# COX AND KINGS LTD v. SAP INDIA PVT. LTD. & ANR

- **Citation:** 2023 INSC 1051
- **Court:** Supreme Court of India
- **Decided:** 2023-12-06
- **Bench:** Dr Dhananjaya Y Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/cox-and-kings-ltd-v-sap-india-pvt-ltd-anr-37073
- **Pages:** 125

## Headnote

Issues for consideration:
The primary issue for consideration of the present Constitution
Bench of Five Judges was determination of the validity of the 'Group of
companies doctrine' in Indian arbitration jurisprudence and its applicability
to proceedings under the Arbitration and Conciliation Act, 1996. Earlier,
the Group of Companies doctrine had been adopted and applied in Indian
arbitration jurisprudence in Chloro Controls case, where a three Judge Bench
of the Supreme Court had read the said doctrine into the phrase "claiming
through or under" in Section 45 of the Arbitration and Conciliation Act, 1996.
The 'Group of companies doctrine' provides that an arbitration
agreement which is entered into by a company within a group of companies
may bind non-signatory affi liates, if the circumstances are such as to
demonstrate the mutual intention of the parties to bind both signatories and
non-signatories. This doctrine was called into question purportedly on the
ground that it interfered with the established legal principles such as party
autonomy, privity of contract, and separate legal personality.
Also, there were ancillary issues such as: (i) whether the Arbitration
and Conciliation Act, 1996 allows joinder of a non-signatory as a party
to an arbitration agreement; (ii) whether Section 7 of the Arbitration and
Conciliation Act, 1996 allows for determination of an intention to arbitrate
on the basis of the conduct of the parties; and (iii) interpretation of the phrase
"claiming through or under" appearing under Sections 8, 35 and 45 of the
Arbitration and Conciliation Act, 1996.
Ed. Note: Hon'ble Dr. Dhananjaya Y. Chandrachud, CJI pronounced judgment on behalf
of his Lordship, Hon'ble Mr. Justice Hrishikesh Roy, Hon'ble Mr. Justice J.B. Pardiwala
and Hon'ble Mr. Justice Manoj Misra. Hon'ble Mr. Justice Pamidighantam Sri Narasimha
pronounced a separate concurring judgment.
SUPREME COURT REPORTS
[2023] 15 S.C.R.
622
Arbitration - Arbitration agreement - Consent as the basis for
arbitration:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): Consensus ad idem
between the parties forms the essential basis to constitute a valid arbitration
agreement - Since consent forms the cornerstone of arbitration, a nonsignatory cannot be forcibly made a "party" to an arbitration agreement as
doing so would violate the sacrosanct principles of privity of contract and
party autonomy. [Paras 60, 63]
Arbitration and Conciliation Act, 1996 - s.2(1)(h) r/w s.7 -
Defi nition of "parties":
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): The defi nition of
"parties" under Section 2(1)(h) read with Section 7 of the Arbitration Act
includes both the signatory as well as non-signatory parties. [Para 165]
Arbitration - Parties to an arbitration Agreement - Method to
fi gure out:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): The signature of a
party on the agreement is the most profound expression of the consent of a
person or entity to submit to the jurisdiction of an arbitral tribunal - However,
the corollary that persons or entities who have not signed the agreement are
not bound by it may not always be correct - The issue of who is a "party"
to an arbitration agreement is primarily an issue of consent. [Para 66]
Words and Phrases - Arbitration agreement - Term "nonsignatories" - Meaning of:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): The term "nonsignatories", instead of the traditional "third parties", seems the most
suitable to describe situations where consent to arbitration is expressed
through means other than signature - A non-signatory is a person or entity
that is implicated in a dispute which is the subject matter of an arbitration,
although it has not formally entered into an arbitra

