10. Enforcement of award after bankruptcy of party.

The validity of an award is not necessarily affected by the fact that a party, after entering into the submission, became bankrupt before the execution of the award (Edwards, Ex parte (1886), 3 Morrell's Bank. Rep. 179); and the award may, nevertheless, be enforced as in other cases. If, however, nothing but the question of the liability of a party to a debt, or of the amount of a debt owing by him, was referred, and after the reference, but before the award, he became bankrupt, the fact of the arbitrator having awarded against him does not preclude him from claiming the benefit of the bankruptcy law to relieve himself from liability in respect of all debts from which, had there been no reference, he would have been discharged. In such cases the award will be set aside (R. v. Bingham (1831), 2 Tyrw. 46).

Where, after an award for the plaintiff in an action for the balance of an account, the defendant, before judgment was entered on the verdict taken subject to the reference, committed an act of bankruptcy by filing a declaration of insolvency, and giving notice thereof immediately to the plaintiff, the Court allowed the plaintiff to prove as a creditor for the amount awarded and for interest and costs (Harding, Ex parte (1854), 5 De G. M. & G. 367).

Penalty in arbitration bond a good petitioning creditor's debt.

When a party failed to perform an award, in consequence of which the arbitration bond was forfeited, the penalty, until the award was set aside, became a sufficient petitioning creditor's debt to support a commission of bankruptcy. The mere filing of a bill in Chancery to impeach the award did not suspend its effect or make the debt insufficient (Lingood, Ex parte (1742), 1 Atk. 240).

SECTIONS 13 TO 17.

See PART II. REFERENCES BY ORDER OF THE COURT.

SECTION 18.

POWER TO ORDER WRITS OF SUBPOENA OR
HABEAS CORPUS.

18. (1) The Court or a judge may order that a writ of subpœna ad testificandum or of subpœna duces tecum shall issue to compel the attendance before an official or special referee, or before any arbitrator or umpire, of a witness wherever he may be within the United Kingdom.

(2) The Court or a judge may also order that a writ of habeas corpus ad testificandum shall issue to bring up a prisoner for examination before an official or special referee, or before any arbitrator or umpire.

Subs. (1) of this section appears to be based upon s. 1 of the Attendance of Witnesses Act, 1854 (17 & 18 Vict. c. 34), which was passed to enable any of the Superior Courts in England, Scotland, or Ireland to compel the attendance of witnesses who were resident out of their respective jurisdictions in any part of the United Kingdom to give evidence in any action or suit depending in any such Court. Ss. 3 and 4 provide for the punishment by the Court of the country in which the process is served of any person who does not obey the writ aftertender of a proper sum for expenses.

No provision is made in the Arbitration Act for punishing persons for disobedience to writs issued in pursuance of an order under s. 18 (1). If the witness is within the jurisdiction of the Court (i.e. in England or Wales) the writ may be issued under s. 8 of the Arbitration Act without any order of the Court, and disobedience to it after tender of a reasonable sum for conduct money and expenses may be punished as a contempt of Court (see ante, p. 151). But it would seem that in the case of a submission by consent out of Court (where there is no action or suit depending), a witness in Scotland or Ireland may disobey the writ with impunity,. though it is issued in pursuance of an order of the Court.

An application for an order under s. 18, supported by affidavit, may be made ex parte to a Master in chambers.

SECTION 19.

STATEMENT OF CASE PENDING ARBITRATION.

Object and effect of the section.

Refusal to state a case.

Agreement by parties not to ask for case to be stated.

Application of section to statutory arbitrations.

Statement of case.

Procedure.
Appeal.

Costs.

19. Any referee, arbitrator, or umpire may at any stage of the proceed-ings under a reference, and shall, if so directed by the Court or a judge, state in the form of a special case for the opinion of the Court any question of law arising in the course of the reference.

Object and effect of the section.

The object of this section is to give the Court a control over arbitrations while they are still proceeding, and "any stage of the proceedings "

has been held to mean any stage before the proceedings have come to an end by a completed award (Tabernacle Permanent Building Society v.. Knight, [1892] A. C. 298).

Before the Arbitration Act the remedy of a party, if the arbitrator was going wrong in law, was to apply to the Court for leave to revoke the submission; "now it may be extremely difficult for a party to make such a case to a Court as will induce them to make an order giving leave to revoke the submission" (per Lord Halsbury, L.C., ibid., at p. 301).

Where proceedings are taken by a party to set aside an award' which discloses on its face some erroneous decision of law, which might have been raised. during the arbitration proceedings by asking for a case to be stated, the provisions of the section may have some bearing upon the success of the application. The Court is strongly opposed to a party lying by, and then, if the award is not in his favour, seeking to have it set aside upon some ground which he might have raised during the proceedings. In London Dock Co. v. Shadwell (1862), 7 L. T. 381, the submission contained a clause giving either party power to call upon the umpire to state a case. The parties allowed the umpire to make his award without calling upon him to state a case, and after the award was made the umpire stated the principle upon which he had acted. The appellants then came to the Court to set aside the award on the ground that the principle on which the umpire had acted was bad in law. Cockburn, C.J., said: "You allow the opportunity to go by and take your chance and then come here putting all the parties to great expense. It cannot be permitted."

Refusal to state a case.

The power of the arbitrator to state a case under the section is discretionary, subject to this, that he must respect the right of either party to apply to the Court for an order directing him to state in the form of a special case any question of law arising in the course of the reference.

Illustration.

