18. One practical difficulty as to enforcing an award sometimes arises with an award stated as a special case under section 7. An arbitrator or umpire who intelligently knows his business, when drafting a case under that section makes his award according to his own view, and then provides for an alternative award to take its place if the Court, on the facts he states, finds that alternative award to be more correct in law. If, with such a case so stated, the other party does not think it worth his while to set it down for argument, the arbitrator's or umpire's substantive award can be enforced. But sometimes a less intelligent arbitrator or umpire takes a less convenient course. He sets out two alternative awards and leaves it to the Court to decide which is correct in law. In such a case there is no effective award until the Court has heard the case, and however submissive may be the unsuccessful party, his opponent can get no effective award until he has set down the case and had it heard, after inevitable delay.

19. It is perhaps difficult to deal with this matter by any positive enactment that a special case stated under section 7 must be in a particular form, and still more difficult to provide a satisfactory sanction for such an enactment. But we think it would be desirable that a schedule of the Act should provide typical forms of (a) an ordinary award, (b) a case stated under section 19, and (c) a case stated under section 7. We believe such forms would be of material assistance to arbitrators and umpires, and if they were properly drafted, would in all probability be used almost universally. The same schedule, we think, might also usefully set forth a set of simple rules for the guidance of arbitrators in the conduct of proceedings.

20. The death or bankruptcy of a party to a submission at present seems to revoke the submission, and the personal representatives of a deceased party, or the trustee in bankruptcy of a party, do not appear to be included in the words "any person claiming through or under him" in section 4 of the Act of 1889.

We think that an amendment should provide (a) that these words in section 4 shall include the trustee in bankruptcy of a party, and the personal representatives of a deceased party to a submission, and (b) that the death or bankruptcy of a party to a submission shall not revoke it.

21. The difficulty that arose in Smith v. Nelson (25 Q.B.D. 545) has been remedied by section 16 of the Administration of Justice Act, 1920. The case of United Kingdom v. Houston (1896) 1 Q.B. 567 illustrates another difficulty that may arise in the case of a reference to three arbitrators, where the submission omits to say that the decision of two of them shall be binding.

Having regard to a later passage in our Report we think there should be a provision that where a submission provides for the

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appointing of an arbitrator by each of the parties, and a third arbitrator by the two so appointed, the third arbitrator should be deemed to be and have the powers of an umpire. But it might be well to add that in the case of a reference to three arbitrators appointed otherwise than as above the submission shall be deemed to include a provision that the award of any two of them shall be binding.

22. Section 11 of the Act of 1889 speaks of an arbitrator or umpire having misconducted himself." When a motion is made under that section it is very common to hear counsel disavow any suggestion of turpitude and to allege only "technical" misconduct. But we believe that laymen whose awards are impugned under the section feel some grievance from the phrase that it employs. We suggest that the section, or its equivalent, might well use the phrase (in both subsections)" has misconducted the proceedings "in place of "has misconducted himself."

23. The Arbitration Act, 1889, very properly provides that. unless the submission otherwise provides, the reference shall be to a single arbitrator. Inveterate practice, however, induces people to provide for two arbitrators, one to be appointed by each party, and for an umpire to be appointed by the arbitrators. In a great many submissions (e.g., by the arbitration clause in many insurance policies), it is common to add that the umpire shall sit with the arbitrators from the beginning, and not, as the Act contemplates, only assume his office when they have agreed to differ.

This system has grave practical results, often in the way of delay, invariably in regard to expense. For arbitrators are only too often selected as partisans or advocates who are not likely to agree, and perhaps are not intended to do so. It is sometimes desirable that the arbitrators should sit with the umpire. But we are all of us familiar with the experience (which occasionally happens), that the arbitrators are mere passengers in the boat, who give no real assistance to the umpire, and whose sole reason for attending appears to be to inform the umpire at the conclusion of his labours of the fees which they desire him to include in the award on their behalf.

24. So unsatisfactory and wasteful is this system that we are eonvinced that its continued and widespread use is mainly due to two causes, first, the desire of the parties, by the agency of the arbitrators, to procure the appointment as umpire of a competent and impartial person, and secondly, the desire to employ the arbitrators as advocates of their respective causes before the umpire.

25. Not unconnected with this topic is another upon which we have received a good many representations. There is at present no very practical means of controlling the amount of fees

which arbitrators and umpires can require to be paid by a party who desires to take up an award, and this tends to aggravate the expensiveness of arbitrations, especially in cases where two arbitrators and an umpire have acted throughout the proceedings.

26. We are agreed that the evils discussed in the last three paragraphs ought to be mitigated, and after very careful consideration, and the rejection of various alternative proposals, we think that the Act should contain provisions to the following effect :

(a) Where a submission provides for the appointment of two arbitrators, who are to appoint an umpire, then it shall be the duty of the arbitrators to appoint the umpire immediately after they are themselves appointed. If they fail to do so either party to the submission may apply to the Court or a judge to appoint an umpire.

(b) At any time after the appointment of the umpire either party to the submission may apply to the Court or a judge for an order that notwithstanding anything to the contrary in the submission the umpire shall henceforth act as sole arbitrator. If that be ordered the arbitrators shall be discharged, but it shall be competent for them to appear as witnesses or to act as advocates in the arbitration.

