Page:Halsbury Laws of England v1 1907.pdf/677

 —— — Part

Refehences by Consent out of Court.

I.

455

It is for the Court to direct how the costs of an application to stay should be borne. It is a common practice when an order staying

Sect.

2.

Stay of Legal Proce eding s.

j)roceedings is made to direct that the costs of the application to stay shall be in the discretion of the arbitrator, but it may be doubted whether such a direction would be valid if either party costs of application were to object to it. for stay.

Sect.

3.

961. The parties

Appointment of Arbitrator or Umpire.

may appoint whomsoever they

please to arbitrate Mode

on their dispute; they may appoint a single arbitrator (i), or two arbitrators and an umpire, or two or more arbitrators without any umpire, or a number of persons such as the committee of a trade They may also choose an association (k) or even a foreign Court (1). arbitrator by lot or in any other way. If they choose an incompetent or unfit person, that

is

their

own

of

appointment,

affair {m).

A

person who is appointed arbitrator or umpire does not by acceptance of the office become bound to make an award (?^), but he may bind himself to do so (0). itself may name may without naming them it may simply provide for a

962. The submission trators,

or

it

the arbitrator or arbi- Where no how they are to reference to arbitration ^bmission. the arbitrators or directing how they are to direct

be selected, or without either naming be selected. In the last-mentioned case, if the submission is contained in a written agreement and does not express a contrary intention, the following rules apply

The reference

a single arbitrator (p). the parties do not concur in the appointment of the arbitrator, any party may serve the other parties with a written notice to appoint an arbitrator and if the appointment is not made within seven clear days after service of the notice, the Court may, on the application of the party who gave such notice, appoint an arbitrator {q). (1)

is to

(2) If



which, however, expressly enacted that an order to stay made thereunder might be discharged or varied as the parties might require. The Arbitration Act, 1889 (52 & 53 Vict. c. 49), s. 4, contains no such provisions, and the power to vary or discharge an order made under that section must therefore depend on the general jurisdiction of the Court, which is, it is submitted, sufficient to enable it to remove or vary the terms of any stay which it has placed on its own .proceedings. (?) The parties may appoint an official referee as their arbitrator (Arbitration Act, 1889 (52 & 53 Vict c. 49), s. 3). For forms of appointment, see Encyclopaedia of Forms, Yol. II., pp. 95, 98—102. (k) Be Keighleij, Maxsted & Co. and Burant & Co., [1893] 1 Q. B. 405. Oh. D. 26 Austrian Lloyd Steamship Co. v. {J) Law V. Oarrett (1878), 8 Gresham Life Assurance Society, Ltd., [1903] 1 K. B. 249. (m) Re S'haw and Sims (1851), 17 L. T. Jour. 160. (V^ Lewin V. Holhrook (1843), 11 M. & W. 110; Crawshay v. Collins (1818), 1 Swan. 40, 3 Swan. 90. (o) Papjja V. Bose (1871), L. E. 7 0. P. 525, 527. Ip) Arbitration Act, 1889 (52 & 53 Yict. c. 49), s. 2, Schedule I. (a) Be Eyre and Corporation of Leicester, [1892] 1 Q.. B. 136. The application to the (2) Arbitration Act, 1889 (52 & 53 Vict. c. 49), s. 5. Court is made by originating summons. The appointment can be and usually