Luncheon Meeting Address, Arbitration 1953, 19(4), 101-112

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Luncheon Meeting Address
Lynden Macassey

Table of Contents

Arbitrators as Judges in Their Own Cause.

Journal Article

Arbitration

Arbitration 1953, 19(4), 101-112

Subject
Arbitration

*Arbitration 101

on

Arbitrators as Judges in Their Own Cause.1

PRESIDENT (MR. J. R. W. ALEXANDER):

This ostensibly is one of our normal Luncheon Meetings, but actuully it is something more. First of all, we are extremely glad
to have a Past President talking to us who has an international reputation in the Law and Practice of Arbitration.

Secondly, the occasion is significant in that it marks our resumption of endeavours to secure improvement in the Law of
Arbitration. Before the war we were active in that connection. In conjunction with our then President, Lord Askwith, we were
responsible for the promotion of the Arbitration Act, 1934, which included important amendments to the Arbitration Act of
1889. I recall with pleasure working on the Bill with that great arbitrator and conciliator.

In 1936 another Bill was promoted, and it is upon its provisions and history that Sir Lynden is to speak to-day. I must not
anticipate what he says, except to observe that the Bill would have become law but for the threat of opposition from a most
unexpected quarter. As a result the Bill had to be abandoned, for the Government would not give time for the debate of an
opposed measure.

We propose, as an Institute, to seek the promotion of a similar enactment in the near future. The object will be to secure the
amendment of the law so as to render void a provision in an Agreement which makes one of the parties, or the employee or
agent of a party, the Arbitrator in a dispute arising and referable to Arbitration under the Agreement. We hope to obtain the
support of other interested organisations and to remove any opposition remaining, so that a non-controversial measure may be
submitted to Parliament.

I will now call upon our good friend, Sir Lynden Macassey, to talk about Arbitrators as Judges in their own cause. I want our
members to be well informed in the matter and I hope that we may interest our guests, especially those representative of other
professional bodies. (Applause.)

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Luncheon Meeting Address, Arbitration 1953, 19(4), 101-112

SIR LYNDEN MACASSEY:

I would congratulate the Institute upon the way it has progressed from strength to strength since I ceased to be President.
(Laughter.) I did not saybecause I ceased to be President. (Laughter.) But it has profited very much by the enterprise of yourself,
Mr. President, and your immediate predecessor.

*Arbitration 102 When I was honoured by an invitation to address the Institute to-day, it was in regard to that peculiar anomaly
in English arbitration law against which the late Lord Askwith, our distinguished President from 1933 to 1942, waged a notable
and almost successful crusade--the freedom which English arbitration law can confer on arbitrators to act as "judges in their
own cause."

That arresting phrase is not of my coinage. It was first minted by an eminent English judge, and afterwards passed into general
currency to describe the state of things when an arbitrable dispute has arisen between the parties to a contract and one of the
parties or his officer or servant is the judge to decide it. To judicial minds that seems a paradox, seeing that a judge in the British
judicial sense is an impartial person, free as far as humanly possible from bias, actual or "constructive," who decides between
contestant litigants according to the evidence and in consonance with law and legal principles. The same high conception is
applied to arbitrators--I am here speaking of judicial arbitration which is the only kind of arbitration recognised by British law;
I do not include in arbitration what is known as "amiable composition" and often termed arbitration under foreign codes of law.

Time does not permit me to dramatise the parody as I could do by some pungent examples of its operation. It is enough to
say that by English law it is reluctantly held valid if it results from mutual agreement. My purpose to-day is to inform and
enable the Institute to take up and carry forward the crusade for independent and impartial arbitration from the point to which
it was carried by Lord Askwith. Compelling as was the case he made in support of impartial arbitration 17 years ago, to-day
it is immensely stronger because of the unparalleled complexity in economic, industrial and commercial conditions and the
necessity, greater than ever, for strengthening our constitutional "rule of law." To assist the Institute to consider resuming Lord
Askwith's powerful crusade, I have put my address into the form of a factual and documented statement to serve as a convenient
brief, and I have collected together and deposited with the Institute all the relevant documents and correspondence bearing on
Lord Askwith's public-spirited campaign.