## Text

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[2023] 15 S.C.R. 621 : 2023 INSC 1051
621
COX AND KINGS LTD.
v.
SAP INDIA PVT. LTD. & ANR.
(Arbitration Petition (Civil) No. 38 of 2020)
DECEMBER 06, 2023
[DR DHANANJAYA Y CHANDRACHUD, CJI,
HRISHIKESH ROY, PAMIDIGHANTAM SRI NARASIMHA,
J B PARDIWALA AND MANOJ MISRA, JJ.]
HEADNOTES
Issues for consideration:
The primary issue for consideration of the present Constitution
Bench of Five Judges was determination of the validity of the 'Group of
companies doctrine' in Indian arbitration jurisprudence and its applicability
to proceedings under the Arbitration and Conciliation Act, 1996. Earlier,
the Group of Companies doctrine had been adopted and applied in Indian
arbitration jurisprudence in Chloro Controls case, where a three Judge Bench
of the Supreme Court had read the said doctrine into the phrase "claiming
through or under" in Section 45 of the Arbitration and Conciliation Act, 1996.
The 'Group of companies doctrine' provides that an arbitration
agreement which is entered into by a company within a group of companies
may bind non-signatory affi liates, if the circumstances are such as to
demonstrate the mutual intention of the parties to bind both signatories and
non-signatories. This doctrine was called into question purportedly on the
ground that it interfered with the established legal principles such as party
autonomy, privity of contract, and separate legal personality.
Also, there were ancillary issues such as: (i) whether the Arbitration
and Conciliation Act, 1996 allows joinder of a non-signatory as a party
to an arbitration agreement; (ii) whether Section 7 of the Arbitration and
Conciliation Act, 1996 allows for determination of an intention to arbitrate
on the basis of the conduct of the parties; and (iii) interpretation of the phrase
"claiming through or under" appearing under Sections 8, 35 and 45 of the
Arbitration and Conciliation Act, 1996.
Ed. Note: Hon'ble Dr. Dhananjaya Y. Chandrachud, CJI pronounced judgment on behalf
of his Lordship, Hon'ble Mr. Justice Hrishikesh Roy, Hon'ble Mr. Justice J.B. Pardiwala
and Hon'ble Mr. Justice Manoj Misra. Hon'ble Mr. Justice Pamidighantam Sri Narasimha
pronounced a separate concurring judgment.
SUPREME COURT REPORTS
[2023] 15 S.C.R.
622
Arbitration - Arbitration agreement - Consent as the basis for
arbitration:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): Consensus ad idem
between the parties forms the essential basis to constitute a valid arbitration
agreement - Since consent forms the cornerstone of arbitration, a nonsignatory cannot be forcibly made a "party" to an arbitration agreement as
doing so would violate the sacrosanct principles of privity of contract and
party autonomy. [Paras 60, 63]
Arbitration and Conciliation Act, 1996 - s.2(1)(h) r/w s.7 -
Defi nition of "parties":
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): The defi nition of
"parties" under Section 2(1)(h) read with Section 7 of the Arbitration Act
includes both the signatory as well as non-signatory parties. [Para 165]
Arbitration - Parties to an arbitration Agreement - Method to
fi gure out:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): The signature of a
party on the agreement is the most profound expression of the consent of a
person or entity to submit to the jurisdiction of an arbitral tribunal - However,
the corollary that persons or entities who have not signed the agreement are
not bound by it may not always be correct - The issue of who is a "party"
to an arbitration agreement is primarily an issue of consent. [Para 66]
Words and Phrases - Arbitration agreement - Term "nonsignatories" - Meaning of:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): The term "nonsignatories", instead of the traditional "third parties", seems the most
suitable to describe situations where consent to arbitration is expressed
through means other than signature - A non-signatory is a person or entity
that is implicated in a dispute which is the subject matter of an arbitration,
although it has not formally entered into an arbitration agreement - Non-
623
signatories, by virtue of their relationship with the signatory parties and
active involvement in the performance of commercial obligations which
are intricately linked to the subject matter, are not actually strangers to the
dispute between the signatory parties. [Paras 66, 127]
Arbitration - Group of companies doctrine in Indian arbitration
jurisprudence - Relevance -Doctrines / Principles:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): The group of
companies doctrine is a consent-based doctrine which has been applied,
for identifying the real intention of the parties to bind a non-signatory to an
arbitration agreement - The group of companies doctrine should be retained
in the Indian arbitration jurisprudence considering its utility in determining
the intention of the parties in the context of complex transactions involving
multiple parties and multiple agreements. [Paras 81, 165]
Corporate Law - Principle of corporate separateness - Separate
legal personality:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): The entities within
a corporate group have separate legal personality, which cannot be ignored
save in exceptional circumstances such as fraud - The distinction between
a parent company and its subsidiary is fundamental, and cannot be easily
abridged by taking recourse to economic convenience - Legally, the rights
and liabilities of a parent company cannot be transferred to the subsidiary
