(three months); Pinnock v. Lewis and Peat (1923) 1 K.B. 690 (14 days); Ayscough v. Sheed Thomson & Co., 30 Com. Cas. 23 (three days). Though it might be difficult to show hardship with a limit of three months, it must often be easy if the limit is only three days.

(b) There used to be a common provision in the arbitration clause in insurance policies that in any event each side should bear his own costs. This is now, we believe, not much used for new policies, but survives in old policies which have been constantly renewed. The opportunity to use its effect in order to drive a claimant to compromise, rather than continue the proof of items of his claim at his own expense, is obvious.

(c) Several of our correspondents have referred to the common practice by which in building and engineering contracts contractors are required to tender upon, and agree to, a form of printed contract by which all disputes are to be decided by an architect or engineer who is in the employ of the other party, and very often of one whose own acts or requirements on behalf of his employer may create the dispute which must be referred to his decision.

(d) It is not uncommon for an arbitration clause to provide that in no circumstances shall either party ask for a special case for the opinion of the court, or for the making of an award in the form of a special case.

35. As this seems to be a matter of policy, rather than of the amendment or clarification of the existing law, we feel that it is hardly within our province to make positive recommendations. But we suggest that, as a matter of policy, it should be considered whether provision should not be made

(a) That, where an arbitration clause in a common form of contract provides that a claim shall be barred unless arbitration be claimed in a limited time, it should be open to either party to apply to a judge for an order that this time provision should be enlarged, and that a judge, if satisfied that in the circumstances of the case the time limit provided creates an unreasonable hardship, shall have power to order that the contract be varied by enlarging the time;

(b) That a provision in a common form of arbitration clause that each side shall pay his own costs shall be void, and that the arbitrator or umpire, notwithstanding such provision, shall have full power to order either party to pay the costs;

(c) That where a particular person has been named or designated in a submission as arbitrator either party may apply to a judge, and if he satisfies the judge that such person by reason of his relation towards the other party or his connexion with the subject matter of the dispute, may

not be capable of complete impartiality, the judge, if he thinks fit, may make an order removing such arbitrator and appointing another in his place;

(d) It seems to be a doubtful question whether a clause that neither party shall ask for a special case is or is not void as being against public policy. If it were desired it would be easy to insert a provision that it is to have no effect.

36. There is one other matter somewhat akin to these. The common provision (especially in insurance policies) that the obtaining of an arbitrator's award shall be a condition precedent to the right to bring an action is one to which in most cases no serious objection arises. But if a party to such a submission is charged with fraud by the other party the clause may be still effective to compel him to have the charge investigated by an arbitrator. We suggest that it is perhaps desirable to provide that where, with such a clause, a party to it is charged with fraud by the other party, he may apply to a judge for an order that the clause shall as to this issue be of no effect, so that he may have it determined by an action.

37. It will be noticed that we speak of resort to a judge and not to the Court or a judge in all the suggestions in the last two paragraphs.

38. Section 23 of the Arbitration Act, 1889, ends with the words" nothing in this Act . . . shall affect the law as to costs payable by the Crown. We are informed that in a recent arbitration an award against the Crown for a very large sum was made, but as a result of this provision the successful party had to bear his own costs, and also to pay the fees of the arbitrator, and even to bear the cost of hiring the room in which the lengthy proceedings were held. We are assured and believe that there is a strong feeling in the minds of many serious people that this result was not satisfactory. If it is within the scope of our reference we have to say that we agree with this opinion, and think that the section or the practice should be amended.

39. We have now concluded our recommendations as to the amendments that seem to us desirable in the existing law of arbitration, or are possible if the policy of making them should find favour. We would suggest finally that if these amendments, or any substantial number of them, be made, it would be easier and much more satisfactory to repeal the Arbitration Act of 1889, and re-enact it in an amended form, rather than to pass a mere amending Act. The amendment already provided by section 16 of the Administration of Justice Act, 1920, would of course be incorporated in the new Act, and that section repealed. On the other hand, sections 13 to 17 of the Act of 1889, dealing with references by order of the Court to an official or special referee should be omitted from the new Arbitration Act. Those sections, or the more material of them, have been re-enacted in

the Supreme Court of Justice Consolidation Act, 1925, and their subject matter has really nothing to do with arbitration proper, but with the procedure of the Courts as to the method of trying actions, or delegating their trial.

40. In the course of our enquiry our attention has been drawn to some matters that are not strictly within our terms of reference, but are connected with arbitration, and seem worthy of record. We draw attention to them in the following paragraphs.

41. Section 119 of the Companies Act, 1908, requires a company's execution of a submission to arbitration to be under seal, and also seems to provide that the Railway Companies Arbitration Act, 1859, shall apply. Companies are of course parties every day to thousands of contracts containing arbitration clauses which they never seal; and so far as we know no one has ever relied on section 119 of the Act of 1908 to avoid the submission. We suggest that obviously in the next Companies Act a company should be empowered to make a submission by mere signature and as by a contract under section 76 of the Act of 1908.

42. It has been pointed out to us that the Arbitration Act, 1889, does not apply to arbitrations under the Agricultural Holdings Act 1923, and that under the rules as to arbitrations in the Second Schedule to that Act there is no power or machinery under which a subpoena can issue to compel a witness to attend.

43. Our attention has been called to a point that arises under the Arbitration Clauses (Protocol) Act, 1924. Section 1 of that Act in relation to a submission to which the protocol applies deprives the English Court of any discretion as regards granting a stay of an action. It is said that cases have already not infrequently arisen, where (e.g.) a writ has been issued claiming the price of goods sold and delivered. The defendant has applied to stay the action on the ground that the contract of sale contains an arbitration clause, but without being able, or condescending, to indicate any reason why he should not pay for the goods, or the existence of any dispute to be decided by arbitration. It seems absurd that in such a case the English Court must stay the action, and we suggest that the Act might at any rate provide that the Court shall stay the action if satisfied that there is a real dispute to be determined by arbitration. Nor would such a provision appear to be inconsistent with the protocol.

44. There are certain statutes which refer to the bringing of a suit, or taking legal proceedings, or the like, as affecting rights and liabilities. Instances are as follows:

(a) Section 496 of the Merchant Shipping Act, 1894, which deals with deposits of freight with a wharfinger,

provides in subsection 3 that at the expiration of thirty days" unless legal proceedings have in the meantime been instituted by the shipowner," etc.

(b) Carriage of Goods by Sea Act, 1924, Schedule, Article III, Rule 6, provides that all liability shall cease unless suit is brought within one year," etc.

.

(c) Section 3 of the Limitations Act, 1623, speaks of "actions of debt. . . . being commenced and sued," etc. To start arbitration proceedings is certainly within the spirit, but not the letter of this sort of provision. It might be well to provide in the suggested new Act (a) that when a party to a submission gives written notice claiming arbitration to the other party he shall be deemed to institute arbitration proceedings, and (b) that the institution of arbitration proceedings shall be deemed to be the institution of proceedings within section 496 of the Merchant Shipping Act 1894, or the bringing of suit within the rule of the Act of 1924, or the commencement of an action within the Act of 1623. There may perhaps be similar provisions in other Acts of which we are not at present aware.

45. In conclusion we desire to record our grateful appreciation of the services of Miss Rosser, who has acted as Secretary to our Committee, and by her care and efficiency has so materially lightened our task.