By Rugved Manamuni
Introduction and Background of the case
Amazon, as of September 2021 holds 31.2% of the online retail market share[i], firmly holding the position of the second-largest online retailer in the Indian e-commerce market just a little behind the Walmart owned Flipkart which holds 31.9% market shares. According to the world investment report of 2021, it was reported that India recorded a 27% increase in its FDI (Foreign Direct Investment). [ii]
Pertaining to the last statement, Amazon had decided to Invest a sum of Rs.1431 Crore in Future Coupons Pvt. Ltd., a company that holds 9.82% shareholding in Future Retail. [iii] Future retail is currently India’s Second largest offline retailer [iv].
Summary of the Judgement
On 26th December 2019, Amazon invested the 1431 Crore in Future Coupons which was then passed down to Future Retail on the same day.
Amazon also had entered into three shareholder agreements with Future Retail Limited (FRL), Future Coupons Pvt Ltd (FCPL), and its Board of Directors and its promoters (collectively called as Biyani Group – Respondents in the Appeals).
The Shareholder's agreements between Biyani Group and Amazon were entered into on 12th August 2019 in relation to Future retail limited (FRL agreement). In this agreement, Future Coupons was accorded protective, negative, special, and material rights regarding Future Retail. The said rights which were granted to Future coupons under this shareholder's agreement were to be exercised in favor of Amazon and the same was mirrored in the shareholder's agreement which was dated 22nd August 2019 entered into between Future coupons, Biyani Group, and Amazon (FCPL Agreement). Under the FRL and FCPL Agreement, an amount of Rs 1431 Crores were to be invested in Future Coupons by Amazon.
The main understanding of the agreement was that, As Amazon had invested the said amount in retail assets of Future Retail, Future Retail was strictly prohibited from selling / divesting/transferring / encumbering of its retail assets to some restricted persons without the permission of Future Coupons which, in turn, could not be granted without Amazon’s consent.
The few restricted persons as mentioned in the agreement obviously had the name of the largest offline retailer Reliance owned by the Richest person in India Mr. Mukesh Dhirubhai Ambani. On 26th December 2019, Amazon invested the aforesaid sum of Rs 1431 Crores in Future Coupons which on the same day was flowed down to Future Retail.
Within few months On 29th August 2020 the Biyani Group, FRL, and FCPL all the respondents in the case entered into an agreement with Mukesh Ambani’s Reliance for the amalgamating Future Retail (FRL) with Mukesh Dhirubhai Ambani Group and as the result of the agreement FRL would cease to be an entity and all the retail assets of FRL would be disposed of such as to beneficial for the said group.
On 5th October 2020 Amazon initiated arbitration proceedings for seeking emergency relief from the emergency arbitrator under the SIAC rules (Singapore International Arbitration Center) in form of an injunction against the aforesaid transaction. Mr. V.K. Rajah was appointed as the emergency arbitrator and after detailed oral submissions from all the parties and then an interim award dated 25th October 2020 was passed in favor of Amazon.
However, all the respondents in the case ignored the said arbitration award given by SIAC and went ahead with the transaction with Mukesh Dhirubhai Ambani Group, giving the reason that the award was a nullity.
Future Retail being consistent with this stand did not challenge the arbitration award under Section 37 of the Arbitration Act instead they filed a civil suit against Amazon in High Court of Delhi which wanted interim relief by stopping Amazon from writing against Future group relying on the Arbitration Award granted by SIAC to the statutory authorities. The Judge of the Delhi High court refused to grant Future Retail with the relief after examining all the evidence.
During this period of adjudicating the case of Future Retail, Amazon went ahead with an application filed under Section 17(2) of the Arbitration Act whose verdict given by a Single Judge of Delhi High Court was a status – quo order restraining the Biyani Group from going ahead with the transaction with Mukesh Dhirubhai Ambani Group.
Future Retail filed for an appeal in which the Divisional Bench, after stating out the facts of the case and all the hearings on 18th March 2020 the Single Judge passed a detailed Judgement giving reasons for an order under Section 17(2) read with an Order 39, Rule 2-A of CPC, and it was held that the Emergency Arbitration award comes under the Section 17(1) of the Indian Arbitration Act and such award is enforceable as an order under the Arbitration Act.
