in another, or made in such terms that its performance is to be partly in one country and partly in another. In such cases this preliminary question has frequently to be answered-what country's law is to govern the contract?

The general rule applied in the English Courts is that the determining factor is the intention of the parties at the time when the contract was made25. In trying to discover such intention the Courts examine both the terms of the contract itself, and all the circumstances attending its making, starting from the presumption that, apart from evidence to the contrary, the law of the place at which a contract was made was intended by the parties to apply. This presumption is of a somewhat flimsy nature, however; for it is displaced by the mere fact that performance is to take place elsewhere 26.

But there is an exception to this rule which is of great importance to the commercial world. In the case of contracts of carriage by sea (i.e. bills of lading, charterparties, berth-notes, and so on) the primary presumption is not as stated above, but that the contract should be governed by the law of the country whose flag is flown by the carrying ship27. This principle, moreover, "is applicable and ought to be applied not merely to questions of construction and the rights incidental to, or arising out of, the contract of affreightment, but to questions as to the validity of stipulations in the contract itself " 28 (f). But the rule of the ship's flag is also subject to the governing rule that the paramount criterion is the intention of the parties 29 (which may be proved to have been expressed or may be implied from the attendant circumstances). A more difficult problem is presented where the contract is

(f) See Payne's Carriage of Goods by Sea, 3rd Edn.,

p. 16.

for carriage partly by land and partly by sea. "Probably the best view is that as regards the land journey the law of the country applies, while the law of the flag governs the sea transit, unless a contrary intention is expressed in, or can be implied from, the contract "

(g) 30

The importance of all these rules to intending parties to submissions is that the very validity of the submission itself may be at stake if a dispute arises as to what law is to govern the contract; for an agreement to arbitrate might be valid by the law of England but invalid by some other system31.

The Stamp Duty on Submissions. For a submission to be valid it must be stamped with a stamp of the proper value (h). Only one stamp is necessary, however many parties there may be to the submission 33. If a bond or deed containing the whole or part of a submission is endorsed with a fresh agreement altering or adding to the terms of the original submission, such endorsement counts as a new submission and a sixpenny stamp is accordingly necessary 34.

The Contents of Submissions, Express and Implied. The parties to a submission are entirely free to insert what terms they like before proceeding to execute it. This rule is only a particular application of a general principle which is, and long has been, jealousy guarded by our Legislature

p. 17.

(g) Payne's Carriage of Goods by Sea, 3rd Edn., (h) Bond stamps32 must be in accordance with the scale laid down in the Stamp Act, 1891; the value of the stamp required varies in proportion to the amount limited to be recoverable under the bonds. By the same Act a deed requires a ten-shilling deed stamp. An ordinary sixpenny adhesive stamp suffices for all other agreements in writing (except when the subject-matter is of less than £5 value, in which case no stamp at all is needed); it must be cancelled by the party who first executes the submission.

(i) and Courts—that of freedom of contract. None the less, there are certain terms which, if they appear in a submission and cannot be severed from the rest of it, render it unenforceable in the Courts (and which, if they appear in a submission but are severable from the rest of it, are merely unenforceable themselves without affecting the submission as a whole); and certain kinds of contracts which, being equally unenforceable, vitiate any submission which (though itself unimpeachable) may be contained in them. Into this matter we shall enquire later (k).

§ 2.

The next point to note is that the Arbitration Act provides a standardized set of clauses, all or some of which are to be implied as terms of every submission unless the parties expressly contract out of them. "A submission," says the Arb. Act, Act 35, "unless a contrary intention is expressed therein, shall be deemed to include the provisions set forth in the First Schedule to this Act, so far as they are applicable to the reference under the submission." Such "contrary intention" must be stated 36 in clear and unmistakable terms; and, unless the intention is that the whole of the Schedule be excluded, the result will be that some parts of it will be and some will not. It goes without saying that this section of the Arbitration Act is of outstanding importance (1).

(i) A striking departure from this principle (brought about by excep. tional causes) which is of great interest to the business world is the Carriage of Goods by Sea Act, 1924. Certain clauses hitherto commonly inserted in English bills of lading, etc., are thereby made illegal so far as certain export operations are concerned. (See Payne's Carriage of Goods by Sea, 3rd Edn., Chapter IX.)

(k) See p. 44.

(1) Throughout this treatise the phrase "when the First Schedule applies" is constantly used; reference is made to this paragraph, for the sake of clarity, in every case. No discussion of the sections of the Schedule takes place here, since each section is noted individually in its proper place.

Arb. Act,

§ 1.

Another matter about which great care is required is the inclusion in a submission of introductory statements (known as "recitals "). Such statements sometimes lead to unforeseen results-either failure to embrace within the terms of the submission something which it was intended to embrace37, or failure to confine the reference within the desired limits 38. It is plainly impossible to say more in this connexion than that great care must be taken to define with the utmost precision the ground which it is intended should be covered by the arbitration which is to be held.

As for the remainder of the Act, every agreement to refer which is a submission within our definition, and any reference resulting from it, are automatically governed by all its provisions; further, it is only possible for parties to contract out of those of its provisions which are not drafted in the form of absolute directions but which leave a discretion in their hands (e.g. by the words " unless a contrary intention is expressed in the submission ").

How Submissions May be Amended. Once a submission has been executed, there is only one way in which it may be amended or altered-by the consent of all the parties to it39. This may be done at any time before the award is made. The lay judges cannot interfere with the discretion of the parties in this respect 40.

An amendment of a submission constitutes a new submission incorporating by implication such of the terms of the preceding submission as remain unaltered11. From this it follows that the amendment must be in writing (and should be signed) if the new agreement to arbitrate is to be governed by the Arbitration Act42.

The Revocation of Submissions. The Arbitration Act states that "A submission, unless a contrary intention is

expressed therein, shall be irrevocable, except by leave of the Court or a judge, and shall have the same effect in all respects as if it had been made an order of Court" 43.

We are now faced-for the first time since defining the term "submission "-with the use of that term in the Act in a limited sense. In the above section it means an agreement to refer a dispute to the arbitration of a named judge (or judges). The first part of the section therefore means that "the power of the arbitrator cannot be revoked when he has once been appointed. It does not mean that the agreement to refer is irrevocable, because that always was (m) in the true sense of the word irrevocable" 44.

The object of the second part of the section is “to give the same power of enforcing the arbitrator's [or umpire's] award (n) as existed formerly where, by virtue of the agreement between the parties, a submission might be made a rule of Court " 45

In considering an application for leave to revoke a submission the Courts will exercise judicial discretion, obeying the dictates of common sense and aiming at the administration of common justice. At the outset it may be said that in general His Majesty's Judges are disinclined to grant such an application where it is (as is often the case) possible for the parties to obtain a just decision of their differences in another way. It has also been pointed out by the late Lord Halsbury that, since section 19 of the Arbitration Act gives any party every facility for obliging a lay judge to state a case during the arbitration proceedings (o), “it

(m) It was necessary that such a provision as this first part of the section should be enacted in order to do away with the rule of the old Common Law whereby the authority given to a particular arbitrator was revocable by either party.