PUBLIC RECORD OFFICE
Reference :-
TITLC.O. 882
8
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
Inspection of Com-
pany's under-
taking by
officers of Govern-
ment.
Pending proceed- ings and
executing contracts.
Payment
of com- pensation
Arbitra- tion.
Appoint-
ment of
arbitrator
or
arbitrators.
Death or
incapacity
of
arbitrator.
Nomina-
tion of umpire by arbitrators.
174
2. Any person authorized in that behalf by the Government shall have free access to all the lands works stores and premises of the Company for the purpose of inspecting the same and to all books accounts and documents in the possession of the Company (other than the documents prepared for the purpose of an agree- ment or arbitration under this Ordinance) for the purpose of inspecting copying and making extracts from the same and shall have all proper facilities for the purposes aforesaid.
9. Subject to the provisions of this Ordinance and without prejudice to any remedy over by the Board to be appointed under Section 23 below against the Company-
(a). If on the appointed date any proceeding or any cause of action is pend- ing or existing by or against the Company the same shall not abate be discontinued or be in any way prejudicially affected by reason of the transfer to the Government of the undertaking of the Company or of anything in this Ordinance; but the proceeding or cause of action may be continued prosecuted and enforced by or against the Board as it might have been by or against the Company if this Ordinance had not been passed but not further or otherwise; (b.) All contracts deeds bonds agreements and other instruments subsisting immediately before the appointed date affecting the Company shall be of as full force and effect against or in favour of the Board and may be enforced as fully and effectually as if instead of the Company the Board had been a party thereto.
10. There shall be paid out from the funds of the Colony to the Company compensation for the taking over of the undertaking of the Company and it shall be lawful for the Directors of the Company to agree with the Government as to the sum to be paid as compensation for the taking over of the undertaking of the Com- pany. If the Directors of the Company fail to agree with the Government as to the sum to be paid as compensation for the taking over of the undertaking of the Company the sum to be so paid shall be determined by arbitration. If the Directors of the Company shall notify to the Government in writing within three months after the sum to be paid as compensation for the taking over of the undertaking of the Company has been ascertained in manner provided by this Ordinance that they are willing to take the whole or any part of the sum payable in inscribed stock of the Colony such sum may be discharged in inscribed stock of the Colony.
11. For the purpose of the arbitration mentioned in the last preceding section a Court shall be constituted in the manner following that is to say:—
(a). Unless the Government and the Company shall concur in the appoint- ment of a single arbitrator they shall each of them nominate and appoint an arbitrator and after such appointment shall have been made neither party shall have power to revoke the same without the consent of the other party;
If either party fails to appoint an arbitrator for twelve months after the appointed date the arbitrator appointed by the other party shall act as sole arbitrator.
(b.) If before the matters referred to arbitration shall be determined the arbitrator appointed by either party die or become incapable the party by whom such arbitrator was appointed may nominate and appoint some other person to act in his place and if for the space of forty-two days after notice in writing from the other party for that purpose the said party fail to do so the remaining or other arbitrator may proceed ex parte and every arbitrator to be substituted as aforesaid shall have the same powers and authorities as were vested in the former arbitrator at the time of such his death or disability as aforesaid.
(c.) If more than one arbitrator shall have been appointed such arbitrators shall before they enter upon the matters referred to them nominate and appoint by writing under their hands an umpire to decide on any such matters on which they shall differ and if such umpire shall die or become incapable to act they shall forthwith after such death
175
or incapacity appoint another umpire in his place and the umpire so appointed shall have the same powers and authorities as were vested in the umpire last appointed at the time of his death or incapacity to act.
(d). If the arbitrators shall refuse or shall for forty-two days after the Appoint-
request of either party neglect to appoint any such umpire the Lord ment of Chief Justice of England may on the application of either party Lord Chief
umpire by appoint an umpire.
Justice of
fail.
(e.) Any arbitrator or umpire appointed under the provisions of this Ordin- England if ance in substitution for an arbitrator or umpire dying or becoming arbitrators incapable to act shall be at liberty to act upon all or any part of the evidence taken before the arbitrators and umpire prior to his appoint- ment as reported to him by the continuing arbitrators or the continu- ing arbitrator and umpire and to make this award thereon.
(f). If the umpire is unable to attend any sitting of the Court he shall be at berty to act upon all or any part of the evidence taken before the arbiators at such sitting as reported to him by the arbitrators and to make his award thereon.
(g). The decision of the umpire on the matter on which the arbitrators shall
differ shall be final.
Decision of
umpire final
12. In the event of no agreement being arrived at by mutual consent as Sittinge provided for in Section 10 within three months from the appointed date the Court and pro- shall be constituted as soon thereafter as conveniently may be.
It shall hold all ceedings of Arbitration sittings necessary for hearing evidence and the arguments of counsel on behalf of
Court. the Government and the Company in the Colony and may hold other sittings in such other places as the Court shall think convenient and it shall not be obligatory on the Court to make or publish its award while sitting in the Colony and the provi- sions of "The Arbitration Ordinance 1890" relating to (a) the administration of Ord. xiii. of oaths and the taking of affirmations and (b) the correction in an award of mistakes 1890. and errors; and (c) the summoning attendance and examination of witnesses and the production of documents shall apply to its proceedings but save as aforesaid "The Arbitration Ordinance 1890" shall not be applicable to the proceedings under Ord. xil. of this Ordinance nor shall Sections 98 to 125 of "The Companies' Ordinance 1889 " 1890. be applicable thereto.
Ord. v. of 1889. Barrister-at-
13. It shall be lawful for any barrister-at-law of England to appear as law of Eng- counsel on behalf of the Government or the Company before the Court notwith- land may standing anything in "The Courts Ordinance 1878 and "The Civil Procedure appear before Ordinance 1878" and that he shall not have been admitted as an Advocate and Ord. ii. of Solicitor of the Supreme Court of the Straits Settlements.
the Court.
1878.
Urd. v. of
1878.
Fixing
14. In fixing the sum to be awarded as compensation the Court shall determine the value of the undertaking as if with the necessary modifications the law of com- amount of pensation for the purposes of the Lands Clauses Acts of the Imperial Parliament compensa- were applicable to the case. Provided that the Court shall not make any allowance tion. for compulsory sale and shall not take into account any enhancement or deprecia- tion of the market value of any stock or shares of the Company which in the opinion of the Court was caused by or resulted from the passing or the anticipation of the passing of this Ordinance; but the Court may make such allowance as it thinks just for the recoupment of any loss of interest pending re-investment as well as for the cost of re-investment. The Court in awarding the compensation under this Ordinance shall consider whether any liabilities incurred by the Company after the 10th of December 1904 were necessarily and properly incurred for the purpose of carrying on the ordinary business of the Company since that date.
15. As soon as the compensation due to the Company shall have been duly Liquida- paid or satisfied to the Company in accordance with this Ordinance the Company tion of shall enter upon a liquidation of its affairs. The Court in its award shall allow
Company. such sum as may appear reasonable to cover the costs charges and expenses of liquidation.
16. If any part of the compensation is to be discharged to the Company in Payment inscribed stock of the Colony if so required by the Company before the stock is of compeu- issued to the Company instead of issuing to the Company the whole of the stock so colonial
sation in
stock.