LEGAL PRINCIPLE: CUSTOMARY LAW – Customary Arbitration – Nature and Binding Effect
PRINCIPLE STATEMENT
What then is a customary arbitration? I venture to regard customary law arbitration as an arbitration in dispute founded on the voluntary submission of the parties to the decision of the Arbitrators who are either the Chiefs or Elders of their community, and the agreement to be bound by such decision or freedom to resile where unfavourable.
RATIO DECIDENDI (SOURCE)
"What then is a customary arbitration? I venture to regard customary law arbitration as an arbitration in dispute founded on the voluntary submission of the parties to the decision of the Arbitrators who are either the Chiefs or Elders of their community, and the agreement to be bound by such decision or freedom to resile where unfavourable."
EXPLANATION / SCOPE
Customary arbitration is founded on voluntary submission of parties to decision of Chiefs or Elders of their community, with agreement to be bound. However, there is often freedom to resile if the decision is unfavourable—unless the agreement to be bound is clear. The binding effect depends on the parties’ agreement. The arbitrators are community leaders, not necessarily neutral. The custom may allow a party to reject an unfavourable award. The court will enforce the award only if the parties clearly agreed to be bound. The principle recognises the informal nature of customary arbitration while providing criteria for enforceability. The party seeking to rely on the award must prove the agreement to be bound. The court examines the circumstances to determine if the arbitration was truly voluntary and binding.