"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Monday, October 29, 2012

Composite Transactions and the Applicability of Arbitration Agreement to Non-Signatories: Chloro Controls: Part I

Composite Transactions and the Applicability of Arbitration Agreement to Non-Signatories: Chloro Controls: Part I

By Badrinath Srinivasan & Ms. Roshni Rajiv

Recently, a three judge Bench of the Supreme Court of India had the occasion in Chloro Controls (I) Pvt. Ltd. v. Severn Trent Water Purification Inc. & Others, Civil Appeal No. 7134 of 2012, Supreme Court of India, dated September 28, 2012 before SH Kapadia, CJ, AK Patnaik & Swatanter Kumar, JJ. to consider an important question related to reference of disputes to arbitrations arising out of a composite transaction involving several agreements and several affiliates of the parties.

The decision is significant because it authoritatively deals with several aspects such as those pertaining to the interpretation of Section 45 of the Arbitration and Conciliation Act, 1996, incorporation of an arbitration agreement by reference, applicability of arbitration agreement to non-signatories, consolidation of arbitration proceedings, scope of enquiry under Sections 11, 8 and 45, etc. This series of posts analyses the decision and related aspects.

Facts: (pardon the long factual narration, which is essential to the appreciation of legal issues involved)

Chloro Controls Company, Inc., USA were involved in the manufacture and sale of chlorination related equipments. Its Indian distributor was Chloro Controls Equipment Company, a sole proprietary concern, owned by MB Kocha (Respondent or R9). Chloro Controls Company, Inc., USA changed its name to Severn Trent Water Purification Inc. (STWP or R1). R9 and CCC entered into a letter of intent and  a letter of understanding by which a Joint Venture company called Capital Controls (India) Pvt. Ltd. (Capital CI or R5) was formed for selling chlorination related equipments. Another Company Capital Control (Delaware) Inc. (CCD or R2) merged in STWP and CCD ceased to exist. Prior thereto, R1 & R2 sold electrochemical equipments under the brand name "Hypogena" which was replaced by ""Sanilec" and "Omnipure". Titanor components Ltd. (Titanor or R3) is a company floated as   JV with an Italian Company. Hi Point Services Ltd (R4) is an Indian company engaged in the business of electro-chlorination and has a tie up with an American Company called Excel Technologies Inc. The Petitioner (Choloro Control (I) Pvt. Ltd- "Chloro CI") was entirely held by Respondents 9 to 11 (Kocha Group).
R5 is an Indian joint venture company with shares held by the Petitioner and R9 on the one hand and R1 and R2 on the other. 50% of the shares is held each by the Petitioner Chloro CI and R2. The primary agreement is the Shareholders Agreement by which R 1 and R2 together agreed with the Petitioner and R9 to manufacture, market, etc. electro-chlorination equipments. In furtherance of these objectives, various agreements, such as the Financial and Technical Know-How Licence Agreement, International Distributor Agreement, Supplementary Collaboration Agreement, were executed.


Agreement & Execution Date
Parties
Arbitration Clause
Shareholders Agreement (16.11.95)
R2, ,Chloro CI, R9
Construed according to Indian laws
ICC Arbitration at London subject to English laws.
Three arbitrators
International Distributor Agreement
(16.11.95)
R1,R5
No arbitration clause
Managing Directors Agreement (16.11.95)
R1, R9
No arbitration clause
Financial & Technical Know-How Licence Agreement
(16.11.95)
R1, R5
Construed according to Indian laws
ICC Arbitration at London subject to English laws.
Three arbitrators
Export Sales Agreement (16.11.95)
R1, R5
American Arbitration Association Arbitration at Pennsylvania, USA and courts at Pennsylvania.
Trademark Registered User Licence Agreement (16.11.95)
R1, R5
No arbitration clause
Supplementary Collaboration Agreement (August 1997)
R1,R5
No arbitration clause


Certain disputes pertaining to the joint venture arose between the parties. STWP (R1) wrote on 21.07.04 to the Petitioner, R5 and R9 that since the issues were not resolved, it was terminating the JV agreements with effect from 22.07.04.

Consequently, the Petitioner (Choloro Control (I) Pvt. Ltd- "Chloro CI") filed a derivative suit in the High Court of Bombay for declaration that (a) the Joint Venture Agreement and the Supplementary Collaboration Agreement were valid, subsisting and binding, and (b) the said agreements included within their scope manufacture, sale, distribution etc of the entire range of chlorination and electro chlorination equipments. Subsequently, the Defendant terminated the said agreements and therefore the Petitioner sought to amend its plaint to the effect that such termination was invalid. The defendants moved a notice of motion (778/2004) by which they prayed the court to refer the matter to arbitration in view of the existence of the arbitration clause. This was dismissed by the Single Judge of the High Court but allowed by a Division Bench of the High Court on appeal. The Petitioner/ Plaintiff appealed to the Supreme Court seeking special leave. The fundamental question before the Supreme Court was whether the disputes could be referred to arbitration.

