Mr. Anirudh Wadhwa, a lawyer based in Delhi and one of the editors of Justice R.S. Bachawat's Law of Arbitration and Conciliation was kind enough to send us a guest post on incorporation of arbitration clauses by reference. The note centers around the decision of the Supreme Court of India in M.R. Engineers v Som Datt Builders [(2009) 7 SCC 696]. The following is the text of Mr. Wadhwa's post.
It is common for terms, including arbitration clauses, from one contract to be incorporated by reference into another. A strict standard of incorporation is generally preferred in respect of arbitration clauses for three reasons – First, an arbitration clause, is considered independent of the main contract. Second, arbitration clauses preclude the parties from bringing disputes before judicial fora. Third, an arbitration agreement has to be a “written agreement”. In consideration of these, the accepted view is that a “general” incorporation of the conditions of a contract does not have the effect of incorporating an arbitration clause contained in that contract.
