Arbitration clause incorporation by reference requires clear intention; separate contracts and guarantees justified separate arbitral tribunals.

A general reference in a later memorandum to an earlier tender document does not, without clear intention, incorporate that document's arbitration clause under Section 7(5) of the Arbitration and Conciliation Act, 1996. Where the split contracts each contain their own arbitration clauses, and the record shows separate letters of award, distinct subject matters, and a separate corporate guarantee clause, the arrangements are treated as separate for arbitral appointment purposes. Under Section 11(6A), the court at the appointment stage is confined to verifying the existence of an arbitration agreement, and the disputes were therefore to be referred to separate tribunals, including an international commercial arbitral tribunal for the foreign company-related disputes.

---

---

Issues: (i) Whether the Memorandum of Understanding incorporated the arbitration clause in the original tender document by reference under Section 7(5) of the Arbitration and Conciliation Act, 1996. (ii) Whether the disputes arising from the five split contracts and the corporate guarantee could be referred to a single composite arbitral tribunal, or whether separate arbitral tribunals were required under Section 11(6A) of the Arbitration and Conciliation Act, 1996.

Issue (i): Whether the Memorandum of Understanding incorporated the arbitration clause in the original tender document by reference under Section 7(5) of the Arbitration and Conciliation Act, 1996.

Analysis: The reference to the original tender document in the Memorandum of Understanding was only for clarity in technical and execution-related matters and to fix the priority of documents. The split contracts were separate, each containing its own arbitration clause, and the Memorandum did not show a conscious intention to import the arbitration clause from the original tender document into the later arrangement. A general reference to another document is insufficient unless the reference clearly makes the arbitration clause part of the contract.

Conclusion: The Memorandum of Understanding did not incorporate the arbitration clause of the original tender document by reference.

Issue (ii): Whether the disputes arising from the five split contracts and the corporate guarantee could be referred to a single composite arbitral tribunal, or whether separate arbitral tribunals were required under Section 11(6A) of the Arbitration and Conciliation Act, 1996.

Analysis: After the amendment to Section 11, the Court's inquiry is confined to the existence of an arbitration agreement. The record showed five separate letters of award, five separate contracts, distinct subject matters, and separate arbitration clauses, along with a separate arbitration clause in the corporate guarantee. On that basis, the original tender arrangement was not treated as one merged contract, and the corporate guarantee also could not override the split contracts. The foreign company and its guarantee gave rise to international commercial arbitration, while the contracts with the Indian subsidiary required separate domestic tribunals.

Conclusion: Separate arbitral tribunals were required, and a single composite tribunal was not warranted.

Final Conclusion: The petitions were disposed of by constituting separate arbitral tribunals for the different agreements, including an international commercial arbitral tribunal for the foreign company-related disputes and domestic tribunals for the remaining contracts.

Ratio Decidendi: Under Section 11(6A), the Court at the appointment stage is confined to verifying the existence of an arbitration agreement, and a general reference to another document does not incorporate its arbitration clause unless the parties clearly intended that clause to become part of the later contract.

---