it will be null and void; if not, it will be enforceable. It has recently been held that it is the former55. For the position is radically different from that which has to be considered where the parties have agreed that there shall be no appeal from the High Court's decision on an award stated in the form of a special case under section 7 (b). Such an agreement is enforceable56, for no question of escaping from the jurisdiction of His Majesty's Courts can arise (p).

We now pass to a "vital distinction [which] exists between an award under section 7 and a special case under section 19. If it be the former, an appeal will lie from the Judge of first instance to the Court of Appeal and thence to the House of Lords. If the latter no appeal will lie from the Judge or Court which gives its opinion.

"In view of this state of the law it has become a just rule of practice, that where the case is one within section 19 it should be heard not by a single Judge but by a Divisional Court of three Judges. Their opinion is final " 57.

It is obviously a matter of great importance that there should be no room for dispute as to the section under which the Court's opinion is asked. Ambiguity on this point leads to great expense and delay. It can best be avoided by the lay judge not only stating in the clearest of terms either that he wishes to reserve for himself some measure of power, or that he finally washes his hands of the whole matter and passes it on to the Courts to decide, but also by his mentioning58 in the "special case" (q) itself in terms

(p) Parties may also, if they wish, agree to have an award in the form of a special case submitted to counsel for his opinion, but this practice is not to be recommended since there is no appeal from his decision.

(q) I.e. the document which he presents to the Court for consideration.

whether the case is stated under section 7 (b) or under section 19. Both precautions are necessary, for it does not indisputably follow that because the section is named the case must be under that section. The lay judge may defeat his own ends by wording the remainder of the case in such a way as to leave it open to doubt whether he wishes finally to divest himself of all his powers; and this is the ultimate test. "Unless it can be found that, according to [the terms of the award], the powers of the arbitrator were so exercised that, in any event, his duties under the arbitration were ended, and that he reserved to himself no further power in any event, then the award cannot be regarded as final. . . . It makes no difference how much or how little of his original power as arbitrator is retained ” 59. It follows that where a lay judge makes an award in the form of a special case as to a part only of the disputed questions, however definitely he may deal with that part such award cannot be a final award; hence the case must go back to him from the High Court and no appeal can be made from that Court's decision.

To avoid all unnecessary and undesirable consequences, then, an arbitral tribunal, whether it is proceeding under section 7 (b) or under section 19, should first state which section it is, then all the relevant facts as found by it; to this should be added (if the tribunal is proceeding under section 7 (b)) a statement that it does not wish to retain any jurisdiction in the dispute; finally it should always state the question of law which the Court is called upon to decideoo. In addition, where the document is an award under section 7 (b), the amount due from one party to another in the event of the tribunal's view of the law being the correct one should be stated; in some cases it will even be possible to assess the amount due under an

alternative view; and it is advisable that this should be

done (r).

There is a further point, however, which must be noticed. The fact that the lay judge who has purported to act under section 7 (b) does not appear to have considered to the point of finality the practical effect of every possible view of the law with regard to the matters submitted to him will not of itself turn his alleged award into a case stated under section 19. For in such circumstances the most that can be said is that every possible legal contention does not appear on the face of the award; it cannot be contended that the lay judge has not definitely made up his mind as to what is the correct view of his case in law, and proceeded to make his award accordingly61. It is in such cases that another part of the Arbitration Act is of great value; for, as we shall see elsewhere (s), the Courts have, in all cases of reference to arbitration, the power of remitting to the lay judge for his reconsideration all or any of the matters which have been brought before them for their opinion 62.

It is also to be noted that the Court has power to hear arguments on an application to have the award set aside (i.e. declared null and void) even though the award has been made in the form of a special case and set down for hearing 63; in practice the two arguments are delivered before the same Court (ss) (though, of course, if the application to set aside succeeds, the special case will be automatically withdrawn from the list).

Our final word on this subject must be on the question of

(88) The Court in this case is composed of a single Judge sitting without a jury. But a motion to set aside an award which is not in the form of a special case is made before a Court of two (or sometimes three) Judges (i.e. a Divisional Court).

practical policy. Where it has become clear to a claimant or a respondent in arbitration proceedings that the lay judge will probably not take the desired view of the law, it is obvious that he will (in nine cases out of ten) wish to have the opinion of the Courts on the point or points in question; we have seen that there are two ways in which this may be done. Which is preferable? It is submitted with some confidence that the more satisfactory is to obtain a promise from the tribunal at once that it will make its award in the form of a special case, acting under section 7 (b). Two advantages are thus gained: first, there will probably be no need for the case to be sent back to the arbitral tribunal for further consideration, whereas that would be inevitable in the contrary event; and, secondly, an appeal will lie to the higher Courts from the decision of the King's Bench Division.

The Lay Judge's Power to Delegate his Duties. There are two distinct periods of time during which a lay judge may wish to delegate to another some or all of his duties. The first is between his acceptance of office and the making of his award; the second is after his award is made (i.e. by directing in it that some other person shall do some act). The rules of law affecting the two periods are also distinct.

As to the first period: the basic principle is that an arbitrator or umpire is not at liberty to leave the performance of his duties to another at all--even to one of his brother-judges 64. But to this rule there are certain exceptions. The first is that lay judges who are appointed specially on account of their technical skill in the subjectmatter of the reference and are required to make an award expressing their opinions as experts (instead of their conclusions only on the evidence submitted to them) are

allowed to take the expert opinions of others so skilled into their consideration; such a procedure is akin to that followed in the High Court, where a Judge allows himself to be influenced by the testimony of an expert witness or where (in the Admiralty Division) a Judge sits with Nautical Assessors or a Registrar holds an enquiry with the assistance of merchants. This power of delegation must, however, be used with caution65. The second exception is that a purely "ministerial" act may be left to another; by "ministerial" is meant something other than judiciali.e. something which does not involve coming to any decision on a matter of law or fact which is in dispute, e.g. counting bales of merchandise, or measuring the capacity of the hold of a ship. It is sometimes difficult to draw an exact line between the two kinds of acts, as is easily seen; the safe course in a doubtful case is therefore to delegate nothing. There is one act, however, which is always recognised by the Courts as ministerial, namely the taxing of costs by the Taxing Master of the High Court (t).

As to the delegation of duties by the terms of an award : under the rule as to finality (u) no act of a judicial nature which forms part of the lay judge's proper duties can be reserved for future performance66. But here again a purely ministerial act may be left to another, to be performed either before or after the expiration of the time allowed for making the award".

Finally, there is the ever-recurring point that the parties may agree to any delegation of duties they like. The commonest example in daily practice is their agreement that the lay judges shall be at liberty to take legal advice on points of law.