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in the course of a judgment. "What," he said, "is the first principle to apply in considering an award? It is [this] Awards are construed liberally and in accordance with the dictates of common sense and as far as possible in accordance with the real intention of the arbitrator' (i). The second principle is that the whole award must be read in order to ascertain its effect " 28.

What Constitutes Performance of an Award. It is no defence to an action for neglecting to perform specific acts directed in an award to shew merely that an award has been made. For the subject-matter of the action is not the same as was that of the arbitration, and therefore is not res judicata29 (k). It thus becomes important to notice what constitutes performance. Here again the dictates of common sense prevail, for the Courts look for the performance, so far as is possible and legal, of the substance of the award within a reasonable time from the date of publication (unless a time is fixed by its own terms). Each party must perform his duties under the award without being requested to do so either by the tribunal or by another party31.

But if the tribunal exceeds its jurisdiction it will be sufficient to perform that part of the directions which it was within its power to give32.

It may be that a party dies after publication but before performance of the award. If the deceased was under a duty to perform something of the nature of paying money (or any similar act which can be done by one for another) his executors will be under an obligation to perform it; and if the deceased was to benefit by the award

(i) Russell on Arbitration and Award, 10th Edn., p. 468.
(k) I.e. something which has already been adjudicated upon.

his executors can claim that the benefit shall accrue to the estate33.

An agreement between a number of persons jointly and severally to perform an award makes each liable to perform the whole of the obligations put upon all of them by its terms34; but a surety is not bound by an award against the principal debtor35.

The Effect of an Award. An award is not a judgment. Nevertheless it is a document which gives certain rights and imposes certain obligations. Its effect has been judicially explained in these terms. "If a dispute has been brought before [a] private tribunal . . ., and an award made, that award is binding on [the parties to the reference] and concludes them as to that dispute. In effect the parties have agreed that [their] rights . . . in respect of that dispute shall be as stated in the award, so that in essence it partakes of the character of 'accord and satisfaction by substituted agreement.' The original rights of the parties have disappeared, and their place has been taken by their rights under the award " 36.

It thus follows that an award must have a certain value as evidence, so long as it stands. What is that value? It is this: the award is conclusive evidence of the findings of fact contained in it37, in so far as the parties and all persons claiming through them are concerned; but it is not evidence against strangers38, though it may sometimes be put in as evidence for a stranger, i.e. when the terms of the submission under which the award was made included the subjectmatter of the action in which it is desired to produced the award 39.

There is therefore but one way of counteracting the effectiveness of an award when it is properly produced in an action as evidence: that is to tender evidence

I

Arb. Act,

§ 12.

which proves that the award is itself invalid, e.g. that it is not sufficiently final, or that it was procured by fraud.

The Enforcement of an Award. Since an award is not a judgment, of what use is it as a means of enforcing the rights given by it? The answer is provided by the Abitration Act: "An award on a submission may, by leave of the Court or a judge, be enforced in the same manner as a judgment or order to the same effect" 41. That section means "that where an award has definitely settled the rights and liabilities of the parties . . . either party may ask

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that judgment may issue on the award. Where there has been nothing more than a quantum or amount adjudicated upon, and no adjudication as to the liability of the person who is called upon to pay the amount " 42, or where it can be shewn that the validity of the award is open to question, or where the unsuccessful party is outside the jurisdiction of the High Court, the section does not apply and the successful party's only course will be to bring an action on the award. This remedy is of an entirely different nature to that given by section 12 of the Act; resort may be had to it irrespective of the Act, since "the submission is an actual mutual promise to perform the award of the arbitrators " 43. The action is therefore simply an action on a contract; as we have noticed above, the facts found in the award cannot be disputed in such an action; further, there are certain defences which it is not permissible to plead in such an action, namely that the lay judges were guilty of misconduct 44 or that they made a mistake45. As to an award made by foreign arbitrators (l), if by the law of the country where it was made it is not enforceable without an

(1) See p. 17.

order of the Courts of that country, it cannot be enforced by action in England until such an order is made46.

The third method of enforcing an award is by application to the Court for attachment (m) on the ground that the delinquent has been guilty of a contempt of Court (n). Attachment will only be allowed against a party, and then only when he has wilfully neglected to do an act directed in the award other than the payment of money47.

Lastly, an award which directs the payment of money may be enforced by obtaining a rule of Court that the amount awarded shall be paid (o). The granting of such a rule is in the discretion of the Court.

How an Award may be Upset. Unless an award is to remain the final criterion of the rights, liabilities, values, or whatever else formed the subject-matter of the reference in which it was made, it must be upset (or at least temporarily or partially so) in one of two ways: the Court must either declare it a nullity and set it aside, or send it back to the lay tribunal for further consideration. The processes by which these results may be obtained and the grounds upon which the Court will make one or other of the orders in question are discussed elsewhere (p).

(m) I.e. the arrest and imprisonment of a party who has failed to carry out the duties imposed upon him by the award.

(n) This procedure is rarely resorted to to-day; it is therefore not considered necessary to comment on the matter in detail.

(0) This procedure also is practically obsolete.

(p) See pp. 129, 133, and 137 et seq.

CHAPTER IX

THE KING'S COURTS

The Power to Appoint Lay Judges. We have already noticed (a) many of the points connected with this power. For the sake of completeness we shall at this juncture refer to it once more, though only in brief, since it constitutes one of the chief points of contact between the Courts and those who figure in the private settlement of disputes.

The position may perhaps best be summarized in this way. First, there are a number of cases in which the intervention of the Courts cannot on any pretext be invoked by any party so far as the appointment (as opposed to the removal) of lay judges is concerned; such cases are those where full provision has been made in the submission for the manner in which the judges are to be appointed, where the business of appointing them has been duly carried out without objection on the part of any of the parties and where none of the judges turns out to be an improper person or fails to carry out his duties. To the same category belong those cases in which the First Schedule of the Act (b) supplies the necessary directions for the appointment of the lay tribunal and such appointment is duly made and the tribunal functions properly. To the foregoing must also be added those cases which have been previously noted by us (c) which cannot be brought within section 5 of the

(a) See p. 58 to p. 60.

(b) See p.17.

(c) See p. 59.

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