A party to an arbitration applied to the arbitrators to state a case on a point of law, or, if they declined to do so, to adjourn the further consideration of the matter until the party had had an opportunity of applying to the Court for an order that a case should be stated. The arbitrators refused to state a case, and on the same day made an award. Held that primâ facie this was a breach of duty, although, if the application were frivolous and merely for the purpose of delay, the arbitrators would have been right to refuse it, and would have been upheld by the Court in so doing. In the circumstances the matter was sent back for reconsideration (Palmer & Co. and Hosken & Co., In re, [1898] 1 Q. B.. 131; 67 L. J. Q. B. 1).

In In re Palmer & Co. and Hosken & Co. (supra), Chitty, L.J., said:

"It seems to me that the Legislature intended to confer on the Court or a judge a discretionary power to be exercised according to the circumstances of the case over arbitrators in reference to questions of law, at least to this extent, namely, that when a request for a case is made in good faith and on reasonable grounds, and the request is made for an adjournment for the purpose of applying to the Court or a judge, the arbitrator, by summarily making his award, ought not to preclude or attempt to preclude the party from applying to the Court." In the same case, Lindley, M.R., said: [S. 19] “impliedly confers on the parties to an arbitration the right to apply to the Court for an order directing the arbitrator to state in the form of a special case for the opinion of the Court any question of law arising in the course of the reference. The right thus conferred must be respected by the arbitrator."

It is not misconduct, therefore, for an arbitrator to refuse to state a case, provided that he gives to either party a reasonable opportunity of applying to the Court for an order directing him to do so.

The arbitrator would be guilty of misconduct if he imposed an improper condition as a term of his stating a case on a question of law for the opinion of the Court.

Illustration.

An arbitrator on being asked to state a case replied that he would do so, but must first ask for £150 on account of legal expenses, &c. Held that this was an exorbitant and improper demand, and showed misconduct on the part of the arbitrator (In re Enoch and Zaretzky, Bock & Co., [1910] 1 K. B. 327).

Agreement by parties not to ask for case to be stated.

A question arises whether the parties, by the terms of the submission, can exclude the discretion of the Court to direct the arbitrator to state a case under the section.

Prior to the Arbitration Act the Court, except in the case of the East and West India Docks Co. v. Kirk & Randall (1887), 12 App. Cas. 738, refused to give leave to revoke, except in the event either of some clear departure by the arbitrator from his jurisdiction, or his refusing jurisdiction or failing to do all that his jurisdiction required him to do (see commentary on s. 1, ante, p. 53 et seq.; per Denman, J., in James v. James (1889), 22 Q. B. D. 669, at p. 673). Lindley, L.J., in James v. James, in the Court of Appeal (1889), 23 Q. B. D. 12, at p. 15, said that he did not "understand the case of East and West India Docks Co. v. Kirk & Randall as laying down any general rule opposed to what had been the ordinary practice previously."

The Courts were careful, therefore, to preserve the position of an arbitrator as final arbiter of fact and law, if the facts and the law were submitted to his decision.

S. 19 introduces a new method by which the arbitrator or the parties may consult the Court upon questions of law, but it would seem that the parties may stipulate by the submission for the final decision of the arbitrator, both as to law and fact, without the advice of the Court, thus preserving the position in which the parties have always been at liberty to place the arbitrator and to take him "for better or worse."

The Court of Appeal in In re Nuttall and Lynton & Barnstaple Rail. Co. (1900), 82 L. T. 17, ordered a case to be stated under s. 19, where the terms of the submission were very wide and the decision of the arbitrator was to be conclusive and binding on both parties. The direction in this case to the arbitrator to state a special case did not destroy the conclusiveness of the arbitrator's decision, and Williams, L.J., said: "I think that it would be unfortunate if we had to put that construction upon the Act, that the parties could not finally or absolutely submit the questions between them to the decision of an arbitrator." But in In re Reinhold and Hansloh (1895), 1 Com. Cas. 215, Matthew, J. (in chambers), ordered the arbitrators to state a special case upon a question of law arising in the reference, notwithstanding that a clause in the submission provided that "Neither buyer, seller, trustee in bankruptcy, nor any other person as aforesaid, shall require, nor shall they apply to the Court to require, any referee, arbitrator, or umpire to state in the form of a special case, for the opinion of the Court, any question of law arising in the course of the reference, but such question of law shall be determined by arbitration in manner herein directed."

It is submitted that it cannot be against public policy that parties should stipulate for the decision of an arbitrator without consulting the Court or any lawyer, and that such a clause is not void as ousting the jurisdiction of the Court (see ante, p. 73 et seq.).

There was a clause similar to the above in the case of Montgomery, Jones & Co. and Liebenthal & Co., In re (1898), 78 L. T. 406. In that case Smith, L.J., said: "It is contended that this latter part of the clause violates the rule against ousting the jurisdiction of the Courts; that s. 19 of the Arbitration Act, 1889, gives the Court jurisdiction to direct arbitrators to state questions of law in a special case for the opinion of the Court; and that the parties cannot by any agreement oust that jurisdiction. This clause does not purport to oust the jurisdiction of the Court, but only contains a term of the agreement to refer to the arbitration of a layman. It is not, however, necessary to decide this point, and I do not propose to decide it" (see also Jones v. Victoria Graving Dock Co. (1877), 2 Q. B. D. 314).

In Lobitos Oilfields v. Admiralty Commissioners (1917), 86 L. J. K. B. 1444, it was held, in a reference to the Admiralty Transport Arbitration Board of a dispute as to the rate of hire and liability for loss of a