umpire, all documents within their possession or power which may be required, and do all other things which during the proceedings on the reference the arbitrators or umpire may require.

g. The witnesses on the reference shall, if the arbitrators or umpire think fit, be examined on oath or affirmation.

h. The award of the arbitrators or umpire shall be final and binding on Award final. the parties and the persons claiming under them.

i. The costs of the reference and award shall be in the discretion of Costs the arbitrators or umpire, who may direct to and by whom and in what manner such costs or any part thereof shall be paid, and may tax or settle the amount of costs to be so paid or any part thereof, and may award costs to be paid as between solicitor and client. This empowers the arbitrators to settle the amount of the costs, including their own fees, so as not to be subject to taxation (Re Stephens, 36 Sol. J. 464; Re Prebble, [1892] 2 Q. B. 602).

S. 3 provides for the case of the reference being made to an official Legal proreferee. S. 4 confers upon the Court or a judge power to stay legal pro- ceedings. ceedings by one party to a submission against the other party. As to the discretion of the Court under this section where a question of law is involved, see Re Carlisle, 44 Ch. D. 200.

arbitrators.

S. 5 enacts that in any of the following cases- (a) where a submission Power of provides that the reference shall be to a single arbitrator and all the Court to parties do not after differences have arisen concur in the appointment of appoint an arbitrator; (b) if an appointed arbitrator refuses to act, or is incapable of acting, or dies, and the submission does not show that it was intended that the vacancy should not be supplied, and the parties do not supply the vacancy; (c) where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator and do not appoint him; (d) where an appointed umpire or third arbitrator refuses to act, or is incapable of acting, or dies, and the submission does not show that it was intended that the vacancy should not be supplied, and the parties or arbitrators do not supply the vacancy :—any party may serve the other parties or the arbitrators, as the case may be, with a written notice to appoint an arbitrator, umpire, or third arbitrator: and if the appointment is not made within seven clear days after service of the notice, power is given to the Court or a judge, on the application of the party who gave the notice, to make the appointment (see Re Eyre, [1892] 1 Q. B. 136).

tion of one party act

ing alone.

By s. 6 where a submission provides that the reference shall be to two Provision arbitrators, one to be appointed by each party, then, unless the submis- for arbitrasion expresses a contrary intention, (a) if either of the appointed arbitrators refuses to act, or is incapable of acting, or dies, the party who appointed him may appoint a new arbitrator in his place; or (b) if, on such a reference, one party fails to appoint an arbitrator, either originally or by way of substitution, for seven clear days after the other party, having appointed his arbitrator, has served the party making default with notice to make the appointment, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference, and his award shall be binding on both parties as if he had been appointed by consent. But the Court or a judge may set aside any appointment made in pursuance of this section.

S. 7 provides that the arbitrators or umpire acting under a submission Powers of shall, unless the submission expresses a contrary intention, have power arbitrators.

(a) to administer oaths to or take the affirmations of the parties and witnesses appearing; (b) to state an award as to the whole or part thereof in the form of a special case for the opinion of the Court; and (c) to correct in an award any clerical mistake or error arising from any accidental slip or omission.

Ss. 4, 5, and 6 do not apply where there is an agreement to appoint three arbitrators, one by each of the parties, and the third by the two so appointed (Re Smith, 25 Q. B. D. 545).

"Submission" is defined (s. 27) as a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not.

Ss. 8-12 confer certain ancillary powers, e.g. to any party to a submission to summon witnesses by subpoena; to the Court or a judge to enlarge the time for making an award, and to remit an award for reconsideration; to the Court to set aside an award or remove an arbitrator or umpire in case of misconduct.

Ss. 13-17 deal with references under order of Court; and the remainder of the Act consists of general provisions as to the working of the Act.

By s. 25 the Act is made to apply to an arbitration commenced after the Act under an agreement or order made before the commencement of the Act. As to this, see per Lord Esher, M.R., in Re Williams, [1891] 2 Q. B. 259.

The Court has no power to set aside or remit an award made under a submission by consent of the parties (Darlington, &c., Co. v. Harding [1891] 1 Q. B. 245).

