by amicabilis compositor.9
Terminology referring to arbitration necessarily reflects its basic concepts which
contrasted it to civil litigation and which considerably affected its understand-
ing as a specific (different) way of settling dispute. This paper analyses concepts
of Roman arbitration and terminology that was used to express them regardless
whether the former goal was achieved more or less precise. By putting these two
determinants in correlation this paper is principally concerned with revealing its
true legal nature. Unlike some other phenomena which the Roman jurists expressed
accurately and in clear institutional schemes, arbitration was most evidently not a
monolithic or universally standardized phenomenon, but rather a means of dispute
resolution which was considerably context-based and shaped from case to case, and
which went through considerable change.

II. Distinction between arbitration and civil litigation in Roman

law

a) The issue of vague nomenclature

Because arbitrium or arbitratus in Roman law originally received the meaning
and procedural content exclusively from case to case, nowadays it is of the great-
est importance to understand it accurately and in a credible way – as the Romans
did. These words (and legal institutes) may be translated to English language as
arbitration, though on that occasion a necessary reference is required that this term
is not correspondent or analogue to modern arbitration or any individual ADR
mechanism. For purpose of preliminary clarifications of the meaning of arbitrium
and arbitratus within the introductory remarks of this paper, we should resort to
the Code of canon law (1983), which is still in force. In cann.1713-1718 the Code
briefly regulates modus evitandi iudicia, i.e. methods of avoiding trials. If we dare
to take a risk of seeking for analogies in law in force that may more or less precisely

8
Ziegler K-H, “Arbiter, arbitrator und amicabilis compositor”, in: Zeitschrift der Savigny-Stiftung
für Rechtsgeschichte, Romanistische Abteilung, Vol. 94, pp. 376-381; Fowler L, “Forms of Ar-
bitration”, in: Proceedings of the Fourth International Congress of Medieval Canon Law, MIC
C/5, Vatican, 1976, pp. 133-147.
9
Wojciechowski R, Arbitraż w doktrynie prawnej średniowiecza, Wrocław, 2010, pp. 74-82.

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I. Milotić: Roman arbitration: concepts and terminology Croat. Arbit. Yearb. Vol. 26 (2019), pp. 87-106

reflect the nature and meaning of what the Roman praetor and jurists understood
when they mentioned arbitrium or arbitratus, the expression avoiding trial from
the Code seems to be the closest to it. Thereby the emphasis is not on the individual
means, techniques, methods, modes etc. by which the bypassing of the courts
was achieved, but rather on the result – that the dispute resolution was somehow
achieved outside the State organized judiciary. For this reason, the canonical modus
evitandi iudicia reflects the idea which is close to Roman understanding that the
disputing parties should have enough space for their own arrangements of proce-
dures which took place from case to case and in which they thought they would
achieve satisfactory final and binding dispute resolution.
It is a great challenge for the researcher to set a clear and consistent distinction
between arbitrium/arbitratus and civil litigation before the 3rd century AD because
the Roman judicial processes per legis actiones and per formulas were both private.
It was not until 3rd century AD that the Romans introduced cognitio extra ordinem
as the official judicial procedure that ordinarily included institutionalized courts
and professional judges who were public officials. For this reason, the nomenclature
linked to different types of dispute resolution and persons who conducted them
(arbiter or iudex) is often vague and fails to distinguish clearly between arbitrium
and iudicium. “In the Republican texts, the term iudex tends to be used of individu-
als appointed by the praetors to serve as a single iudex in adjudication, while the
term arbiter refers to the individual chosen by disputants to serve as mediator or
arbitrator”.10 This corresponds with descriptions that arbiter was originally priva­
tim acceptus ex conventione.11 Cicero clearly understood that differences between
arbiter and iudex were not only a mere matter of terminology, which he empha-
sized by using the term disceptator to designate the arbiter and even by specifying
disceptator aut arbiter litis12 or disceptator, id est, rei sententiaeque moderator.13
Two centuries later, in the late classical period, the jurist Ulpianus commented
the meaning, role and function of disceptator in the same way as Cicero did. He
identified him as substantially different institute from iudex in the civil litigation of
Republican and classical era.14 Varro’s understanding of iudex15 confirms that some
Republican texts adequately perceived differences between arbiter and iudex more
precisely and consistently. This argument may be supported with Cicero’s wording

10
Bablitz L, “Roman Courts and Private Arbitration”, in: The Oxford Handbook of Roman Law
and Society, Du Plessis P J, Ando C, Tuori K (eds.), Oxford, 2016, p. 242.
11
Vocabularium iurisprudentiae Romanae 1903, tom. 1, fasc. 3, 485-486.
12
Cicero, De re publica 5, 3.
13
Cicero, De partitione oratoria 28.
14
Ulpianus, Digesta 4.8.17.3.
15
Varro, De lingua Latina 6, 68.

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 Croat. Arbit. Yearb. Vol. 26 (2019), pp. 87-106

that an iudex rendered iudicium whenever he made decision on the contradictory

claims of the disputing parties.16
Though, even in the Republican text certain fluid terminological issues may be dis-
cerned as well. Cicero himself, who surely had precise perceptions and understand-
ing of the aforementioned matters because he often attended courts and represented
the disputing parties, suggested that in bonae fidei iudicia an iudex might conduct
the proceeding as if he was an arbiter and thereby he rendered not iudicium, but
rather arbitrium.17 This means that in certain cases an iudex was allowed to depart
from the ordinary judicial powers and to act with more discretion, i.e. to go beyond
constraints of his judicial powers. At such occasions an iudex could adequately ap-
preciate bona fides and dolus, all relevant circumstances of the case, take into the
account parties’ manners and attitudes they had manifested in a particular legal
matter and, finally, support his decision with equity and fairness.18

