Binding the Non-Signatory: SIAC PPOS, the Group of Companies Doctrine, and the Enforcement Problem

[Kanha and Madhav are students at West Bengal National University of Juridical Sciences.]

In 2025, the Singapore International Arbitration Centre (SIAC) introduced its new set of rules, with one of the most crucial developments being the update in its emergency arbitration (EA) mechanism. Under Schedule I of these rules, parties can now apply for a protective preliminary order (PPO). Under this mechanism, an emergency arbitrator is given the power to issue an ex parte order directing the other party to not frustrate the purpose of the emergency interim or conservatory measure requested.

The PPO framework has been extensively discussed by practitioners and scholars, attracting criticism ranging from inadequate opportunity to be heard, to enforcement problems arising from the provisional nature of these orders.

In this piece, we look at a very specific enforcement concern that arises from this framework. SIAC emergency arbitrators can potentially grant such orders against non-signatories through the application of the group of companies (GoC) doctrine. The Supreme Court in Cox & Kings Limited v. SAP India accepted that non-signatories can be bound through this doctrine since it reflects the “modern reality of economic life and business organisation,” laying down a substantive five-factor analysis to meet this threshold. The enforcement of such an order in India, however, creates problems that risk defeating the urgency the PPO mechanism is designed to protect.

Application of the GoC Doctrine and the PPO Mechanism

The PPO application has to be decided within a period of 24 hours after the appointment of the emergency arbitrator. The same is transmitted to the responding party, and the applicant has to provide copies of all relevant papers and communications to the respondents within 12 hours of issuance. Since these PPOs are meant to protect urgent interests, the same is provisional and lapses within a period of 14 days.

Previously, emergency arbitrators have held that it is possible to include non-signatories in EA proceedings, and the same has been reiterated by scholars as well. Furthermore, the joinder component of SIAC Rules 2025 under Rule 18 invests EA with the authority to join a non-signatory third party to the emergency proceedings on a prima facie showing of party status. Even in the Amazon v. Future Retail case, the SIAC emergency arbitrator had applied GoC against non-signatories, binding them to the arbitration agreement, which was subsequently upheld by the Supreme Court.

The paper takes a look at a hypothetical where Party A (the claimant) makes a business contract with Party B, a subsidiary with no significant assets. Party C, Party B’s non-signatory parent company, possesses all assets. Party B is in default. Party A, concerned that Party C’s assets are about to be dissipated, invokes EA under the SIAC Rules 2025, procures a PPO freezing Party C’s assets under Rule 18 on a prima facie basis, and then enforces it in the High Court under Section 17(2) of the Arbitration and Conciliation Act 1996 (Act).

As it shall be elaborated subsequently, this can lead to potential enforcement concerns that risk defeating the purpose behind introduction of the PPO mechanism.

Challenges in Enforcement in the Indian Context

Indian jurisprudence has increasingly emphasised a pro-enforcement approach to arbitral awards, including foreign awards. In Vijay Karia v. Prysmian Cavi E Sistemi, the Supreme Court reaffirmed this position by limiting the scope of objections available under Section 48 of the Act. The pro-enforcement regime was also firmly established in BALCO, which settled the principle that Part I of the Act applies only to arbitrations seated in India, while foreign arbitral awards are subject to Indian court jurisdiction only at the enforcement stage under the limited framework of Part II. A similar approach has been taken to the 'public policy' ground of refusal, with the Delhi High Court in Cruz City I Mauritius Holdings v. Unitech Limited adopting a narrow reading of the exception to prevent it from becoming a routine obstacle to enforcement.

In Amazon v. Future Retail, the Supreme Court took this further by expressly holding that emergency arbitrator awards are enforceable in India as orders of the arbitral tribunal under Section 17(2) of the Act.

However, where a SIAC emergency arbitrator issues a PPO against a non-signatory through the application of the GoC doctrine, this pro-enforcement framework runs into a difficulty. The enforcement of such an order will face challenges that necessitate judicial scrutiny and open the door to jurisdictional objections by the affected non-signatory, cutting against the very urgency the PPO mechanism is designed to serve.

This section examines two categories of such challenges. Part A addresses the friction arising from the difference between the threshold required to establish a GoC nexus in the Indian context and what an emergency arbitrator can realistically determine within its constrained timeline. Part B addresses the Section 18 challenges that arise from the ex parte nature of PPO proceedings against a party that has never consented to the arbitral process.

Difference in Thresholds

When the claimant in our hypothetical PPO seeks enforcement in the High Court pursuant to Section 17(2), the court is immediately faced with a conflict in doctrine. The EA’s decision is grounded on a prima facie assessment that Party C is a “party” to the arbitration agreement. However, in accordance with Cox & Kings, the GoC doctrine, which is the primary method of non-signatory incorporation, is subject to a complex five-factor assessment: (i) mutual intent of the parties; (ii) corporate relationship between signatory and non-signatory; (iii) commonality of subject matter; (iv) composite nature of the contract; and (v) direct performance of contract by non-signatory. Such an assessment cannot be undertaken in an ex parte hearing in 48 hours.

