Page:Halsbury Laws of England v1 1907.pdf/679

 — Part

I.

.

References by Consent out of Court.

457

proper person as umpire they must not, therefore, leave the selection to chance, but as between several persons whom they both consider fit and proper persons to discharge the duty of umpire they may select by lot w^hom they will appoint (0). (6) If the two arbitrators or, in cases where the submission reserves to the parties themselves the appointment of an umpire, the parties, fail to appoint an umpire, the Court can, after the prescribed notice has been given, supply the vacancy {a). (7) If the umpire, w^hether appointed by the parties or the arbitrators or the Court, 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 the arbitrators, as the case may be, do not concur in making an appointment, the Court can, after the prescribed notice has been given, supply the vacancy {h)

Sect.

3.-



Appoint-

ment of Arbitrator or Umpire.

964. Where the submission is in writing and provides that the Three reference shall be to three arbitrators, one to be appointed by each arbitrators. party and the third either by the arbitrators so appointed or by the parties themselves (c), the Court cannot either directly or indirectly compel either party to appoint his arbitrator or supply the vacancy, so that if either party persists in his refusal to appoint an arbitrator, the reference cannot be held but if the party who refuses to appoint commences legal proceedings against the other party in respect of any matter agreed to be referred, the Court has power on the application of the other party to stay such proceedings (<i) If the two parties have appointed their respective arbitrators, but they or their arbitrators, as the case may be, do not appoint the third arbitrator, the Court can, after the prescribed notice has been given, make the appointment (e). Where the reference is to three arbitrators, all three must concur in making the award, unless the submission provides that the decision of the majority shall be binding (/).

.

Sect. 4.

The Powers of an Arbitrator or Umpire.

965. In every reference to arbitration the arbitrator is empowered make an award on the difference or dispute comprised in the submission, and the parties may by their submission confer such other powers incidental to the power of making the award as they to

may

in their discretion think

Lord and Lord

(1855), 5 E.

&

fit.

B. 404.

See Encyclopaedia of Eorms, Vol.

II.,

pp. 134, 135. (z) European and American Steamship Co. v. Crosskey (1860), 8 0. B. (n. s.) 397 Pescod V. Pescod (1887), 58 L. T. 76. See also Neale y. Ledger (1812), 16 East, 51, and Re Oassell (1829), 9 B. & 0. 624. As to acceptance of the appointment by the umpire, see Ringland v. Lowndes (1863), 15 C. B. (n. s.) 173, at p. 196. (a) Arbitration Act, 1889 (52 & 53 Yict. c. 49), s. 5. See Encyclopsedia of Forms, Vol. II., p. 136.

.

LUd. Ee Smith and Service and Nelson & Sons (1890), 25 Q. B. D. 545; United Kingdom etc. Association v. Houston & Co., [1896] 1 Q. B. 567; and see (&)

(c)

Winteringham

v. Bohertson (1858), 27 L. J. (EX.) 301. Manchester Ship Canal Co. v. S. Pearson & Son, Ltd., [1900] 2 Q. B. 606. (e) Arbitration Act, 1889 (52 & 53 Vict. c. 49), s. 5. (/) United Kingdom etc. Association v. Houston & Co., supra.

{d)

General powers.