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Arbitration

reference, arbitrators, time, umpire, award, court, submission, writing and parties

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ARBITRATION is the adjudication upon a matter in dispute by private individuals appointed by the parties themselves. This is a mode of settle ment of disputes now very frequently resorted to as a means of avoiding the delay and expense of actions in the regular courts of law. It creates a peculiarly efficient and satisfactory tribunal for the settlement of such causes as involve the examination of long and complicated accounts, the considera tion of scientific and technical details, and the investigation of personal affairs of a private nature. But in the case of mutt other disputes, the Courts are, apart from a consideration of the personnel of the judges, undoubtedly the cheapest and most expeditious tribunals. It is now possible to get to trial very speedily in High Court actions, either e.g. by remission to the County Court, by judgment under Order XIV., by proceeding to trial without pleadings, or by having the action set down for trial in the Short Cause List [see ACTIONS]. No particular qualifications are required by law for an arbitrator. In matters of complicated accounts, mercantile men br public accountants are usually preferred, whilst in matters relating to engineering, building, and property the arbitrators usually appointed are engineers, architects, and surveyors respectively. In other cases, and gener ally, it is the more, customary practice to appoint barristers, who, being accustomed to judicial investigation, are able to estimate the evidence properly, to limit the examination strictly to the issue, and generally in the conduct of the arbitration, and in making the award, to avoid infor malities, for which the latter might afterwards be set aside. The law on this subject is now digested and codified in the Arbitration Act, 1889. A dispute may be referred to arbitration either (1) as a reference by consent out of Court, or (2) as a reference by order of the Court.

A reference by consent out of Court should be made by written agree ment to submit some present or future differences to arbitration, signed by both parties, or on their behalf by others having proper authority. This agreement is termed a submission and all the terms of the arbitration should be included therein—the matter in dispute properly defined, the mode of arbitration, and the powers of the arbitrator. The submission is generally found in that part of a contract called the arbitration clause. All policies of assurance, articles of partnership, and other documents of like importance should be searched therefor. Unless a contrary intention is expressed in the submission it will be irrevocable except by leave of the Court or a judge, and have the same effect in all respects as if it had been made an order of the Court. What is here expressed by the Act as being irrevocable is not really the submission or agreement for arbitration ; but the power of the arbitrator when once he has been appointed. Again, in the absence of a

contrary intention, the submission will be deemed to include the following pro visions, so far as they are applicable to the reference under the submission. These provisions are more fully set forth in the first schedule to the Act.

(a) If no other mode of reference is provided, the reference shall be to a single arbitrator. (b) If the reference is to two arbitrators, the two arbitrators may appoint an umpire. This may be done in writing at any time within the period during which they have power to make an award. (e) The arbitrators shall make their award in writing, (i.) within three months after entering on the reference, or after having been called on to act, by notice in writing from any party to the submission; or (ii.) on or before any later day to which the arbitrators, by any writing signed by them, may from time to time enlarge the time for making the award. (d) If the arbitrators have allowed their time or extended time to expire without making an awal d, or have delivered to any party to the submission, or to the umpire a notice in writing stating that they cannot agree, the umpire may forthwith enter on the reference in lieu of the arbitrators. (a) The umpire shall make his award within one month after the original or extended time appointed for making the award of the arbitrators has expired ; or on or before any later day to which the umpire:v any writing signed by him may from time to time enlarge the time for making his award. (f) The parties to the reference, and all persons claiming through them respectively, shall, subject to any legal objection, submit to be examined by the arbitrators or umpire on oath or affirmation, in relation to the matter in dispute. They shall also, subject to any legal objection, produce before the arbitators or umpire all books, papers, and documents in their possession or power which may be called for, and do all ether things which during the proceedings on the reference the arbitrators or umpire may require. (w) The witnesses on the reference shall, if the arbitrators or umpire think fit, be examined on oath or affirmation. (k) The award to be made by the arbitrators or umpire shall bo final and binding on the parties and the persOns claiming under them respectively. (i) Tho costs of the reference and award shall be in the discretion of the arbitrators or umpire. They may direct to, and by whom, and in what manner those costs or any part thereof shall be paid. They 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. The parties may, if they choose, provide that the reference shall be to an official referee of the Court.

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