Non-signatory arbitration referral turns on prima facie consent, with disputed facts left to the arbitral tribunal.

Under Section 11, the referral court's enquiry is confined to the existence of an arbitration agreement, but in cases involving a non-signatory it may prima facie assess whether that party is a veritable party to the agreement. A non-signatory can be bound where its conduct, participation and relationship with the signatories show consent to the underlying contract and its arbitration clause, including through negotiation, performance, implementation and interdependent transactions. Because the SRG Group's alleged role, the surrounding communications and the relevant contractual clauses raised disputed factual questions, the court treated the issue as unsuitable for a mini-trial at the referral stage and left it to the arbitral tribunal under competence-competence.

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Issues: Whether the non-signatory SRG Group could be referred to arbitration along with the signatory groups in proceedings under Section 11 of the Arbitration and Conciliation Act, 1996.

Analysis: The referral court's enquiry under Section 11 is confined to the existence of an arbitration agreement, but in cases involving non-signatories it may prima facie examine whether the non-signatory is a veritable party to the arbitration agreement. The law permits binding a non-signatory where its conduct, participation, and relationship with the signatories show consent to be bound by the underlying contract and its arbitration clause. The relevant factors include participation in negotiation, performance, and implementation of the transaction, the composite nature of the arrangement, and the interdependence of the transactions. Here, the clauses concerning Millenium and Deegee, the surrounding communications, and the alleged role of the SRG Group raised disputed questions of fact as to whether it had positively, directly, and substantially ated in the arrangement and consented to arbitration. Such disputed factual questions were held unsuitable for a mini-trial at the referral stage and were better left to the arbitral tribunal under the doctrine of competence-competence.

Conclusion: The SRG Group could be referred to arbitration at the Section 11 stage, and the appointment of a sole arbitrator was sustained.

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