Supreme Court of India Cox And Kings Ltd. vs Sap India Pvt. Ltd. on 6 May, 2022 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION ARBITRATION PETITION (CIVIL) NO. 38 OF 2020 COX AND KINGS LIMITED …PETITIONER VERSUS SAP INDIA PRIVATE LIMITED & ANOTHER …RESPONDENTS JUDGMENT N.V. RAMANA, CJI 1. This petition calls on us to examine the ‘group of companies doctrine’. In particular, it requires us to examine whether the principles of party autonomy under arbitration law and corporate personality in company law have been adequately safeguarded in outlining the scope and applicability of the doctrine being followed at present in Indian jurisprudence. 2. The present Arbitration Petition has been preferred by the Petitioner­Applicant under Section 11(6) and Section l1(12)(a) of the Arbitration and Conciliation Act, 1996 (hereinafter the Signature Not Verified Digitally signed by "Arbitration Act"), for appointment of an Arbitral Tribunal in Rajni Mukhi Date: 2022.05.07 10:56:49 IST Reason: terms of the provisions of the Arbitration Act, on the ground 1 that there has been a failure with respect to the appointment of an Arbitral Tribunal in accordance with the agreements between the parties. 3. The facts necessary for the adjudication of the dispute are as follows: on 14.12.2010, the Applicant and Respondent No. l entered into an SAP Software End User License Agreement and SAP Enterprise Support Schedule under which the Applicant was made a licensee of certain ERP software developed and owned by the Respondents. This is an overall licensing agreement that all customers of the Respondents have to enter into compulsorily in advance in order to utilize any software of the Respondents. In 2015, while the Applicant was developing its own e­commerce platform, the Respondents approached the Applicant and recommended their Hybris Solution as it would be 90% compatible with the Applicant’s software. The Respondents indicated that the remaining 10% customisation would take only 10 months, a much shorter solution than the Applicant developing the software itself. 4. The aforesaid agreement was divided into 3 separate transactions: first, the Software License and Support Agreement 2 ­ Software Order Form 3, dated 30.10.2015, was signed between the Applicant and Respondent No. 1 for the purchase of the SAP Hybris Software License. Second, an agreement dated 30.10.2015 was signed between the parties containing the terms and conditions governing the implementation of the SAP Hybris software. This agreement is called the Services General Terms and Conditions Agreement ("GTC"). Third, on 16.11.2015, an agreement was entered into for the customization of the software. 5. Clause 15.7 of the GTC contains the arbitration clause which we are concerned with in the present matter. The clause reads as follows: "15.7 Dispute Resolution: In the event of any dispute or difference arising out of the subject matter of this Agreement, the Parties shall undertake to resolve such disputes amicably. If disputes and differences cannot be settled amicably then such disputes shall be referred to bench of three arbitrators, where each party will nominate one arbitrator and the two arbitrators shall appoint a third arbitrator. Arbitration award shall be binding on both parties. The arbitration shall be held in Mumbai and each party will bear the expenses of their appointed arbitrator. The expense of the third arbitrator shall be shared by the parties. 3 The arbitration process will be governed by the Arbitration & Conciliation Act, 1996.” 6. Till August 2016, the Applicant listed out various issues in project implementation to Respondent No. 1 and requested Respondent no. 2 to in