Special provisions as to arbitration are contained in many Acts relating to companies and public bodies, which must be conformed to where they apply; see the special Acts enumerated in the index to the statutes under ARBITRATION. As to the applications of the provisions of the Act of 1889 to arbitration under special Acts, see Tabernacle, &c., Society v. Knight, [1892] A. C. 298.

As to the difference between a mere appraisement by valuers and an arbitration, see Re Dawdy, 15 Q. B. D. 426; Re Carus-Wilson, 18 Q. B. D. 7; Re Hammond, 34 Sol. J. 437; Dart, V. & P. 260.

See further on this subject Russell on Arbitration.

As to the power of executors and trustees to refer to arbitration, see the Trustee Act, 1893, repealing the Conv. Act, 1881, s. 37, and re-enacting it by s. 21.

As to Scotland, see 57 & 58 Vict. c. 13.

For reference of

CLAUSES as to referring DISPUTES to ARBITRATION (a).

I. AND IT IS HBY AGRD & DECLD that if at any time hrafter future dis. any dispute, diffce, or question shl arise betn the sd pties hto, or their respive [hrs] exs, ads, or assns, or any of them, touchg

putes to

As to forms in text.

(a) This and the three following forms of clauses for reference of future disputes are intended for insertion in deeds or agreements not under seal, and may be used, with the verbal alterations indicated, where there are more than two parties, and also, with little if any alteration, where a company or corporation is a party. The word "heirs " is of course only

trators or

trator to

be final.

the constron, meang, or effect of these psnts, or any clause or two arbithing hrin contd, or the rights or liabilities of the sd pties an umpire. resply or their respive [hrs] exs, ads, or assns, or any of them, Fall form. under these psnts, or orwise howsr in relon to the premes, then every such dispute, diffce, or question shl be referred to the arbitron of two indifferent psons, one to be appted by each pty to the referce, or an umpire to be appted by the arbitrors in writg [bfe enterg on the business of the referce]: AND IF eir pty shl refuse or neglect to appt an arbitror One arbiwithin twenty-one days after the other pty shl have appted an proceed if arbitror, & shl have served a written notice upon the first second not mentd pty requirg such pty to make such apptmt, then the appointed. arbitror appted as afsd shl, at the reqt of the pty apptg him, pceed to hear & determine the mres in diffce as if he were an arbitror appted by both pties for that ppose: AND THE award Award to or determinon wch shl be made by the sd arbitrors, arbitror, or umpire, shl be final & bindg upon the sd pties hto resply, & their respive [hrs], exs, ads, & assns, so as such arbitrors or arbitror shl make their or his award in writg within forty days next after the referce to them or him, or on or bfe any later day to wch the sd arbitrors or arbitror, by any writg signed by them or him, shl enlarge the time for makg their or his award, & so as such umpire shl make his award or determinon in writg within twenty days next after the origl or extended time appted for makg the award of the sd arbitrors or arbitror shl have expired, or on or bfe any later day to wch the umpire shl, by any writg signed by him, enlarge the time for makg his award: AND ALSO that no action or legal No legal pcdgs shl be commced or prosecuted by eir [any] of the sd pties proceed. hto or his [hrs], exs, ads, or assns, agst the [any] other of taken. them, his [hrs], exs, ads, or assns, touchg any of the sd mres in diffce, unless the pty to be made deft to such action or pedgs shl have refused or neglected to refer such mres to arbitron,

required in the case of real estate, and the word "assigns" will not always be appropriate. In the case of a contract to be performed in England the full form No. I (which was at one time in use) is now entirely superseded by the statutory provisions (see above), and the short forms II., III., and IV., are usually sufficient and effectual; but where the deed may have to be performed or sued upon abroad, it may be proper to insert the full form or some modification of it.

ings to be

Parties to be exam

ined.

Costs.

The same.

