Consortium structure and Indian control defeat international commercial arbitration status; parties must proceed as a single entity.

A consortium arrangement was treated as the operative contracting entity, not as separate members acting independently, because the contract and consortium agreement showed the project was undertaken through a lead-member structure with central management and control in India. A foreign-incorporated member did not, by itself, make the dispute an international commercial arbitration under Section 2(1)(f)(ii); the consortium instead fell within the category of an association under Section 2(1)(f)(iii). The petition under Section 11 was therefore not maintainable as an international commercial arbitration petition, and the parties were required to proceed only as a consortium.

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Issues: Whether the petition under Section 11 of the Arbitration and Conciliation Act, 1996 was maintainable on the footing that the consortium constituted an international commercial arbitration agreement, and whether the parties were entitled to invoke arbitration as independent entities rather than as a consortium.

Analysis: The contract and the consortium agreement showed that the petitioner parties had undertaken the project as a consortium, with the Indian company as the lead member and with arrangements indicating that the consortium, not the members separately, was the contracting entity. A prior inter-partes decision concerning the same contract had already held that the parties could not rely on their independent identities while dealing with the respondent and had to proceed only as a consortium. On that basis, the foreign-incorporated member did not make the dispute fall within Section 2(1)(f)(ii); instead, the consortium answered to the description of an association under Section 2(1)(f)(iii). The surrounding contractual structure also showed that the central management and control of the consortium was exercised in India.

Conclusion: The petition was not maintainable as an international commercial arbitration petition and was dismissed against the petitioner; the parties were held bound to proceed as a consortium and not as separate entities.

Ratio Decidendi: A consortium that functions as an unincorporated association with central management and control in India does not constitute an international commercial arbitration merely because one member is incorporated outside India, and the parties cannot ignore the consortium structure to invoke Section 11 as separate entities.

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