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an arbitrator, an umpire or a third arbitrator, in any of the following cases, viz.,
(1) Where the submission provides for reference to a single arbitrator and the parties cannot agree.
(2) If the arbitrator appointed refuses to act, or is incapable of acting, or dies, and the submission does not show that it was intended that the vacancy should not be supplied, and the parties do not supply the vacancy. (3) Where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator and do not appoint him.
(4) Where an appointed umpire or third arbitrator refuses to act, or is incapable of acting, or dies, as in (2).
Any party may serve the other parties or the arbitrators, as the case may be, with a written notice to appoint; and, if the appointment is not made within seven days after service of the notice, the court or a judge may appoint an arbitrator, umpire or third arbitrator, who will have like powers to act in the reference and make the award as if he had been appointed by consent of all the parties.
Umpire and Third Arbitrator.-Where an umpire is appointed by two arbitrators he usually sits with them in order that he may hear the evidence and so render it unnecessary to re-hear it in the event of a disagreement between the arbitrators, but he must take no part in the proceedings, nor attempt to influence the decision of the arbitrators in any way. This is where the difference lies between a third arbitrator and an umpire. The third arbitrator is on an equal footing with the other arbitrators, and takes part in the proceedings and deliberations, but the umpire takes no part until the arbitrators have disagreed. Where a third arbitrator is appointed he must agree with the others and sign the award, otherwise it is not valid. In United Kingdom Mutual Association v. Houston (1896), two arbitrators appointed a third arbitrator and only two signed the award, the third dissenting, and it was held that the award was invalid.
Powers and Duties of Arbitrator and Umpire.-The arbitrators or umpire, unless the submission expresses a contrary intention, have power to do the following things, viz.,
(1) Administer oaths to or take affirmations of the parties and witnesses appearing.
(2) State an award as to the whole or part thereof in the form of a special case for the opinion of the court.
(3) Correct in an award any clerical mistake or error arising from an accidental slip or omission.
Witnesses may be summoned by subpoena, and disobedience
would be contempt of court; and the giving of false evidence amounts to perjury; but the arbitrator or umpire has no power to call witnesses without the consent of the parties.
The proceedings before the arbitrator resemble the proceedings in an action. The arbitrator must observe the ordinary rules of evidence; he must hear both sides and take all evidence in the presence of the parties.
Should any witnesses be abroad the court has no power, in the case of a reference by consent, to order a commission to issue for the examination of such witness. But where an action is referred by order of the court, such power exists, and a referee has power to order a commission to issue for the purpose of taking evidence out of the jurisdiction.
Stating a Special Case is the laying before the court by the arbitrator of some point of law on which he is doubtful in order that he may obtain the assistance and instructions of the court thereon. This he may do at his discretion. Where the parties have referred to an arbitrator for decision a point of law, and have agreed to abide by his decision, they must abide by it; but in other cases either party may, at any time before the award is made, apply to the court to insist that the arbitrator shall state a case. When ordered by the court or a judge, an arbitrator must state a special case.
There is no appeal from the decision of the court on the point of law, but under some statutes there is an appeal from the decision of a County Court judge.
The arbitrator, having heard both sides, must decide on all matters submitted to him, neither more nor less. His award must be in writing, unless the contrary intention is expressed in the submission, and it must conform to certain requisites. It need not be in any set form, but it must
(1) Be certain and definite in its meaning.
(2) Be possible of performance.
(3) Be reasonable, having regard to the evidence taken. (4) Be final and conclusive so far as the particular reference is concerned.
(5) Be dated and signed by all the arbitrators.
(6) Bear a 10s. stamp.
If a time for making the award is stated in the submission, it must be made within that time, otherwise within three months. The arbitrator may, however, where no time is stated, extend the period of three months by writing signed by himself.
When the award is ready to be delivered to the parties, the
usual procedure is for the arbitrator to notify the parties that it is ready and at the same time to state the amount of his charges. He usually inserts the amount in the award itself; and he has a lien on the award until his charges are paid. Where one party pays the charges and receives the document containing the award, he is said to "take up the award." The same procedure applies to the award of the umpire.
If the submission has not fixed the arbitrator's remuneration, he may fix it himself in the award and, as stated, he has a lien on the submission and award until his fees are paid. In any case the remuneration would usually be stated in the award, and a lump sum should be stated by way of costs as, if the costs are left to be taxed, the remuneration also is liable to be taxed. Where the fee demanded is exorbitant, the party taking up the award must pay it and he can afterwards sue the arbitrator for the excess. Apart from this, however, there is no remedy against an arbitrator, either for making a corrupt award or for refusing to make an award unless, of course, he has entered into an agreement to make an award.
After the arbitrator has executed his award he may, if he so desires, state his award in the form of a special case, as he may do where he desires the court's guidance on a point of law during the proceedings. In this event, however, an appeal lies to the Court of Appeal.
In Vaudrey v. Simpson (1896), it was held that an arbitrator has the power to award a dissolution of partnership in cases where all matters in dispute between the parties are submitted to him.
An award may be referred back by the court for reconsideration by the arbitrators or umpire on certain grounds mentioned in the Act. Further, the award may be set aside
(1) Where the arbitrator or umpire has misconducted himself, or the award has been improperly procured. (2) If the award does not fulfil the requisites mentioned above.
(3) In a compulsory reference only, if the arbitrator has made a mistake of fact or law.
If the award stands, it may be enforced in the same manner as a judgment.
This important branch of the law should be studied more closely by reference to the Act itself.
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