Page:Halsbury Laws of England v1 1907.pdf/663

 — Part

I.

References by Consent out of Court.

441

an agreement for a valuation and a submission to arbitration, for in the case of a valuation there is not, as a rule, any difference or dispute between the parties, and they intend that the valuer shall, without taking evidence or hearing argument, make his valuation according to his own skill, knowledge, and experience. A submission to arbitration is not complete at common law unless and until an arbitrator is appointed. An agreement to refer a dispute to arbitration without naming the arbitrator is valid and to this extent enforceable, that an action for damages for breach of the agreement can be maintained (k), but it does not by itself constitute a submission at common law (J).

942. A written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not, constitutes a submission under the Arbitration Act, 1889 (v/i).

The agreement must, it seems, be signed by or on behalf of the parties thereto {n). In the case of a submission under the Arbitration Act, 1889, as in that of a submission at common law, it is essential that there should be some difference or dispute, either existing or prospective, between the parties, and that they should intend their difference to be decided in a quasi-judicial manner (o). Where no arbitrator is named in the submission, it usually contains some provision as to how he should be nominated, and in certain cases the Arbitration Act, 1889, provides for the nomination of an arbitrator or umpire {p) but even where the agreement for reference to arbitration is in such a form that in the event of either party refusing to nominate an arbitrator there is no means of

Turner v. Goulden (1873), L. 9 0. P. 57 (agreement for the valuation of the goodwill of a business) Bottomley v. Ambler (1877), 38 L. T. 545 (where the matter referred was the amount of rent due under a lease). The stewards of a horse-race are not in the position of arbitrators, though called upon to decide some dispute {Elh's v. Hopper (1858), 3 H. & N. 766 Farr v. Winterinyham (1859), 1 E. & E. 394 and see Brown v. Overhury (1856), 11 Exch. 715; and compare Sadler v. Smith (1869), L. E, 5 Q. B. 40, as to the decision of a referee in a professional sculling race). (k) Livingston v. Balli (1855), 5 El. & Bl. 132. (O 'See Ex parte Olaysher (1864), 3 H. & C. 442. (to) Arbitration Act, 1889 (52 & 53 Vict. c. 49), s. 27. "In this Act 'submission means a written agreement to submit present or future differences to The definition of arbitration whether an arbitrator is named therein or not." a submission contained in this section includes submissions made before the Act came into force see s. 25, and Re Williams and Stepney, [1891] 2 Q. B. 257 Re Wilson and Eastern Counties Navigation etc. Co., [1892] 1 Q. B. 81. {n) In Caerleon Tinplate Co. v.' Hughes (1891), 60 L. J. (q. b.) 640, the Court expressed the view that the signature of the parties is necessary in order to constitute a valid submission within the meaning of the Arbitration Act, 1889. This view, which was not necessary'- for the decision of that case, was repudiated in Baker v. Yorkshire Fire and Life Assurance etc. Co., [1892] 1 Q. B. 144 but in Forder v. Whittle (April 18th, 1907, unreported) BiiAY, J., decided that the signature of the parties or their agent is necessary. See also Aitken v. Batchelor (1893), 62 L. J. (q. b.) 193, where it was held that the indorsements on counsel's briefs constituted a submission within the meaning of the Act and Antram v. Chace (1812), 15 East, 209. For forms of submission of existing differences, see Encyclopsedia of Forms, Vol. II., pp. 106—132. (o) See cases cited note (?'), supra. Ip) Arbitration Act, 1889 (52 & 53 Vict. c. 49), ss. 5, 6, Schedule I. (a), (b).





'









Sect.

i.

The Submission,

Submission incomplete

faw°imtil^ arbitrator

appointed,

(2)

Under the

^^^^*j^ggy°^ ^ '

Writing essential.

Existing or prospective ^^"^^ ^'

Submission valid though ap°point^ of arbitrator,

JJ^^^

ment