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Arbitration. either, if faulty, may be brought before the court-while the parties to the action have in the position of the arbitrator some guarantee for the proper conduct of the reference.


Compulsory Reference to Arbitration.

No less than fourteen sections of the statute, and these among the longest of all, are required to carry out the suggestions of the Commissioners. I shall endeavour to state the effect of them as concisely as possible.

If at any time after the issuing of the writ, it before trial. be made to appear, by either party, that the matter in dispute consists wholly or in part of matters of mere account, the court or a judge may either decide such matter in a summary manner, or order that it be referred, either wholly or in part, to an arbitrator appointed by the parties, or to an officer of the court, or, in country causes, to a judge of the county court (s. 3). The decision of the court or the order of the judge, if the matter be disposed of summarily by either, or the award or certificate of the referee is to be enforceable by the same process, as the finding of a jury upon the matter referred (s. 3).

Reference at the trial.

Cases involving matters of account may not, however, be referred before the trial. It may be that at the trial only will the case appear to be one of account. If the cause be tried by a judge with the assistance of a jury, it would seem doubtful whether it can (unless of consent), be withdrawn from the jury by the judge and either disposed of summarily or referred (s. 3).

If, however, the cause be tried by a judge without a jury, it is specially provided that he may order any matter of account which may arise to be referred to,—an arbitrator appointed by the

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parties, or to an officer of the court, or,in country causes, to the judge of a county court, -whose award or certificate is to have the same effect as the award or certificate of a referee before trial (s. 6). The reference at the trial need not necessarily be of all the matters in dispute between the parties. If not so, the judge may proceed to try and dispose of any other matters in question, not referred, in like manner as if no reference had been made (s. 6).

But questions of law, as well as questions of fact, may, and do constantly arise out of mere matters of account. This contingency is provided for. If it appear that the allowance or disallowance of any particular item depends upon a question of law fit to be decided by the court, the judge in directing the matter to be referred, may direct a case to be stated for the opinion of the court, whose decision is to be taken and acted upon by the arbitrator as conclusive (s. 4). So if the allowance or disallowance of an item depends on a question of fact, fit to be decided by a jury or by a judge alone, without a jury, an issue may be directed to be tried either by a jury or by a judge; and the finding of the jury or of the judge is to be taken by the arbitrator as conclusive (s. 4).


sory refer

The proceedings upon this arbitration, except Proceedings when otherwise directed by the statute itself, are to on a compulbe conducted in like manner, and subject to the ence. same rules and enactments, as to the power of the arbitrator and of the court, the attendance of witnesses, the production of documents, enforcing or setting aside the award, and otherwise, as have hitherto been the proceedings upon a reference under a rule of court or judge's order (s. 7).

In any case where a reference is made to arbitration, in any of the modes I have pointed out, the court, or a judge may, at any time, remit the

Arbitration. matters referred to the reconsideration and redetermination of the arbitrator (s. 8). But the arbitrator may now, if he thinks fit, state his award in the form of a special case, for the opinion of the court, and judgment may be entered accordingly (s. 5).

Every agree

The application to set aside the award on a compulsory reference must be made within the first seven days of the term following the publication of the award. If no such application is made, or no rule is granted, or a rule granted is afterwards discharged, the award is to be final (s. 9). But that there may be no delay in the successful party's obtaining the fruits of the award in his favour, it is provided that an award made on a compulsory reference may, by the authority of a judge, be enforced at any time, after seven days from the time of publication, notwithstanding that the time for moving to set it aside has not elapsed (s. 10).

Amendments in the Law of Arbitration.

Such are the provisions of the statute relating to the compulsory reference of matters of account "which cannot conveniently be tried in the "ordinary way." The Act contains several other sections with reference to arbitrations generally, which it seems more convenient to mention in this place, than to extend into a separate chapter. These enactments are to be regarded, in every sense, as amendments in the law.

Every agreement or submission to arbitration ment to refer by consent, whether by deed or instrument in writing, not under seal, may, on the application of any party thereto, be made a rule of any one of the Superior Courts of Law or Equity,* unless

may be made a rule of court.

* This enactment is confined to the Superior Courts at Westminster.

the agreement or submission contain words pur- Arbitration. porting that the parties intend that it should not be made a rule of court (s. 17).

If the agreement or submission provides that it shall or may be made a rule of one court in particular, it may be made a rule of that court only; and when it is or has been made a rule of any one court, no other court will have any jurisdiction to entertain any motion respecting the arbitration or award (s. 17).


Whenever parties agree in writing that any Proceedings then existing or future differences between them my le stayed after shall be referred to arbitration, and any party so agreement to agreeing, nevertheless, commences an action at law, or suit in equity, against the other party, in respect of the matters agreed to be referred, the court in which the action or suit is brought, or a judge thereof, may stay all proceedings in such action or suit, on such terms, as to costs and otherwise, as may seem fit (s. 11).

The proceedings are to be stayed on the application of the defendant, and the court or judge, when applied to for the rule or order, must be satisfied, first, that no sufficient reason exists why the matters in dispute cannot or ought not to be referred to arbitration according to the agreement; -and, secondly, that the defendant was and is ready to join in all acts necessary and proper for causing the matters to be decided by arbitration (s. 11).

Any rule or order staying proceedings may, at any time afterwards, be discharged or varied as justice may require (s. 11).

Several provisions have been made to prevent an arbitration coming to an end without an award being made from the failure to appoint arbitrators, or an umpire, by the parties who ought to do so.

Arbitration. Thus, if in any arbitration the document auAppointment thorizing the reference provides that the reference of arbitrator shall be to a single arbitrator, and the parties do or umpire by not concur in the appointment of an arbitrator;

the court.


if any appointed arbitrator refuses to act, or becomes incapable of acting, or dies, and the parties do not concur in appointing a new one ;


if, where the parties or two arbitrators are at liberty to appoint an umpire, such parties or arbitrators do not appoint an umpire; or

if any appointed umpire refuses to act, or becomes incapable of acting, or dies, and the parties or arbitrators respectively do not appoint a new umpire ;

then and in every such instance, any party may serve the other party or the arbitrators, as the case may be, with a written notice to appoint an arbitrator or umpire, as the case may be,-and if, within seven days after service of such notice, no arbitrator or umpire is appointed, any judge of any of the Superior Courts of Law or Equity may appoint either an arbitrator or umpire, as the case may be (s. 12).

If, however, from the terms of the document authorizing the reference, it appears that it was not intended that a vacancy caused by the refusal or incapacity to act, or death of an appointed arbitrator or umpire should be supplied, no appointment can be made to supply the vacancy (s. 12).

When required, the appointment is to be applied for and made on a summons to be taken out by the party who has served the notice, and the arbitrator or umpire, as the case may be, when appointed, is to have the like power to act in the reference, and to make an award as if he had been appointed by consent of parties (s. 12).

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