concluded by the decision of the arbitrator. But a mere agreement between two persons to be concluded by the decision of a third would not in itself constitute that third person an arbitrator. To give him that character there must be a "difference" between the parties, or his duties must involve the performance of judicial functions.

CHAP. I.

and valuation

Thus, where it is left to a person to whom the matter Arbitration is referred to put a value upon something which the parties have already agreed shall be paid for, this is not an arbitration in the proper sense of the term, but an appraisement, which in reality prevents differences, and does not settle any which have arisen. (Collins v. Collins, 28 L. J., Ch. 184; 26 Beav. 306; Bos v. Helsham, L. R., 2 Ex. 72; 36 L. J., Ex. 20; Turner v. Goulden, 43 L. J., C. P. 60; L. R., 9 C. P. 57.) “If a man is, on account of his skill in such matters, appointed to make a valuation in such a manner that in making it he may, in accordance with the appointment, decide solely by the use of his eyes, his knowledge, and his skill, he is not acting judicially; he is using the skill of a valuer, not of a judge. In the same way, if two persons are appointed for a similar purpose they are not arbitrators, but only valuers." (Re Dawdy, 15 Q. B. D. 426; 54 L. J., Q. B. 574, per Esher, M.R.) "If it appears from the terms of the agreement by which the matter is submitted to a person's decision that the intention of the parties was that he should hold an inquiry in the nature of a judicial inquiry, and hear the respective cases of the parties, and decide upon evidence laid before him, then the case is one of an arbitration. The intention in such cases is that there shall be a judicial inquiry worked out in a judicial manner. On the other hand, there are cases in which a person is appointed to ascertain some matter for the purpose of preventing differences from arising-not of settling them when they

СНАР. І.

Examples of valuations.

Incidents of a valuation.

Reference to value when an arbitration.

have arisen-and where the case is not one of arbitration, but of a mere valuation." (Re Carus-Wilson and Greene, 18 Q. B. D. 7, per Esher, M.R.; Re Hammond and Waterton, 62 L. T. 808.)

Accordingly it has been held that a person valuing between a landlord or an incoming tenant and an outgoing tenant (Leeds v. Burrows, 12 East, 1; Re Dawdy, supra ; Re Hammond and Waterton, supra), or between an incoming and outgoing incumbent (Jenkins v. Betham, 24 L. J., C. P. 94; 15 C. B. 168), or between a vendor and a purchaser (Lee v. Hemingway, 3 L. J., K. B. 124 ; Turner v. Goulden, supra; Collins v. Collins, supra; Re Carus-Wilson and Greene, supra), even under the ordinary condition of sale providing for compensation for errors in the particulars (Bos v. Helsham, supra), is not an arbitrator.

The distinction between a mere valuation and an arbitration is important to be borne in mind. In the case of a valuation the courts have no jurisdiction to interfere between the parties, or enforce their agreement under the Arbitration Act, 1889. (Re Hammond and Waterton, 62 L. T. 808; Lee v. Hemingway, 3 L. J., K. B. 124; Collins v. Collins, 28 L. J., Ch. 184; Bos v. Helsham, L. R., 2 Ex. 72; 36 L. J., Ex. 20.) Moreover,

an action for negligence would lie against a valuer, but not against an arbitrator. (Turner v. Goulden, L. R., 9 C. P. 57.) A valuation would only require to be stamped as an appraisement, not as an award (Leeds v. Burrows, 12 East, 1), even though in the form of an award. (Perkins v. Potts, 2 Chitt. 399.)

But even a reference to determine the amount of compensation or value to be received by one of the parties, where it involves a judicial inquiry, and the parties are entitled to bring evidence before the arbitrators or umpire, has been held to be an arbitration properly so called. (Re Hopper, 36 L. J., Q. B. 97 ; L. R., 2 Q. B.

367; Re Evans, 18 W. R. 723; 22 L. T. 501; and see Vickers v. Vickers, L. R., 4 Eq. 536.) Where, however, the matter is one simply of valuation, and two valuers are appointed, the mere fact that an umpire has to be had recourse to, does not necessarily constitute the umpire an arbitrator in the proper legal sense of the word. (Re Carus-Wilson and Greene, 18 Q. B. D. 7; 56 L. J., Q. B. 530; Re Hammond and Waterton, 62 L. T. 808; Re Casterton Estate, 3 Times L. R. 22-the dicta to the contrary in Turner v. Goulden, L. R., 9 C. P. 57, are overruled.) If the third person is also an expert, to decide by the exercise of his skill and knowledge, he is but a valuer; if, however, a barrister is chosen, and he has to arrive at his decision by a judicial inquiry, he would probably be held to be in the position of an arbitrator. (Re Hammond and Waterton, supra, per Williams, J.)