b) Arbiter and iudex

The nomenclature references of the Roman writers to the arbiter and iudex evi-
dently suggest that in the imperial period there might have been many misunder-
standings. Sextus Pompeius Festus, a Roman grammarian from 2nd century AD,
states that an iudex who has the arbitration and control over the matter is called an
arbiter.19 Bablitz pointed out that Pliny the Younger at the transition of the 1st to
2nd century AD in one of his epistles mentioned the arbiter [ex compromisso] and
described his role with reference to a lay judge (iudex).20 The nomenclature chal-
lenges are ever more evident with reference to the legal sources that differentiate
between arbiter and iudex in an unclear and inconsistent way, which subsequently
received a lot of attention of the scholars of Roman law. The wording of the Law
of the Twelve Tables containing the phrases iudicis arbitrive,21 iudici arbitrove22
and iudicem arbitrumve23 literally expresses the alternative: private judge (iudex)
or arbitrator (arbiter). The same alternative phrase was received in 2nd century AD

16
Cicero, Pro Caecina 2.
17
Litewski W, “Das Vorhandensein der formula in ius concepta mit der bona-fides-Klausel bei der
Leihe”, in: Revue Internationale des droits de l’antiquité, 3 ser., tom. 45, 1998, pp. 290-291.
18
Cicero, De officiis 3, 15; Cicero, Topica 17.
19
Arbiter dicitur iudex, quod totius rei habeat arbitrium et facultatem. Festus, De verborum
significatione, arbiter. Roebuck & De Loynes de Fumichon, op. cit. (n. 3), p. 16.
20
... qui me iudicem aut arbitrum faciant. Plinius (Minor), Epistula 7, 30, 12. See: Bablitz, op. cit.
(n. 10), p. 242.
21
Lex XII Tabularum 2, 1; Gaius, Institutiones 4, 17.
22
Lex XII Tabularum 2, 1.
23
Lex XII Tabularum 9, 3; Aulus Gellius, Noctes Atticae 20, 1, 17.

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I. Milotić: Roman arbitration: concepts and terminology Croat. Arbit. Yearb. Vol. 26 (2019), pp. 87-106

by the jurist Gaius24 and was later maintained by the late classical jurist Ulpianus
who attempted to define arbiter and his procedural roles by using the word iudex.25
Regardless of it, Gaius’ wording is clear, consistent and leaves no space for ter-
minological alternatives when it comes to the partition cases, i.e. when he refers
to legal matters that were brought up following the pleading of a partition action
(action divisoria). The arbiter exclusively decided these disputes.26
The vague nomenclature and unclear differences between civil litigation and ar­
bitrium/arbitratus gave rise to Cicero to further elaborate these distinctions. He
described civil litigation as exact, clear-cut and explicit, whereas arbitration [ex
compromisso] as mild and moderate. Cicero precisely explained the position of the
disputing parties and the arbiter’s competences in arbitration [ex compromisso]: the
arbiter was allowed to make all the necessary efforts to reach a compromise and to
balance the interests of the disputing parties (which were in most cases in perpetual
tension), with the goal of preventing the risk of losing the case because of excessive
claims (pluspetitio).27 Approximately a century later Seneca the Younger made the
same efforts; he explained the most evident distinctions between civil litigation and
arbitrium/arbitratus. Seneca stated that a good case is in a better position if it is
put before a judge than before the arbiter, because the words of the law tie down a
judge and define certain limits beyond which he may not go, whereas the decision
of an arbiter is free and not bound by any rules, so that he can either give or take
away, and can arrange his decision not according to the precepts of law and justice,
but just as his own kindly feeling or compassion may prompt him.28
The fluidity of terminology and institutional distinctions in this field do not only
arise from the erudite writings of the Roman jurists and non-jurist. This phenom-
enon perhaps is best visible in a large number of epigraphic evidence that origi-
nated in different parts of the Roman Empire and contains records on the diverse
disputes that were obviously not settled within any known type of civil litigation.

24
Quando tu negas te praetor iudicem sive arbitrum postulo uti des. Gaius, Institutiones 4, 15
where he described legis action per iudicis arbitrive postulationem.
25
Recepisse autem arbitrium videtur, ut Pedius libro nono dicit, qui iudicis partes suscepit fi­
nemque se sua sententia controversiis impositurum pollicetur. Ulpianus, Digesta 4.8.13.2. See:
Bablitz, op. cit. (n. 10), p. 242.
26
Gaius, Institutiones 4, 17a.
27
Cicero, Pro Quinto Roscio Comoedo, 4, 10-11.
28
... ideo melior videtur condicio causae bonae, si ad iudicem quam si ad arbitrium mittetur,
quam illum formula includit et certos, quos non excedat, terminos ponit, huius libera et nullius
adstricta vinculis religio et detrahere aliquid potest et adicere et sententiam suam, non ut lex
aut iustitia suadet, sed prout humanitas aut misericordia inpulit regere. Seneca (Minor), De
beneficiis, 3, 7, 5.

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 Croat. Arbit. Yearb. Vol. 26 (2019), pp. 87-106

