Disputes may be referred to A. in any manner that expresses the agreement or under standing of the parties to be bound by the decision of the arbitrator; and for this pur pose no formal submission, either verbal or written, is necessary; but the arrangement must be such as manifestly to show an intention to have the difference concluded by a private adjudication in the nature of an award. But where the submission is in writing, it must be executed in clue form. A testator, however, cannot exclude his will from litigation by a proviso, that all differences respecting it shall be referred to A., although it is thought that the parties benefited by the will might themselves so refer. Generally speaking, it is advantageous to make the A. in such a form as that the award may be made a rule of court—that is, may be adopted by a court of law as its judgment on the matter submitted, a proceeding that affords an obvious facility in enforcing the award; and for this purpose it is necessary to make the procedure conformable to the directions of the statutes 9 and 10 Will. III., and 3 and 4 Will. IV., already referred to. Where the submission is merely verbal or constituted by a private bond or deed, it is liable to be capriciously revoked, and proceedings on the award, in such a case, can only be taken in the court of chancery.
The arbitrator ought to be a person who stands perfectly indifferent between the dis putants; but there are no other particular qualifications for the office. And the choice by parties of the person who they agree shall decide between them, is perfectly free. Some legal writers have even gone so far as to maintain, that not only infants and married women, but even idiots and lunatics, can be arbitrators, on the argument that every person is at liberty to choose whom lie likes best for his private judge, and he can not afterwards object to the deficiencies of those whom he has himself selected. But this, it is clear, is going too far, and the policy of the law would certainly be interposed against such extreme cases. It is better to state the rule to be, that on the condition that the party selected is of ordinary intelligence, the choice of an arbitrator is absolutely unfettered. The only exception to this rule is the case of a party who, by office or position, is the person pointed out for the duty under a reference made by statute. In matters of complicated accounts, mercantile men are generall: preferred. In other cases, it is usual to appoint barristers who, being accustomed to judicial investigations, are able to estimate the evidence properly, to confine the examination strictly to the points in question, and, in making the award, to avoid those informalities in respect of which it might afterwards be set aside. Both time and expense are thus saved by fixing
on a professional arbitrator. It has, indeed, been wisely remarked, that an arbitrator should endeavor to arrive at his conclusions upon the same rules and principles which would have actuated the court for which he is substituted—a rule of conduct that obviously points to the expediency of a lawyer being the referee. But an arbitrator is not bound by the mere rules of practice which prevail in the ordinary courts of justice, and he has been held justified in allowing interest on both sides of an unliquidated account, although such a determination was against the practice of the court of chancery, where the suit, which had been referred, had been commenced.
The proceedings before an arbitrator are regulated according to the peculiar circum stances of the case submitted, but generally it is advisable to conduct them according to the forms observed in courts of law, and they usually are so conducted. Each of Lim parties furnishes the arbitrator with a statement of his case, which is done by a copy of the briefs on each side; and on the day appointed he proceeds (either in person or by their counsel or attorneys), and to receive the evidence on each side, nearly in the same manner as a judge at an ordinary trial. Having so heard the case, the arbitrator proceeds to make his award, which need not necessarily be in writing, for a verbal award is perfectly valid; but in practice it is usual for the arbitrator to make his award on paper stamped with the proper award stamp, and this he delivers to the successful party. The unsuccessful party gets a copy of the award on unstamped paper. This award in its effect operates as a final and conclusive judgment respect ing all the matters submitted, and it binds the rights of the parties for all time.
An award may be set aside on the ground of corruption and fraud in the arbi trator, and for any material irregularity or illegality appearing on the face of the proceedings. But the tendency of the courts is to favor arbitrations and maintain awards, unless such serious grounds as we have referred to can be substantiated.
Where there are two arbitrators, the submission often provides that in the case of their differing iu opinion the matter referred shall be decided by a third person, called an umpire, who is generally appointed under a power to that effect, by the arbitrators themselves. But they cannot make such an appointment unless specially authorized so to do by the terms of the submission. This umpire rehears the case, and for this purpose is invested with the same powers as those possessed by the arbitrators, and bound by the same rules.