at the hands of one of the parties who was a comparative stranger to him vitiated the proceedings. Though the bare occurrence would not necessarily induce the Court to intervene for the benefit of the complaining party20, the risk would be by no means negligible 21.

What Disputes are Referable to Arbitration. If we start with the general proposition that all private disputes as to legal rights connected with commerce can be referred to arbitration and thereby finally settled, we shall find but few and unimportant exceptions to the rule. Breaches of contract, debts, questions of fact or of mixed law and fact, and disputes as to the proper construction of documents are all clearly referable; so also are disputes as to the purchase-price of22, title to23, or future use of24 property, questions of pure law25, claims for trespass 26 and civil wrongs in general, and many other matters. Further, any action which has already been commenced may, with the leave of the Court, be referred to arbitration. It has even been said that "the parties to a judgment may refer to arbitration the question whether the judgment has been properly obtained, whether it has been satisfied, whether it is void, or even whether it is erroneous, and an award might be made that such judgment should be released or satisfied" 27.

What, then, are the exceptions? We shall notice them under two headings-illegality and fraud-but it must be borne in mind from the outset that the two are governed by entirely different considerations.

It is clear law that, where the matter to be decided is contaminated by illegality, any award which might be made would be unenforceable at law, and therefore binding on nobody 28. A matter is so tainted when that which one of the parties is trying to establish as his right against

another is a right which the law of England does not sanction. For example, two persons are at liberty, without fear of incurring any penalties under the criminal law, to enter into a contract by the terms of which one is to receive a sum of money from the other as the reward for procuring for that other a title of honour. But such a contract is contrary to public policy, and no Court will give judgment in favour of one suing on it nor enforce a submission contained in it (much less an award made in an arbitration held under such submission).

But the rule is not absolutely universal. For where a number of disputed points, including questions of mixed law and fact, have been dealt with in one comprehensive award, and it is then alleged by one of the parties that his opponent has been given the benefit of an illegal transaction in the settlement of the general account between them, the Court will probably refuse to open up the whole account in order to verify this one item, provided that the item complained of be of little or no importance compared with the substantial part of the whole dispute. In one case 29 the moot point was an insurance premium debited to a party on account of a voyage to an enemy port. A policy covering such a voyage is an illegal contract. But the Court refused to disturb the whole award by reason of this one possible flaw.

Now as to fraud (e): the first principle is that the Courts have a healthy distaste for private enquiries into so grave an allegation3o. For it is contrary to English ideas of justice that there should be anything in the nature of a secret investigation of an affaire which may ruin a man's

(e) This question is really one aspect of that of the staying of proceedings in an action at law in order that an arbitration may take place instead. See p. 46.

character. The rank weed of unfounded accusation withers and dies in the glaring sunlight of open Court.

But when the allegation is not one of fraud, though of the same genus31, or when the protest against arbitration is only put forward by the accuser32, the Courts are much more likely to hold that the arbitration must be proceeded with, especially in the latter case, for the consideration as to secrecy cannot be urged, the party accused of fraud being himself anxious for a private enquiry; indeed, in these circumstances the Courts will never interfere with the arbitration unless a prima facie case of fraud is made out 33.

It may be as well to notice at this stage that an agreement to arbitrate may be enforced not only where the dispute existed at the time when the agreement was made, but also where it was merely a probability or even a pure hypothesis.

It is thus well seen that the law gives whole-hearted support to those who prefer arbitration as the means of settling their disputes.

What Persons may Refer a Dispute to Arbitration. It has already been explained (f) that, of the three ways in which matters may be referred to arbitration, we are only concerned with one, namely by the voluntary agreement of the parties. It follows that the question as to what persons are competent in law to come to such an agreement is answered by stating the general rules of law as to who can enter into any binding contract at all. For a submission to arbitration is neither more nor less than a contract.

The general proposition is that "every person who has a right of which he can dispose is competent to submit

(f) See Chapter I.

questions affecting that right to arbitration "

(g). To this must be annexed a brief commentary (h) on various classes of persons as to whose position there might be a doubt.

First, there is the question of companies. It has been enacted3 that any registered company may submit to arbitration any dispute, present or future, between itself and any other company or person. In this respect, as in all others, a company is regarded by the law as a single entity.

The position of minors-or, as the law terms them, "infants ❞—is not quite so simple. A minor is not bound by a submission to which he has become a party, unless it can be shown that it is connected with a contract which was clearly for his benefit, or by which he bound himself on reasonable terms to give his services to another, or which was for the supply to him of "necessaries," i.e. of goods to meet his everyday needs. Further, even though, after attaining his majority, he may have ratified a submission to which he subscribed as a minor, the position is unchanged if he subsequently desires to repudiate his responsibility 35.

Thus far we have noticed the position of a minor who enters into a submission; we now turn to that of a person of full age who enters into a submission to which one or more minors are parties. Is such a person bound by the submission? If any other party to the submission was of full age when he executed it, it is binding3. If no other party was of full age when it was executed, the question whether it is binding or not depends on whether the contract was one of the three kinds referred to above (unless the

(g) Russell on Arbitration and Award, 10th Edn., p. 18.

(h) Not an exhaustive one, however; for that the reader is referred to a treatise on the law of contract.

submission was in the form of a deed, in which case it is always binding); if it was, the submission is binding; if not, it is not-the reason being that there was no consideration (i.e. quid pro quo) for the promise.

Regarding persons of unsound mind-or, as the law terms them, “lunatics "—we must distinguish between three classes of persons: those who have been mentally deficient all their lives, those who have lost their reason at some time since birth, and those who are lunatics so found " (i). The first class cannot submit to arbitration at all. A person of the second class is, with regard to

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necessaries," in the same position as a minor (see above), and, where other contracts are concerned, is bound unless he can prove that the other contracting party, at the time of entering into the contract, knew him to be so unbalanced as to be incapable of grasping the situation 37.

A person of the third class cannot bind himself by a submission at all so long as the powers of his “committee " last 38

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Anyone, whether he is a committee " or not, who is acting in a cause or matter on behalf of a lunatic may, with the leave of the Court, agree on the lunatic's behalf to have the dispute referred to arbitration; but such consent will only bind the lunatic if it was given with the sanction of the Lord Chancellor or of the Lords Justices of Appeal sitting in lunacy39.

Executors, administrators and trustees are empowered by Statute 40 to submit to arbitration any dispute concerning the properties in their hands, irrespective of the date at which they have been appointed (unless the trust

(i) I.e. where, in accordance with the Lunacy Act, an inquisition has been held and as a result the person affected has been declared insane, and his affairs have been placed in the hands of a "committee."