206 



THE LAW AFFECTING ENGINEEKS 



31 . Time for making an 



award ...... 227 



31A. Costs of an arbitration 228 



VIII. THE EFFECT OF AN 

 AWARD. 



32. How far binding ... 

 33. Enf orcing an award ... 



229 

 230 



IX. SETTING ASIDE AN AWARD. 

 34. Grounds for setting 



award aside 



35. Corruption, misconduct, 



or bias... 

 36. Statement of special 



case 



37. Requisites of a special 



230 



231 



231 



232 



I. PRELIMINARY. 



1. The definition of an arbitration. By arbitration is 

 meant the submitting of disputes to some person or persons 

 other than the ordinary tribunals. The first element of a 

 submission to arbitration is that it should show an intention 

 of the parties to be bound 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 

 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. 



In Scott v. Liverpool Corporation, 1858, 28 L. J. Ch. 230, 

 the terms of a contract for erecting waterworks for the city of 

 Liverpool were under consideration. The document contained 

 a forfeiture for default clause which provided that, on the 

 termination of the contract by forfeiture or default, the 

 engineer " shall fix and determine what amount, if any, is 

 then reasonably earned by the contractor in respect of work 

 actually done, and in respect to the value of any materials, 

 implements or tools provided by the contractor and taken 

 by the corporation . . . and the said engineer shall be at 

 liberty to authorise by his certificate the said corporation to 

 deduct the damages, losses, costs, charges and expenses in his 

 opinion incurred by them in consequence of the premises, or 

 to which they may be put or liable, together with the for- 

 feiture, if any, incurred by the said contractor, from any sum 

 which would become due to the said contractor." It was held 

 that this was not an arbitration. Lord Chelmsford said: "No 

 dispute can arise in such a case, everything being dependent 

 on the decision of the individual named ; until he has spoken, 

 no right can arise which can be enforced either at law or in 

 equity. . . . Where the contract provides for the determina- 

 tion of the claim and liabilities of the contractors by the 



