Alexander Wood Renton

“ An arbiter who has accepted office may be compelled by an action in court of session to proceed with his duty unless he has sufficient cause, such as ill-health or supervening interest, for renouncing. The court may name a sole arbiter, where provision is made for one only and the parties cannot agree (Arbitration [Scotland] Act 1894, s. 2) ; and may name an arbiter where a party having the right or duty to nominate one of two arbiters will not exercise it (ib. s. 3) . Scots law as to the requisites of a valid award is practically identical with the law of England. ”

“ Apportionment in respect of Time.—At common law, there was no apportionment of rent in respect of time. Such apportionment was, however, in certain cases allowed in England by the Distress for Rent Act 1737, and the Apportionment Act 1834, and is now allowed generally under the Apportionment Act 1870. Under that statute (§ 2) all rents, annuities, dividends and other periodical payments in the nature of income are to be considered as accruing from day to day and to be apportionable in respect of time accordingly. ”

“ An arbitrator cannot resign if he has once commenced to act, and can only be relieved on some ground arising subsequently to the submission (art. 1014) . Each party to the arbitration is required to produce his evidence at least fifteen days before the expiration of the period fixed by the submission (art. 1016) . If the arbitrators, differing in opinion, cannot agree upon an umpire (tiers arbitre) , the president of the Tribunal of Commerce will appoint one, on the application of either party (art. 1017) . ”

“ If there is no express provision on the point in the submission, an award under the Arbitration Act 1889 must be made within three months after the arbitrator has entered on the reference, or been called upon to act by notice in writing from any party to the submission. The time may, however, be extended by the arbitrator or by the court. An umpire is required to make his award within one month after the original or extended time appointed for making the award of the arbitrators has expired, or any later day to which he may enlarge it. ”

“ Section 5 provides that where a reference is to be to a single arbitrator, and all the parties do not concur in appointing one, or an appointed arbitrator refuses to act or becomes incapable of acting, or where the parties or two arbitrators fail, when necessary, to appoint an umpire or third arbitrator, or such umpire or arbitrator when appointed refuses to act, or becomes incapable of acting, and the default is not rectified after seven clear days’ notice, the court may supply the vacancy. ”

“ The capacity of a person to agree References by consent out of court.to arbitration, or to act as arbitrator, depends on the general law of contract. A submission by an infant is not void, but is voidable at his option (see Infant) . A counsel has a general authority to deal with the conduct of an action, which includes authority to refer it to arbitration, but he has no authority to refer an action against the wishes of his client, or on terms different from those which his client has sanctioned ”

“ The court will refuse to stay proceedings where the subject-matter of the litigation falls outside the scope of the reference, or there is some serious objection to the fitness of the arbitrator, or some other good reason of the kind exists.
An arbitrator is not liable to be sued for want of skill or for negligence in conducting the arbitration (Pappa v. Rose, 1872, L.R. 7 C.P. 525) . ”

“ The Conciliation Act 1896 provides machinery for the prevention and settlement of trade disputes, and in 1892 a chamber of arbitration for business disputes was established by the joint action of the corporation of the city of London and the London chamber of commerce. At the time when the London chamber of arbitration was established, there was considerable dissatisfaction among the mercantile community with the delays that occurred in the disposal of commercial cases before the ordinary tribunals. ”

“ The cases to which it applies are mainly cases of either (A) apportionment of rent due under leases where at a time between the dates fixed for payment the lessor or lessee dies, or some other alteration in the position of parties occurs; or (B) apportionment of income between the representatives of a limited owner and the remainder-man when the limited interest determines at a time between the date when such income became due. ”

“ The assignee of the reversion of part of demised premises could not, at common law, re-enter for breach of a condition, inasmuch as a condition of re-entry in a lease could not at common law be apportioned. ”

“ The practical result is to make the engineer judge in his own cause. But the courts will not in such cases prevent the engineer from acting, where the contractor was aware of the facts when he signed the contract, and there is no reason to believe that the engineer will be unfair (Ives and Barker v. Willans, 1894, 2 Ch. 478) . ”

“ The term arbiter seems, however, to have been sometimes used when the referee had a certain degree of latitude, and was entitled to give weight to equitable considerations (Roby, Inst. Rom. Law, i. 318; Hunter, Roman Law (1897) , p. 48; and see Cicero pro Rosc. Com. 4, ss. 10-13; Gaius, Inst. iv. s. 163) . Apart from this system of compulsory reference by the praetor, Roman law recognized a voluntary reference (compromissum) to an arbiter or arbitrator by the parties themselves. ”