(c) A party to a submission may apply to the Court or a judge for the taxation of the fees made payable by an award; he may have an order for delivery to him of the award upon paying into Court, to abide taxation, the fees demanded for its delivery; no taxation or reduction of such fees shall be allowed if they are in accordance with any agreement between the arbitrator or umpire and the party applying; and the arbitrator or umpire, taxation of whose fees is thus applied for, shall be entitled to appear and be heard.

(d) The provision for resort to a district registrar, which in another connexion we have recommended in paragraph 7 above, should also be made applicable in this sort of application to the Court or a judge.

27. At present an arbitrator, or umpire, has no power, unless authorised by the submission, or subsequent agreement of the parties, to make an interim award. In many cases it is desirable that he should be able to do so, and in some cases one of the parties may not be willing to give him such authority-e.g. where one party clearly owes the other a large sum but there is a dispute as to some minor matter in their dealings. An interim award may also be very useful in order to deal with liability, and with a postponement of the enquiry into damages.

We recommend that an arbitrator or umpire should be given power to make an interim award or awards, and also power to state such an interim award in the form of a special case under section 7 of the Act.

28. At present it is at least doubtful whether an arbitrator or umpire çan make an award ordering any sort of specific performance. We think that he should at any rate be given the power to order the delivery of specific goods under section 52 of the Sale of Goods Act, 1893, against payment of their price. It is perhaps a matter of policy but we see no reason why he should not also be given power to order specific performance of a contract by the delivery of any property other than land or money in any case in which the Court might lawfully do so.

29. We have received many suggestions that an arbitrator should be entitled to award interest on the amounts found by him to be due, and that an award should carry interest from the date when payment under it is due.

This involves a point in which commercial opinion and practice has long been at variance with the statute law, and incidentally involves the larger question whether the limited operation of sections 28 and 29 of the Civil Procedure Act, 1833, ought not to be enlarged so that all debts and claims for damages should carry interest from the time when they accrue.

It is a curious fact (and not, we think, widely understood) that in the Admiralty Division this result is already secured by a mere rule of practice. (See "The Gertrude," 12 P.D.204; 13 P.D.105 Smith v. Kirby, 1 Q.B.D.131 : The Kong Magnus" (1891) P. 223.

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It may be beyond the scope of our reference to discuss this question. In our view the time has long ago arrived when the common or statute law should have been amended so as to accord with the Admiralty rule of practice. But in any case we think that provision should be made that the amount payable under an award should carry interest from the date when the award is made.

30. A doubt appears to exist, and to be widely entertained, whether a submission made abroad is a submission within section 1, and elsewhere, of the Arbitration Act, 1889. We think this is a mistaken view, and such cases as Austrian Lloyd Co. v. Gresham Co. (1903) 1 K.B.249, and The Cap Blanco (1913) P.130, seem to support us. But in view of the doubt we think the definition of "submission" in section 27 might be enlarged so as to read, " means a written agreement wherever made." It might be well to add that "arbitration " means any proceedings held pursuant to a submission, and that "arbitrator" "umpire" means any person acting as such pursuant to a submission. It would follow that clauses, e.g., as to ordering the examination of witnesses before an examiner, may apply in aid of what we may call a foreign submission.

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31. We would add that if the Act applies, or is clearly made to apply to a foreign arbitration, its provisions about enforcing an award would equally apply to a foreign award. In any case

an action on a foreign award is and always has been perfectly feasible. For a submission is a contract of which an implied term must be a promise to comply with an award that is duly made; and one who is within the jurisdiction of the English Court can be sued upon his contract, or for its breach, as upon any other contract.

For these reasons we see little or no reason to consider the last part of our terms of reference-" the law relating to the effect given in England and Wales to submissions, arbitrations, and awards made or held elsewhere."

32. There are, however, one or two minor matters of practice that affect the enforcement of awards against foreigners, or by them. The court or a judge should have power to order service of notice of an application to enforce an award as a judgment upon the agent of a foreign party who has represented him in the conduct of an arbitration in this country. And if an action. be brought upon an award (wherever made), leave to serve the writ out of the jurisdiction should be made possible by an amendment of Order XI, rule 1. It is probable that a writ to enforce an award could be made the subject of summary proceedings for judgment under Order XIV, but this is not as clear as it might be, and should be secured by an amendment of that Order.

33. A good many of those who have submitted memoranda to us have suggested that there should be statutory power given to the courts to relieve people from various kinds of hardships. imposed upon them by the terms of submissions to which they have unwittingly or unwillingly agreed. To interfere with, and alter, the contracts people have made may seem a doubtful policy, but it should be remembered that the vast majority of submissions to arbitration are contained in the printed arbitration clause in printed forms of contract, which cannot be carefully examined in the transaction of business, and alteration of which it would be difficult for most people to secure. We should certainly be averse to any proposal to give relief to anyone who had entered into a submission of a dispute after it had arisen. But we suggest that, as regards common forms of submission in printed forms, it might be sound policy to create a power to modify unconscionable provisions.

34. As examples of the sort of hardship to which we refer we may instance the following:

(a) It seems to be increasingly common for forms of contract for the sale of commodities to stipulate in the arbitration clause that a claim for arbitration must be put forward within a limited time, or it shall be conclusively barred. Cases in which such clauses have been recently considered are Ford v. Compagnie Furness (1922) 2 K.B. 279 (three months); Atlantic Co. v. Dreyfus (1922) 2 App. Cas. 250