Because such records originated from controversies that happened in real life, they
simultaneously provide us with a trustworthy insight into the terminology.29 The
approach to terminology, especially regarding the exact meaning of arbiter and
iudex, seems to be modelled from case to case. Such circumstances partly reflect
a problem of not-standardized nomenclature and a fact that the terminological
distinctions were not highly appreciated or respected. Though, these leave enough
space to reach further conclusion as well: it may be “interpreted as evidence of a
legal system that contained a number of methods for conflict resolution, ranging
from mediator to judge with much in between”.30
The issues of terminology received a considerable attention and were much elabo-
rated and debated by the scholars. The considerations of the scientist often went
beyond borders of mere terminology because some of them pointed out that per-
haps these inconsistencies and lack of clear-cut terminological distinctions should
be interpreted more substantially, i.e. with reference that they may indicate insti-
tutional differences and not exclusively terminological confusions. Roebuck & De
Loynes de Fumichon stated that the difference between civil litigation and arbitra-
tion “is not clear-cut where there are no courts and judges to which arbitration can
be contrasted”.31 With primary reference to iudicis arbitrive postulatio Jolowicz &
Nicholas put forth that in some cases praetor said iudicem and in others arbitrum.
An iudex was asked for when the claim permitted of a simple answer “yes” or
“no”, an arbiter when it required the exercise of some discretion, as in the parti-
tion actions.32 Martino, who wrote a comprehensive study on the Roman arbiter,
primarily identifies him as a person who conducted the dispute settlement unbound
by any constraint of the ordinary jurisdiction. Martino explained that the fluidity
of distinctions between arbiter and iudex (and arbitrium and iudicium) historically
coincides with introduction of legis actio per iudicis arbitrive postulationem. This
legis actio allowed that in certain specific types of disputes an arbiter might be

29
Campbell B, The Writings of the Roman Land Surveyors – Introduction, Text, Translation and
Commentary, Journal of Roman Studies Monograph 9, London, 2000, pp. 450-467; Milotić I,
“Peregrine communities in Dalmatia at the beginning of the 1st century from perspective of their
disputes”, in: The century of the brave: Roman conquest and indigenous resistance in Illyricum
during the time of Augustus and his heirs, Proceedings of the international conference, Zagreb,
22-26. 9. 2014, Milićević Bradač M, Demichelli D (eds.), Department of Archaeology. Faculty of
Humanities and Social Sciences – University of Zagreb, Zagreb, 2018, pp. 333-334; Bablitz, op.
cit. (n. 10), pp. 242-243, Wilkes J J, „Boundary Stones in Roman Dalmatia I. The Inscriptions“,
in: Arheološki Vestnik, No 25, 1976, pp. 258-274; Tabula Contrebiensis, Tabula Irnitana etc.
30
Bablitz, op. cit. (n. 10), p. 243.
31
Roebuck & De Loynes de Fumichon, op. cit. (n. 3), p. 11.
32
Jolowicz H F & Nicholas B, Historical Introduction to the Study of Roman Law, Cambridge,
1952, p. 185; Kaser M, Das Römische Zivilprozessrecht, München, 1966, p. 41.

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I. Milotić: Roman arbitration: concepts and terminology Croat. Arbit. Yearb. Vol. 26 (2019), pp. 87-106

assumed to the judicial proceedings, especially when arbiter’s specific knowledge,

understanding or experience were essentially required to achieve an adequate set-
tlement of the dispute.33 In such circumstances an arbiter might substitute iudex
in judicial proceeding either from its beginning or at a certain procedural point,
i.e. after an iudex had initially conducted the proceeding. Roebuck & De Loynes
de Fumichon provided different interpretation of the phrase iudex arbitrive. They
concentrated the attention on the little enclitic ve, which seems to be the key-point
of all debates and (mis)understandings. The enclitic is usually translated to English
as “or”. They pointed out that Latin does not necessarily mean that the nouns that
ve joins are mutually exclusive. If such interpretation is accepted, this would mean
that the role, function and office of an iudex may not under all circumstances and in
all disputes be distinct from those of an arbiter.34 They provided an interpretation
that in specific cases an iudex may assume position, role, function, and discretion of
an arbiter. This affirms the point of view that in such circumstances he was iudex
only by his name and not due to his powers in that very dispute. Romac sets discre-
tion as the essential criterion for terminological and institutional contrast between
arbiter and iudex.35 These views may be supplemented with an older interpretation
that an arbiter perhaps bore an element of a specific locality (and the disputant)
where the dispute resolution took place, while an iudex can not be associated with
any particular locality.36 Baty added the following: “We find the two expressions
‘judex’ and ‘arbiter’ employed even before the advent of the formulary system, but
so indiscriminately, that Cicero says37 that it seems to him a remarkable thing that
so many able men have so long applied their intellects to the matter without its ever
yet being possible to say decidedly whether one ought to say ‘judex’ or ‘arbiter’ in
any given case”.38 He identified an arbiter under the formulary system as a person
who decided salva fide, not arbitrarily. Harries explained that most uses of the word
arbiter in Latin imply the authority of the adjudicator. For purpose of clarifying
this issue she stated: “The decision of the arbiter, like that of a judge, represented
the adjudication of a person whose authority was accepted by the disputants either
because, as judge, he was authorised by the state, or because, as arbiter, they had
chosen him and thus signified their consent to whatever award he might make ...
the ‘iudex arbiterve’ were equally competent to deliver a judgement that would

33
Martino P, Arbiter, Rome, 1986, pp. 28-29, 32.
34
Roebuck & De Loynes de Fumichon, op. cit. (n. 3), pp. 80-81.
35
Romac A, Zakonik dvanaest ploča [The Law of the Twelve Tables], Zagreb, 1994, p. 130.
36
Greenidge A H J, The legal procedure of Cicero’s time, Oxford, 1901, p. 39.
37
Cicero, Pro Murena 12.
38
Baty T, “The difference between arbiter in the Roman sense and modern arbitrators”, in: The
University of Pennsylvania Law Review 65(8), p. 734.