A short résumé of the origin of the paradox is needed for a proper presentation of the case for its abolition. The reason for its
entry into English arbitration law is not very clear--I assume it was because one of the parties to the contract was determined to
keep in his own hands the whole control of its execution and of payments becoming due under it and of disputes arising under
it. At any rate, clauses began to be inserted in certain kinds of contracts in the late eighteenth century that all differences arising
under them should be decided by one of the parties to the contract. This certainly became not uncommon 175 years ago in Great
Britain and Ireland in the case of building contracts. In them the building owner himself or his architect or surveyor (if he had
one) would be frequently designated in the contract as the person to determine all disputes. Arbitration in those days was not
in high repute and competent arbitrators were seldom available, so I can well understand the fear of a building owner then of
letting the settlement of disputes pass out of his control.

With the arrival of railways and canals the same thing appears in contracts for their construction. Here is a common clause in
railway construction contracts of 100 years ago:--

"All questions matters and things touching or concerning the contract shall be decided by the engineer in his sole and absolute
discretion and his decision shall be final and binding."

As the execution of other kinds of public works advanced, the same type of clause is found in contracts for their construction.

*Arbitration 103 But a clause such as quoted above was not always sufficient in practice to prevent the courts of law asserting
their jurisdiction over disputes arising under the contract. So in time when arbitration developed, a formal arbitration clause
of a more or less general type was adopted providing that any disputes arising under the contract should be determined by the
engineer or architect or surveyor, etc., as arbitrator. At the same time the contract usually provided that the engineer or architect
should have power without any appeal to arbitration to order and determine certain matters, usually of a technical character.

As experience grew of its one-sided application and effect, hostility to the engineer or architect arbitrator clause mounted steadily
among public works contractors and builders, as was only natural. It was persistently urged by them that the engineer acting as
arbitrator under the contract could not be assumed or expected to be unbiased in claims which might prejudice his employer,

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especially in matters where his own professional competence and reputation came in question. He could hardly avoid being
an advocate of an interpretation of the contract which favoured his employer as against one contended for by the contractor.
Acting as arbitrator, he would be deciding between his own paymaster on the one hand and the contractor on the other. Often the
engineer would be the real respondent in regard to matters where his own alleged neglect or delay or his decisions, requisitions
or certificates came in question. For these reasons many eminent professional engineers and architects strongly objected to the
embarrassment imposed upon them in having to act both as engineer or architect and also as arbitrator.

From the point of view of the contractor or builder the effect of the clause was much more serious. His whole security under
the contract and, in serious claims, perhaps his whole financial stability might lie at the mercy of the other party to the contract
or of his engineer or architect.

On grounds of judicial principle and of public policy, when attempts were made to prevail on the Courts to remove an engineer
or architect under a contract from acting also as arbitrator under it, many distinguished judges expressed themselves strongly,
asserting that it was manifestly contrary to plain justice that disputes should be decided by persons who obviously could not claim
to be unbiased and impartial. As, however, when two parties to the contract had agreed that it should be so, the Court, except in
very exceptional circumstances, would not rescind such an agreement, notwithstanding their strong objection on principle to it.

The attitude of the courts of law to clauses in contracts which constituted a party to a contract or his officer, servant or agent
the arbitrator under the contract may be gathered from the following cases, which are only a few out of many.

JACKSONv. BARRY RAILWAY COMPANY. 1893.

1 Ch. 238; 2 R. 207; 68 L.T. 472; 9 Times L.R. 90 (C.A.).

Lord Justice (later Lord) Bowen at p. 247 said that in the case of an adjudication by the engineer as arbitrator he could not
be expected nor was it ever intended that he should come to the adjudication with a mind free from the human weakness of
a pre-conceived opinion.

DONKINv. LEEDS, ETC., CANAL. 1893.

