Document Fragment View

Matching Fragments

In cases of death, refusal to act, or incapacity of a single arbitrator... a Judge may appoint a new one if the parties do not ; and... whore one of two arbitrators fails for the like causes, unless the party appointing him appoints a fresh arbitrator the remaining arbitrator may be appointed to act alone. The authority given for this statement is until 1889 the Common Law Procedure Act, 1854, Sections 12 and 13, and after that date the Arbitration Act, Sections 5 and 6 (Section 8 and 9, Indian Act) which reproduced Sections 12 and 13 of the Act of 1854. " This, as the pronouncement of the standard text book on Arbitration unaltered through a period of thirty-five years, is a good indication of the understanding of the profession as the scope of these sections.

10. With great respect I am unable to agree with Scott, C.J., in his construction of Section 8(1)(b), Arbitration Act. In my opinion the reasoning of Marten, J., is more correct and the construction put by him on the section should'be followed. The basis of Scott, C.J.'s judgment is the passage in Russell on Awards : see in this connexion, 11th Edn. p. 126, and the English cases which are referred to on p. 832 of I.L.R 43 Bombay. If, however, the matter is scrutinized with some degree of care, it would seem that the passage in Bussell on Awards was originally based on the wards used in the English Common Law Procedure Act of 1854 (17 & 18 Vic. G. 125, Section 12) and has been continued in the later editions of Russel without the change brought about by the English Arbitration Act of 1889 being noticed. Section 12, English Common Law Procedure Act of 1854, is identical in all respects with Section 15, Irish Common Law Procedure Act of 1856 and as appears from the decision of Walker C., Palles, C.B., and Fitz Gibbon and Barry, Lord-Justices in the case of Yeates v. Caruth [1895] 2 Ir Rule 146, there were good grounds for holding, on the words used in the English and Irish Statutes referred to above, that where the parties referred all matters in dispute to the arbitration of two arbitrators and one of them declined to act, the Court had no power to appoint an arbitrator in place of the arbitrator who had declined. Walker, C., observed as follows:

12. It is not necessary to pursue the matter further but it is sufficient to observe that the language used in Sections 5 and 6, English Arbitration Act is different from the language used in Sections 12 and 13, English Common Law Procedure Act of 1854. As regards the English cases referred to above, the case of Smith & Service v. Nelson & Sons [1890] 25 Q.B. D. 545, was not a ease of named arbitrators at all. In my opinion that case has no application to the facts of the present case. Nor does the case of Manchester Ship Canal Co. v. S. Pearson & Son Ltd. [1900] 2 Q.B. 606, assist the respondent company at all. The only matter for consideration in that case was whether there was refusal or incapacity so far as the arbitrator was concerned. The case In re Baballdas A.I.R. 1921 Bom. 185, is not really in point. There the submission provided for a reference to three arbitrators. Pratt, J., referred to the case Gopalji v. Morarji [1919] 43 Bom. 809 which was binding on him, and observed that though it had been decided in the Bombay High Court that Section 8 or 9 did not apply to the case of a reference to three arbitrators, yet if the Court could not give direct assistance by nominating an arbitrator, it could do so indirectly on an application under Section 19 of the Act by staying a suit filed in defiance of the submission.