Page:Halsbury Laws of England v1 1907.pdf/678

 — Arbitration.

456 Sect.

3.

(3)

The

Appoint-

and

ment of Arbitrator

parties

or Umpire.

Where

sole

arbitrator

appointed refuses to act.

Where two arbitrators

appointed.

is

arbitrator appointed by the Court has the same powers in the same position as if he had been appointed by the

(?').

Where

the submission provides that the reference shall be to a and the arbitrator, whether named in the submission or subsequently appointed either by the parties or the Court, refuses to act (s) 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 themselves do not concur in an appointment, the Court has power to supply the vacancy {t), single arbitrator,

963. Where a submission contained in a written agreement provides that the reference shall be to two arbitrators, one to be appointed by each party, and does not express any contrary intention, the following rules apply (1) It is the duty of each party to appoint an arbitrator {u). (2) If either of the arbitrators so appointed refuses to act or is incapable of acting, or dies, the party who appointed him may appoint a new arbitrator in his place (?;). (3) If either party makes default in appointing his arbitrator, either originally or by way of substitution, the other party may, after serving the prescribed notice, appoint his own arbitrator to act as sole arbitrator in the reference, and his award is binding on both parties as if he had been appointed by consent (^. (4) The Court can set aside any appointment made in accordance with either of the two preceding rules, though it has no power to supply the vacancy caused by setting such appointment aside {w). (5) The two arbitrators may, unless the submission provides otherwise, appoint an umpire at any time within which they can make an award {x). The appointment of an umpire by the arbitrators is a judicial act they must therefore meet and exercise the power together (y). They owe a duty to the parties to select a fit and

Appointment of umpire.



made by a Master (E. S. C, Ord. 54, r. 12a). make an appointment {Be Eyre and Corporation of

is

The Court

is

bound

Leicester, [1892] 1

to

Q. B.

136).

Arbitration Act, 1889 (52 & 53 Vict. c. 49), s. 5. to what amounts to a refusal to act, see Be Wilson and Eastern Counties etc. Co., [1892] 1 Q. B. 81. The refusal of the arbitrator appointed by one of the parties to act in the reference does not render the party appointing him liable to an action at the suit of the other party {Cooper v. Shuttleworth (1856), 25 L. J. (ex.) 114). {t) Arbitration Act, 1889 (52 & 53 Yict. c. 49), s. 5. (u) The appointment made by each party should be notified to the other {Tew and see Thomas v. Fredricks (1847), 10 Q. B. 775). V. Harris (1847), 11 Q. B. 7 See Encyclopaedia of (y) Arbitration Act, 1889 (52 & 53 Yict. c. 49), s. 6 (a). Forms, Vol. II., pp. 102, 137, 138. {w) Ibid., s. 6(b); Re FranJcenlerg^ and The Security Co. (1894), 10 T. L. _E. 393. The Court has no inherent jurisdiction to appoint an arbitrator or umpire or to compel any party to a submission so to do. It is, therefore, only in the cases specified in the Arbitration Act, 1889, s. 5, that the Court can make an appointment {Be Smith and Service and Nelson & Sons (1890), 25 Q. B. D. 545 and see Be Wilson and Eastern Counties etc. Co., supra, and, on appeal, 8 T. L. E. 264 and Be Percival (1885), 2 T. L. E. 150). {x) Arbitration Act, 1889 (52 & 53 Vict. c. 49), s. 2, Schedule I. (b). -{y) Be Hopper's Arhitration (1867), L. E. 2 Q. B. 367, at p. 376; Be (r)

(s)

As