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 Croat. Arbit. Yearb. Vol. 26 (2019), pp. 87-106

conclude the case. A further similarity, also dating from the early Republic, was
that the iudex, like the arbiter, was ‘given’ (‘datus’) by praetor in response to the
wish of the parties to have their business settled, in the expectation that they would
abide by his ruling. Even under the Early Empire, it could still be said that the ar-
biter undertook the ‘functions of the iudex’ ... Two distinctions were drawn. One
was that the arbiter concluded the case, whereas judges’ rulings might be open
to appeal. The other was that the iudex, according to Seneca, was bound to give
judgement according to the law (therefore a strong case should go to court), while
arbiters could adjudicate how they liked”.39

c) Arbitration award (sententia) and judicial decision (iudicium)

The issue of terminology and differences between arbitrium and iudicium refers
to the distinction between sententia and iudicium as well because these terms were
inconsistently used to denote decisions of the different legal natures which were
made by the different decision-makers. Certain regularities and trends with regard
to these terms’ usage may be traced.40 In most cases arbiter’s award is denoted
with sententia, which implies that the decision was a result of the decision-maker’s
observation and perceptions (Lat. sentire). Iudicium is more usually affiliated with
decisions made by an iudex or a magistrate. Though, their terminological usage in
the dispute resolution cases often varied for which we can not set a general princi-
ple that sententia signified an arbiter’s award while iudicium denoted a judicial or
magistrate’s decision. Emergence of terminological varieties in different occasions
and with no firm criteria (regarding its pertinence to particular type of dispute
resolution) makes it impossible to reach further conclusions.

III. Distinction in arbitration itself: arbitrium and arbitrates

Because the Romans used two words to denote arbitration (arbitrium and arbitra­
tus), it immediately raises a question whether these nouns were synonyms or do
the varieties of their use indicate that they had substantially different meanings.
Search for a precise answer to the question is even more difficult due to a wide
range of meanings that these words had in Latin language. Overview of the legal
sources suggests that the usage of arbitratus was principally (not exclusively and
not always) attached to cases where the dispute was settled by good men (boni
viri). Moreover, it indicates that the use of arbitratus is closely and consistently
attached to judgments in the sense of estimation, determination, inspection and
expertise etc., rather than with judgments perceived as the decision on parties’

39
Harries, op. cit. (n. 4), p. 175.
40
Roebuck & De Loynes de Fumichon, op. cit. (n. 3), pp. 20-21.

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I. Milotić: Roman arbitration: concepts and terminology Croat. Arbit. Yearb. Vol. 26 (2019), pp. 87-106

claims or any kind of procedural decisions that were connected with more legal
formalities or tehnicity. The former corresponds with Lewis and Short’s definition
of arbitratus, who commented that it signifies “the judgment (as will, not as opin-
ion; accordingly = voluntas, not = sententia)“.41 Arbitrium retained more technical
and formal meaning because in dispute resolution it signified a judgment in legal
sense, i.e. a decision by which the dispute was resolved finally and with binding
effects. Arbitrium should be perceived as a result of rendering the decision, i.e.
adjudication by a third impartial party exercising his authority.42 If we raise a ques-
tion how frequently these two words were used in the Roman sources of different
periods in relation one to the other, it is evident that in the Republican period they
appeared approximately on equal footing43 while in the imperial period the term
arbitrium increased and prevailed considerably. Therefore, it may be concluded
that the use of arbitrium and arbitratus is not result of synonymy or of any kind
of uncertainties. The distinction is more substantial. It goes beyond the language
and precisely reflects two diverse legal concepts of dispute resolution outside civil
litigation which were the most common in the Roman legal practice. This may be
a reason for which arbitrium and arbitratus have survived and prevailed in Ro-
man law and have ever since been exploited in the field of terminology and legal
institutes as the generic designations of the dispute resolution that was somehow
achieved outside civil litigation.

IV. Language problem

The issue of vocabulary, expressions and the language in the Roman arbitration
reveals several factors that are relevant for the analysis. Some of the terminological
inconsistencies clearly emerged from uncertainties, mistakes and misunderstand-
ings. Another option is that different writers who lived on different territories of
the Roman state, in different social contexts and in different periods necessarily
had different and context-based perceptions on arbitration and therefore used the
Latin vocabulary differently. A further option is that certain Latin expressions and
terms were used as synonyms and homonyms for which nowadays certain concepts
and institutes can not be precisely or reliably contrasted. From this point of view, it
seems that writer’s ideas might have been clear and precise, though he documented
them in expressions or phrases which nowadays seem vague and doubtful. The
private nature of the Roman judicial process until 3rd century AD affected emer-

41
Lewis C T & Short C, A Latin Dictionary, Oxford, 1879, arbitratus.
42
Roebuck & De Loynes de Fumichon, op. cit. (n. 3), p. 174.
43
For arbitratus particularly see: Cato, De agri cultura 144, 145, 148, 149.

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 Croat. Arbit. Yearb. Vol. 26 (2019), pp. 87-106

gence of many difficulties when civil litigation is contrasted to arbitration. Unlike

the other ancient societies, in Roman state this distinction was not self-evident.44
Likewise, the aforementioned issue of vocabulary, expressions and the language
make apparent the need to entirely examine its institutional background. By means
of terminological evidence the Romans reveal wide range of individual and pecu-
liar forms of dispute resolution that functioned outside civil litigation. Most prob-
ably each of these forms supposed a separate and specific method or technique of
dispute settlement which was in much of its content self-designed, context-based
and modelled on specific needs of a particular case. The evidence of Romans sug-
gests that these forms covered a wide spectrum of options which ranged between
two extremities: from means of dispute resolution which were fully private and
legally unsanctioned (e.g. arbitrium boni viri) to those which in some way utilized
the legal system45 and in which to a certain degree, depending from case to case,
the public authorities exercised their powers (e.g. dispute settlements ordered by
a magistrate). Between these two points the Romans knew of many degrees, i.e.
individual methods that combined private initiative with a slight oversight of the
Roman state. Taken together all these degrees that ranged between fully private
and public points created a bridge between what could be called private and public
justice.46 It was beyond the powers and needs of the Romans to introduce a separate
name for each of these numerous and mutually different methods. To overcome this
challenge, they preferably used only a small number of terms and phrases, or their
combinations, and exclusively for purpose of indicating or clarifying solely a gen-
eral concept (that disputes were finally and in a binding way resolved outside civil
litigation). It should be emphasized the point that each form of dispute settlement
which had its name in Roman law and was achieved outside civil litigation repre-
sented a common denominator which encompassed the different individual means
of dispute resolution which had no its own name. For these reasons the ongoing
changes and rebalancing of relations between different methods of dispute resolu-
tion did not affect the basic (generic) terminology pertinent to Roman arbitration.

