DAW, 2024

Note for Session II: 8 March 2024

________________________________________________________________________________

Date: 8th March 2024

Day: Friday

Session: Session II

Topic: Joinder of Non-Signatories in Arbitration Proceedings:

Analyzing the ‘Group of Companies’ Doctrine-
Perspectives from India, U.K., and Singapore.

Timings: 12:00PM to 1:30PM

Venue: Auditorium, S Block, High Court of Delhi

Chair: Hon’ble Mr. Justice M. M. Sundresh, Judge, Supreme

Court

Panelists: (i) Hon’ble Ms. Justice Bharati Dangre, Judge, High Court of
Bombay
(ii) Mr. Aspi Chinoy, Senior Advocate
(iii) Mr. Chong Yee Leong, Partner, Allen and Gledhill
(iv) Ms. Shanelle Irani, Wilmer Cutler Pickering Hale and Dorr
LLP.
______________________________________________________________

Name Questions

Mr. Leong, Partner, Allen and Gledhill 1. How does a tribunal or court decide
what law governs in determining whether
the Group of Companies’ Doctrine is
applicable to the proceedings?

2. Has the “Group of Companies’

Doctrine as applied by the Supreme Court
of India in Cox and King been considered
in Singapore?

Justice Bharati Dangre, High Court of 1. How do you see the arbitration scenario
Bombay in India after the judgement in Cox &
Kings?
 2. Is it likely to encourage arbitration in
India at international level?

Ms. Shanelle Irani, Wilmer Cutler 1. The Group of Companies doctrine has
Pickering Hale and Dorr LLP received a lukewarm response in many
jurisdictions around the world – why is
that?

2. In your view, what is the best way for

parties to avoid the application or the
misuse of the Group of Companies
doctrine?
 JOINDER OF NON-SIGNATORIES IN ARBITRATION PROCEEDINGS:
ANALYZING THE 'GROUP OF COMPANIES' DOCTRINE - PERSPECTIVES
FROM INDIA, U.K., AND SINGAPORE

List of Common Questions:

1. The doctrine of group companies, relies on the concept of implied consent of a

non-signatory to a contract. In arbitration proceedings, it extends this implied
consent to contract to the arbitration agreement as well.

Does this contradict the doctrine of separability, which connotes that the arbitration
agreement is separate from the underlying contract, and requires the separate
intention of the party to make itself amenable to arbitration?

2. Arbitration proceeding per se is an exercise which requires thorough scrutiny of facts

and expert evidence. That being the position, there exists relevance in relying upon
the Group of Companies' doctrine which portrays itself as a fact based doctrine. How
have courts in Singapore and UK interpreted this doctrine?

● Questions for Hon’ble Ms. Justice Bharati Dangre, Judge, High Court of
Bombay

1. How have Indian courts considered this doctrine culminating into Cox & Kings –
tracing the jurisprudential trajectory of how the judiciary has read this doctrine into
Indian law ?

2. Evolving trajectory of the doctrine pre-Cox & Kings to how it stands today after the
Supreme Court’s decision

3. Since the Constitution Bench has implicitly granted powers to both the tribunals/courts
to test the application of the GOC doctrine, would the decision of a Court under
Sections 9 or 11 be prima-facie or binding on tribunals?
4. Since India now recognises the group of companies' doctrine as a fact based doctrine,
how far does it pave the way for the tribunals to test the application of other
doctrines such as piercing of corporate veil / alter ego and single economic entity,
the power of which has so far been vested only with courts and not Tribunals ? Do
Tribunals have the power to implead non-signatories by invoking these doctrines ?

5. Though India recognises the doctrine to be capable of Independent application and

operation, how does the group of companies' doctrine interact with the principles of
corporate veil piercing in the context of arbitration?

● Questions for Mr. Aspi Chinoy, Senior Advocate

1. Sukanya Holdings; IndoWind – Sec. 7 – Why did the initial pushback turn into
acceptance? Party autonomy and privity of contract; Chloro Control – Intention of
parties clear (5 fold test); Concept of single economic entity

2. Could a non-signatory invoke the GOC doctrine for reliefs under Sections 9 or 11?

3. What is the stage at which a conclusive finding on the application of GOC doctrine is
to be rendered? Is it during the Section 16 stage where questions of jurisdiction are
decided based on law?

4. As the Constitution Bench has held that the application of the GOC doctrine must be
tested on the basis of evidence, does that mean that the issue could be decided only
after trial?

5. If the application for impleading the group company has been dismissed by a tribunal,
could the unsuccessful party file an application under Section 34 as it has
conclusively decided the issue and the rights of parties as against the non-signatory or
should such applicant wait for the outcome of the entire award?

6. It is generally said that theory only takes us so far. In light of this statement, what are
real life instances where the group of companies' doctrine has been successfully
invoked and applied in arbitration proceedings so that the audience gathered here can
also understand the feasibility of this doctrine?
● Questions for Mr. Chong Yee Leong, Partner, Allen & Gledhill

1. How does a tribunal or court decide what law governs in determining whether the
Group of Companies’ Doctrine is applicable to the proceedings?

2. Has the “Group of Companies’ Doctrine as applied by the Supreme Court of India in
Cox and King been considered in Singapore?

● Questions for Mr. Steven P. Finizo, Wilmer Cutler Pickering Hale and Dorr
LLP/ Ms. Shanelle Irani, Wilmer Cutler Pickering Hale and Dorr LLP

1. Civil vs. Common Law jurisdictions – why the reluctance to accept the doctrine?