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Provisions implied in submissions.

Apply to all arbitrations.

A written submission implies :To a single arbitrator

matter of the reference, so as to enable the arbitrator to make his award upon the precise matters submitted to him and not exceed his jurisdiction. (Re Green and Balfour, 63 L. T. 97, 325.) If it is intended to curtail any legal right of the parties, such as the right to raise the defence of the Statute of Limitations, the submission should do so in express terms. (Re Astley, &c. Co. and Tyldesley Coal Co., 80 L. T. 116; 68 L. J., Q. B. 252.)

Since the arbitrator derives his authority from the consent of the parties, the submission should invest him with all such extraordinary powers, both as to the conduct of the reference and the directions in the award, as from the peculiarity of the subject-matter, nature of the dispute, or relation of the parties, may be necessary or useful to enable him to fully investigate and finally determine all differences.

The Arbitration Act, 1889 (52 & 53 Vict. c. 49), has effected considerable curtailment of submissions by incorporating by implication most of the common provisions formerly contained in carefully drawn submissions. Section 2 of the Act provides that "a submission, unless a contrary intention is expressed therein, shall be deemed to include the provisions set forth in the first schedule to this Act so far as they are applicable to the reference under the submission."

By force of section 25 of the Act section 2 is made retrospective, and applies to all arbitrations by consent out of court taking place after the commencement of the Act, though the submission was made before. (Re Williams and Stepney [1891] 2 Q. B. 257; 60 L. J., Q. B. 235; and see Re Wilson and Eastern Counties Navigation, &c. Co. [1892] 1 Q. B. 81; 61 L. J., Q. B. 237.)

The following are the provisions contained in the first schedule to the Act:

(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.


When to two

arbitratorsan umpire.


(c) The arbitrators shall make their award in writing Time for within three months after entering on the reference, or after having been called on to act [Baring-Gould v. Sharpington Pick, &c. Syndicate [1899] 2 Ch. 80] 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.

[It seems that the word "arbitrators" in this and the following clauses includes a single arbitrator where the reference is to a single arbitrator, though not so expressed. See Interpretation Act, 1889, 52 & 53 Vict. c. 63, s. 1.]


ment of umpire's

(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 powers. 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 Time for month after the original or extended time appointed for umpirage. 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.

[Singularly, the award of the umpire is not in terms required to be in writing, as in the case of arbitrators.]

(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,

Parties to be and produce documents.




may be sworn.

Award to be final.

Power over


The choice of an arbitrator.

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 think 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 only common form stipulations omitted from the above provisions are, that which enables an arbitrator to proceed ex parte, and one providing against the death of a party operating as a revocation.

Another matter of vital importance at the outset of a reference is the choice of an arbitrator. Though, as we shall hereafter see, almost anyone may in ordinary cases be chosen as an arbitrator-so that if parties agree to trust the decision of their disputes to the inexperience of a child or the vagaries of an idiot, such decision, when given, will be binding upon them (see Steff v. Andrews, 2 Madd. 6) too great caution cannot be observed in selecting competent and disinterested persons; for if an incompetent or interested person be chosen it will seldom happen that he will not, through some misconduct, error of judgment, or open display of bias, render his award impeachable.

CHAP. 1.


In every case where the parties can concur in the choice of one person a single arbitrator is most advisable. Advantage of single Nothing has brought more discredit upon the resort to arbitration than the practice of having two arbitrators, one chosen by each party; for unless such arbitrators are members of the legal profession it is almost impossible to impress upon them that they are not to a greater or less extent expected to attend to the interests of their respective appointors. Besides, it so often happens that the two arbitrators are unable to agree, and have to leave the decision of matters to the umpire, that it practically amounts to the appointment of a single arbitrator.

The nature of the reference will often determine the class of person to be selected as arbitrator, but usually the appointment of a person well versed in the law applicable to the cause of dispute will most satisfactorily attain the objects of the reference-namely, to get speedily, and at a comparatively small cost, such a decision as a court of competent jurisdiction would most probably have given. It does not follow, because the dispute involves questions of science, business, or skill, that acknowledged masters in the science, or persons of pre-eminence in the peculiar business or skill, should, or indeed could, advantageously in all cases be chosen arbitrators. The assistance of such persons is always attainable by giving their evidence before the arbitrators in the way in which the evidence of scientific men and experts is usually given in our courts.

The class of


person to be


on defence

A submission does not per se, unless an express term Effect of to that effect is contained therein, exclude the right of either party to raise the defence of the Statute of Limita- of Statute of tions. (Re Astley, &c. Co. and Tyldesley Coal Co., 68

L. J., Q. B. 252.)


Where a plaintiff claimed under the L. C. C. Act, Submission 1845, as mortgagee in possession, and the parties agreed informalities.

as a waiver of


to refer the matter to arbitration, it was held in an action on the award that although the plaintiff's particulars of claim were insufficient, all objection on that ground was waived by the submission. (Lovering v. City of London, &c. Subway Co., 7 Times L. R. 600.)

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