have the same effect in all respects as if it had been made an order of court."

CHAP. IV.

as order of

Previous law.

To understand clearly the simplification of the law court. introduced by this section it is necessary to state shortly the law as it existed before the Act. Originally an agreement to refer stood on no different footing to that of any other contract. Neither of the parties could invoke the aid of the court to carry out the reference, or enforce or impeach the award, or question the conduct of the arbitrator, otherwise than by an action at law or suit in equity. A practice arose first Origin of making in the time of Charles II. of making a submission a submission rule of court, so as to render any misconduct under that rule of court. submission, or any refusal to act on the award, a contempt of that court, and so give the particular court jurisdiction over the award and the parties to the submission. (Duke of Buccleuch v. Metropolitan Board of Works, L. R., 5 Ex. 230; 39 L. J., Ex. 130; Kyd on Awards 21; Watson on Awards 46.)

But

c. 15, s. 1.

This practice was only allowed in the first instance in cases in which a suit in court was referred. experience having shown that the practice contributed to the determination of controversies, it was extended to submissions out of court by 9 & 10 Will. 3, c. 15, 9 & 10 Will. 3, s. 1, which enacted that persons desiring to end any controversy, suit, or quarrel, for which there is no other remedy but by personal action or suit in equity, may by arbitration agree that their submission of their suit to the award or umpirage of any person shall be made a rule of any of His Majesty's courts of record, and insert the agreement in the submission, which may, on affidavit of the witnesses thereto, be made a rule of court and enforced by the usual means. Under this statute, and prior to the C. L. P. Act, 1854, it was necessary to insert in the submission the consent clause for making it a rule of court, otherwise it could

CHAP. IV.

17 & 18 Vict. c. 125, s. 17.

not be so made, and the person refusing to perform the award could not be proceeded against by attachment.

This was followed by the C. L. P. Act, 1854, s. 17, which provides as follows: "Every agreement or submission to arbitration by consent, whether by deed or instrument in writing not under seal, may be made a rule of any one of the superior courts of law or equity at Westminster, on the application of any party thereto, unless such agreement or submission contain words purporting that the parties intend that it should not be made a rule of court; and if in any such agreement or submission it is provided that the same shall or may be made a rule of one in particular of such superior courts it may be made a rule of that court only; and if, when there is no such provision, a case be stated in the award for the opinion of one of the superior courts, and such court be specified in the award, and the document authorizing the reference have not before the publication of the award to the parties been made a rule of court, such document may be made a rule only of the court specified in the award; and when in any case the document authorizing the reference is or has been made a rule or order of any one of such superior courts no other of such courts shall have any jurisdiction to entertain any motion respecting the arbitration or award."

Both these statutes are now repealed, and a submission can no longer be made a rule of court, except it is under a statute containing a special provision that the submission may be made a rule of court, such as the Lands Clauses Act, 1845.

But it is in no case necessary to make a submission a rule of court, for, under section 1 of the Arbitration Act, 1889, the submission having the effect of an order of court, the award, immediately upon being made, can be enforced either summarily or by action, or steps may be taken to set it aside.

Under neither of the repealed Acts could a submission, which was not in writing, be made a rule of court, and it is to be observed that the Arbitration Act, 1889, applies only to a "submission" defined as a written agreement." (Ante, p. 2.)

66

In practice agreements to refer consist of two kinds, namely, submissions of existing differences to named arbitrators, and general agreements to refer under which arbitrators are named when differences arise. An agreement to refer is not strictly a submission until the arbitrator is named, and under the repealed Acts both the agreement to refer and the appointment of arbitrator must have been in writing, otherwise the submission could not be made a rule of court. And, where two persons agreed by deed to refer all matters in dispute which should arise between them to two arbitrators, one to be chosen by each party, and on disputes arising arbitrators were appointed by parol, it was held that the submission was by parol, and could not be made a rule of court. (Ex parte Glaysher, 3 H. & C. 442; 34 L. J., Ex. 41.) But it was sufficient if the arbitrators were appointed in writing after the dispute arose (Re Willcox and Storkey, L. R., 1 C. P. 671), and where one of the parties to the deed had appointed an arbitrator in writing, and, on the other party making default in appointing a second arbitrator, the arbitrator so appointed proceeded with the inquiry and made his award, the submission was allowed to be made a rule of court. (Newton v. Hetherington, 19 C. B., N. S. 342; 13 W. R. 863.)

The combined operation of sections 1 and 27 of the Act of 1889, however, is to give the effect of an order of court to a written agreement to refer future differences whether an arbitrator is named or not. It would seem, therefore, that an award under a written submission and a parol appointment of arbitrators could be enforced as an order of court. But not in the case of a statute

CHAP. IV.

CHAP. IV. requiring the appointments to be in writing. (Re Gifford and Bury Town Council, 20 Q. B. D. 368; 57 L. J., Q. B. 181.) Moreover, at law, and apart from the special definition of this Act, a complete submission includes the appointment of the arbitrator, and if the arbitrator is appointed by parol the submission is by parol, so far as it is to be treated as an ordinary contract between the parties. It is therefore inexpedient in any case to make a verbal appointment of arbitrators.

The meaning of the words " same effect in all respects as if it had been made an order of court" is that, whether the submission be a general agreement to refer or not, it is to have the same effect as would have been given to it before the statute by an act of the parties making it a rule of court and no more. (Re Smith and Nelson, 25 Q. B. D. 554; 59 L. J., Q. B. 533.) Therefore, the court cannot grant an attachment because one of the parties to the submission refuses to nominate an arbitrator. (Ib.) Neither is a submission a "proceeding in the court" so as to give jurisdiction to order the issue of a commission for the examination of witnesses abroad. (Re Shaw and Ronaldson [1892] 1 Q. B. 91; 61 L. J., Q. B. 141.)

CHAPTER V.

MODE OF SUBMISSION.

A SUBMISSION to arbitration may be:

1. By mutual agreement between the parties; 2. By order of reference by consent;

3. By compulsory order of reference; or

4. In the manner prescribed by particular statutes.

The Arbitration Act, 1889, distinguishes them as references by consent out of court, and references under order of court.

CHAP. V.

SECT. 1.-Submission by Mutual Agreement.

cases parties may agree

In all cases, whether an action be pending or not, In what parties may submit their disputes to arbitration by any agreement between themselves clearly expressing to submit. an intention to make the decision of the arbitrator conclusive.

manner.

Submissions by agreement may be either (1) by parol, In what (2) by writing not under seal, (3) by mutual bonds conditioned for the performance of the award, or (4) by indenture; and may be contained in a formal agreement of submission or in a clause collateral to the principal objects of an instrument. It is prudent that the submission should be signed by all the parties (Antram v. Chace, 15 East, 209), though not in every case absolutely necessary. (Ante, p. 2.)

If parties in court or in chambers consent to be bound To a judge by the decision of a judge his decision is good and final as arbitrator. as an award. (Harrison v. Wright, 13 M. & W. 816.)