V. Means of avoiding trials in Roman law

Avoiding trials in Roman law necessitated specific and innovative methods and
techniques that varied from case to case. Usually, but not always, it was left to the
parties’ discretion to select those which they considered the best suited to circum-

44
Roebuck & De Loynes de Fumichon, op. cit. (n. 3), p. 11.
45
Bablitz, op. cit. (n. 10), p. 243.
46
On that topic we followed the ideas of Godfrey M, “Arbitration in the Ius Commune and Scots
Law”, in: Roman Legal Tradition, Vol. 2, 2004, p. 122.

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stances to ensure that the controversies and differences were indeed ended. Final
and binding dispute resolution might be achieved through adjudication on who
is right or wrong, i.e. on deciding whether a claim of a certain party is sustain-
able or not (e.g. arbitrium ex compromisso), in which counselling was explicitly
excluded.47 Another option was mediation, which is in precise wording mentioned
by Cicero who awarded a disceptator with a role of rei sentetiaeque moderator.48
Many cases of arbitrium or arbitratus boni viri facilitated the opinion giving, nego-
tiated settlements for purpose of regulating parties’ legal relations, counselling or
particular settlements provided by the use of compromise as means of reaching the
dispute resolution. Legal sources record evidences that in a whole range of cases ar­
bitratus boni viri signified the judgements that implied expertise, determinations,
estimations or some other technical job that varied from case to case and which had
in narrow sense little in common with legal (adjudicative) work (Matthews 1921,
229).49 The brief introductory overview of wide spectrum of techniques and meth-
ods that the Romans actually used when they resorted to arbitration without pro-
viding them with a definition or a separate name reaffirms the following Metzger’s
considerations: “That the Romans themselves did not speak of an idea does not
mean we cannot profitably observe the idea in Roman procedure and give our own
name to it”.50 Techniques and methods used in the arbitration procedures were not
standardized. They varied (and were often combined) in their practical operation
considerably depending to many reasons and factors: from place to place because
the Empire covered large territories and at the same time the arbitration procedures
were modelled on the narrow local levels; from case to case and – which is the
most important – from dispute to dispute. The operation of specific techniques and
methods often depended solely upon the person of an arbiter who conducted the
procedure (and delivered the decision) based on a wide discretion and simultane-
ously with no significant procedural constraints. The arbitration procedures were
fixed by law or any other means neither. The jurist provided no details that would
enable an arbiter involved to follow certain general principles, guidelines, and
47
Ulpianus, Digesta 4.8.13.2.
48
Cicero, De partitione oratoria 28.
49
Cato, De agri cultura, 144, 145, 148, 149; Nerva, Digesta 17.1.35.; Scaevola, Digesta 32.41.9.;
Marcianus, Digesta 39.4.16pr.; Labeo, Digesta 19.2.58.1.; Paulus, Digesta 10.2.44.8.; Ulpianus,
Digesta 39.2.15.34.; Ulpianus, Digesta 3.3.33.3.; Ulpianus, Digesta 7.1.13pr.; Iulianus, Digesta
7.5.6pr.; Papinianus, Digesta 7.9.11.; Ulpianus, Digesta 7.9.12.; Paulus, Digesta 24.3.25.3.; Ul-
pianus, Digesta 39.1.5.17.; Ulpianus, Digesta 27.10.8.; Ulpianus, Digesta 43.15.1pr.; Ulpianus,
Digesta 43.15.1.3.; Paulus, Digesta 19.2.24.pr.; Ulpianus, Digesta 33.1.3.2.; Iulianus, Digesta
40.5.47.2.; Ulpianus, Digesta 18.1.7pr.; Papinianus, Digesta 30.58.; Ulpianus, Digesta 33.1.3.2.;
Ulpianus, Digesta 7.9.1.5.; Paulus, Digesta 12.2.30.5.; Pomponius, Digesta 17.2.6.; Proculus,
Digesta 17.2.76.; Papinianus, Digesta 30.58.; Papinianus, Digesta 34.1.10.2.
50
Metzger, op. cit. (n. 5), p. 10.

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trends in his work. The jurist simply commented the particular cases that were
brought before them and made no further efforts in that field. Nevertheless, the
practical understanding of the wide range of available techniques and methods
by which the Romans achieved dispute resolution should be prized at a very high
level. By modern standards a number of these may be qualified as arbitration, me-
diation, conciliation, negotiation, negotiated settlement, negotiated justice, expert
determination etc.
In many occasions arbitration procedures in Roman law were not alternatives to go-
ing to court. Some of the earliest legal evidence record that certain types of disputes
were purposefully left to arbitration. E.g. The Law of Twelve Tables regulates that
three arbitri shall determine the boundaries.51 Arbitration was at the early age of
Roman law principally employed in disputes when the procedures were conducted
per iudicis arbitrive postulationem: over division of land property, division of an
undivided family property or division of co-ownership. These disputes were re-
ferred to in the commentaries of Gaius who portrayed the ancient regulations by
providing that itaque nominata causa ex qua agebatur statim arbiter petebatur,
meaning that in such cases the dispute resolution took place before an arbiter. Such
perceptions can be consistently followed in the legal sources of pre-classical and
classical periods (which are plentiful) because the Romans deliberately diverted
some specific and wide groups of disputes from civil litigation into arbitration.
This did not go unnoticed by the scholars who already in the 19th century pointed
out that in certain types of disputes arbitration was utilized as a primary and desir-
able, or even exclusive means of dispute resolution. Based on these facts a German
scholar W H Puchta, who wrote a study on the arbiter (Schiedsrichter), elaborated
that Roman law simultaneously knew of two parallel systems of dispute resolution,
whereby one took place before an arbiter and the other before an iudex.52 His word-
ing was later supported by Mommsen’s analysis that at the early age of Roman state
there were two types of disputes in which an arbiter was ordinarily and preferably
employed: (1) determination and drawing of boundaries, (2) division of property.
With a special reference to the arbitration arranged ex compromisso Weizsäcker put
forth that some evident analogies and parallels existed between arbitration and civil
litigation, and thereafter between arbiter and iudex. He suggested these were two

