Arbitration clause by reference: broad contractual wording can incorporate it, but supply-only references do not.

A contractual reference to another agreement may incorporate its arbitration clause where the wording is broad enough and the clause remains sensible in the new contract; on that basis, the FOSFA-20 arbitration term was held incorporated into the first contract. By contrast, a narrower reference limited to "other terms and conditions for supply" does not, without clearer language, bring in dispute-resolution machinery; the arbitration clause was therefore not incorporated into the second contract. The decision distinguishes between incorporating supply-related terms and incorporating arbitration provisions by reference.

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Issues: (i) Whether the arbitration clause in the incorporated FOSFA-20 terms became part of the first contract by reference; (ii) whether the arbitration clause in the earlier contract was incorporated into the second contract, which referred only to the earlier contract's supply terms.

Issue (i): Whether the arbitration clause in the incorporated FOSFA-20 terms became part of the first contract by reference.

Analysis: A clause incorporating the terms of another contract by reference may bring in the arbitration clause as well, provided the incorporated term is not inconsistent with the contract into which it is introduced. The reference "other terms and conditions as per FOSFA-20 contract terms" was broad enough to include the arbitration provision, and the clause remained intelligible when read into the first contract. The clause did not become insensible or repugnant merely because the subject-matter of the two contracts differed.

Conclusion: The arbitration clause was validly incorporated into the first contract, and the finding against the appellant on this issue was upheld.

Issue (ii): Whether the arbitration clause in the earlier contract was incorporated into the second contract, which referred only to the earlier contract's supply terms.

Analysis: The second contract used narrower language, referring only to "other terms and conditions for supply." Arbitration is not a term incident to supply of goods in the ordinary contractual sense, and a reference confined to supply conditions does not, without clearer language, bring in the arbitration clause. The incorporation clause therefore covered only the supply-related incidents of the earlier contract and not its dispute-resolution mechanism.

Conclusion: The arbitration clause was not incorporated into the second contract, and the finding in favour of the appellant on this issue was upheld.

Final Conclusion: The judgment under challenge was affirmed, with the two appeals failing on the respective issues raised.

Ratio Decidendi: A contractual reference to another agreement may incorporate an arbitration clause if the language is broad enough and the clause remains sensible in the new contract, but a reference limited to supply terms does not, without clearer words, incorporate arbitration machinery.

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