Apparent exceptions to rule that the error must appear on the face of award or in contemporaneous document.

Award not final.

Matters not brought to arbitrator's notice.

Award of one sum in respect of all matters.
Omitting to give directions.

Duty to decide specific question referred.

Award of mutual releases a decision of all matters.

Silence as to severance damage under Lands Clauses Act.

Several awards, each deciding part.

Not deciding the cause or all the issues properly.

Presumption in favour of award.

Award of sum as balance.

Ordering release to a day before submission.

Conditional award.

Alternative award.

Where one alternative uncertain or impossible.

Award reserving judicial authority.

Reservation as to matters not submitted.

Award delegating judicial authority.

Reservation or delegation as regards ministerial acts.
Reservation, whether construed as judicial or ministerial.
Award uncertain.

As to amount awarded.

When arbitrator to allow at market price.

Awarding sufficient to release securities.

Award to pay over money received, if any.

Money due from A., B., and C., some or one of them.

Giving rule for computing amount.

To apportion trust estate.

As to nature of security.

As to identity of property awarded.

Other directions by arbitrator.

Award impossible or inconsistent.

Award in excess of authority.

Where award invalid, but not entirely a nullity.

Disability of party.

Discovery of new material matter or new evidence.

9. Insufficient grounds for setting aside award.

Unexpected case set up by opponent.

Discovery of felony of party.

False evidence given.

Witness having given different evidence elsewhere.
Perjury of witness.

Objection very small.

10. Effect of setting aside award, in whole or in part.

Who may move to set aside award.

Time for application.

"Before the last day."

"Published to the parties."

Power of Court to extend the time.

Application, how made.

Notice of motion.

Stating grounds of application.

Service of affidavits.

Service out of the jurisdiction.

Form and contents of affidavits in support.

Affidavits in answer to support an award bad on its face.

11. (1) Where an arbitrator or umpire has misconducted himself, the Court may remove him.

(2) Where an arbitrator or umpire has misconducted himself, or an arbitration or award has been improperly procured, the Court may set the award aside.

1. Previous legislation.

S. 11 (1) is entirely new legislation. S. 11 (2) is partly new and partly a re-enactment.

The statute of 9 Will. III. c. 15, passed in 1698, enacted by s. 2 as follows:

II. And be it further enacted by the authority aforesaid, that any arbitration or umpirage procured by corruption or undue means, shall be judged and esteemed void and of none effect, and accordingly be set aside by any Court of law or equity, so as complaint of such corruption or undue practice be made in the Court where the rule is made for submission to such arbitration or umpirage, before the last day of the next term after such arbitration or umpirage made and published to the parties; any thing in this Act contained to the contrary notwithstanding.

2. The law before the Arbitration Act.

In Russell on Awards, 6th ed., 1882, at p. 687, the law as existing before the Arbitration Act was commented on as follows:

:

"[When an award is under the statute of William III.]

"In considering what may be the grounds of a motion to set aside an award, a distinction may be noticed between awards pursuant to submissions made rules of Court by the inherent jurisdiction of the Courts, and those on submissions of which the Courts take cognizance by virtue only of the statute of William III. (9 Will. III. c. 15).

"In an old case it is laid down that under that statute nothing is a ground for impeaching the award but manifest corruption of the arbitrators (Anderson v. Coxeter (1720), 1 Stra. 301); but the language of the Act provides that awards 'procured by corruption or undue means' shall be set aside, thus not limiting the grounds to corruption only.

"It is evident that the term 'undue means' signifies something different from corruption; for although there be no ground for imputing improper motives to the arbitrator, the Court will set aside the award as procured by undue means' if the course pursued in the reference has been inconsistent with justice; as, for instance, if the witnesses have been examined in the absence of the parties (Plews and Middleton, In re (1845), 6 Q. B. 845; Harvey v. Shelton (1844), 7 Beav. 455), or the plaintiff was not allowed a proper opportunity of discussing his case (Spettigue v. Carpenter (1735), 3 P. W. 361; S. C. Vin. Ab. Supp. Arb. 301).

"The restriction, however, imposed by the language of the Act has subsequently been much disregarded, for the Courts will listen to applications to set aside awards under the statute on other grounds than the two enumerated in the section" (Veale v. Warner (1670), 1 Saund. 327 d, notes).

