— Part
I.
References by Consent out of Court.
461
Sect. 7. the parties, it is advisable that he should give that party distinct Conduct of (h). do so intention to his notice of If a reasonable excuse for not attending the appointment can be Arb itrat ion, shown, the Court will set aside an award made by an arbitrator who has proceeded ex parte (i). Where the reference is to two arbitrators or an umpire, the powers Powers of umpire, of the umpire do not arise unless and until the arbitrators are unable to agree or allow their time for making an award to expire but in practice the umpire usually sits with the arbitrators from the commencement of the reference, since, unless he did so, he would have to hear all the evidence repeated before him (k). The umpire, if and when required to make an award, is substituted for and has the same powers with regard to the conduct of the arbitration as the arbitrator possessed.
971. In the conduct of the proceedings the arbitrator or umpire Conduct of proceedings, to any directions which may be contained in the Subject to any such directions, he should submission itself (/). observe, so far as may be practicable, the rules which prevail at the trial of an action in Court ; but he may deviate from those rules (m) provided that in so doing he does not disregard the substance of justice (n).
must conform
972. If the submission is contained in a written agreement, any party thereto can obtain as of course from the Central Office writs of subpoena ad testificandum and subpoena duces tecum to compel the attendance before the arbitrator of any witness who is in England (o) and the Court or a judge may order that such writs
Waller v. Khig (1724), 9 Mod. Eep. 63 Fetherstone v. Cooper (1803), 9 Yes. 67 Wood v. Leale (1806), 12 Yes. 412 Harcourtv. Ramsbottom (1820), 1 Jac. & W. Hobbs v. Ferrars (1840), 8 Dowl. 779 ; Scott v. Van Sandau (1844), oOo, at p. 512 Tri/er v. Shaiu (1858), 27 L. J. (ex.) 320 Angus v. Smythies {1861), 6 Q. B. 237 2 F. & F. 381 Be Hewitt and Portsmouth etc. Co. (1862), 10 W. E. 780. For form of notice, see Encyclopaedia of Forms, Yol. II., p. 141. (?) Gladwin v. Chilcote (184i), 9 Dowl. 550. {k) Re Salkeld and Slater (1840),_ 12 A. & E. 767. (/) If, for instance, the submission requires that the witnesses be examined on oath or that the arbitrator should have a view, such requirements must be observed {Smith v. Goff (1845), 14 M. & W. 264, 266) but an arbitrator need not hold a view unless required so to do by the submission {Munday v. Bluch (1861), 9 C. B. (N. s.) 557). (m) Knox v. Sijmmonds (1791), 1 Yes. 369 ; Re Badger (1819), 2 B. & Aid. 691 TiJlam v. Copp (1847), 5 C. B. 211. (/i)
(w)
Harvey
v. Shelton (1844), 7
Beav. 455, 462
and
Andrews
see
v. Mitchell,
[1905] A. C. 78. If one party be represented by counsel, the other party must be given an opportunity of being similarly represented {Whatley v. Morland (1833), 2 Dowl. As to whether an arbitrator could refuse to hear counsel on either side, see 249) Re Macqueen and Nottingham Caledonian Society (1861), 9 0. B. (isr. S.) 793. The arbitrator or umpire cannot, except for some sufficient reason, exclude from the meeting any person whom either of the parties desires to be present to assist in the reference {Re Haigh (1861), 3 De Gr. F. & J. 157). Each party must be permitted to adduce all his evidence, and must be fully heard. The arbitrator or umpire should not close the hearing and proceed to make his award without notifying the parties thereof {Re Maunder (1883), 49 L. T. 535; Peterson v. Ayre (1854), 14 C. B. 665, 677; Pepper v. Gorham .
Moo. C. P. 148). Arbitration Act, 1889 (52
(1820), 4 (o)
rr.
26—34.
&
53 Yict.
c.
49),
s.
8
E. S.
0.,
Ord. 37,
Sulpoena.