2Hudsons Building Cases Vol. ii 4th Ed. page 239.; 9 Times L.R. 192.

Mr. Justice Day said it was eminently desirable in the estimation of any just-minded man that any dispute which he has with
his fellow should be determined by some impartial person and that he thought it was very undesirable that a decision should
be given on disputes of this sort (i.e., under an engineering contract when the engineer was the arbitrator) by persons who may
even be suspected of partiality

*Arbitration 104 PAGEv. LLANDAFF&DINAS POWIS R.D.C. 1901.

2 H.B.C. 316.

Mr. Justice Channell said the position of an engineer acting as arbitrator was a most difficult one, as he had to act in a totally
different way according as he was acting as engineer or as arbitrator, particularly when, as engineer, he had to take instructions
from his employers in regard to a great part of his duties.

BLACKWELL&COMPANY LTD.v. DERBY CORPORATION 1909.

2 H.B.C. 401.

Lord Justice Fletcher Moulton at p. 409 strongly criticised the action of Corporations in putting their engineers into the position
of arbitrators under contracts, but he said if you have exalted an engineer to be the arbitrator under the contract you cannot say
merely because he is an officer of the Corporation that therefore he is an unfit judge.

M'KEE, ETC.,v. DUBLIN CORPORATION. 1912.

2 H.B.C. 466.

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In the Irish Courts the Master of the Rolls at p. 469 said that in his view it was almost impossible for any human being to separate
and differentiate between the views he had expressed in the ordinary course of his business as an engineer and his views as an
arbitrator called upon to decide between his views as an engineer and the views of the contractor.

BRISTOL CORPORATIONv. JOHN AIRD&COMPANY. 1913.

A.C. 241; 82 L.J.K.B. 684; 108 L.T. 434; 29 Times L.R. 360 (H.L.).

Lord Atkinson said at p. 247 that if a contractor chooses to enter into a contract binding him to submit to the arbitrament of
the engineer the disputes which must necessarily arise between himself and the engineer who is a servant of the other party to
the contract, then the contractor must be held to his contract. Whether it be wise or unwise, prudent or to the contrary, he has
stipulated that a person who is a servant of the person with whom he has contracted shall be the judge to decide upon matters
upon which necessarily that arbitrator has himself formed opinions.

By 1925 experience of the Arbitration Act 1889 had shown the need of arbitration law being overhauled, so in March, 1926,
the Lord Chancellor appointed a committee under the chairmanship of the Hon. Mr. Justice Mackinnon

"to consider and report whether any, and if so, what alterations are desirable in the law relating to arbitration, and in particular
to submissions, arbitrations, and awards, made or held in England and Wales, or the law relating to the effect given in England
and Wales to submissions, arbitrations, and awards made or held elsewhere."

The question of these engineer- or architect-arbitration clauses was in the course of the enquiry brought to the attention of the
committee. In their "Report on the Law of Arbitration" (10th March, 1927--Cmd. 2817) para. 35 (c) the committee suggested
that, as a matter of policy, it should be considered whether provision should not be made

"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 connection 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."

*Arbitration 105 The Arbitration Act 1934 (which did not apply to Scotland or Northern Ireland) gave effect to many of the
committee's recommendations. In regard to such matters as an engineer-arbitration clause, Section 14 (1) of the Act enacted
as follows:--

"Where an agreement between any parties provides that disputes which may arise in the future between them shall be referred
to an arbitrator named or designated in the agreement and after a dispute has arisen any party applies, on the ground that the
arbitrator so named or designated is not or may not be impartial, for leave to revoke the submission or for an injunction to restrain
any other party or the arbitrator from proceeding with the arbitration, it shall not be a ground for refusing the application that
the said party at the time when he made the agreement knew, or ought to have known, that the arbitrator by reason of his relation
towards any other party to the agreement or of his connection with the subject referred might not be capable of impartiality."

