award. In dealing with property, also, an arbitrator must remember that he must distinctly specify in what manner, and by what documents or instruments, a conveyance or lease is to be made, and must provide for the execution of them, and also state at whose expense they are to be prepared. According to the old law, an award which was bad in part was void altogether. This, however, is not the case at the present time, provided the bad part is clearly separable from the rest of the award; in which case the award will be void only as regards that part, and will hold good as to the remainder. Thus, supposing an arbitrator directs certain things to be done which are beyond his authority to order, his award will be invalid as to those directions, but, if there be no other fault, will stand on all other points. Or if he, being called upon to decide merely what sum is due from A. to B. for dilapidations, deal also with the question of the costs of the reference, and state in his award by whom they are to be paid, his directions as to the costs will have no value, while his award as to the amount of compensation will be binding. Where, however, from the construction of the award, the good and bad parts are inseparable, the presence of a defect must be, ex natura rei, fatal to the whole. For an arbitrator to employ, to assist him in making his award, an attorney who has acted for one of the parties, is highly improper, but not, per se, a ground upon which the award would be set aside. The following Table will, I think, be found useful: TABLE VI. Matters which will invalidate on Award. Arbitrator having secret interest. Arbitrator displaying strong bias. Arbitrator taking money from one party before award made. Arbitrator buying up claims of a party. I do not propose going into the various methods of enforcing an award, because this belongs of right to our legal friends, but may point out two modes of ensuring compliance with the arbitrator's decrees, which may be useful. One is by the parties consenting to a warrant of attorney to confess judgment for a specific sum, as collateral security for the performance of the award. The warrant contains a declaration that no execution shall issue until non-performance of the award, therefore there can be no objection to the form. The other suggestion applies only where property is in dispute, and it is to convey all the property to the arbitrator, who can then reconvey it to the parties in accordance with his award. 66 CHAPTER IX. OF COSTS AND CHARGES-ARBITRATOR CANNOT SUE FOR REMUNERATION COMING THE DEFINITIONS (OMING now to the important questions of costs and charges, the first point to note is that the duties of an arbitrator are not such as to entitle him to sue for his remuneration, unless in the event of his holding an express promise to pay. Even a clause in the submission that the costs of the reference and award, including a reasonable compensation to the arbitrator, are to be in his discretion, will not entitle him to sue on the submission, as he is not a party to it. The proper and usual course, and that now sanctioned by the Courts, therefore, is for the arbitrator, when giving notice to the parties that his award is ready for delivery, to notify them of the amount which he considers a proper remuneration for his services, so that the party who takes up the award may be prepared to pay that sum. If the party so paying be not the one upon whom the costs are thrown by the award, he may recover from his opponent, by attachment, if necessary, such costs as he (the opponent) is liable to bear. The arbitrator may refuse to give up, until his charges are paid, the award and submission, and any memoranda or valuations obtained by him for his guidance from other persons; but he must not detain documents put in before him as evidence. A lay arbitrator may charge, as part of the costs of his award, payments made to an attorney or barrister for drawing up the award. In cases where the arbitrator's own charges are very high, however, such payments would probably be disallowed by the Court. It would appear there is nothing to prevent an arbitrator refusing to give up his award except on payment of an exorbitant fee, but the party paying it has his remedy by action against the arbitrator for money had and received. The amount of the arbitrator's charges should not be named in the award, but in the letter of notification that the award is ready to be delivered. In cases, however, where the arbitrator is specially directed by the submission to ascertain the amount of the costs of the award, they should be stated therein. The power of the arbitrator over the costs of the reference and of the award will be regulated by the terms of the submission. When the submission provides that the costs shall abide the event, the arbitrator has no control over them, and should make no mention of them in his award. His doing so will not, however, invalidate the whole of his award (as some surveyors have, within my knowledge, endeavoured to maintain), but the award will be void as regards the costs. Where the submission states that the costs are to be in the discretion of the arbitrator, "who shall ascertain the same," he must award costs, stating the amount, or his award will be endangered on the ground of omission to decide on all matters submitted. When arbitrators have disagreed and an award is made by the umpire, he should charge the fees due to the arbitrators as part of the costs of the umpirage. It must be noted that costs are of three kinds of the cause, of the reference, and of the award; and it will depend upon the terms of the submission to what extent the arbitrator is able to direct by whom, and in what manner, they shall respectively be borne; as he may be empowered to adjudicate upon the costs of the reference and award, but not those of the cause, and so forth. Costs in the cause, of course, only exist where the reference arises out of an action at law, and comprise all expenses incurred up to the time of the submission, of the order of reference, of making same a rule of Court, and also of any proceedings in the cause after the award, if any such should be taken. Costs in the reference include all expenses incurred in the inquiry before the arbitrator, whether as to matters in the cause or out of it. Costs of the award are the arbitrator's charges which, as has been said, should be paid to him when the award is taken up. Thus, if the submission to reference of a cause, and all matters in difference, contain a clause giving the arbitrator power over costs, he may make one party pay, not merely the costs of the award and of the reference, but also of the action or suit which led to it. And, in dealing with the costs of the reference, he has power to state was costs shall be allowed to each witness, and to decide the costs of the briefs. These costs, if disputed, will have to be taxed in the same manner as if the matter had been tried in Court. Therefore, where an arbitrator does not wish to give either party an advantage over the other in the matter of costs, it is better to award that each shall pay his own costs of the reference and half that of the award, rather than each shall pay half the costs of the reference and award, as thereby is saved the necessity of examining and contesting the costs incurred by each party in the reference, and those of the award. It may be useful to note the provisions as to costs in certain Acts under which arbitrations largely arise. F |