Court will restrain arbitrator if

Effect of arbitrator

tor to one of the parties,

the submission, if his appointment was assented to by the other party to the reference. The Court will restrain an arbitrator from proceeding in a matter if not a fit person. it has reason to think he is not a fit person to undertake the duties of his office, and that it is not probable, owing to the circumstances, that he will faithfully perform and honestly discharge his duty (Beddow v. Beddow, 9 Ch. Div. 89). The disqualifying interest being a credi- must, however, be of such a nature as to bias the mind of the arbitrator, and prevent him from acting impartially between the parties. The fact of his owing a sum of money, or being an ordinary creditor to one of the parties to the reference, is not, it appears, sufficient personal interest to make his award void, as a man can be a creditor without being favourably biassed on behalf of his debtor. In a case where the arbitrator advanced such a considerable sum of money to one of the parties as might reasonably be supposed to give him an interest in making an award in favour of such party, it was held by Jessel, M.R., that it was not a sufficient interest to call for his interference (Malmesbury Railway Co. v. Budd, 2 Ch. Div. 113). In order to render necesterested on his sary the interference of the Courts, the interest of the arbitrator in the matter brought before him must be a concealed interest, and one arising out of the subject-matter in dispute (Beddow v. Beddow, supra).

or being

secretly in

behalf.

Stewards of a

race-course

may be arbitrators.

Stewards of a race-course are not incompetent to act as arbitrators in a disputed race, by reason of one of their body having made a bet on the result (Ellis v. Hopper, 28 L. J. Ex. 1). If one of the parties

partial.

to the arbitration is aware of any circumstance that renders the arbitrator an unfit and improper person for the office, and he, notwithstanding this knowledge, allows him to proceed with the reference, he cannot afterwards raise any objection, or refuse to accept the award (Elliott v. South Devon Railway Co., 2 De G. & S. 17). It should be clearly understood, Arbitrator therefore, that the first great requisite in an arbitrator must be imis impartiality. He should have no personal interest in the matter in dispute, of such a nature as to interfere with his freedom of action, or to destroy this strict impartiality, which is as necessary for him to maintain as it is for a Judge on the Bench to observe. If an arbitrator take a bribe from one of the parties, that is an act which can only have one construction, and the award would be set aside, and so would the arbitrator (Morgan v. Mather, 2 Ves. 15). If an Must not arbitrator accept the hospitality of one of the parties tality from one to the reference, it would be considered an improper party.

accept hospi

ment of

act; but, unless the object and effect of such hospitality were to bias the mind of the arbitrator, and so cause him to act unfairly, the Court will not interfere (Moseley v. Simpson, L. R. 16 Eq. 226). The Commenceauthority of the arbitrator commences when he arbitrator's begins the real business of the reference, and does authority. not date from his appointment to the post (Baker v. Stephens, L. R. 2 Q. B. 523). The Common Law Procedure Act, 1854, s. 12, provides that "if in any case of arbitration where the document authorising the reference provides that the reference shall be to a single arbitrator, and all the parties do not, after differences have arisen, concur in the appointment

of an arbitrator, or if any appointed arbitrator refuse to act, or become incapable of acting, or die, and the terms of such document do not show that it was intended that such vacancy should not be supplied, and the parties do not concur in appointing a new one, a Judge of any of the Superior Courts of Law or Equity may, upon summons, appoint an arbitrator, who shall have the like powers to act in the reference, and make the award, as if he had been appointed by consent of all the parties." This clause, of course, only applies to cases where the submission has been made a rule of Court, as, unless that has been done, the Courts have no jurisdiction.

Not advisable to have two arbitrators.

CHAPTER XI.

JOINT ARBITRATORS.

IT frequently happens that both the parties to a submission appoint an arbitrator. This proceeding, although usual, is by no means advisable, as it tends to complicate matters, in so far as each arbitrator is apt to consider himself as counsel retained in the interests of his client, rather than Judge appointed to give an impartial and unbiassed judgment between the parties (Fetherstone v. Cooper, 9 Ves. 67). This double appointment has the further disadvantage, that it tends to create a waste of time which other

of umpire.

wise would be avoided; for, owing to the almost utter impossibility of getting two persons to agree whose interests are considered diverse, the services of a third person called an umpire, have usually to be brought into requisition, whose duty it is to decide between the arbitrators in case of their disagreement. This umpire should be appointed by the arbitrators Appointment in writing before the commencement of the proceedings, and the document of appointment should be signed by both arbitrators in the presence of each other. The Common Law Procedure Act, 1854, s. 14, provides that "when the reference is to two arbitrators, and the terms of the document authorizing it do not show that it was intended there should not be an umpire, or provide otherwise for the appointment of an umpire, the two arbitrators may appoint an umpire, at any time within the period during which they have power to make an award, unless they be called upon by notice in writing from any party to make the appointment sooner." The advantage of having two arbitrators (one for each party) does not however appear sufficiently great to make this form of procedure desirable, and it is certainly more in accordance with legal custom to have one arbitrator appointed, who is responsible to the properly constituted legal tribunals, and whose award when published is subject to the revision of the Court. Where there Where joint are two arbitrators appointed, however, it is necessary they must act that they both act together, and neither can proceed together. with the case in the absence of the other. An arbitrator once appointed cannot delegate his authority, even to his co-arbitrator (Lingood v. Eade, 2 Atk.

arbitrators,

tors can appoint a third.

505), for the appointment being a joint one, must be jointly fulfilled, so that not only must the arbitrators sit together during the proceedings, but they must hear and examine witnesses in the presence of each other, and finally having agreed upon their award, must each sign it at the same time (Eads v. Williams, How and when 24 L. J. Ch. 531). If two arbitrators are appointed, joint arbitraand by the submission are authorized to choose a third to act with them, they should do so before taking any steps in the reference; and if two are empowered to act alone, and give a valid award, they can, in the absence of the third arbitrator, proceed with the reference; but there must have been a notice given to the third arbitrator of the time and place of meeting, and he must have refused to attend or take part in the proceedings (Goodman v. Sayers, 2 J. & W. 242). If, however, such refusal is the result of the conduct of the acting arbitrators, or where there is no positive refusal to act on the part of the third arbitrator, there cannot be a valid award (White v. Sharp, 12 M. & W. 712). We have seen that the death of an arbitrator, where only one is appointed, does not necessarily put an end to the reference; but that by the provisions of sect. 12 of the Common Law Procedure Act, 1854, the vacancy can be supplied either by the parties themselves, or, if they fail to appoint, by the Court or a Judge. Effect of death Where two arbitrators are appointed, and one of them

of one arbitrator where two are appointed.

dies, the same Act further provides, in sect. 13, "When the reference is or is intended to be to two arbitrators, one appointed by each party, it shall be lawful for either party, in the case of the death, refusal