The Supreme Court addressed a petition under Section 11 of the Arbitration & Conciliation Act, 1996, filed by Cox & Kings Ltd., seeking the appointment of an arbitrator to resolve disputes with SAP India. The disputes arose from an agreement for the purchase and implementation of SAP Hybris Software. Cox & Kings argued that SAP India and its parent company, SAP SE, were responsible for software implementation failures, which affected its business operations. The key issue revolved around whether SAP SE, a non-signatory, could be involved in the arbitration proceedings.

The Court allowed the arbitration and referred the issue of the non-signatory's involvement to the arbitrator, emphasizing the need for minimal judicial interference at the stage of arbitration referral.

Factual Matrix:

1. Parties Involved:

   • Petitioner: Cox & Kings Ltd., a company providing tourism and hospitality services.
   • Respondents: SAP India Pvt. Ltd., and its parent company, SAP SE (Germany), both involved in providing business software solutions.

2. Agreements:

   • Cox & Kings and SAP India entered into a series of agreements for the purchase and implementation of the SAP Hybris Software to improve e-commerce operations. These included the Software License Agreement, General Terms and Conditions (GTC), and other related agreements.

3. Dispute:

   • The software implementation encountered multiple delays and issues, leading Cox & Kings to terminate the project in 2016. SAP SE became involved at Cox & Kings' request to resolve the issues, but the project ultimately failed.

4. Arbitration Clause:

   • Clause 15.7 of the GTC Agreement included an arbitration clause for resolving disputes, with arbitration to take place in Mumbai.

Legal Proceedings:

• In response to the failure of the project, Cox & Kings sought to invoke arbitration, including SAP SE as a party, claiming that it had been actively involved in the project.
• SAP India, in turn, had already initiated arbitration over non-payment, while Cox & Kings raised counterclaims.

Legal Issues:

1. Impleadment of Non-Signatories: The main legal question was whether SAP SE, a non-signatory to the arbitration agreement, could be included in the arbitration under the "Group of Companies" doctrine.

2. Existence of Arbitration Agreement: Whether the arbitration agreement covered all claims raised, given the separate agreements for software purchase and implementation.

Ratio Decidendi:

The Supreme Court reaffirmed that the referral court's role under Section 11 of the Arbitration & Conciliation Act is limited to determining the prima facie existence of an arbitration agreement. It emphasized that questions about whether a non-signatory (SAP SE) is bound by the arbitration agreement should be left to the arbitral tribunal to decide under the principle of competence-competence. The tribunal is best positioned to analyze complex facts and apply legal doctrines to resolve these disputes.

Acts and Sections Discussed:

1. Arbitration & Conciliation Act, 1996:
   • Section 11(6): Appointment of arbitrators.
   • Section 16: Competence of the arbitral tribunal to rule on its jurisdiction.

Subject:

Commercial Arbitration, Group of Companies Doctrine, Software Implementation Disputes.

Arbitration, Supreme Court, Cox & Kings, SAP India, Software Dispute, Non-Signatory Arbitration, Commercial Contracts.