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to act, or incapacity of any arbitrator appointed by him, to substitute a new arbitrator, unless the document authorizing the reference show that it was intended the vacancy should not be supplied; and if, on such reference, one party fail to appoint an arbitrator, either originally or by way of substitution as aforesaid, for seven clear days after the other party shall have appointed an arbitrator, and shall have served the party so failing to appoint with notice in writing to make the appointment, the party who has appointed an arbitrator may appoint such arbitrator to act as sole arbitrator in the reference, and an award made by him shall be binding on both parties, as if such appointment had been by consent: Provided, however, that the Court or Judge may revoke such appointment, on such terms as shall seem just." Where two arbitrators are appointed, the appointment of either will not be complete until notice of it has been given to the other side.

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parties to

of umpire by

WHERE differences are referred to two or more Appointment arbitrators, it is necessary to appoint a third person, called an umpire, whose duty it is to step in and decide the matter, in case the arbitrators are unable


By Common
Law Procedure
Act, 1854,
s. 14.

When duties of umpire


to come to a decision. In all well-drawn submissions & clause is inserted, providing for the appointment of umpire, the parties in such case usually agreeing upon the person who is to occupy that position. In the absence of such agreement, and also where the submission is silent as to the choice or the appointment of umpire, the Common Law Procedure Act, 1854, provides, sect. 14, "When the reference is to two arbitrators, and the terms of the document authorizing it do not show that it was intended that 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 to make the appointment sooner."


The appointment of umpire under the above section must be signed by the arbitrators in the presence of each other (Lord v. Lord, 26 L. J. Q. B. 34), and either before they commence the proceedings of the reference, or within the time fixed for giving their award, or for the umpire giving his umpirage (re Johnson & Collie, 24 L. J. Q. B. 63). duties of the umpire commence from the date when he is called upon to act, in consequence of the inability of the arbitrators to agree, and not from the time of his appointment. If an umpire is appointed, and no date is fixed for him to commence his duties, he has no authority to act until the arbitrators disagree Appointment (Comyn's Digest, Arb. F.). The appointment of umpire must be made in a reasonable and orthodox manner, and not be a matter of chance, and if the

of umpire,

how made.

arbitrators being undecided whom to choose, cast lots as to who should have the appointment, it would invalidate it (Young v. Miller, 3 B. & C. 407). If an umpire does not accept his appointment, the arbitrators may proceed to elect a fresh one; but after acceptance of the office by the umpire, the appointment cannot be revoked by the arbitrators if the parties to the reference afterwards object.

Submission to

be followed as

arbitrators to


If there is any particular mode of appointing the umpire indicated in the submission, it must be strictly to mode of followed, but if the submission is silent as to the appointment. mode of appointment, it may be made verbally (Oliver v. Collings, 11 East, 367). Unless the appointment of umpire is made by deed, no stamp is required on the document appointing him. Where the arbitra- On neglect of tors have appointed an umpire, and they afterwards proceed, neglect to go on with the arbitration, the Common umpire can Law Procedure Act, 1854, provides a remedy. Section 15 says, "In any case where an umpire shall have been appointed, it shall be lawful for him to enter on the reference in lieu of the arbitrators, if the latter shall have allowed their time or their extended time, to expire without making an award, or shall have delivered to any party or to the umpire a notice in writing stating that they cannot agree." When appointed, the umpire must make his umpirage within the time fixed in the submission, unless he has power given to him to enlarge the time, or unless it is enlarged by the Court (re Johnson & Collie, 24 L. J. Q. B. 63). It must be remembered that an umpire is not chosen in the interests of the arbitrators, but of the parties to the reference, so that when

Umpire to commence de novo.

Umpire not to interfere with arbitrators.

he acts his duty is to decide the case generally, and not to confine his attention to points of law or fact that may have arisen during the proceedings, and on which the arbitrators have not been able to decide (Winteringham v. Robertson, 27 L. J. Ex. 301). The umpire, therefore, when he commences his duties, must not take up the case where the arbitrators left it; neither must he take his information from their notes, unless specially authorised to do so by the submission; but he must begin the case de novo, take all the evidence already tendered, also any fresh evidence that may have been obtained since the case was closed by the disagreement of the arbitrators. If he refuse to hear such fresh evidence, his umpirage will be void (re Jenkins, 1 Dowl. N. S. 276).

If the umpire sits with the arbitrators during the proceedings of the reference, and hears the evidence for himself (thereby obviating the necessity of going through the case again should the arbitrators disagree), he must not interfere in any way with or influence the arbitrators in their final discussion of the matter. If the arbitrators agree upon some points, and disagree upon others, and finally appeal to the umpire, the duty of the latter is to take the whole case into consideration, and not simply those points on which the arbitrators have disagreed, unless it is provided in the submission; and where the umpire makes his umpirage on the disagreement of the arbitrators, or from their failing to make an award, he is entitled to charge as costs the fees due to the arbitrators as part of the costs of his umpirage

(Ellison v. Ackroyd, 20 L. J. Q. B. 193). If the arbitrators join the umpire in his umpirage, it will not thereby be invalidated, but being an act of surplusage, will have no effect whatever (Beck v. Sargent, 4 Taunt. 232). If an umpire refuse to examine and hear a witness after having been asked to do so, his umpirage will be set aside (Salkeld v. Slater, 12 A. & E. 767).

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WE have seen in a former chapter who are the Duties of persons eligible for the office of arbitrator; we will now proceed to consider the circumstances attendant upon the appointment. From the time that the arbitrator has commenced the duties of his office, he occupies, with regard to the parties to the submission, the position of a Judge. He must exercise the impartiality, because he possesses the authority, of a Court of Justice, must hear the evidence tendered, call for further evidence if required, and be a Judge of the facts as well as the law of the case, thereby combining in his own person the functions of both Judge and jury. The first duty of an arbitrator is to fix a time and place for proceeding with the reference, and the parties to it should if possible attend at


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