company, and vice versa, unless, there is a strong legal basis for doing so -
The underlying basis for the application of the group of companies doctrine
rests on maintaining the corporate separateness of the group companies while
determining the common intention of the parties to bind the non-signatory
party to the arbitration agreement. [Paras 89, 165]
Arbitration - Group of companies doctrine - Adopting a pragmatic
approach to consent:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): Corporate structures
may take the form of groups based on equity, joint ventures, and informal
alliances - In the context of arbitration law, the challenge arises when
COX AND KINGS LTD. v. SAP INDIA PVT. LTD. & ANR.
SUPREME COURT REPORTS
[2023] 15 S.C.R.
624
only one member of the group signs the arbitration agreement, to the
exclusion of other members - Should the non-signatories be excluded
from the arbitration proceedings, even though they were implicated in
the dispute which forms the subject matter of arbitration? - As a response
to this challenge, arbitration law has developed and adopted the group
of companies doctrine, to allow or compel a non-signatory party to be
bound by an arbitration agreement - The group of companies doctrine
is applied to ascertain the intentions of the parties by analysing the
factual circumstances surrounding the contractual arrangements. [Paras
96 and 97]
Arbitration - Group of companies doctrine - International
perspectives - Precedents on applicability of the doctrine in France,
England, Switzerland, Singapore and the USA - Discussed:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): The
international jurisdictions, in some form or the other, have moved
beyond the formalistic requirement of consent to bind a non-signatory
to an arbitration agreement - The issue of binding a non-signatory to an
arbitration agreement is more of a fact-specifi c aspect - In jurisdictions
such as France and Switzerland, there is a broad consensus that consent
or subjective intention of a non-signatory to arbitrate may be proved
by conduct - Such subjective intention could be derived from the
objective evidence in the form of participation of the nonsignatory in
the negotiation, performance, or termination of the underlying contract
containing the arbitration agreement - However, the group of companies
doctrine has not been universally accepted by all jurisdictions - In
jurisdictions such as France where the doctrine has gained acceptance,
group of companies is one of the several factors that a court or tribunal
considers to determine the mutual intention of all the parties to join the
nonsignatory to the arbitration agreement. [Para 58]
Arbitration - Group of companies doctrine, a fact based
doctrine:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): The existence
of a group of companies is a factual element that the court or tribunal has
625
to consider when analysing the consent of the parties - It inevitably adds
an extra layer of criteria to an exercise which at its core is preponderant
on determining the consent of the parties in case of complex transactions
involving multiple parties and agreements. [Para 102]
Arbitration - Group of companies doctrine - Mutual intention of
all the parties to bind the non-signatory to the arbitration agreement
- The determination of mutual intention:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): The primary test
to apply the group of companies doctrine is by determining the intention
of the parties on the basis of the underlying factual circumstances - The
application of the group of companies doctrine will serve to stymie satellite
litigation by non-signatory members of the corporate group, thereby
ensuring the effi cacy of the agreement between the parties - Avoiding
multiplicity of proceedings and fragmentation of disputes is certainly in
the interests of justice -However, it can never be the sole consideration
to invoke the group of companies doctrine. [Para 109]
Arbitration - Group of companies doctrine - Applicability -
Threshold standard of evidence:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): In Discovery
Enterprises case, the Supreme Court refi ned and clarifi ed the cumulative
factors that the courts and tribunals should consider in deciding whether
a company within a group of companies is bound by the arbitration
agreement - All the cumulative factors laid down in Discovery Enterprises
case must be considered while determining the applicability of the group
of companies doctrine - However, the application of the above factors has
to be fact-specifi c, and onecannot tie the hands of the courts or tribunals
by laying down how much weightage they ought to give to the above
factors - The principle of single economic unit cannot be the sole basis
for invoking the group of companies doctrine. [Paras 110, 128 and 165]
Arbitration and Conciliation Act, 1996 - ss.8 and 45 - Phrase
"claiming through or under" as appearing under ss.8 and 45 of
the Arbitration Act - Party to arbitration agreement and Persons
COX AND KINGS LTD. v. SAP INDIA PVT. LTD. & ANR.
SUPREME COURT REPORTS
[2023] 15 S.C.R.
626
"claiming through or under" a party to the arbitration agreement
are diff erent:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): A person "claiming
through or under" is asserting their legal demand or cause of action in an
intermediate or derivative capacity - A person "claiming through or under"
has inferior or subordinate rights in comparison to the party from which