Furthermore, emergency arbitrators are only required to conduct a prima facie analysis of their jurisdiction given the urgent nature of EA and their provisional role [p.450]. It has also been argued by Ashish Kabra et al, that arbitral tribunal is likely to need to take a detailed exercise, including taking evidence, before arriving at a GoC determination, and therefore, an emergency arbitrator does not possess the luxury to meet the Cox & Kings threshold. Therefore, a challenge can be raised by the affected non-signatory on this ground which force the court to either undertake a review or dismiss the enforcement order. 

Section 18 Challenges

Under Section 18 of the Act, arbitral tribunals are required to ensure equal treatment of all parties and must afford them a ‘full’ opportunity to be heard at all stages of arbitral proceedings, including during proceedings for urgent interim relief. The Supreme Court in Union of India v. Vedanta Limited held this to be a ‘mandatory and non-derogable’ principle. Section 24(2) further provides that where the arbitral tribunal decides to hold oral hearings, parties must be given 'sufficient advance notice.

In Godrej Properties Limited v. Goldbricks Infrastructure Private Limited, this provision was relied upon to set aside an interim order granted by an ad hoc tribunal without hearing the other party by the Bombay High Court. 

Kanishk Srinivas argues that a situation akin to Godrej Properties may not arise here, since that case involved an ad hoc arbitration where neither the procedural rules nor the law of the seat provided for ex parte interim orders, and that commercial parties operating under institutional rules are presumed to have consented to the procedures those rules permit, including ex parte relief.

This argument has merit in the ordinary signatory context, but it does not answer the challenge raised by a non-signatory. A non-signatory cannot be said to have consented to the institutional rules, precisely because their status as a party depends on a substantive five-factor GoC analysis that has not yet been conducted. Without that analysis, they cannot be treated as having agreed to anything. Even within the narrow scope of objections available at the enforcement stage, a Section 18 challenge by a non-signatory remains a live possibility, grounded in the foundational arbitral principle of consensual proceedings. 

Moreover, while the PPO mechanism does provide responding parties an opportunity to contest the order after issuance, the extremely limited timeframes are insufficient for placing detailed evidence and documentation on record. This cannot realistically satisfy the threshold of ‘full’ opportunity to be heard under Section 18, particularly when the order was passed without hearing the affected party in the first place.

Implications and Way Forward

The practical implications of the problem identified in Part II can be illustrated through a straightforward enforcement sequence. When the claimant of the PPO approaches the High Court under Section 17(2) for enforcement, as permitted under Amazon v. Future Retail, the non-signatory can raise a jurisdictional challenge, contesting the adequacy of the GoC determination made by the emergency arbitrator under time pressure and without a full evidentiary record. The High Court, faced with a substantive jurisdictional objection that was never properly examined, is effectively compelled to await a fully constituted tribunal conducting a proper Section 16 inquiry before the enforcement question can be resolved. The claimant is thereby locked into precisely the procedural delay the PPO mechanism was designed to prevent. The urgency that justified the ex parte order has been neutralised by the enforcement process itself. 

One promising starting point is the draft Arbitration and Conciliation (Amendment) Bill 2024. The proposed amendment to Section 18 of the Act would replace the ‘full’ opportunity to present a case with a ‘fair and reasonable’ opportunity. This shift in standard is significant. The opportunity afforded by the PPO mechanism, albeit constrained by strict timelines, could plausibly satisfy a ‘fair and reasonable’ threshold even where it falls short of the existing ‘full’ opportunity requirement. This would substantially reduce the viability of Section 18 challenges at the enforcement stage. Moreover, the statutory recognition to emergency arbitral award, and that as per section 9-A(4) of confirming, modifying or vacating the order passed by the emergency arbitrator are welcome moves in this context. 

Second, in enforcing an emergency award of a PPO against a non-signatory under Section 17(2) of the Act, courts should apply a “not manifestly without jurisdiction” standard of review. In enforcing a PPO against a non-signatory under Section 17(2), courts should apply a standard analogous to the negative effect of kompétence-kompétence recognised under Article 1448 of the French Code of Civil Procedure, where a court gives effect to an arbitrator’s jurisdictional finding unless it is manifestly void or manifestly inapplicable. Under this standard, the enforcing court does not redo the five-factor Cox & Kings analysis. It would only ask whether the emergency arbitrator’s prima facie finding of GoC nexus was made in good faith, on relevant material, and is not manifestly erroneous on its face. This tracks the same “eye of the needle” posture Indian courts already apply at the referral stage under Section 8 and Section 11 post-Vidya Drolia, and so asks nothing doctrinally new of them. It preserves the urgency the PPO mechanism exists to protect, while leaving the final word on whether the non-signatory is in fact bound.