ARBITRATIONS AND AWARDS 221 



(4) Where the arbitrator examines witnesses in the absence 

 of both parties. 



In any of the above cases the award runs grave risk of 

 being set aside, notwithstanding the arbitrator may swear 

 that the evidence thus received had no effect upon his award. 



The engineer acting as arbitrator will have little difficulty 

 in carrying these rules in his mind if he examines them from 

 the standpoint of fair play. The arbitrator, in his capacity 

 as judge, is bound to hear and determine, and must not 

 determine until he has given a fair and patient hearing to both 

 sides. The necessity for exact compliance with these rules 

 will appear to everyone who takes the trouble to spend a day 

 in a court of justice. 



To the rule that the arbitrator must not hear one party in 

 the absence of the other there is one obvious exception, namely, 

 that if one of the parties is deliberately keeping out of the 

 way, or keeping back his evidence to delay the reference, the 

 arbitrator may proceed ex parte. 



The arbitrator should endeavour to suit the convenience of 

 the parties in arranging the time for the hearing. It often 

 happens that counsel will be employed on either side in 

 arbitration. If so, their convenience is usually consulted in 

 fixing the time and place of the hearing, which may, of course, 

 last for several days. It will often be desirable, with a view 

 to accommodating the legal gentleman employed, to fix the 

 hearing at four o'clock, and to sit on Saturday afternoon, or at 

 other times when the Courts are not in session. 



25. Conduct of the arbitrator. An arbitrator should 

 refrain from accepting the hospitality of one party lest the 

 invitation may be given with the intent, or have the effect, of 

 inducing him to act unfairly. It has, however, been decided 

 that for an arbitrator to lunch or dine with one party in the 

 absence of the other is not of itself sufficient to invalidate an 

 award. The practice, however, is undesirable, and should be 

 avoided (see Moseley v. Simpson, L. R. 16 Eq. 226). 



26. Evidence in an arbitration. The evidence which may 

 be adduced before an arbitrator is to all intents and purposes 

 the same as the evidence which will be received in a court of 

 justice. The arbitrator is the judge of the admissibility of 

 evidence so far as the competency of the witnesses is concerned, 