51
... controversia est nata de finibus ... tres arbitri fines regemus. Lex XII Tabularum 7, 5. See:
Fernández de Buján A, Derecho público Romano: recepción, jurisdicción y arbitraje, Madrid,
2004, p. 398.
52
Puchta W H, Das Institut der Schiedsrichter, Erlangen, 1823, pp. 5-6.

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separate Roman systems of dealing with disputes, though with an author’s empha-
sis that they bore many similarities, cross-fertilizations, and mutual imitations.53
Yet, it seems that it has been constantly neglected that the Romans never under-
stood arbitration procedures as something that diminished civil litigation or any-
how competed with it. The Romans most certainly never thought about the rela-
tions between arbitration and civil litigation in terms of alternatives or competition.
Their understanding on these relations implied their coexistence and that certain
types of disputes were principally left to arbitration because it was considered best
suited for them. Other disputes were for some other reasons left to civil litigation.
From that point of view, the Romans perceived arbitration in terms of procedure
which was ordinary, primary, or even a pattern rather than something that occurred
as alternative, exception or extraordinarily. These views may be facilitated by em-
phasizing that the disputing parties in Roman law had no always full discretion to
select arbitration. They could resort to arbitration only with reference to certain
types or a range of disputes that were considered adequate for its use. The practical
trends and procedural traditions in this field progressively set the ultimate points
of a wide spectrum of disputes beyond which the parties could not go. The most
evident proof emerges from those disputes whose resolution involved land survey-
ors (agrimensores, mensores, finitores, gromatici) and measurements.54 They were
almost exclusively resolved by use of arbitration.
Recourse to arbitration was sometimes merely a reaction to disadvantages of Ro-
man civil litigation. In certain legal matter the disputing parties were reasoning
whether to go to court and to take over many unpredictable risks of civil proce-
dure or, optionally, to bypass the court, i.e. to exploit and eventually benefit from
practical and/or psychological advantages of available extra-judicial mechanisms
that were adequate means of resolving their dispute. The use of arbitration was
a reaction to formalities and procedural situations that a disputing party should
take his opponent through in civil proceedings. In cases where civil litigation was
too complicated (because of formalities and two procedural stages), slow, beyond
financial power of the disputing parties, risky, considerably subjected to possible
risks of excessive claims (pluspetitio) or when civil justice was de iure or de facto
inaccessible or unreachable, arbitration is shown as a necessity. Furthermore, civil
litigation was guided by formal procedures, while arbitration relied on informal

53
Weizsäcker C, Das Romische Schiedsrichteramt Unter Vergleichung mit dem Officium Judicis,
Tübingen, 1879, pp. 70-71.
54
Dilke O A W, The Roman Land Surveyors; An Introduction to the Agrimensores, Amsterdam,
1992, p. 51.

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ones that were easier to achieve in practice, which promoted its attractiveness and
accessibility.55

VI. Arbitration in Roman law – private or public means of dispute

resolution?
It is often said that the Roman jurists were reluctant to resort to definitions56 be-
cause they principally sought to provide a legal matter at hand with a practical
answer, comment, solution etc. Such views can be fully verified with reference
to arbitrium. The Romans felt no need to define it or to position it into a certain
institutional scheme, or even to clearly distinguish it from other institutes and legal
phenomena. Their primary concern was to discuss and identify perquisites and
guarantees for arbitration to be operative in practice and to achieve its goal. For this
reason, every attempt to put arbitration into an institutional scheme or to obtain its
precise definition is conceptually wrong and considerably departs form the Roman
rationale. The Romans never felt it this way because they believed every definition
could be subverted! That leaves us with no answer on arbitrium that would sound
satisfactory from modern perspective.
In their practical considerations the Roman jurists primarily referred to ius civile,
which was substantially private law, and did not contrast the rules of law and those
rules by which law was enforced. E Metzger noticed that “the Romans did not re-
flect on their procedural law in the way they reflected on their private law”.57 This
distinction was expressed and explained for the first time by Hugo Donellus in his
work “Commentarii de Iure Civili” (1589). Accordingly, it was not until the late
16th century that the procedural law was defined as realization of substantive law
and subjective rights arising out of it.58
In the late classical period (transition of the 2nd to 3rd century AD) the Romans made
clear distinctions between private and public law. The jurist Ulpianus is attributed
with definition saying that ius publicum was primarily of public concern, which
was contrasted to ius privatum which was essentially private law because it encom-

55
Stein, op. cit. (n. 3), pp. 215-216; Harries, op. cit. (n. 4), p. 173.
56
Iavolenus, Digesta 50.17.202.
57
Metzger E, “An Outline of Civil Procedure in Roman Law”, in: Roman Legal Tradition, Vol. 9,
2013, p. 3.
58
Stein P, “Donellus and the Origins of Modern Civil Law”, in: Mélanges Felix Wubbe: Offerts
par ses collègues et ses amis à l’occasion de son soixante-dixième anniversaire, Ankum J A,
Cannata C A, Feenstra R, Le Roy Y, Spruit J E, Weimar P (eds.), Fribourg, 1993, pp. 439-452;
Stein P, Roman law in European history, Cambridge, 2005, p. 106.