But Section 14 (1) fell short of the suggestion of para. 35 (c) of the Mackinnon Committee Report. It really only provides that
because one has agreed with his eyes open to a particular person acting as arbitrator, that is not of itself afterwards to debar
him from applying for removal, etc., of that person on grounds of actual or apprehended partiality. The Section does not make
it any easier for the applicant to discharge the difficult burden of proof always necessary to secure removal, etc. There is no
known case where Section 14 (1) has yet been applied.

A public works contractor, for example, would think twice before attempting so to apply. If he failed to secure removal, etc., he
would find himself afterwards having to submit to adjudication by the man he had tried unsuccessfully to have removed. If he
did succeed, he would have impaired most seriously his general repute as an acceptable contractor for carrying out important
public works. In no type of industrial activity is such repute a more valuable business asset.

The Arbitration Act 1950 passed to consolidate the Arbitration Acts 1889 to 1934 re-enacted without amendment in its Section
24 (1) the provisions of Section 14 (1) of the Act of 1934. Not long after the Arbitration Act 1934 came into operation on 1st
January, 1935, the engineer-arbitrator type of clause was the subject of acute controversy as the result of the action of a powerful

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English water board which invited tenders for the construction of an exceptionally large storage reservoir. The arbitration clauses
which had to be accepted by every tendering contractor were the most extreme of their kind that had up to that time been
proposed by any public authority. They were a travesty of judicial arbitration; and the Board refused to discuss the principle
of the clauses with the Federation of Public Works Contractors. As the clauses deserve a niche of notoriety in the archives of
arbitration, they are set out below:--

"In order to prevent disputes (either before the commencement, during the progress, or after the completion of the Works by the
Contractor, or after entry on and taking possession of the Works by the Employers, rightly or wrongly, or after the abandonment
of the Works by the Contractor) as to any claims by the Contractor, whether arising under or out of the Contract, or from the
breach or alleged breach thereof, or in any way incidental thereto, or connected therewith, or not therein provided for, the
Engineer's measurement, valuation, decision, or certificate shall be final and binding upon the Contractor and the Employers,
and the Employers shall not be liable in respect of any claim by the Contractor, unless and until the liability of the Employers,
and the amount of their liability in respect of the claim shall have been certified by the Engineer, *Arbitration 106 whose
certificate shall be a condition precedent to any liability of the Employers, or any right of action against the Employers in
respect of such claim.

In measuring, valuing, deciding or certifying, the Engineer is not intended to act judicially or as arbitrator, but as Engineers do
by the use of their eyes, their skill, and their knowledge of the facts and incidents connected with the Works, and in so far as
any facts are not within his own knowledge, the Engineer shall be at liberty to inform his mind by enquiry of his Assistants,
Resident Engineer, Inspectors, and others. The Engineer shall at all times be considered seised of all the facts necessary for him
to form his own opinion, make his measurement or valuation, give his decision, or give or refuse his certificate, and he shall
be at liberty to certify at such times and in such manner as in his absolute discretion he shall think proper, and he shall not be
bound to give any reason for, or any particulars of his certificate, or any reason for his not certifying.

In case any question, dispute, or difference shall arise between the Employers and the Contractor, not already hereinbefore
provided to be settled in the manner set out in Clauses 80 and 81, such question, dispute, or difference shall be referred to the
Engineer as Arbitrator, and in such case the Employers shall not be liable in respect of any claim by the Contractor unless and
until the liability of the Employers and the amount of their liability in respect of the claim shall have been awarded by the
Arbitrator, whose award in such case shall be a condition precedent to any liability of the Employers or any right of action
against the Employers in respect of such claim."