Arguments:

On Behalf of the Petitioner/ Appellant/ Chloro CI (Mr. Fali S. Nariman):
 
1) Every person has an inherent right to approach the civil court under Section 9 Code of Civil Procedure, 1908 (CPC) and arbitration is merely an exception to such a right and not an alternative. Pursuant to that right, Chloro CI had approached the Bombay High Court and there is no bar under any statute which prevents it from doing so.

2) The Appellant, who has the real interest in the case, had included R3 and R4 not merely to overcome the arbitration clause but because R3 and R4 are necessary parties, against whom substantive relief has been claimed.

3) Under Section 45 of the 1996 Act, the request to refer the dispute to arbitration must come from all the parties to the suit. If not, request only by some of the parties and consequent reference would result in multiplicity of proceedings and further mischief. Therefore, "a party" in Section 45 should be construed as "all parties". Consequently, the reference by the Division Bench of the High Court ("Division Bench") of the entire suit to arbitration meant that even the non-parties and those against whom cause of action did not arise from the arbitration agreement were to be a part of arbitration proceedings.

4) The law prior to the 1996 Act was that the court could merely stay the suit and not actually refer the parties to arbitration. After the 1996 Act, it cannot be contended that some parties and some matters in a suit can be referred to arbitration.

5) The judgement in Sukanya Holdings binds the court. Bifurcation would lead to conflicting decisions.

6) In the facts and circumstances, reference to arbitration is impermissible as some agreements do not have arbitration clause and among those agreements that have arbitration clause the venue and the applicable rules are different. Composite reference to arbitration where some agreements provide for arbitration clause while others do not is impermissible as there should be a clear intent to arbitrate.

Hence, the Petitioner argued that the Division Bench was wrong to refer the matter to arbitration.

On Behalf of R1: (Mr. Harish Salve)

1) Part II is in favour of reference to arbitration and therefore the provisions are to be interpreted in favour of referring the dispute to arbitration.

2) The entire dispute relates to the scope of business of the joint venture and therefore the Shareholders Agreement is the principal agreement. Execution of different agreements would not make any difference.

3) Filing of the suit in the form of a derivative action and the joinder of R3 and R4 was only to prevent reference to arbitration.

4) Clause 21.3 of the Shareholders Agreement provided that in the event of termination, the JV company would be wound up and all obligations undertaken by the Petitioner would cease to exist. Hence, despite the existence of several agreements, the dispute is centered on the Shareholders Agreement.

5) The judgement in Sukanya Holdings would not be applicable to the facts of the present case which covers Part II of the 1996 Act. Severability of cause of action and parties is permissible in law.

6) Court is competent to pass any orders as it deem fit and proper under Section 151 of CPC. Further, 1996 Act does not restrict or limit on reference to arbitration as compared to the 1940 Act.

7) Under Section 45 of 1996 Act, the applicant seeking reference can either be a party to arbitration agreement or a person claiming through or under such party.

Hence, the Respondent argued that the Division Bench was correct in referring the matter to arbitration.
Judgement:

