PART THE SECOND.

The Power and Duty of the Arbitrator.

contents of

part.

To assist an arbitrator in the proper performance of his Statement of functions, by setting before him a statement of the various the object and powers which he possesses, and of the relative duties which the second he has to perform, in all ordinary cases, from the time that he first takes upon himself the office of judge, until the completion of all that the submission requires of him by the execution of a just and unimpeachable award, is the leading object of this work, and is attempted to be effected in this part.

The subject naturally commences with a general consideration of the qualifications requisite in an arbitrator, and of the principles of decision by which he ought to be guided. His attention is then directed to the importance of observing over what questions the language of the particular submission, by which he is appointed, gives him jurisdiction. The duration of his authority in point of time, how it may be extended, and in what cases it may be prematurely cut short by revocation, next demands his examination.

Passing from these more general points, he will find, it is hoped, in the fourth chapter, a full practical exposition of his authority and duty in conducting the reference at every step until the case is ripe for adjudication; and this, whether he be acting alone, or jointly with other arbitrators. The same chapter treats also of the office and duty of an umpire.

In the four following chapters the arbitrator will see, laid down at considerable length, rules and principles for the framing his award; some general, applicable to the valid formation of every award; others particular, showing him how he should award respecting a cause referred, or respecting

110

OBJECT AND CONTENTS OF THE SECOND PART.

costs; what special directions he may give, and what injunctions in certain cases he may add, regulating the enjoyment by the parties of their own property, or affecting the property of strangers.

The course to be pursued in references under the Lands Clauses Consolidation Act, 1845, forms the subject of the succeeding chapter.

The next matter separately considered is the duty of the arbitrator when the award is referred back to him for reconsideration.

The part concludes with a chapter concerning the personal interests and liabilities of the arbitrator.

The powers and duties of official and special referees are also set forth under their proper heads in the various chapters.

CHAPTER I.

THE OFFICE OF ARBITRATOR.

PART II.

CH. I.

the first

THIS first chapter treats of the office of arbitrator: section one shortly considers who are qualified to fill the situation; section two points out the moral qualities requisite in the Contents of holder of it; the third section discusses the important ques- chapter. tion, by what principles the arbitrator ought to be guided in awarding on the matters submitted to his decision.

SECTION I.

OF WHO MAY BE AN ARBITRATOR.

PART II.

CH. I. S. 1.

may be an

An arbitrator is a person selected by the mutual consent of the parties to determine the matters in controversy between them, whether they be matters of law or fact (a). Neither Any person natural nor legal disabilities hinder a person from being an arbitrator. arbitrator (b). It has indeed been laid down as law in works to which great respect is due, that idiots, lunatics, infants, married women, persons attainted and excommunicated, are disqualified for the office (c); but the better opinion is, that they may be arbitrators; for every person is at liberty to choose whom he likes best for his judge, and he cannot afterwards object to the manifest deficiencies of those whom he has himself selected (d).

(a) Bac. Ab. Arb. D.; West. Symb. Part II. tit. Compromise, p. 164, s. 21; Armstrong v. Marshall, 4 Dowl. 593.

(b) Vin. Ab. Arb. A. 2.

(c) Com. Dig. Arb. C.; West. Symb. Part II. tit. Compromise, pp. 164, 165, ss. 23, 26.

(d) Bac. Ab. Arb. D.; Huntig v. Ralling, 8 Dowl. 879.

PART II.

CH. I. 8. 1.

Acceptance of office.

Person interested.

Known interest does not disqualify.

Acceptance of the office by the arbitrator seems necessary to perfect the appointment (e).

The arbitrator ought to be a person who stands indifferent between the parties.

If he have any secret interest in the subject in question, or have any bad feeling towards either disputant, he is not a proper person to be a judge between them (f). So also when it turns out that, unknown to one or both of the parties, there is some circumstance in the situation of the arbitrator which tends to bias his mind. Thus if an architect engages with his employer, or even if he assures his employer, though he expressly declines to guarantee his assurance, that the cost of building a church or house will not exceed a certain sum, and the builder is not informed of this engagement or assurance, the court will not allow him to decide as arbitrator on the builder's claim for extras (g). But owing a debt to or being a creditor of one of the parties is not such an interest as renders a person incompetent for the office (h), though the case is different if the debt be discreditably contracted and in relation to the subject of the reference (i).

This objection as to interest only applies to the case of a concealed interest. For if the arbitrator have an interest in the subject of reference well known to the parties before they sign the submission, as if they refer to an owner of lands a question respecting the mode and expense of making a drain which will benefit the arbitrator's own estate, the award is good notwithstanding his interest (j). The architect or surveyor employed by a gentleman to superintend a builder in building his house is often an arbitrator between his employer and the builder (k), although his remuneration is a commission on the amount of the building charges. Where the parties had bound themselves in a bond to the arbitrator to abide his award, and it was argued that the submission

(e) Ringland v. Lowndes, 15 C. B. N. S. 173, S. C. 33 L. J. C. P. 25. (f) Parker v. Burroughs, Colle's Parl. Cas. 257; Earl v. Stacker, 2 Vern. 251.

(g) Kemp v. Rose, 1 Giff. 258; Kimberley v. Dick, L. R. 13 Eq. 1. (h) Morgan v. Morgan, 1 Dowl. 611; Drew v. Drew, H. L. March 8, 1855; Malmesbury Rail. Co. v.

Budd, 2 Ch. D. 113.

(i) Beddow v. Beddow, 9 Ch. D. 89.

(j) Johnston v. Cheape, 5 Dow, 247; Drew v. Drew, H. L. March 8, 1855.

(k) Morgan v. Birnie, 9 Bing. 672. See Stevenson v. Watson, 4 C. P. D. 148.

PART II.

CH. I. S. 1.

valuer.

was void, because the arbitrator had an interest in making an unreasonable award to obtain the penalty, the objection was overruled (7). Where a valuer, frequently called in by a Company's railway company to value lands taken by them, was appointed umpire, to assess the value of neighbouring property, which they were about to take, and the landowner made no objection, though the position of the umpire was known to him, it was held that he could not set aside the award on the ground of the umpire's interest, though otherwise the objections might have been good (m). A railway company's engineer is often arbitrator between them and the contractors making the line (n).

surveyor and

On a reference under the Lands Clauses Consolidation Interest of Act, 1845, between a party interested in land taken by a shareholder of railway company and the company, the latter appointed as a railway. their arbitrator the agent they had employed to make an offer as to the price. After this the party appointed his arbitrator. The two arbitrators selected an umpire, whom the party swore he had, since the award, discovered to be a shareholder in and a surveyor employed by the G. W. Railway Company, which was interested in the line in question. Before the reference began, the counsel for the party protested against the company's agent being an arbitrator; but the reference went on before the arbitrators and umpire together. The award was made by the umpire alone. V.-C. Knight Bruce refused the party's application to set the award aside, saying, that though the company's agent ought not to have been an arbitrator, the course taken showed that that objection was waived; and that it would be going too far to set aside the award merely in respect of the umpire's interest (although it was objectionable in point of delicacy to have appointed him), considering that his connection with the G. W. Railway Company was known. He added, the award was saved very narrowly indeed (0).

trator in his

It has been said that a party cannot be a judge in his own Party arbicause, but if his opponent consent to his deciding the question own cause. between them, the courts will not allow an objection after

wards, though he decide it in his own favour (p).