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passed the legal rules that concerned the interests of private individuals.59 Private
law dominated considerably in the jurists’ practical considerations.60 In the earlier
classical period, which is of our greatest interest in this book, the distinctions were
not set precisely. Rules of private law were considered those that could be altered
by private agreements while the rules that could not be altered by such agreements
were of public nature.61 Legal rules concerning arbitrium were always positioned
in private law. Though, arbitrium should be analysed from another perspective if
we raise a question whether and to what extent the public authorities, principally
the State or local magistrates, interfered in arbitration. The interference might
considerably differ from case to case due to a large scale of available options and
diverse arbitration procedures. Speaking in general terms, several basic ideas can
be discerned.
There were fully private arbitrations meaning that in no circumstances intervention
of the public authorities was sustainable. Its practical operation depended entirely
on the arbitration agreement and the disputing parties had full control over it. These
procedures should be contrasted to those which were generally private arbitrations
because the disputing parties arranged the dispute resolution by themselves (arbi­
tria voluntaria), but nevertheless a magistrate could exceptionally intervene into
such procedures, which implies that certain types of the Roman arbitrations were
slightly overseen by the State and its judiciary. Furthermore, certain arbitration
procedures might be qualified as more bureaucratic or even mandatory (obligatory)
for the disputing parties because the magistrates exercised their powers at larger
scale when they interfered; for example, they might order the arbitration or initiate
the proceedings by their own act (decree, command, edict). Epigraphic evidences
suggest that magistrates might constitute the arbitration court by themselves or
even select arbitri. In former cases it was not a voluntarily arranged proceeding.
Sometimes the sources record that an arbiter could be invited to conduct the pro-
ceedings in civil litigation. Finally, in this brief sketch we must refer to arbitrations
whose arrangement was not voluntary at all, rather it was prescribed by the legal
rule (arbitria neccesaria). Roman law asserted control over disputes by using ar-
bitration apart from civil litigation. The primary interest of the Romans was not to
have the dispute resolved in a certain arbitration form or by using a specific means
of settling disputes, but rather to ensure that the controversies and differences
between the disputing parties were indeed ended. Interferences of public authori-
ties may vary depending upon a wide range of reasons and factors. When these

59
Ulpianus, Digesta 1.1.1.1; Codex Iustinianus 1.1.1.
60
Stein, op. cit. (n. 58), p. 21.
61
Ibid.

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occurred, the intensity of intervention in each case reflected the importance and
the level of interest that the Romans had in its ultimate resolution.
The Roman public authorities evidently took interest in arbitration procedures. Ex-
ceptionally, the State interest could stimulate the public authorities to go beyond the
simple awareness or recognition of arbitration procedures (that were predominately
private) by taking measures to control such procedures and to direct them towards
a final and binding resolution. At this occasion the dispute resolution at hand was
no longer solely a private matter of the disputing parties. Arbitration in Roman law
was only exceptionally organized or intensely controlled by the State. In foremost
cases it took place outside the civil litigation. Forms of the Roman arbitration pro-
cedures that we have the most evidence of, and which were subsequently the most
common in the legal practice, were almost exclusively extra-judicial, non-State
organized and unregulated by the binding rules of the law for which they can be
reliable contrasted to administrative proceedings and civil litigation.

VII. Settling disputes in arbitration procedures in Roman law

Civil litigation in Roman law was solely about a dispute (lis, litigatio, controver­
sia, iurgium), with the disputants (actor, reus) who excessively confronted each
other and their interests with contradictory claims (petitiones). Arbitration was
employed when the parties intended to avoid excessive confrontation before the
court or when their legal relations were not yet even burdened by a dispute. In cer-
tain circumstances the parties might resort to arbitration for purpose of clarifying
or determining their positions, relations, claims etc. rather than to initiate a legal
dispute. E.g. Stein explained that formula in procedure per formulas was always
more rigid in cases of valuation of the debts, which were obviously very important
matters that frequently appeared in the legal practice. A problem could rise in
debt matters if the plaintiff was doubtful about how much he could prove that he
was owed (Stein 1995, 215-216)62 or if he did not know exactly how much he was
owed or when he was in search for a means to determine the amount of what was
owed to him. Such procedural circumstances in financial disputes facilitated the
use of arbitration which is reliably attested in Tabulae Pompeianae Sulpiciorum
(Camodecca 1999, 106-109).63 To some extent even the nomenclature of arbitration
facilitates such conclusions. In many cases the term arbitratus was associated to

62
Stein, op. cit. (n. 3), pp. 215-216.
63
Camodeca’s publication “Tabulae Pompeianae Sulpiciorum” (TPSulp.) gives a detailed and ac-
curate insight into such circumstances. Inscriptions belong to the Pompeian banker’s archive.
They record credit affairs and disputes arising out of them resolved exclusively by arbitration ex
compromisso. Camodeca G, Tabulae Pompeianae Sulpiciorum: Edizione critica dell’archivio
puteolano dei Sulpicii, Rome, 1999, pp. 106-109.

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clarifications, quantifications, valuation, determinations rather than to legal claims