it is deriving its claim or right - Therefore, a person "claiming through or
under" cannot be a "party" to an arbitration agreement on its own terms
because it only stands in the shoes of the original signatory party - Under
the Arbitration Act, the concept of a "party" is distinct and diff erent from
the concept of "persons claiming through or under" a party to the arbitration
agreement - The persons "claiming through or under" can only assert a right
in a derivative capacity. [Paras 137, 165]
Words and Phrases - "Claiming through or under"; "claim";
"through" and "claiming under". [Para 137]
Arbitration and Conciliation Act, 1996 - s.9 - Power of the Courts
to issue directions u/s.9:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): The group of
companies doctrine is based on determining the mutual intention to join
the non-signatory as a "veritable" party to the arbitration agreement - Once
a tribunal comes to the determination that a non-signatory is a party to
the arbitration agreement, such non-signatory party can apply for interim
measures under s.9 of the Arbitration and Conciliation Act, 1996. [Para 153]
Arbitration and Conciliation Act, 1996 - ss.8 and 11 - Standard of
determination at the referral stage - Stage of applicability of the group
of companies doctrine under the Arbitration Act:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): When a nonsignatory person or entity is arrayed as a party at Section 8 or Section
11 stage, the referral court should prima facie determine the validity or
existence of the arbitration agreement, as the case may be, and leave it for
the arbitral tribunal to decide whether the non-signatory is bound by the
627
arbitration agreement - At the referral stage, the referral court should leave
it for the arbitral tribunal to decide whether the non-signatory is bound by
the arbitration agreement. [Paras 163, 165]
Arbitration and Conciliation Act, 1996 - s.7 - Requirement of a
written arbitration agreement u/s.7 - Eff ect:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): The requirement
of a written arbitration agreement u/s.7 does not exclude the possibility of
binding non-signatory parties. [Para 165]
Arbitration - Group of companies doctrine - Whether the
principle of alter ego or piercing the corporate veil can be the basis for
application of the group of companies doctrine:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): The principle of
alter ego disregards the corporate separateness and the intentions of the
parties in view of the overriding considerations of equity and good faith -
In contrast, the group of companies doctrine facilitates the identifi cation of
the intention of the parties to determine the true parties to the arbitration
agreement without disturbing the legal personality of the entity in question
- The principle of alter ego or piercing the corporate veil cannot be the basis
for the application of the group of companies doctrine. [Paras 104, 165]
Arbitration - Group of companies doctrine - Factors to be
considered for application of the doctrine - Conduct of the nonsignatory parties - Relevance:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): The participation
of the non-signatory in the performance of the underlying contract is the
most important factor to be considered by the courts and tribunals - The
intention of the parties to be bound by an arbitration agreement can be gauged
from the circumstances that surround the participation of the non-signatory
party in the negotiation, performance, and termination of the underlying
contract containing such agreement - The non-signatory's participation in
the negotiation, performance, or termination of the contract can give rise
to the implied consent of it being bound by the contract - Conduct of the
COX AND KINGS LTD. v. SAP INDIA PVT. LTD. & ANR.
SUPREME COURT REPORTS
[2023] 15 S.C.R.
628
non-signatory parties could be an indicator of their consent to be bound by
the arbitration agreement. [Paras 118, 125 and 165]
Arbitration - Arbitration and Conciliation Act, 1996 - s.2(1)(h)
and s.7 - Group of companies doctrine - Has independent existence:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): The group of
companies doctrine has an independent existence as a principle of law
which stems from a harmonious reading of s.2(1)(h) along with s.7 of the
Arbitration Act. [Para 165]
Arbitration and Conciliation Act, 1996 - Group of Companies
doctrine - In Chloro Controls case, a three Judge Bench of Supreme
Court read the said doctrine into the phrase "claiming through or
under" in s.45 of the Arbitration Act - Challenge to.
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): The approach of
the Supreme Court in Chloro Controls case to the extent that it traced the
group of companies doctrine to the phrase "claiming through or under" is
erroneous and against the well-established principles of contract law and
corporate law. [Para 165]
Arbitration - Group of companies doctrine - Applicability -
Non-signatory, if party to arbitration agreement - Determination -
Arbitration and Conciliation Act, 1996 - s.7(4)(b).
Held (per Pamidighantam Sri Narasimha, J.) (Concurring with
Dr. Dhananjaya Y Chandrachud, CJI): An agreement to refer disputes
to arbitration must be in a written form, as against an oral agreement, but
need not be signed by the parties - Under s.7(4)(b), a court or arbitral
tribunal will determine whether a non-signatory is a party to an arbitration
agreement by interpreting the express language employed by the parties in