Short form

(in reliance on the

psuant to the provon hinbfe contd, or unless the time limd for makg such award as afsd shl have expired witht any such award being made: AND ALSO that the respive pties to such referce, & all psons claimg through them resply (a), shl submit to be examined by the sd arbitrors, arbitror, or umpire upon oath or affirmon in relon to the mres in dispute, & shl produce bfe the arbitrors, arbitror, or umpire all books, deeds, papers, accts, writgs, & documts within the posson or power of the sd respive pties wch may be required or called for, & do all other things wch durg the pcdgs on the sd referce the sd arbitrors, arbitror or umpire may require: AND THAT the witnesses on the referce shl, if the arbitrors, arbitror, or umpire shl think fit, be examined on oath or affirmon: AND THAT the costs of the referce & award shl be in the discron of the arbitrors, arbitror, or umpire, who may direct to & by whom & in what mner the same or any pt thof shl be pd, & with power to tax or settle the amt of costs to be so pd or any pt thof, & to award costs to be pd as betn solor & client.

II. AND IT IS HBY AGRD that any & every dispute, diffce, or question wch shl at any time arise, &c., as in Form I., shl be refd to the arbitron of two psons (one to be appted by each pty Arbitration to the referce) or their umpire (b): And this shl be deemed to Act, 1889). be a submission to arbitron within the Arbitron Act, 1889, or Reference to statutory any statutory modificon or re-enactmt thof for the time being in force, the provons whof shl apply as far as applicable.

provisions

(c).

The same. For reference to

trators.

III. AND IT IS HBY AGRD that any & every dispute, diffce, or question, wch may at any time arise betn, &c., as in Form I., three arbi- shl be refd to the arbitron of three psons, of whom one shl be appted by each pty to the referce, & the third shl be appted in writg by the two arbitrors so appted bfe commencg the business of the referce, & the decision of any two of the arbitrors shl be bindg: Add the provon at p. 153, for the event of eir pty failg to appt an arbitror (d), mutatis mutandis, substitutg

(a) If a company or corporation is a party, this should be extended to their directors, members, secretary, clerks and officers, as the case may be. (b) The words or their umpire" might be omitted in reliance on

66

the Arbitration Act, 1889, s. 2; but it is usual and better to insert them. (c) The express reference to the statute, though unnecessary, is usual. (d) See Re Smith, 25 Q.B. D. 545, ante, p. 152.

"arbitrors" for "arbitrors, arbitror, or umpire;" & referce to the statutory provons as in Form II.

IV. AND IT IS HBY AGRD that any & every dispute, diffce, or question, wch may at any time arise betn, &c., as in Form I., shl be refd to the arbitron of A., of, &c., or him failg, of some other competent pson to be named by, some official pson, e.g., the President of the Institute of Chamber of Commerce, or the Chairman of the Coy Council (f); or to one of the official referees: add referce to statutory provons as in Form II.

or of the

The same. ence to a

For refer

sole arbitrator (e).

PRECEDENTS.

I.

AGREEMENT referring existing specified DISPUTES between the Parties to the ARBITRATION of one or more persons. VARIATION, where all other MATTERS in difference are

referred (g).

MEMDUM of AGRMT made the

day of

to refer.

of, &c., of the one pt, & B., of, &c., of the other pt: WHAS Recital. disputes & diffces have arisen & are still subsistg betn the sd A. & B. relative to, state the specific mres in dispute: NOW IT Agreement IS HBY AGRD that the sd disputes & diffces [& all mres in diffce betn the sd pties wch now exist or may arise at any time. bfe the last ten days immedly precedg the day wch shl be appted by the arbitror [or arbitrors] hinafter mentd for the first sittg in the arbitron] shl be refd, & the same are hby refd to the arbitron & determinon of K., of, &c., [or, K., of &c., an arbitror nominated by the sd A., & L., of, &c., an arbitror nominated by the sd B., or in case they shl not agree in makg an award, or in determing any mre or mres hby refd

(e) As to a reference to a sole arbitrator to be appointed by the parties, see Re Eyre, [1892] 1 Q. B. 136. As to a reference to an official referee, see the Arbitration Act, 1889, s. 3.

(f) See Re Wilson, [1892] 1 Q. B. 81.

(g) Stamp if under hand only 6d., if under seal 10s. The provisions relating to an umpire and to the time for making the award, might generally be omitted in reliance on the Arbitration Act, 1889; see ante, pp. 150 et seq.