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Statutory submissions within the Arbitration Act, 1889.
By reason of the similarity of language, the decisions under the L. C. C. Act, 1845, are authorities upon the construction of the other statutes. It is important, therefore, to note that where arbitrators are appointed by both parties under section 25 of the former Act there is a "submission" within the meaning of the Arbitration Act, 1889, and that it attaches the powers of that statute, enabling the court to enlarge the time for making the award, or to remit the matter to the arbitrators for reconsideration (Re Dare Valley Co., L. R., 4 Ch. 554; 38 L. J., Ch. 417), and giving the arbitrator power to state a special case. (Rhodes v. Airedale Drainage Commissioners, 1 C. P. D. 402; 45 L. J., C. P. 861; Bidder v. North Staffordshire Rail. Co., 4 Q. B. D. 412; Isitt v. Railway Passengers' Assurance Co., 22 Q. B. D. 504; 58 L. J., Q. B. 191.)
WHAT MATTERS ARE INCLUDED IN A SUBMISSION.
A SUBMISSION should be distinctly framed so embrace all matters, and those only, which the parties mean to refer.
In an instrument, of which the sole or principal object General is a reference, a general submission of "all matters in reference difference between the parties" will empower the disputes. arbitrator to adjudicate on all disputes affecting their civil rights (Baker v. Townsend, 7 Taunt. 422); even on rights in autre droit, such as claims in their capacity as executors or administrators, or on behalf of their wives. (Elletson v. Cummins, 2 Stra. 1144; Morse v. Sury, 8 Mod. 212; Lumley v. Hutton, Cro. Jac. 447.) So a reference in an action of "all matters in dispute between the parties" will be a general submission; while a submission of "all matters in dispute in the action" is confined to matters actually in dispute in the action. (Malcolm v. Fullarton, 2 T. R. 645; Smith v. Muller, 3 T. R. 624, 626, per Buller, J.) A submission of "all debts and demands" comprehends all, whether by simple contract or specialty. (Roberts v. Mariett, 2 Saund. 190.) A submission of "all actions" extends only to actions pending, and not to causes of action (Co. Litt. 285); but "actions and complaints" would include the latter. (Com. Dig. "Arb." D. 4.)
A submission which in terms is general may be controlled by the context or the nature of the instrument.
Unless controlled by
Or nature of
In an instrument creating a contractual relationship between the parties as to other matters than a reference, contract. with an arbitration clause as part of the contract,
Not controlled by specific recital.
Construction of the
general words of reference will ordinarily be limited to differences arising out of the relationship created by the contract.
Thus, where a partnership agreement contained a provision that "any differences or disputes which may arise between the partners shall be settled by arbitration," it was held that it must not be read literally as applicable to all differences between the partners (Piercy v. Young, 14 Ch. D. 200; 42 L. T. 710), but to differences relating to matters the subject of the previous articles in the partnership instrument. (Ib., per Baggallay and Thesiger, L.JJ.)
A clause in a contract, "all disputes to be settled by arbitration," was held to mean all disputes in respect of the contract or its construction. (Re Hohenzollern Actien, dc., 54 L. T. 596.)
A submission of all matters in difference is not controlled by a recital of some specific matters. (Charlton v. Spencer, 3 Q. B. 693.) Where, however, a submission to arbitration referred the amount of loss by fire on "wool in the process of wooling, carding, scribbling, and spinning," but in other parts of the submission "raw wool" was spoken of, the arbitrator was held to be justified in refusing to take into his consideration wool in the process of manufacture, but not at the time of the fire in any of the carding machines. (Re Hurst, 1 H. & W. 275.)
Where the submission specifies certain matters upon which the arbitrator is to award, this excludes other matters not mentioned, although they are issues in the same action out of which the reference arises. (Sowdon v. Mills, 30 L. J., Q. B. 175.)
On a reference of "any dispute arising out of a contract" the arbitrator may decide a dispute as to the construction of the contract. (Thorburn v. Barnes, L. R., 2 C. P. 384; 36 L. J., C. P. 184; and see ante,
p. 63.) But he may not alter or add to the contract; and where a contract for the sale of goods provided for the settlement by arbitration of "any disputes arising on this contract" it was held that the arbitrators were not entitled to read into the contract a custom which did not exist. (Hutcheson v. Eaton, 13 Q. B. D. 861; 51 L. T. 846.)
The arbitrator has no power to make a new contract Making new for the parties. (Hooper v. Balfour, 62 L. T. 646.) Where parties-right the only dispute submitted to an arbitrator is a buyer's to reject right to reject goods on the ground of inferiority in quality to those contracted for (see Heyworth v. Hutchinson, L. R., 2 Q. B. 447), the arbitrator has no power to make an award that the purchaser shall take the goods with an allowance. (Sinidino v. Kitchen, Cab. & E. 217; Re Green and Balfour, 63 L. T. 97; 325.)
Determining cluded in the
Ordinarily a submission does not empower the arbitrator to determine whether matters in dispute are included in the submission (Piercy v. Young, 14 Ch. submission. D. 200; 42 L. T. 710), though the submission may be drawn so wide as to include not only the construction of the document, but also the question as to whether acts complained of are, or are not, within the terms of the matters agreed to be referred. (Willesford v. Watson, L. R., 8 Ch. 473; 42 L. J., Ch. 447; ante, p. 61.) Under a general submission by partners of all matters Partnership in difference between them, the arbitrator may award a disputes. dissolution and a return of the premium (ante, p. 63), may direct that money shall be paid or secured by one partner to the other (Simmonds v. Swaine, 1 Taunt. 549), may apportion the assets between them (Lingwood v. Eade, 2 Atk. 505), and may direct mutual releases (ib.) and conveyances. (Wood v. Wilson, 2 Cr. M. & R. 241.) A contract for works contained a clause that the whole of the work was to be performed to the satisfaction of the engineer, and if any difficulty or dispute arose between the
Reference to arbitration as controlling judgment of an engineer.
Matters included in a
employers or their engineer and the contractors as to the mode of carrying out the work or the interpretation of the contract or otherwise in relation thereto, it was to be referred to the arbitration of two arbitrators. A subsequent clause provided that if in the judgment of the engineer sufficient despatch was not used the employers or their engineer might dismiss the contractors and their workmen. Difficulties arising in carrying out the work and delay being thereby occasioned, the employers authorized the engineers to dismiss the contractors. It was held that the contractors were not bound to accept the engineer's summary dismissal, but were entitled to have referred to arbitration the question of whether or not the engineer was entitled to act upon the summary power. (Foster and Dicksee v. Corporation of Hastings, 87 L. T. 736.)
A claim made and abandoned before the arbitrator, or withdrawn, is not a matter in difference (Bird v. Cooper, 4 Dow. 148; Lawrence v. Bristol and North Somerset Rail. Co., 16 L. T., N. S. 326); but a claim made by one side before the arbitrator, and admitted by the other to be correct, is a "matter in difference," and must be adjudicated upon. (Re Robson and Railston, 1 B. & Ad. 723.)
A reference of all matters in difference will not empower an arbitrator to go into a claim within the scope of a former reference in which the arbitrator directed mutual releases, notwithstanding the matter was not specifically considered and awarded on by the former arbitrator. (Trimingham v. Trimingham, 4 N. & M. 786.) Everything which might have been gone into on a previous reference must be taken to have been adjudicated upon. (Smith v. Johnson, 15 East, 213; Birks v. Trippet, 1 Saund. 28 c.)
But it is open to the parties to show that a cause of action subsisting at the date of a former reference had not then become "a matter in difference." (Ravee v. Farmer, 4 T. R. 146.)