International Construction Law Review
CORRESPONDENTS’ REPORTS: AUSTRALIA
R H B PRINGLE, QC
ENFORCEABILITY OF PROVISIONS AS TO DETERMINATIONS BY EXPERTS
Among the topics covered by Donald L Marston’s valuable article headed “Final and Binding Expert Determination as an ADR Technique” at [2001] ICLR 213, is enforceability: see page 216. Mr Marston’s recommendation that provisions in a contract for determination of disputes by an expert should be backed up by an arbitration clause should be followed.
Revocation of authority of an expert to decide a dispute was touched on in [1999] ICLR at 626. The reason why the authority is revocable will be identified below.
In Dobbs
v. National Bank of Australasia Ltd
,1
Rich, Dixon, Evatt and McTiernan JJ said2
with reference to the authority of an arbitrator to make an award:
“It is true that, apart from statute, such an authority is revocable. It must subsist up to the making of the award. The authority was by its nature countermandable and no act or contract of the party could make it otherwise (Vynior’s Case
). He might be bound by his own deed or agreement, or by a rule of Court, or a Judge’s order, not to revoke the submission, but the result was no more than to make it a breach of duty to countermand the authority of the arbitrator. None the less the arbitrator’s authority was revoked.
But, when an arbitrator, exercising an existing authority, delivered his award the law gave full effect to it. A valid award was recognised by the Courts as precluding recourse to the original rights the determination of which had been referred to arbitration.”
Reference was made to Cleworth
v. Pickford
,3
as well as to Vynior’s Case
.4
The ruling that (apart from statute) a submission to arbitration is revocable up to delivery of the award was followed in Marsh
v. Bulteel
,5
Re Rouse and Meier
6
and Randell Saunders & Co Ltd
v. Thompson
.7
1 (1935) 53 CLR 643.
2 Ibid
. at pp. 653–654.
3 (1840) 7 M&W 314, 321; 151 ER 786, 789.
4 (1609) 8 Co Rep 80a, 77 ER 595. The reasons in Vynior’s Case
are in fact to be found in 8 Co Rep 80b (in 77 ER 597, 600–601).
5 (1822) 106 ER 1276.
6 (1871) LR 6 CP 212.
7 (1876) 1 QBD 748.
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