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may be extremely difficult for a party to make such a case to a Court as will induce [it] to make an order giving leave to revoke unless a case is stated" 46, though such an order had previously been recognized by the House of Lords as a proper one47.

A number of other judicial utterances in which reluctance to make an order for revocation is expressed are recorded in the Reports 48.

On the other hand, it has been recognized that an application for leave to revoke may sometimes be the simplest and most convenient form of challenging a lay judge on a point of law49, to which it may be added that it has one great advantage over the procedure under section 19 of the Act (p), namely that, if the Courts make the order asked for, the benefit obtained by the applicant can never be undone at a later stage, as can that which results from the Court's expression of an opinion on a special case (q).

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Provided, then, that a substantial miscarriage of justice will take place in the event of its refusal " 50, or at least that" on a balance . . . of the conveniences and inconveniences" 51 it will be the best course to grant the order, the Courts will grant it on any of the following grounds : anything like personal interest in a [lay judge] 11 52 (r); excess (s) or refusal of jurisdiction by the lay judge 53; unreasonable delay, despite the parties' request, in proceeding with the hearing or making an award 54 (though it will only be in a very extreme case of unwarranted behaviour that the Courts will make an order on this ground); or, possibly, the bankruptcy of one of the parties 55.

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The Courts used also to grant such an application on the grounds of an error of law by the lay judge or his misconduct; but, in the case of error of law, since there is another remedy open to the parties owing to the passing of the Arbitration Act (namely an application for an order for a special case), it is probably accurate to say that in practice the application would be refused unless the error resulted in the lay judge exceeding his jurisdiction (e.g. by wrongly admitting evidence on irrelevant matters) and a consequent miscarriage of justice56; and in the second case the Court will rarely accede to the application for a similar reason the better remedy being an application to the Court to remove the offending lay judge from office57.

In addition to all these specific grounds, no doubt the Courts would make the order wherever injustice were being done and neither the Arbitration Act nor the inherent jurisdiction to set aside for an error of law on the face of the award afforded another method by which relief could be obtained, as for instance where a properly appointed arbitrator persistently and without good cause neglected to act in the reference58.

Apart altogether from revocation by leave of the High Court, submissions are sometimes revoked-a better term would be annulled-by automatic process of law. Thus, unless the submission contains a provision (express or implied) to the contrary, it will be annulled if either of two parties dies before (t) the award is made5o, and the other party and the legal representatives of the deceased will not be bound by its terms. It has therefore become a common practice to include a clause in the submission whereby the authority of the lay judges is kept alive after

(t) But see p. 109.

a party's death, and that party's executors are designated as the persons to whom the award is to be delivered. Such a clause is enforceable in the Courts 60. But where the subject-matter of the arbitration is the enforcement of some right which dies with a man (e.g. a right to damages for a tort) (u) such a clause will be inoperative to cause the right to pass to his executors and will be merely a nullity, since it is "simply an agreement as to the mode of procedure " 61.

The Enforcement of Submissions. Almost all submissions are enforceable in the King's Courts against a party wishing to repudiate. Our first task is to note those which are not.

The circumstances under which a submission is unenforceable are as follows: first, when it contains a clause which is contrary to public policy; (in practice there is only one kind of clause of this nature which need be considered (v), namely those which oust the jurisdiction of the Courts; with such clauses we shall deal in detail at a later stage) (w); secondly, when the submission is incorporated into, and so forms part of, a contract which is unenforceable in its entirety because it is tainted with illegality (x).

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It becomes important, therefore, to consider what is meant by an illegal agreement. Lord Esher (then Sir William Brett, Master of the Rolls) expressed the general rule in this way. When the object of either the promise or the consideration is to promote the committal of an illegal act, the contract itself is illegal and cannot be enforced " 62

(u) I.e., broadly speaking, a civil wrong not arising out of contract. (v) It is conceivable that other kinds might be embodied in a submission, but not in the course of serious commercial transactions.

(w) See p. 118.

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(x) The terms illegal " and " contrary to public policy to contracts are often used alternatively.

" in relation

What, then, is an “illegal act"? Very briefly, so far as the world of commerce is concerned, the following acts come within the scope of that phrase: any act positively forbidden by Statute; trading with the enemy; a crime; a fraud; interference with the administration of justice; a combination to "rig the market "; a combination (even though not fraudulent) to create an injurious monopoly or enhance prices to an unreasonable extent; unreasonable hindrance of a person's right to pursue his trade or profession when and where it pleases him; and the sale of a business with an unreasonably wide restrictive covenant as to the right of the vendor to engage in another similar business.

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These last three acts are known as acts in restraint of trade." The precise limits to which the law will allow a person to go in this respect before his act becomes illegal by reason of its being contrary to public policy are of considerable interest. The principle which governs the matter is this that the contract must not be unreasonable in the interest either of the parties or of the public. So far as the parties are concerned the standard of what is reasonable will differ according as the contract is between master and servant or between one selling and one buying a business. An employer may not protect himself against his former servant's competition by preventing him by contract from using the skill and technical knowledge which he has acquired during his employment, but only by preventing him from using the trade secrets peculiar to his employer's business (e.g. the list of customers); but a buyer of a goodwill may, within reasonable limits (the criterion of reasonableness being the scope and size of the business sold), protect himself by restrictive covenants in the contract of sale against competition by the vendor after the sale has taken place 63.

We now pass to an examination of the ways in which a submission can be enforced. Two distinct situations must be noticed first, where a party to a submission refuses to arbitrate and remains a passive spectator of another party's efforts to obtain compensation from him in respect of the subject-matter about which the arbitration should take place; secondly, where a party to a submission disregards the submission and commences an action against another party in respect of the same subject-matter.

In the first case the party who is wronged has power to force on an arbitration by serving a notice on the defaulting party and so compelling him either to appoint his arbitrator or submit to the jurisdiction of the arbitrator already appointed a power which we shall examine in detail at a later stage (y). In the alternative the defaulter may be sued for breach of the agreement to refer64, and there seems to be no reason why substantial damages should not be recovered from him65, though we know of no reported case in which such damages were actually given. This alternative remedy is certainly not to be recommended.

In the second case the proper procedure is for the aggrieved party to apply to the Court for an order staying the action which has been commenced. Such an order, if made, has of course the effect of forcing the plaintiff in the action back on to the remedy of which he should have availed himself in the first instance, namely an arbitration. The power of the Court to make such an order is derived from Arb. Act, the Arbitration Act, the section reading as follows: “If § 4. any party to a submission, or any person claiming through or under him, commences any legal proceedings in any

(y) See pp. 52 and 58.

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