The Judgement of the Supreme Court is summarized below:
  • The operation of Parts I and II of the Act do not arise directly for consideration in this case and are not dealt with (Note: This judgement was probably written prior to the judgement of the Supreme Court in BALCO v. Kasier Aluminium).
  • Section 44, Chapter I, Part II of the 1996 Act prescribes the conditions of validity of arbitration agreements for the purpose of enforcing foreign arbitral awards under such agreements.
  • The language and purpose of Section 45 mandates a construction of relevant provisions that favours reference to arbitration.
  • Part I of the Act has been drafted to bring the arbitration law in line with the UNCITRAL Model Law on International Commercial Arbitration, 1985. Chapter I, Part II has been enacted to give filip to international commercial arbitration by incorporating the Convention on Recognition and Enforcement of Foreign Arbitral Awards, 1958 (New York Convention). Chapter II, Part II incorporates the Protocol on Arbitration Clauses in the scheme of the law.
  • Considering the structure of the Act, provisions of Chapter I, Part II are to be interpreted are to be construed along with Schedule I to the Act (Conditions on the Recognition and Enforcement of Certain Foreign Arbitral Awards). Failure to do so would be inappropriate.
  • Section 45 has been enacted along the similar lines to that of Artice II of the New York Convention. International Council for Commercial Arbitration had come up with a Guide to the Interpretation of the New York Convention. According to the Guide, when there is a challenge to the validity of the arbitration agreement, the following questions arise:
    • Does the Arbitration Agreement fall under the Scope of the Convention?
    • Is the arbitration agreement evidenced in writing?
    • Does the arbitration agreement exist and is substantively valid?
    • [If] there a dispute, does it arise out of a defined relationship, whether contractual or not, and did the parties intend to have the dispute settled by arbitration?
    • Is the arbitration agreement binding on the parties to the dispute that is before the Court?Is this dispute arbitrable?
  • In addition to the above, if the respondent challenges the application under Section 45 on the ground that the arbitration agreement is null and void, inoperative or incapable of being performed, the court has to consider the same. If the answer for the above questions is in the affirmative, the court must refer the matter to arbitration.
  • The court should bear in mind three characterestics of arbitration- "(1) arbitration is consensual. It is based on the parties' agreement; (2) arbitration leads to a final and binding resolution of the dispute; (3) arbitration is regarded as substitute for the court litigation and results in the passing of [a] binding award." 
  • The discretionary language "may" used in Arbitration Act, 1940 in the context of domestic arbitration is absent both in Sections 8 and 45. However, the right to reference under Section 45 is conditioned by the pre-requisites which are to be satisfied for the reference.  Under Section 45, an obligation is cast on the courts to determine at the threshold as to whether the agreement is valid, operative and capable of performance. This view is reinforced by the fact that there is no provision in Section 45 akin to Section 8(3) (“Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”)
  • In exceptional cases, a non-signatory to the arbitration clause may nevertheless be subject to arbitration. The intention of the parties is critical. To examine if a non-signatory would be so subject, the following factors would be relevant: (a) whether there is a direct relationship between the non-signatory and the signatory to the arbitration agreement, (b) commonality of subject matter, and (c) whether the transaction contemplated is composite.
  • A transaction is composite where the performance of the “mother agreement” is not feasible “without aid, execution and performance of the supplementary or ancillary agreements” and all the agreements are aimed towards achieving a “common object” and have a collective bearing on the dispute. Here, the performance of one agreement is interlinked to the other agreements that they are “incapable of being beneficially performed without performance of the others or severed from the rest”. Another important factor is whether the parties intended to refer all disputes to arbitration. Apart from the above, the court is to determine if “ends of justice” would be met if the parties to the composite transaction are referred to arbitration. Thus, “[t]he principle of ‘composite performance’ would have to be gathered from the conjoint reading of the principal and supplementary agreements on the one hand and the explicit intention of the parties and the attendant circumstances on the other.”
  • Some jurisdictions such as Switzerland have not been unequivocal in accepting the above but some, such as USA, have.
  • In cases where there are several agreements relating to different parties, the dispute resolution terms might vary with such agreements. For example, one agreement might designate a particular law as the substantive law while another might designate a different substantive law. In such cases, having different arbitrations may lead to multiplicity of proceedings and inconsistent findings by different tribunals. In such cases, it would be prudent to strike off unnecessary parties and even cause of action in terms of the provisions of CPC. If parties cannot be struck off, the proceedings should continue before the court.
  • A comparison of Sections 8 and 45 below reveals that reference to arbitration under Section 8 can be made only if a party to the arbitration agreement applies to the judicial authority to refer the matter to arbitration. Section 45 allows, in addition, any person claiming through or under a party to the arbitration agreement to request the court to refer the parties to arbitration.

Section 8
Section 45
A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.
Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. (emphasis added)


  • This being so, if “[e]xamined from the point of view of the legislative object and the intent of the framers of the statute, i.e., the necessity to encourage arbitration, the Court is required to exercise its jurisdiction in a pending action, to hold the parties to the arbitration clause and not to permit them to avoid their bargain of arbitration by bringing civil action involving multifarious cause of action, parties and prayers.” However, the onus is heavy on the person who seeks to establish that he is claiming through or under a party to the arbitration agreement. Examples of such situations are:
    • (i) The plaintiff has acquired the rights, which the action is brought to enforce, from someone who is a party to an arbitration agreement with the Defendant;
    • (ii) The plaintiff is bringing the action on behalf of someone else, who is a party to an arbitration agreement with the Defendant.
    • (iii) When the expression used in the provision, the words ‘claiming under Plaintiff’ relative to substantive right which is being asserted.
  • In fact, joinder of non-signatories is not unknown to arbitration. One prominent theory is the contractual right transfer theory wherein the contractual right is transferred to the non-signatory who can be brought in into the arbitration proceedings. Such transfer takes place due to several means such as implied consent, third party beneficiary, guarantee, assignment, etc. Another important theory is the group of companies doctrine where arbitration agreement executed with a company can bind its affiliate. The question as to the formal validity of arbitration agreement is different from the question as to whether the parties are bound by that agreement. The New York Convention does not prevent a party from giving consent on behalf of another person.
  • [W]hen a third party i.e. non –signatory party is claiming or is sued as being directly affected through a party to the arbitration agreement and there are principal and subsidiary agreements, and such third party is a signatory to the subsidiary agreement and not to the mother or principal agreement which contains the arbitration clause, then depending upon the facts and circumstances of the given case, it may be possible to say that even such third party can be referred to arbitration.”
  • A party may not be a signatory to an agreement but the performance contemplated by the agreement would be through an affiliate of a signatory. In such cases, parties may opt to sign different agreements through different affiliates for various reasons. In such cases, reference to arbitration could be made even of such a non-signatory but there is a heavy onus on the person seeking reference of such a party to arbitration. 
(More in the next part)

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