India: Exceptions To The Law Regarding Non-Incorporation Of Arbitration Clause Through General Reference: Widening The Horizons In The Light Of Inox Wind Ltd v. M/S Thermocables Ltd

Introduction and brief facts

The Hon'ble Supreme Court, vide its judgment dated 05.01.2018 in the recent case of Inox Wind vs. Thermocables Ltd10 has examined the scope of Section 7 (5) of the Arbitration and Conciliation Act, 1996 ("the Act"). In the process, the apex court judgment in the case of M.R. Engineers and Contractors Private Limited v. Som Datt Builders Limited11 ("MR Engineers") was also distinguished. It also modified the settled position of law pertaining to the exception to the non-incorporation of arbitration clause contained in the general reference of a contract by holding that, "a general reference to a standard form of contract of one party will be enough for the incorporation of the arbitration clause".

The dispute in the instant case arose out of a contract pertaining to two purchase orders dated 13.12.2012 and 02.02.2013 for the supply of thermocables to Inox Wind (hereinafter to be referred as, "the Appellant" by Thermocables Ltd (hereinafter to be referred as "the Respondent".

As per the purchase order, the supply was to be made according to the terms and conditions mentioned in the order and the Standard Terms & Conditions which also contained the dispute resolution clause and the same was not disputed by the Respondent. When the dispute arose, an application under Section 11 (6) of the Arbitration and Conciliation Act (hereinafter referred as, "the Arbitration Act") was filed before the Hon'ble Allahabad High Court wherein the Hon'ble High Court dismissed the application on the ground that the Appellant had failed to prove the existence of a valid Arbitration Agreement. It was under this circumstance that the present SLP arose before the Hon'ble Supreme Court, challenging the impugned judgment of the Hon'ble Allahabad High Court.

Widening of exceptions

The Hon'ble High Court while dismissing the application under Section 11 of the Arbitration Act had relied upon the case of M.R. Engineers and Contractors Private Limited v. Som Dutt Builders Limited12 wherein it had been held that an arbitration clause cannot be said to have been incorporated into the purchase order if there is no special reference to the arbitration clause in the standard terms and conditions. On a purposeful interpretation of Section 7(5) of the Arbitration Act, 1996, it was observed that a conscious acceptance of the arbitration clause in another document is required for incorporating it into the contract. In a nutshell, general words of reference or incorporation are not sufficient for referring the dispute to arbitration and a particular reference to arbitration clause is required.

Before arriving at its conclusion, the Hon'ble Supreme Court also traced the development of English law on the subject and appreciated the differences that exist in deciding whether a general reference is sufficient for incorporation in single contract cases as well as double contract cases. The Hon'ble Supreme Court then observed that in the case of M.R. Engineers (supra), it was held that in single contract cases, general reference is enough for incorporation of an arbitration clause from a standard form of contract. In the same case, which has been discussed elaborately by the Supreme Court, it was held to be a rule that arbitration clause in an earlier contract cannot be incorporated by a general reference. The exception to the rule is a reference to a standard form of contract by a trade association or a professional institution. The Court finally held that although a general reference to an earlier contract is not sufficient for incorporation of arbitration clause, a general reference to a standard form would be enough for incorporation of the arbitration clause by relying upon the 24th Edition of Russell on Arbitration.


Coming to the conclusion, it was observed by the bench that the Russell on Arbitration's 24th Edition (2015) had gone through changes and had departed from the position taken in 23rd edition (2007) of the book, which was the basis of the reasoning in the MR Engineers case. The bench elucidated that contrary to MR Engineers there is no distinction that is drawn between standard forms by recognized trade associations or professional institutions for incorporation of an arbitration clause by reference on the one hand and standard terms of one party on the other hand. The Court also examined the development of case laws in England by referring to the decision of the Queen's Bench in the case of Habas Sinai Ve Tibbi Gazlar Isthisal Endustri AS v. Sometal SAL13. Thus, in light of the development of law regarding incorporation after the judgment in M.R. Engineers, it was held that a general reference to a consensual standard form is sufficient for incorporation of an arbitration clause. In other words, it was held that general reference to a standard form of contract of one party will be enough for incorporation of arbitration clause.


10. [Civil Appeal No. 19 of 2018]

11. (2009) 7 SCC 696

12. [(2009) 7 SCC 696

13. [2010] EWHC 29 (Comm)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions