Valid appointment of third arbitrator where prior umpire nomination never crystallised and could be replaced under section 11(4).

An arbitral umpire's nomination remained ineffective where there was no material that he had been informed of, accepted, or acted upon the appointment. On that factual basis, the earlier reference had not crystallised into a valid appointment capable of being terminated or replaced, so the question of substituting or ending his mandate did not arise. The court distinguished authority on unconditional umpire appointments as turning on different facts, and held that the designated authority could proceed to appoint a third arbitrator under section 11(4) of the new arbitration law. The challenge to the third arbitrator's appointment therefore failed.

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Issues: Whether the appointment of the third arbitrator could be sustained when the earlier nomination of the umpire had not been communicated to or acted upon by him and whether the designated authority was precluded from appointing a third arbitrator under section 11(4) of the new arbitration law.

Analysis: The appointment of the umpire was held to have remained only on paper because there was no material to show that he had ever been informed of, accepted, or acted upon the nomination. In that situation, the earlier reference had not matured into an effective appointment capable of being terminated or replaced. The court distinguished the reliance on the rule that an unconditional appointment of an umpire may be valid without consent, holding that the factual setting here was different. Since the prior appointment had not crystallised, the question of terminating his mandate or replacing him did not arise, and the designated authority was competent to proceed under section 11(4).

Conclusion: The appointment of the third arbitrator was valid and the challenge to it failed.

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