the record of agreement, coupled with surrounding circumstances of the
formation, performance, and discharge of the contract - While interpreting
and constructing the contract, courts or tribunals may adopt well-established
principles, which aid and assist proper adjudication and determination - The
Group of Companies doctrine is one such principle. [Para 56]
629
Arbitration - Group of companies doctrine - Arbitration
agreement - Ascertaining the intention of the non-signatory.
Held (per Pamidighantam Sri Narasimha, J.) (Concurring with Dr.
Dhananjaya Y Chandrachud, CJI): The Group of Companies doctrine
is also premised on ascertaining the intention of the non-signatory to be
party to an arbitration agreement - The doctrine requires the intention
to be gathered from additional factors such as direct relationship with
the signatory parties, commonality of subject-matter, composite nature
of the transaction, and performance of the contract. [Para 56]
Arbitration and Conciliation Act, 1996 - s.7(4)(b) - Inquiry by
a court or arbitral tribunal under s.7(4)(b) and Group of companies
doctrine.
Held (per Pamidighantam Sri Narasimha, J.) (Concurring with
Dr. Dhananjaya Y Chandrachud, CJI): Since the purpose of inquiry by a
court or arbitral tribunal u/s.7(4)(b) and the Group of Companies doctrine
is the same, the doctrine can be subsumed within s.7(4)(b) to enable a court
or arbitral tribunal to determine the true intention and consent of the nonsignatory parties to refer the matter to arbitration - The doctrine is subsumed
within the statutory regime of s.7(4)(b) for the purpose of certainty and
systematic development of law. [Para 56]
Arbitration and Conciliation Act, 1996 - ss.2(1)(h), 7, 8 and 45
- Expression "claiming through or under" in ss.8 and 45 - Diff erence
from expression 'party' in s.2(1)(h) and 7.
Held (per Pamidighantam Sri Narasimha, J.) (Concurring with
Dr. Dhananjaya Y Chandrachud, CJI): The expression "claiming
through or under" in ss.8 and 45 is intended to provide a derivative
right; and it does not enable a non-signatory to become a party to the
arbitration agreement - The decision in Chloro Controls tracing the
Group of Companies doctrine through the phrase "claiming through
or under" in ss.8 and 45 is erroneous - The expression 'party' in s.2(1)
(h) and s.7 is distinct from "persons claiming through or under them".
[Para 56]
COX AND KINGS LTD. v. SAP INDIA PVT. LTD. & ANR.
SUPREME COURT REPORTS
[2023] 15 S.C.R.
630
LIST OF CITATIONS AND OTHER REFERENCES
In the judgment of Dr. Dhananjaya Y Chandrachud, CJI
Chloro Controls India (P) Ltd v. Severn Trent Water Purifi cation Inc
(2013) 1 SCC 641 : [2012] 13 SCR 402 - held, erroneous to an extent.
Oil and Natural Gas Corporation Ltd v. Discovery Enterprises Pvt.
Ltd., (2022) 8 SCC 42 : [2022] 4 SCR 926 - affi rmed.
Cheran Properties Ltd v. Kasturi and Sons Ltd. (2018) 16 SCC 413
: [2018] 4 SCR 1063; Mahanagar Telephone Nigam Ltd. v. Canara Bank
(2020) 12 SCC 767 : [2019] 11 SCR 660; Sukanya Holdings (P) Ltd v. Jayesh
H Pandya (2003) 5 SCC 531 : [2003] 3 SCR 558; Indowind Energy Ltd v.
Wescare (I) Ltd. (2010) 5 SCC 306 : [2010] 5 SCR 284; Bhaven Construction
v. Executive Engineer, Sardar Sarovar Narmada Nigam Ltd. (2022) 1 SCC
75; Sumitomo Corporation v. CDC Financial Services (Mauritius) Ltd,
(2008) 4 SCC 91 : [2008] 3 SCR 309; S N Prasad v. Monnet Finance Ltd.
(2011) 1 SCC 320 : [2010] 13 SCR 207; Ameet Lalchand Shah v. Rishabh
Enterprises, (2018) 15 SCC 678 : [2018] 6 SCR 1001; Reckitt Benckiser
(India) Private Limited v. Reynders Label Printing India Private Limited,
(2019) 7 SCC 62 : [2019] 8 SCR 966; Bharat Aluminium Company v Kaiser
Aluminium Technical Services, (2016) 4 SCC 126 : [2016] 1 SCR 364;
Satish Kumar v. Surinder Kumar [1969] 2 SCR 244; Bihar State Mineral
Development Corporation v. Encon Builders (I) Pvt. Ltd. (2003) 7 SCC 418
: [2003] 2 Suppl. SCR 81; Dhulabhai v. State of Madhya Pradesh [1968]
3 SCR 662; Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1
: [2020] 11 SCR 1001; M C Chacko v. State Bank of Travancore (1969) 2
SCC 343 : [1970] 1 SCR 658; Haji Mohammed Ishaq v. Mohamad Iqbal
(1978) 2 SCC 493 : [1978] 3 SCR 571; Shakti Bhog Foods Limited v. Kola
Shipping Ltd. (2009) 2 SCC 134 : [2008] 13 SCR 925; Trimex International
FZE Ltd v. Vedanta [2022] 4 SCR 926; Aluminium Ltd. (2010) 3 SCC 1 :
[2010] 1 SCR 820; Great Off shore Ltd. v. Iranian Off shore Engineering
and Construction Company, (2008) 14 SCC 240 : [2008] 12 SCR 515; S N
Prasad v. Monnet Finance Limited (2011) 1 SCC 320 : [2010] 13 SCR 207;
Govind Rubber Ltd v. M/s Louis Dreyfus Commodities, (2015) 13 SCC 477
: [2014] 12 SCR 488; Sundaram Finance Ltd v. NEPC India Ltd. (1999) 2
SCC 479 : [1999] 1 SCR 89; P Manohar Reddy and Bros v. Maharashtra
631
Krishna Valley Development Corporation, (2009) 2 SCC 494 : [2008] 17
SCR 1217; Tata Engineering and Locomotive Co Ltd. v. State of Bihar
[1964] 6 SCR 885; LIC v. Escorts Ltd. (1986) 1 SCC 264 : [1985] 3 Suppl.
SCR 909; Delhi Development Authority v. Skipper Construction Co. (P) Ltd.
(1996) 4 SCC 662 : [1996] 2 Suppl. SCR 295; Kapila Hingorani v. State
of Bihar (2003) 6 SCC 1 : [2003] 1 Suppl. SCR 175; Balwant Rai Saluja v.
Air India (2014) 9 SCC 407 : [2014] 14 SCR 1512; Vodafone International
Holding BV v. Union of India (2012) 6 SCC 613 : [2012] 1 SCR 573; Kamla
Devi v. Takhatmal Land, AIR 1964 SC 859 : [1964 ] 2 SCR 152; Bangalore
Electricity Supply Co Ltd v. E S Solar Power (P) Ltd. (2021) 6 SCC 718
: [2021] 1 SCR 453; Bank of India v. K Mohandas (2009) 5 SCC 313 :
