When does a reference carry the arbitration clause under the Arbitration Act, s.7(5)?

Where the terms of the document are incorporated rather than merely referred to. If a contract provides that the said document shall form part and parcel of the contract, or that all its terms shall be read or treated as a part of the contract, the terms of that document in entirety get bodily lifted and incorporated, and if the document so incorporated contains a provision for settlement of disputes by arbitration, that arbitration clause also applies to the contract.

Arbitration and Conciliation Act 1996 — s.7(5) — s.11 — Incorporation by reference — Arbitration agreement — International commercial arbitration — Arbitration and Conciliation Act 1996 — s.7(5) — Incorporation, not mere reference — Held: Where one agreement provides that its terms shall constitute an integral part of another and shall apply mutatis mutandis, it does not merely refer to that other agreement but incorporates its terms, carrying the arbitration clause with them. (¶15, 16) Arbitration and Conciliation Act 1996 — s.7(5) — Reference short of incorporation — Held further: Where the reference shows that the document was not intended to be incorporated in entirety, the reference will not make the arbitration clause part of the contract unless there is a special reference to that clause. (¶18) Arbitration and Conciliation Act 1996 — s.11 — Pendency of a suit and Section 8 — Held further: A party is not to be relegated to a Section 8 application merely because the opposite party has instituted a suit; on clear contractual terms a reference to arbitration is necessitated. Arbitrator appointed. (¶20, 21)

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