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Arbitrement and Arbitrators
Arbitrement is an Award or Judgment made by one or more at the Request of some parties for the ending of some difference between them. An Arbitrator is he, or one of them so chosen, said to be an extraordinary Judge in matter of difference between party and party by their mutual consent, and their authority is given to them by the parties litigant to hear and determine the matter in difference between them to whole judgement they bind themselves to stand: It is called an Arbitrement, either because these Judges may determine it ex boni viri Arbitrio, not being bound to the strict Rules of Law, or because they have submitted to them, not by compulsory means but ex libero Arbitrio. Terms ley, West Symb, 2 part. Sect 21.
Arbitrement some say is General, when it is an Award of all Actions, demands and differences between the parties upon such a Reference thereof unto them: or Special, where the Reference and Award upon it is only of one or more matters of difference mentioned between them, but whichever it is it is called a Judgment. The Award also may be made and rendred, either in writing or by word of mouth.
An Umpire is the same in effect with an Arbitrator, for he is one chosen by the Arbitrators finally to order, and determine the matter in difference between them, if the Arbitrators cannot, or do not order by the day agreed upon between them.
For this take these things in general:
(1) That there are five things incident to an Arbitrement; (1) Matter of Controversie: (2) Submission to the award of the persons chosen: (3) Parties to the Submission: (4) Arbitrators: (5) The making of an award by word of writing. Co.10.137. Dyer 217.
(2) That the Submission is the agreement of both parties to abide and submit to the order made by the Arbitrators: this is sometimes made between the parties reciprocally, and sometimes to the Arbitrator. It is made between the parties sometimes by Bond, sometimes by Covenant, sometimes by Promise, and it may be good either way. And so it may be without any of these by a bare Submission and agreement only to refer it to them: and an Obligation or Assumpsit to stand to the award of I.S. and I.D. hath in it an Implicite Submission to their award. This is also sometimes absolute without reference to any time: and sometimes Conditional, as a Submission to their award if it be made by such a day, Co.10.131.5.78.20.H.6.18. Trin. 18 Jac.Cyprian Salters case.
(3) That if the award be Repugnant, insensible, incertain, against Law, not definitive, or on the one side only, it may be void, Yelverton 98. for it shall not have a favourable construction as a Deed or Will shall have to bring it to the intent of parties, for it is in nature of a Judgment, and must be plain and compleat. Yelverton 98. Croo.1.3,4. Co.5.77.
(4) That if it do not pursue, and be made according to the power given them by the Submission, it will not be good. Bendloes 38. It may not be larger nor narrower than the authority given thereby. Jenk. Cent. 3. case 6.
(5) Arbitrators may not refer their Arbitrement to others, or to an Umpire, unless the Submission be so made to them, nor may they make their arbitrement in their own Names, and the Name of a third person to whom no submission was made; nor may they alter their Award being once made. Jenk. Cent. 3. Case 61 . Co.77.
(6) The Arbitrement must be always pursuing the Submission, so as if it be so said by Bond, or Assumpsit, so as it be delivered under Hand and Seal, or at such a day, or in such a place, so it must be. Croo.2.577.
(7) That an Arbitrement may be made Conditional, that if such a thing be not done by one of the parties, the Award shall be void. Croo.2.423.525.
(8) That where the Award comprehends that which is submitted and more, it is good for that submitted, and void for the rest.
(9) That the Arbitrators may not award the one Party to procure a Stranger to do a thing. More case 11. Nor may they award all of the one part and none of the other part. More case 885. Hob.49. They may not make it larger, nor straiter or narrower than the Submission. Hob.190. And yet in some Cases where it may seem larger than the Submission, it may be good by a restriction of De & Super præmissis, or by defect of the pleading of his Adversary, Hob.190. And generally, where an Arbitrement is void in part it is void in all as to things though not to persons, especially where one part of it depends upon another. Croo.2.149.