[2009] 1 SCR 1045; M Dayanand Reddy v. A P Industrial Infrastructure
Corporation Ltd. (1993) 3 SCC 137 : [1993] 2 SCR 629; A Ayyasamy v. A
Paramsivam, (2016) 10 SCC 386 : [2016] 11 SCR 521; Union of India v.
D N Revri, (1976) 4 SCC 147 : [1977] 1 SCR 483; Roop Kumar v. Mohan
Thedani, (2003) 6 SCC 595 : [2003] 3 SCR 292; Olympus Superstructures
(P) Ltd v. Meena Vijay Khetan, (1999) 5 SCC 651 : [1999] 3 SCR 490;
Reliance Industries Ltd v. Union of India, (2014) 7 SCC 603 : [2014] 6
SCR 456; Enercon (India) Ltd v. Enercon Gmbh, (2014) 5 SCC 1: [2014]
2 SCR 855; Agri Gold Exims Ltd v. Sri Lakshmi Knits & Wovens, (2007) 3
SCC 686 : [2007] 1 SCR 1161; SBP & Co v. Patel Engineering Ltd. (2005)
8 SCC 618 : [2005] 4 Suppl. SCR 688; Uttarakhand Purv Sainik Kalyan
Nigam Ltd. v. Northern Coal Field, (2020) 2 SCC 455; Pravin Electricals
Pvt Ltd v. Galaxy Infra and Engineering Pvt Ltd. (2021) 5 SCC 671: [2021]
1 SCR 1162; Shin-Etsu Chemical Co Ltd. v. Aksh Optifi bre Ltd. (2005) 7
SCC 234 : [2005] 2 Suppl. SCR 699 and Deutsche Post Bank Home Finance
Ltd. v. Taduri Sridhar (2011) 11 SCC 375 : [2011] 5 SCR 674 - referred to.
Dow Chemical v. Isover Saint Gobain, Interim Award, ICC Case No.
4131, 23 September 1982; Paris Court of Appeal, 7 December 1994, V 2000
(formerly Jaguar France) v. Project XS, Rev. Arb. (1996) 67; A, B, C v. D
and State of Libya, 4 A 636/2018; 5 Saudi Butec Ltd et Al Fouzan Trading
v. Saudi Arabian Saipem Ltd, unpublished ICC Interim Award of 25 October
1994, confi rmed by DFT on 29 January 1996, ASA Bulletin (1996) Vol 3 p
496;X v. Y Engineering S.p.A. and Y S.p.A., 4A_450/2013, ASA Bull., 160
(2015); Peterson Farms INC v. C & M Farming Limited, [2004] EWHC
121; Roussel-Uclaf v. G D Searle and Co Ltd. [1978] 1 Lloyd's Rep; The
COX AND KINGS LTD. v. SAP INDIA PVT. LTD. & ANR.
SUPREME COURT REPORTS
[2023] 15 S.C.R.
632
Mayoralty and Commonalty & Citizens of the City of London v. Ashok
Sancheti, [2008] EWCA Civ 1283; Blackpool and Fylde Aero Club Ltd. v.
Blackpool Borough Council, [1990] 1 WLR 1195; Dallah Real Estate and
Tourism Holding Company v. The Ministry of Religious Aff airs, Government
of Pakistan [2010] UKSC 46; Manuchar Steel Hong Kong Limited v. Star
Pacifi c Line Pte Ltd. [2014] SGHC 181; G E Energy Power Conversion
France SAS v. Outokumpu Stainless, 140 S. Ct. 1637 (2020); American
Fuel Corp v. Utah Energy Development Co, Inc, 122 F.3d 130, 134 (2d
Cir 1997); American Bureau, Shipping v. Tencara Shipyard, 170 F.3d 349,
353 (2d Cir 1999); Sunkist Soft Drinks, Inc v. Sunkist Growers, Inc, 10
F.3d 753, 757 (11th Cir 1993) and Grigson v. Creative Artists Agency, LLC,
210 F.3d 524 (2000); United Steelworkers of America v. Warrior and Gulf
Navigation, (1960) 363 US 574, 582; Fiona Trust and Holding Company
v. Privalov [2007] UKHL 40; Salomon v. Salomon [1897] AC 22; D H N
Food Distributors Ltd v. Tower Hamlets London Borough Council [1976]
1 WLR 852; Bank of Tokyo v. Karoon, (1986) 3 All ER 468; Schiff ahrtsgesellschaft Detlev von Appen v Voest Alpine Intertrading, [1997] EWCA
Civ 1420; Through Transport Mutual Insurance Association (Eurasia) Ltd
v. New India Assurance Co Ltd. [2005] EWHC 455 (Comm); West Tankers
Inc. v. Allianz Spa, [2012] EWCA Civ 27; Tanning Research Laboratories
Inc v. O'Brien, [1990] HCA 8; Rinehart v. Hancock Prospecting Pty Ltd.
[2019] HCA 13 - referred to.
Law Commission of India, 'Amendments to the Arbitration and
Conciliation Act 1996', Report No. 246 (August 2014); Bernard Hanotiau
and Leonardo Ohlrogge, '40th Year Anniversary of the Dow Chemical Award'
40(2) ASA Bulletin 300-308; Yves Derains, 'Is there a Group of Companies
Doctrine?' in Bernard Hanotiau and Eric Schwartz (eds) in Dossier of the
ICC Institute of World Business Law, Volume 7, 131-145;Audley William
Sheppard, 'Third Party Non-Signatories in English Arbitration Law' in
Stavros Brekoulakis, Julian Lew, et al (eds) The Evolution and Future of
International Arbitration (Kluwer Law International, 2016) 183-198; Chitty
on Contracts, Hugh Beale (ed), (32nd edn, Sweet and Maxwell, 2015) para
2-169 and para 1-104; Andrijana Misovic, 'Binding non-signatories to
arbitrate: the United States approach' (2021) 37(3) Arbitration International
749-768; Bernard Hanotiau, 'May an Arbitration Clause be Extended to
Non-signatories: Individuals, States or Other Companies of the Group?'
633
in Complex Arbitrations: Multi-party, multi-contract, Multi-issue - A
comparative study' Bernard Hanotiau (eds) (2nd edn, 2020) 95, 194; Gary
Born, International Arbitration Law and Practice (3rd ed, 2021);Pollock
and Mulla, The Indian Contract and Specifi c Reliefs Act (14th edn, 2016)
235; Stavros Brekoulakis, 'Rethinking Consent in International Commercial
Arbitration: A General Theory for Non-signatories' (2017) 8 Journal of
International Dispute Settlement 610, 621; UNCITRAL Model Law on
International Commercial Arbitration, Recommendation regarding the
interpretation of article II, paragraph 2, and article VII, paragraph 1, of
the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, done in New York, 10 June 1958, (adopted by the UNCITRAL on
7 July 2006) 39; Redfern and Hunter on International Arbitration (7th edn,
Oxford University Press, 2023) para 2.23; Jayati Sarkar, 'Business Groups
in India' in Asli Coplan, Takashi Hikino, and James Lincoln (eds) The Oxford
Handbook of Business Groups (2010) 299; Bernard Hanotiau, 'Consent
to Arbitration: Do We Share a Common Vision?' (2011) 27(4) Arbitration
International 539, 554; Stavros Brekoulakis, 'Parties in International
