CHAPTER II. OF THE SUBMISSION FORM OF SUBMISSION PARTIES MUST INTEND TO SUBMISSION MUST UNDER ACT-REFERENCE ON USUAL TERMS E have now seen what matters may be submitted to venture to think it is not nearly so large as it will be in a few years' time. We have also seen who are the parties who may refer, and have now to consider what is a submission." 66 It will be seen by reference to the First Edition that what I predicted would take place has occurred, and that the list of matters to be referred has largely increased. The submission is the necessary agreement by which the parties agree to submit their differences to the decision of an arbitrator, and formerly the legal authorities agreed it could be made "in any manner that expressed the agreement of the parties to be bound by the decision of the person chosen to determine the matter in controversy." Thus, no formal submission was absolutely necessary, though of course usual. But now in England and Wales by the recent Act, which came into force on the 1st January, 1890, a verbal agreement cannot bind the parties, because in that Act the submission is required to be in writing (clause 27, 52 and 53 Vict.). "In this Act, unless the contrary intention appears, 'Submission' means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not." And if no special intention is expressed withdrawing the reference from the Arbitration Act, 1889, the submission will be under the provisions of that Act. It should be particularly observed that the submission must include and specify all the matters intended to be referred to the arbitrator, as he has no power to deal with any matters not so specified. Indeed, his doing so would, in a majority of cases, as will be hereafter explained, altogether invalidate his award. The form of Submission in England and Wales under the Arbitration Act is PROVISIONS TO BE IMPLIED IN SUBMISSIONS. a. If no other mode of reference is provided, the reference shall be to a single arbitrator. b. If the reference is to two arbitrators, the two arbitrators may appoint an umpire at any time within the period during which they have power to make an award. c. The arbitrators shall make their award in writing within three months after entering on the reference, or after having been called on to act by notice in writing from any party to the submission, or on or before any later day to which the arbitrators, by any writing signed by them, may from time to time enlarge the time for making the award. d. If the arbitrators have allowed their time or extended time to expire without making an award, or have delivered to any party to the submission, or to the umpire, a notice in writing, stating that they cannot agree, the umpire may forthwith enter on the reference in lieu of the arbitrators. e. The umpire shall make his award within one month after the original or extended time appointed for making the award of the arbitrators has expired, or on or before any later day to which the umpire by any writing signed by him may from time to time enlarge the time for making his award. f. The parties to the reference, and all persons claiming through them respectively, shall, subject to any legal objection, submit to be examined by the arbitrators or umpire, on oath or affirmation, in relation to the matters in dispute, and shall, subject as aforesaid, produce before the arbitrators or umpire, all books, deeds, papers, accounts, writings, and documents within their possession or power respectively which may be required or called for, and do all other things which during the proceedings on the reference the arbitrators or umpire may require. g. The witnesses on the reference shall, if the arbitrators or umpire thinks fit, be examined on oath or affirmation. h. The award to be made by the arbitrators or umpire shall be final and binding on the parties and the persons claiming under them respectively. i. The costs of the reference and award shall be in the discretion of the arbitrators or umpire, who may direct to and by whom and in what manner those costs or any part thereof shall be paid, and may tax or settle the amount of costs to be so paid or any part thereof, and may award costs to be paid as between solicitor and client. The usual terms in England and Wales are those given in the first schedule of the Act, 52 & 53 Vict., and quoted fully above. A very useful clause, which, though sometimes inserted, does not properly belong to the "usual terms," is one giving to the arbitrator power to direct what he shall think fit to be done by the parties respecting the matters referred, as in clause 9 of the Form of Submission above given. Whether the submission be parole, or by agreement, deed, or in whatever manner, it is of the highest importance that the same matter should be referred to by both parties, and hence the desirability that the submission should not only be in writing, but that it should be in one document, signed by both or all parties. Should the submission relate, in the mind of one of the parties, to one matter, or one phase of a dispute, and to another in the mind of the other party, not only will the inconvenience arise that the decision will relate to a matter which one of the parties never intended to refer, but, if it can be shown that the parties intended to refer different matters, the award will be altogether invalid. I have in my mind a case where one party appointed an arbitrator to determine a dispute respecting the construction of a lease and the damages sustained, while the other in his appointment alluded only to the construction of the lease, and omitted all mention of the damages; in consequence, the whole award was void. The submission should be left with the arbitrator, as it is the document which gives him his authority and defines his powers, and he also requires it from time to time for the purpose of making necessary indorsements. The power of an arbitrator, clause 7, subsection (c.), is defined thus, "The arbitrators or umpire acting under a submission shall, unless the submission expresses a contrary intention, have power (a.) to administer oaths to or take the affirmations of the parties and witnesses appearing; and (b.) to state an award as to the whole or part thereof in the form of a special case for the opinion of the Court; and (c.) to correct in an award any clerical mistake or error arising from any accidental slip or omission." CHAPTER III. OF REVOCATION · -FORMERLY MIGHT BE MADE BY EITHER PARTY WITH- H AVING now explained the various methods by which a matter may be submitted to arbitration, it will be well to consider how such submission, when made, may be revoked. It appears that prior to the passing of the 3 & 4 Will. IV., c. 42, the authority of the arbitrator might be revoked at any time before the award was made, at the pleasure of any party to the submission, whether the submission was by agreement in writing, by bond, by deed, by judge's order, by order of Nisi Prius, or by rule of Court, and notwithstanding it was made irrevocable by the express words of the submission. The reason of this was that nothing of less power than legislative enactment could make that irrevocable which was, in the very nature of things, revocable, as the aribitrator being appointed by the consent of the parties to act for them, could no longer act when that consent was withdrawn, and any award made consequent to a revocation was therefore a nullity. Either of two parties to a submission, or, if there were several, any one of them, could, by revoking the authority of the arbitrator, render the submission void as to all, even against the will of his co-plaintiffs or co-defendants. Great inconvenience and injustice having, however, frequently arisen from this state of affairs, it was enacted |