The clauses aroused forcible and outspoken protest by public works contractors and others and were brought to the attention
of Lord Askwith, then the President of the Institute, and of Lord Atkin, the distinguished Lord of Appeal in Ordinary, by
organisations who stood strongly for the principle of independent and impartial arbitration. Both of their Lordships formed on
grounds of public policy and legal principle an exceedingly adverse opinion of the clauses. A strong committee was formed,
of which I was made the Chairman, to endeavour to secure legislative prohibition on parties to contracts, or their officers,
servants, agents, etc., acting as umpires or sole arbitrators under contracts. A Bill was prepared by Mr. Bernard Wicks of Messrs.
Martin&Co., the well-known parliamentary agents, and introduced into the House of Lords by Lord Askwith on 3rd December,
1936, who moved its second reading in that House on the 9th December. His masterly speech is well worth reading. The Bill,
under the name of the Arbitration Bill 1937, was read a second time that day. (See Parliamentary Debates House of Lords, vol.
103--C. 707.) It consisted of one single clause which had been drafted by myself and Mr. W. T. Creswell, K.C., of the Institute,
under the direction of Lord Askwith and Lord Atkin. The clause was as follows:--

"1 Any provision in a written agreement made after the commencement of this Act to the effect that all or any specified
differences whether present or future shall be submitted to arbitration so far as it provides that a party to the agreement or any
engineer, architect, surveyor, officer, servant or agent employed by him shall be the umpire or sole arbitrator shall be void, and
in such a case, unless the parties to the agreement agree upon a new umpire or sole arbitrator or upon one being appointed
by some third party, the Court may on the application of any party to the agreement appoint a person to act as umpire or sole
arbitrator in place of the person mentioned in the agreement."

One point which Lord Askwith and Lord Atkin had prominently in mind, when advising the adoption of the clause which
alone the Bill comprised, was the *Arbitration 107 extreme undesirability (from the business point of view) of any party to
a contract having to make charges of actual or apprehended want of impartiality against another party to the contract, or his
servant or agent, in acting as an arbitrator under the contract, as had been previously agreed. They took the view that by far the
better plan was to make an arbitration clause null and void which so provided. This way of dealing with an arbitration clause
which did not provide for independent and impartial arbitration was most strongly supported by public works contractors, by

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the great building firms and very many others similarly interested, and by their representative organisations, as relieving them
from having to undertake what might be a line of action exceedingly damaging to their business standing and goodwill.

Sir Alexander Gibb, G.B.E., F.R.S., the then President of the Institution of Civil Engineers, which supported the Bill, made
these points on the Bill on behalf of professional engineers:--

1 It should be made clear that the freedom of the engineer remains unimpaired as to the final decision and judgment with regard
to the quality of materials and standard of workmanship, the competence of workmen, the removal and/or re-execution of any
work and making good defects, extension of time and want of due diligence and that the points on which the engineer's decision
must be final be definitely enumerated in the Bill.

2 That it should not be possible to cite a clause of the enactment to stop a work which is in progress under the written order
of the engineer.

3 That a shareholder or other person financially or otherwise interested or affected by the finding of an award be debarred from
acting as umpire or sole arbitrator.

It was decided and, I suggest, wisely decided, by Lord Askwith and Lord Atkin as a matter of policy that the Bill should not
embark upon the highly controversial question of what matters should or should not be left to the final decision of the engineer
or architect. Such matters should be left as before to the parties to the contract to agree, but the Bill should confine itself strictly
to maintaining, as a principle of judicial arbitration, that the parties to contracts, their officers, servants, agents, etc., should be
precluded from acting under the contract as umpires or sole arbitrators.

The Bill was accorded a phenomenal measure of approbation. The following important national organisations, to mention a
few only out of many, supported it.

Association of British Chambers of Commerce.

Association of Consulting Engineers.

British Electrical and Allied Manufacturers Association.

Building Industry National Council.

Chartered Institute of Secretaries.

Chartered Surveyors Institution.

Federation of British Industries.

Federation of Civil Engineering Contractors.

Institute of Arbitrators.

Institute of Chartered Accountants.

Institution of Civil Engineers.

Institution of Mechanical Engineers.

Institution of Structural Engineers.

London Chamber of Commerce.

*Arbitration 108 National Association of Local Government Officers.

National Federation of Building Trades Employers.

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National Federation of Specialists and Sub-Contractors.

National Union of Manufacturers.

Royal Institute of British Architects.

