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The power of arbitral tribunals to join non-signatories in arbitrations has long been a contentious issue. Decisions of various high courts have both recognised and rejected such power. However, the issue is now settled with the Supreme Court’s recent decisions in and . The development reinforces the judiciary’s pro-arbitration stance.

Both decisions rely on the Supreme Court’s judgment in . In , the Supreme Court was dealing with the question of the applicability of the group of companies doctrine in India. While maintaining that consent remains the bedrock for joining non-signatories in arbitration, the Supreme Court adopted an expansive approach to consent in light of “modern commercial realities”. Though the Supreme Court did not delve specifically into the power of arbitral tribunals to join non-signatories, the court clarified that the role of a referral court dealing with an application for appointment of an arbitrator under section 11 of the Arbitration & Conciliation Act, 1996 (ACA), should be limited to a prima facie determination on the existence of an arbitration agreement and whether the non-signatory is a veritable party. The final determination on joinder, the court concluded, is best left to the arbitral tribunal.

In Adavya Projects, the Supreme Court held that tribunals may join non-signatories even in the absence of a notice under section 21 of the ACA. The court ruled that a section 21 notice is neither mandatory nor restricts the claims a party may make before the tribunal. The Supreme Court also clarified that a joinder application can be pursued even without joining the non-signatory in any prior section 11 proceedings for the appointment of arbitrators. The court went on to hold that arbitral tribunals are empowered to determine joinder under section 16, which enshrines the principle of competence-competence, allowing tribunals the power to rule on their own jurisdiction.

In ASF Buildtech, the court ruled that joinder, as analysed in Cox and Kings, is a fact-intensive inquiry into party consent, better determined by the arbitral tribunal relying on sections 16 and 19 of the ACA. In the absence of any express provision for joinder, the court ascribed the tribunal’s powers to the doctrine of implied powers, as analysed in the recent case of Gayatri Balasamy v ISG Novasoft Technologies Limited, provided they are in line with the act. ASF noted Cox and Kings 2 does not require all issues of joinder to be first raised before a referral court, given the limited scope of intervention under section 11. Tribunals are much better placed to interpret party consent more broadly to reflect modern commercial realities.

In contrast to the now settled Indian position, the UK and Singapore, both hubs of international arbitration, are more cautious. These jurisdictions strictly apply the doctrine of privity and only permit joinder in limited circumstances such as agency, novation or assignment. However, institution rules offer more procedural flexibility. The 2025 Singapore International Arbitration Centre Rules allow joinder if the tribunal finds that the additional party is, on the face of it, bound by the arbitration agreement. Similarly, the 2021 ICC Rules permit joinder if the tribunal finds that it appears to have jurisdiction over the third party and such party accepts the tribunal and the terms of reference. On the other hand, the 2020 London Court of International Arbitration Rules allow joinder only with the written consent of the third party. The developments in India offer greater flexibility.

With the jurisprudence evolving, parties should draft arbitration clauses with care. Key considerations include clearly identifying all intended parties, including affiliates; using broad language to encompass related entities and composite transactions; setting out express joinder and consolidation provisions; opting for appropriate institutional rules or adapting them to one-off arbitrations; considering joinder when deciding the seat; and being clear in contracts about the inclusion of non-signatories.

The Supreme Court has widened the scope for joining non-signatories in arbitrations and ruled that arbitral tribunals do have the power to determine such issues under section 16. This aligns with the procedural innovations of the rules of institutions, while pushing boundaries further in favour of efficient dispute resolution.

Kingshuk Banerjee is a partner and Saher Naqvi is an associate at Khaitan & Co