CHAP. I.

accounts..

It was held, in a case decided in 1829, where a person Person was named to ascertain and decide, by inspection of settling accounts, a dispute as to whether anything was due from one person to another, that he was an arbitrator (Jebb v. McKiernan, M. & M. 340); but a person is not an arbitrator if he is merely to prepare a statement of accounts. (Goodyear v. Simpson, 15 M. & W. 16.)

engineer

The authorities upon the question of whether or not Architect or an engineer or architect who is to give certificates for giving payment of the price of work done under a building con- certificate. tract, is in the position of an arbitrator, are not uniform. The modern authorities treat him as a quasi-arbitrator, and as such, not liable in an action for negligence. (Chambers v. Goldthorpe [1901] 1 K. B. 624.) The older authorities are to the effect that he is not an arbitrator, to settle differences, but a person whose uncontrolled decision is to prevent differences arising. (Ib., per Romer, L.J.; Wadsworth v. Smith, 40 L. J., Q. B. 118; L. R., 6 Q. B. 332; Scott v. Corporation of Liverpool, 28 L. J.,

CHAP. I.

Stewards of races.

Local
Government
Board.

Parties may attach

incidents of

Ch. 230; 3 De G. & J. 334.) Often under a contract he fills the dual capacity of engineer to certify, and arbitrator to determine disputes; and where a contract for the sale of locomotives provided for payment upon the certificate of the purchaser's engineer that they were in perfect order, and contained another clause that "all disputes are to be settled by arbitration," and the engineer having refused his certificate the vendors proceeded under the arbitration clause, it was held that "a dispute" had arisen within the clause, and that the award was enforceable as such. (Re Hohenzollern Actien, &c., 54 L. T. 596.)

The stewards of a horse race are not in the position of arbitrators between the persons who have horses in the race, and the rules of law applicable to arbitrators do not apply to them. (Parr v. Winteringham, 28 L. J., Q. B. 123.) But a referee appointed by the parties in a boat race would seem to be in the position of an arbitrator. (Sadler v. Smith, 39 L. J., Q. B. 17; L. R., 5 Q. B. 40.)

Where, under the Local Government Act, 1888 (51 & 52 Vict. c. 41, s. 63), differences between local authorities are to be decided by the Local Government Board, the Board are in the position of an arbitrator. (Re Kent County Council and Sandgate Local Board [1895] 2 Q. B. 43; 64 L. J., Q. B. 502; but see 59 & 60 Vict. c. 9, passed in consequence; and see Bexley Local Board v. West Kent Sewerage Board, 9 Q. B. D. 518; 51 L. J., Q. B. 456.)

In any case the parties to an agreement of whatever description may attach to it all the incidents of an arbi

arbitration by tration properly so called by a stipulation that "these

agreement.

presents shall be deemed to be a submission within the meaning of the Arbitration Act, 1889, and shall have all the incidents of such a submission." (Malvern Urban Council v. Malvern Link Gas Co., 83 L. T. 326.)

If a contract is entered into between parties residing in different countries, where different systems of law prevail, the question as to which law is to govern the contract so as to determine its validity is to be decided by the intention of the parties as gathered from the contract. (Spurrier v. La Cloche [1902] A. C. 446.) Where, therefore, two contracting parties resided the one in Scotland the other in England, and the contract contained an arbitration clause good according to English law, but bad according to Scotch law, as a reference to unnamed arbitrators, it was held that, the intention of the parties to refer being clear, the clause was governed by English law. (Hamlyn v. Talisker Distillery [1894], A. C. 202; 71 L. T. 1.) The law of the two countries upon the particular point has since been assimilated (57 & 58 Vict. c. 13); though not identical in other respects. (M'Millan v. Rowan, 5 Ct. Sess. Cas. (5th series) 317.)

CHAP. I.

Contract for reference, by

what law

governed.

Matters to be

observed in framing the

In modern practice submissions in writing are the rule; verbal submissions the exception. In framing a submission great care and precision should be observed, submission. since an unskilful or loosely drawn instrument is often ineffectual to accomplish the purposes for which it was intended, and is seldom unattended with expense or disappointment to some of the parties. The submission should be by an instrument of sufficiently high a nature to enable the arbitrator by his award to accomplish the objects of the reference. Where the reference is under the provisions of a statute, all the requirements of the statute should be strictly complied with.

The submission should be a clear and specific guide to the arbitrator as to the duties he has to perform and the powers with which he is invested. As to the parties, it should embrace all the persons whose concurrence is necessary to make the award a complete determination of the matters in dispute. As to the matters referred, it should, where possible, clearly define the subject