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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Stewart v Williamson (Appointment of Arbitrator)  UKHL 2 (29 April 1910)
Cite as: 1910 1 SLT 326,  UKHL 2, 1910 SC (HL) 47,  AC 455
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29 April 1910
Is this superseded by the words of section 11? (His Lordship read the material part of the section.) If this were an English case the authorities decided on the Common Law Procedure Act, 1854, draw a marked distinction between arbitration and valuation. It is one thing to refer a dispute to the decision of an arbitrator who has to hear parties and witnesses as in a Court of law. It is another thing to say that a third person shall value the subject of sale, as when an incoming tenant agrees to buy fixtures at a valuation. But we are not concerned with English law or English usages.
What we really have to decide is whether the word “arbitration” in section 11 of the Act covers such a reference as that in the present lease according to the Scottish legal terminology. In a point of this kind your Lordships will be disposed to pay a very especial attention to the opinion of the learned Judges in Scotland, whose experience has brought them into-such close familiarity with such questions. I own that to my mind, unconsciously influenced it may be by the English authorities, the clause does not look like arbitration. But I deliberately defer to the opinion of the First Division unless clear authority can be cited to shew that it is erroneous.
I do not find such clear authorities. There are cases in which the difference is pointed out between appraisement and a strictly arbitral proceeding. But in many passages the word “arbitration”is used to cover all kinds of reference. And when every allowance is made for the inevitable laxity with which convenient general words are applied without prejudice to closer distinctions which do not need to be regarded in the particular case, I am unable to say that upon the authorities the word “arbitration” is inapplicable to a clause of this kind.
Accordingly I move your Lordships to dismiss this appeal.
Looking at the language of these leases generally, it is agreed that there are to be persons mutually chosen. I notice that the word “skilled” is introduced more than once in some of the judgments. I think that is a little inaccurate. There is no such word in this lease, nor is there any such word in the statute. The question here is simply whether or not the clause in this lease comes within the words of the statute. Now, whatever may be said about the policy of it, or whether or not it Would have been better to allow that which people in Scotland have found to be convenient, namely, that two neighbours or friends should adjudicate upon the matter, we have nothing to do with that. Our duty is to construe the language in its ordinary and natural meaning, to give effect to what the Legislature intended. We have nothing to do with the question whether or not it was a desirable Act to pass. The question here is, what is the meaning of it? To my mind it is beyond all doubt that what the Legislature intended was to sweep away all these private arbitraments which the parties have themselves agreed upon, and to determine that there should be one uniform form of procedure. Once we have arrived at that, as being the intention of the Legislature, we have nothing more to do than to give effect to it. I am therefore entirely of the same opinion as the Lord Chancellor has expressed, and I agree in the motion which he has made.
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