Arbitration, the determination of a matter in dispute by the judgment of one or more persons, called arbitrators, who in case of difference usually call in an 'umpire' to decide between them.
Means a method of dispute resolution involving one or more neutral third parties who are usually agreed to by the disputing parties and whose decision is binding, Black Law Dictionary 7th Edn., p. 100.
Means any arbitration whether or not administered by permanent arbitral institution. [The Arbitration and Conciliation Act, 1996, s. 2(a)]
An arbitrator is a disinterested person, to whose judgment and decision matters in dispute are referred, Termes de la Ley.
The civilians make a difference between arbiter and arbitrator, though both found their power in the compromise of the parties; the former being obliged to judge according to the customs of the law: whereas the latter is at liberty to use his own discretion, and accommodate the difference in that manner which appears most just and equitable.
An arbitrator ought to be an indifferent person between the disputants, and should be incorrupt and impartial.
Generally speaking, almost all matters in dispute, not being of a criminal nature, may be referred to arbitration; but at Common Law there was no mode of making the award binding.
This defect was first cured by the statute 9 & 10 Wm. 3, c.15, which enabled parties to agree that a submission to arbitration might be made a rule of Court, and consequently binding. This and five subsequent amending enactments were further amended by the Arbitration Act, 1889 (52 & 53 Vict. c. 49).
By s. 1 of the (English) Arbitration Act, 1889, a 'submission' (which term by s. 27, ibid., means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not), 'unless a contrary intention is expressed, shall be irrevocable, except by leave of the Court or a judge, and shall have the same effect in all respects, as if it had been made an ordr of Court.' By s. 2 certain scheduled provisions as to appointment of umpire, time for making award, etc., are prima facie included in every submission, and by s. 4 if any party to a submission [including an agreement to refer disputes to a foreign tribunal, Kirchner v. Gruban, (1909) 1 Ch 413], commences any legal proceedings [including those by counterclaim, Chappell v. North, 1891 (2) QB 225], against any other party to the submission, in respect of any matter agreed to be referred, any party to such legal proceedings may at anytime after appearance, and before taking any step in the proceedings [e.g., attending a summons for directions, Ochs v. Ochs Barker v. Williams, (1894) 2 Ch 484], apply to that Court to stay the proceedings, and that Court [including a County Court, Morriston Tinplate Co. v. Brooker, (1908) 1 KB 403], if satisfied that there is no sufficient reason why the matter should not be referred and that the applicant was and is ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings.
The chief amendments of the Arbitration Act, 1934, relate to the effect of the death or bankruptcy of a party to the arbitration agreement (ss. 1 and 2), the appointment of an umpire (s. 5), the powers of arbitrators and of the Court (s. 8), the statement of a special case (s. 9). Arbitrators have power to order specific performance (s. 7), an amount will carry interest at the same rate as a judgment debt (s. 11), and an agreement that parties shall pay their own costs in any event is void (s. 12). The Statutes of Limitation apply to arbitration (s. 16), and a charging order for solicitors' costs can be obtained (s. 17). Certain provisions are excluded in the case of statutory arbitrations (s. 20).
Various statutes specifically incorporate the Arbitration Act, others both necessitate arbitration and specify the procedure excluding the Arbitration Act, e.g., Agricultural Holdings Act, 1923; the Industrial Courts Act, 1919; and the Workmen's Compensation Acts, which provide for arbitration in accordance with Sched. II. of the Act of 1906 as amended by the Workmen's Compensation Act,1925.
Reference by Order of the Court.-The Court can refer matters to arbitration within certain limits for decision or for report. See ss. 13 and 14 of the Act of 1889 as amended.
An arbitrator's powers and duties are conferred and imposed by the submission, or the Arbitration Act, 1889 as amended. He is generally the final judge of law and facts; he is bound by the rules of law, and occupies a judicial position [re Enoch, (1910) 1 KB 327], and cannot award anything contrary thereto. It is, however, the recognized practice in commercial arbitrations, where an umpire is appointed, for the arbitrators on either side to act, in effect, as advocates, unless the parties otherwise desire, French Government v. Tsurushima Maru, (1921) 37 TLR 961. By s. 9 of the 1889 Act, any arbitrator or umpire may at any stage of the proceedings, and shall, if so directed by the Court, state in the form of a special case for the opinion of the Court any question of law arising in the course of the reference. See Tabernacle Building Society v. Knight, 1892, AC 298. There is no appeal from the Court's decision thereon, Cogstad v. Newsum, (1921) 2 AC 528. By s. 7 of the Act of 1889, the arbitrator may make his award in the form of a special case for the decision of the Court. In which event, having made his award, his duties are at an end. An appeal lies from the Court's decision on an award in the form of a special case under this section, and see s. 9 of the Act of 1934. Cases under either section maybe remitted to the arbitrator for further findings of fact.
The submission determines the mattes which are within an arbitrator's authority (Re North-Western Rubbr Co., 1908 (2) KB 907). His authority commences from the time of the agreement to refer being signed by all the parties.
As soon as the award is published, the arbitrator's authority is at an end.
An arbitrator maybe removed for misconduct, e.g., for refusing to state a case for the High Court, Palmer v. Hosken, 1898 (1) QB 131, and his award may be set aside for misconduct, which may be either actual or technical, or because an error in law appears on the face of the award (see that title). An award cannot be set side for being against the weight of evidence or, generally, for misreception of evidence. An award may always be enforced by action or in certain cases summarily.
Arbitrators under the Judicature Acts are called 'referees.'
Various Chambers of Commerce and professional and trade bodies have instituted Courts of arbitration for dealing with disputes arising in connection with their trade or business.
Submissions to arbitration and awards require to be stamped with 6d. and 10s. stamps respectively.
See AWARD; CONCILIATION; REFEREES, and consult Russell on Arbitration.
Means any arbitration whether or not administered by permanent arbitral institution. [Arbitration and Conciliation Act, 1996 (28 of 1996), s. 2 (1) (a)]