The General Council of the Bar of England, of which the Chairman was the eminent Chancery lawyer, Sir Herbert Cunliffe,
K.B.E., K.C., then Attorney General of the Duchy of Lancaster.

In the House of Lords no single objection to or criticism of the Bill was publicly or privately expressed. Viscount Hailsham--
a lawyer of the widest commercial experience--was at the time Lord Chancellor. The Attorney General was then Sir Thos.
Inskip, K.C., M.P., afterwards Viscount Caldecote, Lord Chancellor. His representative in the House of Lords had no criticism
to make. The representatives of the great contracts departments of the Government had no criticism. On the second reading
of the Bill on 9th December, 1936, Lord Swinton--then Secretary of State for Air--declared himself in favour of independent
arbitration, as did also Lord Amulree, who had been for many years President of the Industrial Court and was well known in the
Institute and to most of its members. So did Lord Snell on behalf of local authorities, provided that important matters affecting
the execution of public works contracts were left to the final decision of the engineer--the same point as had been raised by
Sir Alexander Gibb on behalf of the Institution of Civil Engineers. And Lord Gainford spoke in support of the Bill on behalf
of the Federation of British Industries.

The Bill was passed through all its stages in the House of Lords on 9th December. On 9th February, 1937, the House of Lords
sent in usual form a message to the House of Commons that they had passed the Bill (Parliamentary Debates H.C. Vol. 320
C.231). On the following day, 10th February, 1937, the Bill was read a first time in the House of Commons (Parliamentary
Debates H.C. Vol. 320 C. 411) and the second reading was fixed for Wednesday, 3rd March, and the Bill was ordered to be
printed (Arbitration (H.L.) Bill 1937 (Bill 79). The Government's legislative time-table was so full that they could give no time
in the House of Commons for a debate on the Bill, as would have been necessary if there were opposition. If, however, there
were no opposition, they would have allowed sufficient time for its passage through the House of Commons. The prospects,
therefore, of the Bill early becoming law were highly promising, but provided only that no opposition was raised on second
reading in the House of Commons, as that would have entailed a debate.

The Bill was taken up in the House of Commons by Sir Geoffrey Ellis, Bart., M.P., a well-known barrister, and he was prepared
to discuss any amendment of the Bill which was calculated to improve it and not intended to destroy it.

Before the 3rd March, 1937, when the second reading of the Bill in the House of Commons was to take place, it appeared
that opposition was going to be directed against the Bill on second reading. As no time was to be allowed for a debate, such
opposition (as long as it was persisted in) would obviously and inevitably prevent the Bill from being passed into law. Discreet
steps were therefore taken to find out what was behind this opposition. It was eventually ascertained it was because of the
objection of the Law Society to the Bill. There was no evidence that the Law Society was directly organising the opposition,
but it became clear that those in the House of Commons who were objecting were justifying their action because of the attitude
of the Law Society to the Bill.

*Arbitration 109 As the Law Society were the only body of objectors to the Bill, the grounds on which they based their
objections are worth examining. It happened that after the Bill had passed the House of Lords on 9th December, 1936, and
before it had been introduced into the House of Commons, I had written to the Law Society, giving them full particulars about
the Bill and telling them that it had been settled by amongst others Lord Atkin. I said:--

"As the Bill will be introduced shortly into the House of Commons, it would add weight to the already great volume of support
behind it if the Law Society felt themselves in a position to endorse its principles&. The General Council of the Bar have passed
a resolution expressing their approval of the Bill."

On the 26th January, 1937, the Council of the Law Society referred the Bill to their Legal Procedure Committee, whose report
was adopted by the Council on 12th March, 1937. As the only opposition in the House of Commons was based on the Law
Society's objections to the Bill, which in the end prevented the Bill from becoming law, the report calls for consideration.

