216 THE LAW AFFECTING ENGINEERS 



for one party to call upon the other to appoint a new arbi- 

 trator. If he refuse to do this, the Court may then make the 

 appointment. 



V. THE FEES OF AN ARBITRATOR. 



18. Preliminary observations as to fees. An arbitrator is 

 at liberty to fix his own fees if nothing is said about them at 

 the time of his appointment. But it is much better for all 

 parties to have the amount of the fees clearly settled before- 

 hand, either in a lump sum or, as is more usual, at so much 

 a day for each day during which the arbitrator has to sit. 



In selecting an arbitrator who is to adjudicate in a technical 

 case, the parties naturally seek to employ one whose pro- 

 fessional eminence and familiarity with the subject-matter of 

 the dispute will tend to render his decision satisfactory to both 

 parties ; but they forget that for an engineer to undertake the 

 burden of a reference involves a very considerable demand 

 upon his time. Not only does the actual hearing involve his 

 attention during business hours for many days, but his duties 

 often involve a visit to the locus in quo, which may be in a 

 remote country district. These facts do not seem to be con- 

 sidered when those who employ an arbitrator complain that 

 his charges are excessive. 



19. How an arbitrator can enforce his claim for fees. In 

 the absence of an express promise by the parties to the 

 reference to pay, a legal arbitrator cannot recover his charges 

 by action. It was held, however, in the reference of a 

 mercantile dispute to lay arbitrators and their umpire that 

 there is an implied contract, upon which an action will lie, to 

 pay reasonable remuneration. But in addition to the right to 

 sue, an engineer arbitrator has another effective way of 

 enforcing his just claim for fees. He may exercise a lien 

 upon the award and submission, and may retain them until 

 his charges have been paid (see Ponsford v. Swain, J. & H. 433). 

 The usual practice, therefore, is for the arbitrator to notify to 

 the parties the amount of his charges, and to refuse to deliver 

 the award or communicate its contents until they are paid. 

 This obviates all disputes, and the practice has received 

 repeated judicial sanction. 



