Background of the case
In 2015, Cox and Kings Limited (referred to as the "Petitioner") entered into three agreements with SAP India Private Limited (referred to as "Respondent No. 1") for specific software services. Among these agreements, the General Terms and Conditions (referred to as "GTC") contained an arbitration clause. Disputes emerged in the following years, leading the Petitioner to initiate arbitration proceedings against both Respondent No. 1 and its parent company (referred to as "Respondent No. 2") in 2019. Notably, Respondent No. 2 was not a party to the GTC.
As neither of the Respondents responded, the Petitioner filed an application under Section 11(6) of the Arbitration and Conciliation Act, 1996, before the Supreme Court of India. A three-judge bench of the Supreme Court, while considering this application, decided to re-evaluate the validity of the 'group of companies' doctrine under Indian arbitration law. The key concerns were whether the doctrine existed in Indian jurisprudence, whether it could be aligned with Section 8 of the Arbitration Act, and whether it could be applied to interpret implied consent for arbitration by non-signatory parties.
Observations in the Cox and Kings Judgment
The international context and domestic legal backdrop revealed a historical debate on binding non-signatories to arbitration agreements. Traditionally, the principle of party autonomy and privity of contract dictated that only expressly consenting parties could be bound by arbitration agreements. However, various jurisdictions, including India, witnessed a shift towards a more liberal approach, especially after the enactment of the Arbitration and Conciliation Act, 1996. The Cox and Kings case emerged as an opportunity for the Supreme Court to provide a definitive ruling on the application of the 'group of companies' doctrine in the Indian context.
In the Cox and Kings judgment, the Supreme Court emphasized the importance of party autonomy and the contractual basis of arbitration agreements. While acknowledging that a written arbitration agreement is typically signed, the Court clarified that this requirement does not exclude the possibility of binding non-signatory parties if a defined legal relationship exists between signatory and non-signatory parties. The Court asserted that the crucial determination for courts is whether non-signatory parties intended to or consented to be bound by the arbitration agreement through their acts, rights, or conduct.
The Constitutional Bench confirmed the independent existence of the 'group of companies' doctrine as a legal principle derived from a harmonious reading of relevant sections of the Arbitration and Conciliation Act. It clarified that the doctrine does not undermine party consent; instead, it aligns with other consent-based doctrines like agency, assignment, assumption, and guarantee. The Court rejected the reasoning in Chloro Controls, stating that a non-signatory entity is not 'claiming through or under' a signatory party, and it clarified the distinct nature of the concepts of 'party' and 'persons claiming through or under a party' in the Arbitration Act.
In conclusion, the Cox and Kings judgment affirmed the enforceability of the 'group of companies' doctrine, emphasizing the importance of non-signatory parties' intention to be bound by an arbitration agreement. The decision provided clarity on various factors, including direct relationship, negotiation, performance, commonality of subject-matter, and the composite nature of transactions, in determining the implied consent of non-signatory parties to be bound by the agreement.
A balanced and nuanced approach is crucial for the courts, parties, and practitioners when grappling with these issues. Sustained dialogue and collaboration between the Indian and international arbitration communities are essential, along with ongoing research and critical evaluation of the matter. This proactive engagement will contribute to the ongoing development of a robust and internationally aligned arbitration framework in India.