1 The report said (P. 3-1) that the Bill included in its scope and made void any agreement whereby disputes whether present
or future are referred to arbitration before any employee or agent employed by either of the parties. Therefore, the report said,

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a dispute between two partners could not by a submission to arbitration signed after the dispute had arisen be referred for
settlement to the partnership accountant or solicitor for him to determine as an arbitrator. That particular type of case had been
present to the minds of both Lord Askwith and Lord Atkin when the Bill was being settled by them. Lord Atkin was adamant
that no exception from the Bill should be made in such a case. Although a very simple amendment would have met the case, he
thought it would be surrendering the vital judicial principle which the Bill was endeavouring to establish and would open the
door to many other similar amendments. He reaffirmed that opinion when the Law Society's objection was later referred to him.

2 The report (P. 4-2) declared that the two essentials in the case of a submission signedbefore disputes had arisen providing for
arbitration by a party or an employee or agent of his were:--

1 That the parties to the contract were really free agents in making the appointment of such an arbitrator.

2 That the arbitrator so appointed was impartial.

The report said these two points could be sufficiently safeguarded without any Act of Parliament and that, therefore, there was
no justification for interference in such a matter by the legislature with freedom of contract.

To that it may be replied that the eminent members of the Law Society who were acting as solicitors, as so many of them do,
to public works contractors and building firms, etc., and (apart from particular contracts) were advising their clients regarding
the Bill, could have affirmed that their clients were never "free agents" in agreeing to the appointment of an engineer, etc., as
arbitrator. It was a case of "take it or leave it," there were very many cases within their experience where reluctance on the
part of a contractor to accept the engineer as arbitrator immediately was followed by an intimation that his tender would not
be considered. Of that there was overwhelming corroborative evidence. That was the real freedom of contract over many years
claimed and exacted by innumerable companies, authorities and other inviting tenders. It was expressly to prevent that very
thing that the Bill had been introduced into Parliament.

*Arbitration 110 And the report went on: "So far as impartiality is concerned, an arbitrator against whom any breath of
partiality or of inability, from the nature of his position or office to be impartial, can be established will, of course, be removed
by the Court and this was always so even before the Act of 1934." That most certainly the promoters of the Bill would have
strenuously contested. Proved impartiality of the extreme type amounting to legal misconduct no doubt would have been
sufficient to secure the removal of an arbitrator. But the contrariety between the functions of an engineer under a contract and
his functions as arbitrator certainly did not constitute impartiality and was not sufficient to secure removal, as is made perfectly
clear by the learned judges whose opinions have already been quoted.

As to the alleged effectiveness of Section 14 (1) of the Arbitration Act 1934, that has already been dealt with.

3 The report (P. 5-3) then contended that the remedy for the evil complained of (i.e., by the promoters of the Bill) "lies in
the hands of the parties and that no legislation should be necessary" and that "if these associations (i.e., supporting the Bill)
would set their faces against the objectionable arbitration clauses they could certainly kill them without any need whatever for
legislation." Incidentally (it is said in the report) the associations themselves have in some cases hitherto been the offenders; for
instance, it is the Royal Institute of British Architects who have themselves for many years issued a printed form of building
contract, the adoption of which the architect invariably recommends, and which is embodied in the invitation to tender, whereby
any dispute arising between the builder and the building owner is referred to the architect himself as arbitrator."

The statement made by the Law Society about the R.I.B.A. was wholly incorrect and tended to show that the Law Society were
out of touch with practical conditions of the day. The model contract form of the R.I.B.A. made most specific provision for
independent arbitration.

None of the professional institutions supporting the Bill can do more than they do in recommending their members to press upon
those employing them the adoption of an independent arbitration clause, and in publicly advocating as they do independent
arbitration. The associations have no power, nor would it be practical politics for them to call upon a member to give up his
employment with any company or authority who declined to abandon the use of engineer or architect arbitration.

Associations of public works contractors and builders have no power and would never get enforceable power to require their
members to refuse to tender for contracts which have no independent arbitration clause. If their particular members did refuse to

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tender, there are many contractors and builders not members who would and who do tender to get work, accepting any clauses
and trusting to luck, especially when work is scarce.