3. The inherent jurisdiction of the Court.

In addition to the powers exercised by the Court under the statute of William III., the Court exercised certain powers of setting aside

awards under its inherent jurisdiction. The Arbitration Act does not refer to these inherent powers of setting aside awards, and it would seem that the powers of the Court under that Act are limited by the terms of the section, and that any other powers of the Court must still be derived from its inherent jurisdiction.

In construing the Arbitration Act as regards other sections, e.g. s. 5, the Court has looked strictly to the powers conferred by the statute (Re Smith and Nelson's Arb. (1890), 25 Q. B. D. 545).

The inherent jurisdiction of the Court appears to consist chiefly of the power to set aside an award which is bad on its face, or on some ground which is more or less an extension of the same principle.

4. Differences in the law.

Under the statute of William III. there were two grounds for setting aside an award—one where any arbitration or umpirage was procured by "corruption," and the other where it was procured by "undue means." The latter phrase was interpreted to mean some act contrary to natural justice, and included misconduct when such misconduct was contrary to natural justice.

Under the Arbitration Act there are still two grounds for setting aside an award, but both grounds are much wider than before the Act.

The first ground is misconduct of the arbitrator or umpire, which is much wider than anything in the statute of William III. The word "misconduct" includes any act which is contrary to natural justice, but is not limited to such acts, and there is no necessity for the Court to consider whether the misconduct has resulted in the procurement of an arbitration or award by "undue means." The Act does not place any limitation on the meaning of the word "misconduct," and the Court might now set aside an award or remove an arbitrator for ordinary misconduct, e.g. if during the proceedings in the arbitration he was constantly drunk and therefore incapable of adjudicating properly. The power now given to the Court to remove an arbitrator or to set aside an award on the ground of misconduct, as compared with the more limited powers of the Court before the Arbitration Act, must be borne in mind in considering the decisions before and since the passing of the Act.

The second ground is where an "arbitration or award has been improperly procured." This is practically a re-enactment of s. 2 of the statute of William III., but more comprehensive.

5. Removal of arbitrator or umpire for misconduct.

It should be observed that the power of removing an arbitrator or umpire who has misconducted himself is given to the Court alone and not to the "Court or a judge," and cannot therefore be exercised by a Master (see Order LIV., r. 12A).

The word "misconduct," it would seem, may be construed in its widest sense (see ante, p. 194), and need not be confined to the kind of misconduct which was necessary to justify the setting aside of an award before the Act, i.e. some act contrary to natural justice.

The following cases have been decided under the Arbitration Act:

Illustrations.

1. Disputes arising out of a contract for the performance of certain works were referred to arbitration. The arbitrator decided to commence the arbitration on 29th July 1889. The contractor asked for an earlier date, as his most important witness was leaving England on 26th July. The arbitrator refused this request. On an application to remove the arbitrator on the ground that he had refused to take an examination of the witness in question before he left England, it was held that the arbitrator had not done anything which he was not entitled to do and the application must be dismissed (Re Whitwham and Wrexham, &c., Rail. Co. (1895), 39 S. J. 692).

2. An arbitrator made certain orders as to costs which he had no jurisdiction to make. On a motion to remove the arbitrator on the ground that, in acting ultra vires, he had been guilty of misconduct, it was held by the Court of Appeal that the arbitrator had been misinformed as to his jurisdiction, and that though he had made grave mistakes, he had not been guilty of misconduct within s. 11 (1) of the Arbitration Act, and would not be removed (Schofield v. Allen (1904), 116 L. T. J. 239).

3. A contract of sale contained an arbitration clause. Disputes having arisen, arbitrators were appointed, who in turn appointed an umpire. The umpire made his award in favour of the buyers, and the sellers moved for an order that he should be removed and the disputes should be remitted to the arbitrators on the grounds (1) that the umpire. without the consent of the parties insisted upon a gentleman in no way. connected with the case giving evidence; (2) that he admitted evidence which was inadmissible; (3) that he refused to give the sellers an opportunity of meeting this evidence by adjourning the proceedings; (4) that throughout the proceedings he showed bias against the sellers; and (5) that when asked by the sellers to state a case, he said that he was quite willing to do so, but that he must first ask them to hand him a cheque for £150 on account of legal expenses, &c. Held by the Court of Appeal that the umpire had been guilty of misconduct and must be removed (In re Enoch and Zaretzky, Bock & Co., [1910] 1 K. B. 327).

6. Liability of arbitrator.

In respect of fees.

The Courts formerly seem to have assumed that the amount charged for fees by an arbitrator might be summarily reviewed by them as against the arbitrator. As between party and party it is clear that