Death of one arbitrator where several are appointed.

Arbitrator

must confine his attention to points referred back.

When award

referred back, arbitrator to hear all additional evidence.

appear that the objection to his award was useless (re Tidswell, 33 Beav. 217).

In a reference made to several arbitrators, one of whom died after the award was made, and before it was referred back, it was remitted back to the same arbitrators, and a fresh one was appointed in pursuance of the submission (Lord v. Hawkins, 2 H. & N. 55). When the award is referred back to the same arbitrator, all his powers revive, and he has the same authority over the matters in the submission as on his first appointment. When the award is referred back for the reconsideration and redetermination of the arbitrator, on one or two points only, he cannot, as a general rule, revise the whole award, but must confine his attention solely to those points upon which he has to re-adjudicate, and he has no power whatever as to the other parts of the award, although it is better in practice for the second award to include all the points in the first which were not objected to, and to incorporate them with the amended award, thus making one document (McRae v. McLean, 2 E. & B. 946). When the award is referred back, the arbitrator must hear all additional evidence necessary to enable him to make an amended and final award, and not only evidence bearing on those points which have been referred back for his consideration. Where an arbitrator had not awarded on one of the points contained in the submission, and his award was in consequence not considered final, the Court, under a power contained in the submission, ordered "that the matters referred be remitted back to the arbitrator for his reconsideration and redetermination.

In this case the arbitrator was held bound to hear additional evidence tendered by one of the parties, which had come to the knowledge of such party since the making of the original award (Nickalls v. Warren, 5 Q. B. 615). It would not, however, be necessary to call witnesses or hear evidence in cases where the award was simply referred back for the correction of an error in executing the award, as where the several arbitrators had not all executed it together, or where the correction of a simple error is all that is required. Where the award was referred back for the correction of a wrong Christian name, the Court held that the arbitrator was justified in making the amendment, without consulting the parties to the reference, as no assistance was required by him in that case in order to enable him to come to a decision (Howett v. Clements, 1 C. B. 128). Where an arbitrator had not decided a point in an account stated, and the award was referred back to him for correction, it was held that he was not bound to rehear the evidence of the parties (Bird v. Penrice, 6 M. & W. 754). There is no necessity to mention in the second award the order of the Judge or the rule of Court referring back the matter for reconsideration. Although the arbitrator's power is at an end when his award is made, tor can give he may be called as a witness for the purpose of explaining it, when it has been referred back to him for reconsideration (Duke of Buccleugh v. Metropolitan Board of Works, 41 L. J. Ex. 137).

When arbitra

evidence.

I

Award will le set aside if it is uncertain,

inconsistent,

not final,

CHAPTER XXVII.

SETTING ASIDE THE AWARD.

UNLESS the submission is a compulsory one under the Common Law Procedure Act, 1854, or is made a rule of Court, the Courts have no jurisdiction to set it aside. The award will be set aside by the Court or a Judge, on good cause shown, and the motion to set it aside must be made in the Court of which the submission is made a rule. An application in Chambers to set an award aside will not be entertained.

The award will be set aside in each of the following cases-if the arbitrator reserve some point for future decision, or if, instead of personally deciding the matters submitted, he delegate his authority to another; if his award is not complete in itself, or if he, being empowered by the submission to award costs, fail to do so, or to fix their amount. The award will also be set aside where it is inconsistent, one part of it contradicting another, and making it impossible to arrive at a conclusion as to its meaning, or the intention of the arbitrator in drawing it up.; also where it leaves doubtful what are the rights and remedies of the parties, or what is the real result of the reference so far as they are concerned. An award will be set aside when it is not a final settlement of the matters in dispute between the parties, so far as those matters have been included in the submission, and brought to the notice of the arbitrator.

The award will not be considered final where it fails to decide all the issues joined in the cause (Kilburn v. Kilburn, 13 M. & W. 671). An award will also be set aside on the ground of fraud, or corruption on the part of the arbitrator, also for partiality, as where he makes his award without having all the evidence of the witnesses; or acts in haste, not allowing one of the parties to finish his case; or hears evidence privately, and without the knowledge of the opposite side. If the arbitrator fail to give notice of his intention to proceed with the reference to one of the parties who is absent from the proceedings, or if he proceed ex parte without having sufficient grounds for so doing, unless the parties subsequently waive the irregularity and proceed with the reference, the award will be set aside. If the arbitrator refuse to hear evidence on a matter within his jurisdiction, under a mistaken impression that he has no authority to do so conferred upon him by the submission, the award will be set aside (Hagger v. Baker, 14 M. & W. 9); also if the award is referred back to the arbitrator by the Court for reconsideration and redetermination of the whole case, and he refuse to hear additional evidence tendered by either of the parties; but such would not be the case if the award had been referred back to him for amendment to be made on one or two points. If an arbitrator make a mistake, either of law or fact, in his award, and the reference is by consent, there is no way of rectifying the error, provided that the award is good on the face of it, there being no Court of appeal in such a case from the decision of the arbitrator.

if arbitrator is guilty of fraud,

or refuses to hear evidence.

Mistake of arbitrator can

not be rectified

if submission

is by consent

When mistake

of arbitrator is ground for setting award aside.

When the reference is a compulsory one, an appeal from the award or certificate of the arbitrator is allowed on the application of either of the parties, and the Court will set aside the award on the same grounds as they would set aside the verdict of a jury. If the mistake is patent on the face of the award, the Court would either refer it back or set it aside; the former if the mistake could be rectified without interfering with the award; if such alteration could not be made, then the latter (Kent v. Elstob, 3 East, 18). If the arbitrator make a mistake in his award, it will not on that account be set aside, even though in after-conversation with one of the parties the grounds on which his award was made are shown, and they prove that he has made a mistake in a point of law. If the arbitrator, however, admit the mistake, and he himself applies for the interference of the Court, the result will be different (Dinn v. Blake, 10 L. R. C. P. 388). Archibald, J., in that case says: says:-"The general principle is that an award is final, and assuming that it is a good one on the face of it, there can be no appeal from it. The only exceptions are where there is corruption on the part of the arbitrator, or excess of jurisdiction, or where the arbitrator himself admits that there is a mistake, and, as it were, craves the assistance of the Court in setting it right. In this case the arbitrator has stated that he decided on certain grounds, and the plaintiff's counsel states that they are erroneous; but there is nothing to show that the arbitrator admits that he has decided erroneously. The case does not therefore come within the exception to the general rule."