Du Parcq L.J, J.

1. The appellants naturally do not question the correctness of so much of the decision of the High Court as declared that the proceedings before the Board of Directors were a nullity, and since there was no cross-appeal, their Lordships are not called upon to express any opinion on that part of the decision, and must not be understood to express either approval or disapproval of it. Should the same question arise for decision hereafter it will be necessary to consider whether the well-established principle that, in the case of a reference to two or more named arbitrators, all the arbitrators must act together, can properly be applied when the reference is not to individuals but to a body, such as a committee or a board, whose corporate powers are regulated by its constitution. It is, perhaps, desirable to add that their Lordships must not be taken to assent to the opinion expressed obiter by Chagla J. that an award made by the Board ought to be signed by all the members of the Board who have adjudicated. Their Lordships do not desire to express any opinion on that point.

2. For the purposes of this appeal their Lordships must assume, without deciding, that the proceedings before the Board of Directors were a nullity. On that view there can be no doubt, and it was not disputed, that the declaration to that effect was properly made. The objection taken by the appellants to the order of the High Court was two-fold. In the first place, it was said that the power of the court to remit an award depended on statute, and that Section 16 of the Arbitration Act, 1940, under which the court purported to act, gave no power to remit the award, or the notice of appeal, in the circumstances of this case. Secondly, the appellants submitted that the original award of the arbitrators and the decision of the Board on appeal must be regarded as together constituting one indivisible award, and that it was impossible to set aside a part of that indivisible entity without setting aside the whole. It is convenient to deal first with the second of these submissions. No authority could be cited to support it, and in their Lordships view it is not sound in principle. When the rules governing an arbitration provide for an appeal from the first award, the result of declaring the proceedings by way of an appeal to be a nullity must be to leave the parties in the position which they occupied immediately before those abortive proceedings were begun. The notice of appeal is still effective, and the original award stands until such time as it may be replaced by an effective decision of the appellate body. It was suggested on behalf of the appellants that the original award was "merged" in the decision of the Board on appeal. This figure of speech may be justified when the Board has come to a valid and effective decision. Such a decision is substituted for the original award. The original award then ceases to have any further force or effect, and maybe said without impropriety to be "merged" in the final decision. But when once it is established that the proceedings before the Board are to be regarded as a nullity, there can be no question of any such merger. Their Lordships are, therefore, clearly of opinion that the appellants were at no time entitled to have the original award set aside.

3. With regard to the appellants first submission, their Lordships are of opinion that, although the order under appeal was in substance correct, it could not properly be founded on Section 16 of the Arbitration Act, 1940. It appears to their Lordships, with great respect to the learned Chief Justice, that this section has no relevance to the peculiar circumstances of the present case. The section specifies three sorts of defect which may necessitate reconsideration of an award, and empowers the court to remit the defective award in the cases specified (and in no others) to the arbitrator or umpire, and to fix the time within which the arbitrator or umpire is to submit his decision to the court. When what purports to be the decision of arbitrators is a nullity, there is no power to remit it. Nor is there need for any such power, since there is nothing to remit, and since it necessarily follows from the fact that the decision is annulled that the parties are entitled to a new and effective hearing and determination.

4. It is apparent, therefore, that no injustice has been done to the appellants, and that the order appealed from is in substance perfectly correct. The order which was drawn up made no express reference to Section 16 of the Arbitration Act, and can hardly be said to be erroneous even in form. It speaks of "remitting back" the notice of appeal to the Board of Directors "to be dealt with according to law." This amounts to no more than a direction to the Board that the parties are entitled to have the appeal heard. It was suggested by counsel for the appellants that the order was mandatory in form, and might be read as compelling the parties to proceed with the appeal even though neither of them were willing to do so. In their Lordships opinion the inclusion in the order of the words "to be dealt with in accordance with law" precludes such a construction of the order. The law gives the parties a right to an adjudication by the Board of Directors. If neither of them wishes to exercise the right the law will not compel them to exercise it. It follows that no complaint of substance can be made against the order appealed from. Their Lordships will humbly advise His Majesty that the appeal should be dismissed, and that the appellants should be ordered to pay to the respondents their costs of the appeal.