Arbitration: Consent v. Commercial Reality' in Stavros Brekoulakis,
Julian DM Lew, et al (eds) in 'The Evolution and Future of International
Arbitration' (2016) 119, 120; UNCITRAL, 'Settlement of Commercial
Disputes: Possible uniform rules on certain issues concerning settlement of
commercial disputes: conciliation, interim measures of protection, written
form of arbitration agreement: Report of the Secretary General' A/CN.9/
WG.II/WP.108/Add.1 (26 January 2000); Stavros Brekoulakis, 'Parties
in International Arbitration: Consent v. Commercial Reality' in Stavros
Brekoulakis, Julian DM Lew, et al (eds) 'The Evolution and Future of
International Arbitration' (2016) 119, 137, 148; UNIDROIT Principles of
International Commercial Contracts, 2016, Article 4.3; Stavros Brekoulakis,
'Rethinking Consent in International Commercial Arbitration: A General
Theory for Non-signatories' (2017) 8 Journal of International Dispute
Settlement 610, 621; Karim Youssef, 'The Limits of Consent: The Right
or Obligation to Arbitrate of Non-Signatories in Group of Companies' in
Multiparty Arbitration: Dossiers of the ICC Institute of Worlds Business
Law, Volume 7 (2010) 71, 79; Russel on Arbitration (23rd edn, 2007) 99 para
3-018; Vicky Priskich, 'Binding non-signatories to arbitration agreements
- who are person 'claiming through or under' a party?' (2019) 35(3)
COX AND KINGS LTD. v. SAP INDIA PVT. LTD. & ANR.
SUPREME COURT REPORTS
[2023] 15 S.C.R.
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Arbitration International 375-386; Black's Law Dictionary (5th edn, 1979)
224; P Ramanatha Aiyar's, The Law Lexicon (1997) 330, 331; Black's Law
Dictionary (5th edn, 1979) 1328; Ronald Dworkin, Law's Empire (Belknap
Press, Harvard University Press 1986) 229 - referred to.
In the judgment of Pamidighantam Sri Narasimha, J.
Chloro Controls India (P) Ltd. v. Severn Trent Water Purifi cation
Inc., (2013) 1 SCC 641:[2013] 1 SCR 698 - held erroneous.
Cox and Kings Ltd v. SAP India Pvt Ltd. (2022) 8 SCC 1; Vidya Drolia
v. Durga Trading Corporation, (2021) 2 SCC 1 : [2020] 11 SCR 1001;
Gemini Bay Transcription Pvt Ltd v. Integrated Sales Service Ltd. (2022)
1 SCC 753; Jugal Kishore Rameshwardas v. Goolbai Hormusji [1955] 2
SCR 857; Caravel Shipping Services (P) Ltd v. Premier Sea Foods Exim
(P) Ltd. (2019) 11 SCC 461 : [2018] 14 SCR 289; Rickmers Verwaltung
Gmbh v. Indian Oil Corporation Ltd. (1999) 1 SCC 1 : [1998] 3 Suppl.
SCR 42; MTNL v. Canara Bank, (2020) 12 SCC 767 : [2019] 11 SCR 660;
Babanrao Rajaram Pund v. Samarth Builders and Developers, (2022) 9
SCC 691; KK Modi v. KN Modi, (1998) 3 SCC 573 : [1998] 1 SCR 601;
Bihar State Mineral Development Corporation v. Encon Builders (I) Pvt
Ltd. (2003) 7 SCC 418 : [2003] 2 Suppl. SCR 812; Shakti Bhog Foods
v. Kola Shipping Ltd. (2009) 2 SCC 134 : [2008] 13 SCR 925; Smita
Conductors v. Euro Alloys, (2001) 7 SCC 728 : [2001] 2 Suppl. SCR 477;
Unissi (India) Pvt Ltd v. Post Graduate Institute of Medical Education
and Research (2009) 1 SCC 107 : [2008] 14 SCR 108; Powertech World
Wide Ltd v. Delvin international General Trading LLC (2012) 1 SCC 361
: [2011] 13 SCR 122; Govind Rubber v. Louids Dreyfus Commodities
Asia Pvt Ltd. (2015) 13 SCC 477: [2014] 12 SCR 488; Nimet Resources
Inc v. Essar Steels Ltd, (2000) 7 SCC 497; Bangalore Electricity Supply
Company Ltd (BESCOM) v. E.S. Solar Power Pvt Ltd. (2021) 6 SCC 718;
Food Corporation of India v. Abhijit Paul 2022 SCC OnLine SC 1605;
Bank of India v. K. Mohandas (2009) 5 SCC 313 : [2009] 5 SCR 118;
Godhra Electricity Co Ltd v. State of Gujarat (1975) 1 SCC 199 : [1975]
2 SCR 42; McDermott International Inc v. Burn Standard Co Ltd. (2006)
11 SCC 181 : [2006] 2 Suppl. SCR 409; ONGC v. Saw Pipes Ltd. (2003)
5 SCC 705 : [2003] 3 SCR 691; Roop Kumar v. Mohan Thedani (2003)
6 SCC 595 : [2003] 3 SCR 292; Sukanya Holdings v. Jayesh H Pandya
635
(2003) 5 SCC 531 : [2003] 3 SCR 558; Indowind Energy Ltd v. Wescare
(India) Ltd. (2010) 5 SCC 306 : [2010] 5 SCR 284; Duro Felguera, S.A.
v. Gangavaram Port Ltd. (2017) 9 SCC 729 : [2017] 10 SCR 285; Cheran
Properties Ltd v. Kasturi and Sons Ltd. (2018) 16 SCC 413 : [2018] 4
SCR 1063; Ameet Lalchand Shah v. Rishabh Enterprises (2018) 15 SCC
678 : [2018] 6 SCR 1001; ONGC v. Discovery Enterprises Pvt Ltd. (2022)
8 SCC 42; Reckitt Benckiser (India) Pvt Ltd v. Reynders Label Printing
India Pvt Ltd. (2019) 7 SCC 62 : [2019] 8 SCR 966; MTNL v. Canara
Bank (2020) 12 SCC 767: [2019] 11 SCR 660 - referred to.
Dow Chemical v. Isover Saint Gobain. ICC Case No. 4131, 23
September 1982; Dallah Real Estate and Tourism Holding Co. v. Ministry
of Religious Aff airs, Government of Pakistan Case No. 9-28533, dated
17 February 2011 (Paris Cour d'Appel), [2010] UKSC 46; Malakoff
Corporation Berhad and TLEMCEN Desalination Investment Company
v. Algerian Energy Company SA and Hyfl ux Limited, Case No. 21-07296,
dated 13 June 2023 (Paris Cour d'Appel); Peterson Farms Inc v. C&M
Farming Ltd. [2004] EWHC 121 (Comm); Mayor and Commonalty &
Citizens of the City of London v. Ashok Sancheti, [2008] EWCA Civ 1283;
Bank of Tokyo Ltd v. Karoon, [1987] AC 45; Kabab-Ji SAL (Lebanon) v.
Kout Food Group (Kuwait), [2021] UKSC 48; Manuchar Steel Hong Kong
Ltd v. Star Pacifi c Line Pte Ltd. [2014] SGHC 181; GE Energy Power
Conversion France SAS Corp., FKA Converteam SAS v. Outokumpu
Stainless USA, LLC, et al., Case No. 18-1048 (1 June 2020); McBro
Planning & Dev. Co. v. Triangle Elec. Constr. Co. Inc., 741 F.2d 342 (11th
Cir. 1984); Nauru Phosphate Royalties, Inc. v. Drago Daic Interests, Inc.
