International Journal of Tourism, Travel and Hospitality Law 2023

ARBITRATION AND TOURISM: A FIELD TO EXPLORE performance and competitiveness of a tourism company and the fact it has been subject to a more or less institutionalised international arbitration scheme. 2. ARBITRATION Arbitration has a distinguished history. References to arbitration begin in ancient Greece, which illustrates the antiquity of the subject in the law world. Many of the sciences that exist today were centuries before being invented and topics that are still current were already being discussed in law. From Homer’s Iliad, where many identify references to means of dispute resolution similar to arbitration, to the philosophers Plato and Aristotle, who expressly address the subject, there were many who referred to it. It is commonly accepted that the roots of arbitration, in the sense we still use it today and as an autonomous legal instrument, lie in Roman Law. In its genesis, the power to arbitrate a conflict was first attributed to the paterfamilias, later evolving to the designation of an external arbitrator. The distinction already present in Roman Law between arbitrium in viri and arbitrium ex compromiso corresponds, nowadays, to the distinction between jurisdictional arbitration (which essentially concerns us in this article) and contractual arbitration, devoid of its own and direct enforceability. The Catholic Church, contrary to what one might think, given the need to control decisions which the existence of dogmas normally requires, has historically always been in favour of arbitration. The Bible itself refers to arbitration in the Old Testament, which clearly demonstrates the importance of the topic for the Christian world. Arbitration appears many times in ecclesiastical writings as an alternative to the courts of the Church itself, and various popes encouraged the use of arbitration as a privileged form of pacification of peoples. An important peculiarity is the fact that the Church has come to use and encourage arbitration even in criminal matters, in the rare experiences of this kind that the world has known, since sovereign states are particularly jealous of their competence in criminal matters and do not accept that private persons can replace them. The role of the Catholic Church in arbitration was important, especially in the Middle Ages, favouring peaceful solutions to cross-border disputes and also in private matters. The Pope, supreme arbitrator, encourages the use of alternative means of dispute resolution, by nature more pacifying. Penalties imposed by arbitration tribunals at the time included so-called religious penalties, such as excommunication or suspension from the office of mass in a particular locality.