As the opposition to the Bill in the House of Commons continued and its withdrawal could not be obtained, with the result that
the Second Reading had to be postponed continually, the Bill was therefore dropped on the 8th June, 1937, as no time in that
session was available for a debate. There is little doubt that if time could have been secured for a Second Reading debate, the
Bill would have secured a triumphant Second Reading, so great was the volume of support which it had behind it.

To-day the case for independent arbitration is stronger than ever. The support it commands in the industrial and commercial
world is greater than ever. The need for maintaining the Rule of Law was never more urgent. The *Arbitration 111 experience
of independent arbitration in public works and building contracts and other large national and communal undertakings is that it
has extended competition in tendering and has operated to reduce tender prices. If the Institute of Arbitrators could once more
give a lead in a similar crusade to that of Lord Askwith when he was President of the Institute, it would be to its redounding
credit. I am aware, Mr. President, of the support you personally have given to the principle of the Bill.

PRESIDENT:

It is our practice at these Luncheons to ask if anybody has any questions to put to the speaker, and Sir Lynden will endeavour
to answer them.

MR. JENKINS:

Is not some latitude allowed to the Architect or the Engineer to decide small matters arising out of the contract? It is surely not
feasible that every minor difference that might arise should be submitted to an independent Arbitrator.

SIR LYNDEN MACASSEY:

Sir Alexander Gibb, then President of the Institution of Civil Engineers, when he wrote signifying that Institution's support of
the Bill, said there were certain matters in respect of which the Engineer or the Architect should have the final word, it being
agreed that such matters should not be the subject of arbitration.

PRESIDENT:

In other words, a dispute must have arisen?

SIR LYNDEN MACASSEY:

Oh, yes, certainly.

MR. TAIT:

I have been thirty years in my profession. Under the law as it is at present there is the peculiar position that the Architect or
Engineer, having given a decision, has then to decide, as arbitrator, if his decision was right or wrong.

SIR LYNDEN MACASSEY:

One of the greatest and most eminent Civil Engineers (for whom I personally have often appeared) once said to Counsel
representing the parties: "Gentlemen, I have got to decide as Arbitrator that what I decided when I was the agent of the employer
was wrong. Well, it will take a lot to convince me!" (Laughter.)

MR. MORGAN:

If the parties to a contract are free agents, what right have we to prevent them from providing that the servant of one of them
shall be the Arbitrator?

SIR LYNDEN MACASSEY:

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Luncheon Meeting Address, Arbitration 1953, 19(4), 101-112

Under modern conditions of society, many fools require to be restrained.

MR. JENKINS:

We have heard an excellent and lucid exposition of the need for certain amendment of the law of arbitration. Besides being a
senior Bencher of the Middle Temple, Sir Lynden has the advantage of having been trained as an engineer. These together give
him many advantages, which were much in evidence in his practice at the Parliamentary Bar. The young man of to-day wishing
to become an Arbitrator needs to have technical or other training in addition to being versed in the law

*Arbitration 112 I ask you to show Sir Lynden in the usual way how much we have appreciated his talk here to-day. (Applause.)

SIR LYNDEN MACASSEY:

I will not strain your indulgence any further. Thank you very much indeed for your patience in listening to me.

MR. DALY:

Before you go, I would like to propose a hearty vote of thanks to our President for presiding here to-day. If you are in accord
with me, perhaps you would signify your approval in the customary manner. (Applause.)

PRESIDENT:

Thank you, ladies and gentlemen. Before we disperse may I emphasise one matter raised in the course of the questions? However
free, in fact, a Local Authority, for example, may be; however free, in theory, a Building Contractor may be--the person who
isnot free is the Authority's Engineer or Architect, who is compelled to act as Arbitrator in a dispute in which he may have been
involved. He has to assume judicial functions which he cannot properly and fairly discharge. It is wholly bad, from the point
of view of the professions, that this should be permitted. (Applause.)

Footnotes

1 This address was given to

the Institute of Arbitrators in
London on 26th November,
1953.

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