realized in disputes. When arbitratus is substantially contrasted to arbitrium this
seems to be a key criterion of differentiation because the former term corresponds
more with the resolution of disputes, not of uncertainties.
Diversity of arbitration procedures did not manifest in the field of their result. Final
settlement of the dispute was a main purpose and the ultimate goal of all arbitration
procedures in Roman law. Nevertheless, this goal and an overall function of arbi-
tration in Roman law were rarely elaborated in the legal sources. When Justinian’s
jurist compiled 8th title of the 4th book of the Digest, which is the most important
surviving legal source for arbitrium ex compromisso, in the first place (D.4.8.1.)
they put Paul’s fragment saying that the functions of compromissum and iudicium
are substantially analogue because they should both ultimately lead ad finiendas
lites64, i.e. to the final dispute resolution. The expression ad finiendas lites pertinet
was accurately identified not as a classical text, but as an interpolation of the Byz-
antine jurists of the 6th century.65 The Byzantine wording makes it even clearer and
indicates more precisely the essential legal importance of what the rationale of the
Paul’s fragment was. By adding this interpolation, the Byzantine jurist explicitly
clarified and supplemented Paul’s wordings that the arbitration is not sustainable
unless it finally ends the dispute. This should be interpreted in a much broader
sense, not solely in the context of arbitration arranged ex compromisso.
Wording of D.4.8.1. should be understood as a general principle common to all
arbitration procedures in Roman law. If we consider all the diversities and vague
nomenclature of the Roman arbitration, then we should adequately appreciate the
importance of the final dispute resolution as well. It was a goal and factor that
brought together and signified a common denominator of all arbitration procedures
in Roman law. The final dispute resolution had binding force regardless whether
the final award of an arbiter could be enforced by use of the legal means under
ius civile. When the disputing parties arranged arbitration they beforehand gave
their consent to the arbiter’s award regardless of its content (e.g. whether it was
just or not, whether they were disappointed by it etc.). They deliberately took that
risk. Subsequently, once the award was rendered, they were put under pressure to
execute it. Though, that pressure might not always be a “formal” one. When there
were no available legal means or in case when the disputing parties did not make
additional arrangements to indirectly enforce the arbitration award, the execution
depended solely on the parties’ bona fides, morale, social and psychological pres-

64
Paulus, Digesta 4.8.1. J Harries explained this: “The jurists’ guidelines sought to ensure that
arbitration did its job, that it finished the case”. Harries, op. cit. (n. 4), p. 179.
65
See: Index interpolationum quae in Iustininani Digestis inesse dicuntur, tom. 1, 1929, p. 62.

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sure, or even on the factual denial of some benefits that a disputant might regularly
enjoy in his community.
Settling disputes in arbitration procedures was a constant in Roman law. The fre-
quency of its occurrence in the legal sources merely coincides with the gradual
raise in their number and quantity. The earliest reliable records of arbitration pro-
cedure can be traced in the provisions of the Law of the Twelve Tables that we are
aware of by means of much later comments and considerations provided by the
pre-classical and classical jurists (especially Gaius). Though, Cicero mentioned
arbitrium with reference to even earlier periods and events (that happened be-
tween 753 BC and 509 BC, i.e. in the period when the Kings governed the Roman
state).66 Nonetheless, the Cicero’s survey resorts to the periods of time which were
essentially unfamiliar to him and were indeed very distant from his time and per-
spective. For this reason, Cicero’s wording should not be interpreted differently
than a story-telling of some vague and distant historical episodes that we have no
reliable records of at all. However, the Cicero’s telling reveals another important
understanding of arbitration procedures. The Romans of Cicero’s time, including
Cicero himself, evidently felt that arbitrium was an ancient institute that dates
back to immemorial times. In the 1st century BC the Romans perceived it as an
institute that was traditionally accustomed in their legal system. By means of the
Law of the Twelve Tables (which was comprehensively referred to and commented
by Cicero as well) and some specific types of legis actiones (which received an
overall comments and explanations by the jurists of the pre-classical and classical
periods) these understandings may be reliably verified. Ever since the Law of the
Twelve Tables the arbitration procedures were permanently present in the Roman
legal system.

VIII. Conclusions
In the classical Roman law arbitration should be appreciated through variety of its
forms and functions. Arbitrations of that era were throughout the Empire guided
by some common principles, concepts and ideas, but nevertheless they never re-
ceived standardization. Roman jurist and the State authorities never made efforts to
standardize them. This leaves the practical operation and structuring of arbitrations
strongly connected with a from case to case principle. Such an approach resulted
with wide range of arbitrations that stretched between two extreme points (private
and public), with many techniques and methods which might have been employed
in a particular case, and – finally – with many diverse forms that arbitration could
receive. The jurist observed and analyzed these phenomena primarily through their
66
Nec vero quisquam privatus erat disceptator aut arbiter litis, sed omnia conficiebantur iudiciis
regiis. Cicero, De re publica 5, 3.

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roles and functions which were all ultimately directed to the final dispute resolu-
tion. At the same time they felt no need to classify them or to invent an institutional
scheme in which all these types of arbitration would receive its own name, quali-
fication and description.
Variety of types and forms of arbitration did not reflect in the field of terminology
because the Romans used only a few terms to denote such a complexity. Most
evidently they had no intentions to give a particular name to each of these means
or even groups of dispute resolution. Their only concern was to terminologically
denote the basic concept, i.e. that in particular case dispute resolution was achieved
differently than in civil litigation. For this they invented terms arbitrium and arbi­
tratus. The simple terminological expression referring to an immense complexity
left behind many terminological (and conceptual) uncertainties, inconsistencies
and unclear distinctions within the arbitration itself and in relation to civil litiga-
tion, which are nowadays understood as vague nomenclature of the Roman arbitra-
tion. Though, the Romans were not concerned with this at all. Most evidently they
followed this way intentionally and purposefully. Their only effort was directed not
to legal qualifications and terminology, but rather to make the arbitration procedure
operative in practice.
These simple Roman terminological distinctions (which resemble solely to a com-
mon denominator) received considerable attention in the procedural treaties of the
Middle Ages, through which the Romano-canonical procedure was introduced
and further elaborated. In the upcoming historical periods, especially in the 19th
and 20th century, such vague Latin nomenclature of Roman law was utilized as
the terminological background for expressing the essential (modern) concepts of
arbitration. Though, great attention is required because in modernity these terms
received standardization and are uniformly applied for expressing the universal
concepts. Such circumstances represent a strong opposition to their understand-
ing in Roman law in which they appeared and from which they have evolved. The
arbitration phenomena in Roman law should therefore be studied and understood
not from a modern perspective (which utilizes these terms as universal concepts),
but rather following the Roman from case to case approach which knows of no
terminological consistencies or institutional scheme.

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