138 F.3d 160 (5th Cir. 1998); Sarhank Group v. Oracle Corp, 404 F. 3d
657 (2nd Cir. 2005) - referred to.
Lewison, The Interpretation of Contracts (6th edn, Sweet and
Maxwell 2016) para 2.01, 27; Gary Born, International Commercial
Arbitration, vol 1 (3rd edn, Kluwer Law International 2021) 1531; Bernard
Hanotiau, 'Chapter 14: Group of Companies in International Arbitration'
in Loukas A. Mistelis and Julian D.M. Lew (ed), Pervasive Problems in
International Arbitration, vol 15 (Kluwer Law International 2006), 286;
Bernard Hanotiau, 'Consent to Arbitration: Do We Share a Common
Vision?' (2011) 27(4) Arbitration International 539 - referred to.
COX AND KINGS LTD. v. SAP INDIA PVT. LTD. & ANR.
SUPREME COURT REPORTS
[2023] 15 S.C.R.
636
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL ORIGINAL/APPELLATE JURISDICTION: Arbitration
Petition (Civil) No. 38 of 2020.
Petition for Appointment of the Arbitral Tribunal under Section 11(6),
Section 11(12)(a) of the Arbitration and Conciliation Act, 1996.
With
SLP (C) Nos. 8607 and 5833 of 2022.
Appearances:
Nakul Dewan, Sanjoy Ghose, Sr. Advs., Hiroo Advani, Divyakant
Lahoti, Ms. Madhur Jhavar, Ms. Vindhya Mehra, Parikshit Ahuja,
Ms. Praveena Bisht, Kartik Lahoti, Ms. Garima Verma, Rahul Maheshwari,
Ms. Shivangi Malhotra, Navdeep Dahiya, Ms. Sanjana Khatri, Ms. Ria
Garg, Manav Nagpal, Karandeep Dahiya, Jeevan Ballav Panda, Ms. Shalini
Sati Prasad, Satish Padhi, Ms. Meher Tandon, Gaurav Sharma, Ms. Dhriti
Mehta, Rohan Naik, Ms. Nooreen Sarna, Neil Chatterjee, Ms. Tansi Fotedar,
Sathvik Chandrashekhar, Rohan Mandal, M/s. Khaitan & Co., Nagarkatti
Kartik Uday, Advs. for the Petitioner.
Tushar Mehta, SG, Darius J. Khambata, Ritin Rai, Ms. Meenakshi
Arora, Sr. Advs., Rajat Nair, Kartikey Agarwal, Parantap Singh, Rohit,
Rohan Batra, Ms. Sonali Malik, Harsh Vardhan Arora, Tushar Hathiramani,
Rishabh Bhargava, Dhruv Sethi, Ms. Vidhi Shah, Farhad Sorabjee, Dheeraj
Nair, Manish Jha, Kumar Kislay, Pratik Pawar, Siddhesh Pradhan, Ms.
Shanaya Cyrus Irani, Ms. Aishna Jain, Yashvardhan, Ms. Smita Kant, Apoorv
Shukla, Puneet Chahar, Ms. Prabhleen A. Shukla, Ms. Ishita Farsaiya, Ms.
Kritika Nagpal, Chandratanay Chaube, Tushar Arora, Anirudh Krishnan,
Balaji Srinivasan, Shiva Krishnamurti, Ms. Gauri Pasricha, Devamshu
Behl, Rohan Dewan, Advs. for the Respondents.
Kapil Sibal, Dr. A.M. Singhvi, A.N. Haksar, Sr. Advs., Ajay Bhargava,
Mrs. Vanita Bhargava, Aseem Chaturvedi, Ms. Trishala Trivedi, Milind
Sharma, Ms. Manisha Singh, M/s. Khaitan & Co., Ujjwal A. Rana,
Himanshu Mehta for M/s. Gagrat and Co, Pallav Mongia, Debesh Panda,
Pratyush Miglani, Omar Ahmad, Pranav Mago, Udbhav Gady, Ms.
637
Chandrika Sharma, Sri Aditya Kumar, Kanishk Aggarwal, Vas Dev Verma,
George Pothan Poothicote, Ms. Manisha Singh, Ms. Jyoti Singh, Ashu
Pathak, Arunava Mukherjee, Advs. for the Intervenors.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
DR. DHANANJAYA Y CHANDRACHUD, CJI
Table of Contents*
A. The reference .............................................................................4
B. Submissions ...............................................................................7
C. Legal background ....................................................................16

i. India........ ..............................................................................16

 a. Chloro Controls .................................................................20

 b. Development of Law after Chloro Controls .....................24

ii. France - The Dow Chemicals case .....................................29

iii. Switzerland .........................................................................33

iv. England ..............................................................................34

v. Singapore .............................................................................37

vi. United States of America ....................................................38
D. Arbitration Agreement .............................................................41

i. Consent as the basis for arbitration ......................................41

ii. Parties to Arbitration Agreement .........................................45
E. Group of Companies Doctrine .................................................56

i. Separate legal personality .....................................................56

ii. Adopting a pragmatic approach to consent .........................61

iii. Group of companies doctrine - a fact based doctrine ........66
*Ed. Note: The pagination as per the original Judgment.
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[2023] 15 S.C.R.
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iv. The determination of mutual intention ...............................70

v. Threshold standard ...............................................................80
F. The group of companies doctrine has independent

existence
 ..............................................................................85

i. Party and Persons "claiming through or under" are

diff erent
 ..............................................................................88

ii. The approach adopted by this Court in Chloro

Controls is Incorrect ................................................................92

iii. Power of the Courts to issue directions under

Section....... ..............................................................................97
G. The standard of determination at the referral stage -

Sections 8 and 11 .....................................................................98
H.