Against the detailed judgment, a First Appeal Order (FAO) was filed by Future Retail in which the proceedings before the single Judge as well as Divisional Bench of the Delhi High Court have stayed and further proceedings were set down for final disposal before the Supreme Court of India. [v]
Appellant’s Arguments –
The Appellant, Amazon in the Supreme Court was represented by various Senior Advocates in which Mr. Gopal Subramanium argued that an Emergency Arbitrators award can never be characterized as a nullity and ignored and cited numerous Judgements of Supreme Court itself in which Emergency Arbitration Award was accepted to be viable under the Arbitration Act. He also pointed that the respondents did not appeal against the award and so the award should be taken as it is. He also cited judgments to show that even non – signatories to an arbitration agreement are bound by it. It was also argued that the Foreign Exchange Regulation Act, 1973 (FERA)[vi] does not have any provision relating to the nullification of an agreement. [vii]
Mr. Aspi Chinoy argued that no equity can be found in favor of respondents as they have admitted the breach of the Emergency Arbitrators Award as they openly flouted the Award. He also argued that appeal filed under Order XLIII, Rule 1(r) would not be maintainable as referring to Section 17(2) of the Arbitration Act, The enforcement orders were made under the Arbitration Act and not under the Code of Civil Procedure thus the order would not be maintainable. [viii] He also supported his inference with the Judgement of Divisional Bench of Bombay High Court in Kakade Construction Co. Ltd. v. Vistra ITCL, 2019. [ix]
Respondents Arguments –
The Biyani Group, FRL, and FCPL were the respondents in the current case, numerous senior advocates represented them out of which Mr. Harish Salve, appearing on behalf of FRL clearly stated that he would not argue that an Emergency Arbitration Award was outside the reach of Arbitration Act, but it could be argued that an Emergency Arbitration Award cannot fall under Section 17(1) of the Act. He exhibited an extract of the 246th Law Commission Report, in which the report advocated the amendment of Section 2 of the Arbitration Act, to include within sub-section (1)(d) a provision for the appointment of an Emergency Arbitration. The Parliament did not adopt the suggestion made in the law report when the Arbitration was amended by the 2015 Amendment Act, indicating that such orders would not fall under Section 17(1) of the Arbitration Act. He also read out specifically 10 to 13, 16, 17, 21, 23, 27, 29A, and 30 Sections of the Arbitration Award, arguing that the definition of Arbitral Tribunal in Section 2(1)(d) of the Arbitration Act solely means a tribunal that is formed between the parties, which then decides the dispute between the parties finally and cannot, include an Emergency Arbitrator who is an arbitral tribunal but a single person who only decides, an interim dispute between the parties which never comes in forms of the final award.
Finally what Mr. Harish Salve argued was that the Arbitration Act only defines Arbitral Tribunals and not an Emergency Arbitrator and thus only an Arbitral Tribunal can conduct arbitral proceedings and make a final Arbitral award, which can never be given by an Emergency Arbitrator. This shows that Emergency Arbitrator is a foreigner to the Indian Arbitration Act and it cannot fall under Section 17(1) unless an amendment is made in the parliament. [x]
Mr. K.V. Viswanathan argued that in the arbitration clause between the parties by the virtue of Section 25.2 of the Future Coupons Shareholders Agreements that only civil courts could pass interim orders until the arbitral tribunal is properly formed by the parties. To support his statement, he referred to a recent Judgement of Supreme Court, namely National Highways Authority of India v. M. Hakeem[xi], arguing that Section 17 was like Section 34(1) of the Arbitration Act in that nothing could be read into Section 17 so as to incorporate awards made by an Emergency Arbitrator. [xii]
The Supreme Court after hearing both the side of the story and examining all the evidence came to the conclusion that it will uphold the Arbitration Award given by SIAC and hold the deal between Future Retail and Reliance. [xiii]
The Judgement given by the Supreme Court was of quintessential importance as it answered the questions that arose, Now the parties can choose the option of Emergency Arbitration in the light of the judgment as it was cleared that Emergency Arbitration is a recognized remedy for interim relief and it is enforceable under the Indian Arbitration Act.
Thus, By providing these remedies litigants and parties can help reduce the burden on the Indian Judicial System.
[i] Gabriela Barkho, How the pandemic strengthened Walmart-Owned Flipkart’s marketshare, Modernretail (May 13th, 2021), https://www.modernretail.co/platforms/how-the-pandemic-strengthened-walmart-owned-flipkarts-marketshare/
[ii] Naina Bhardwaj, How much FDI Did India Receive in 2020? A look at the Latest Data, India Briefing, (June 21, 2021), https://www.india-briefing.com/news/india-reports-us81-72-billion-in-fdi-in-fy21-top-trends-22366.html/
[iii] Moneycontrol, Amazon-Future deal: Tail wagging the Dog, (Nov 16, 2020, 05:39 PM IST), https://www.cnbctv18.com/business/amazon-future-deal-tail-wagging-the-dog-7493611.htm
[iv] Saritha Rai, Ari Altstedter, P R Sanjai, Bloomberg, Amazon Said to Near Deal for Up to 10 Percent of India's Second Largest Retailer, Future Retail, (14 August 2019 10:28 IST), https://gadgets.ndtv.com/internet/news/amazon-said-to-near-deal-for-up-to-10-percent-of-indias-second-largest-retailer-future-retail-2084858
[v] AMAZON.COM NV INVESTMENT HOLDINGS LLC V. FUTURE RETAIL LIMITED & ORS (2021) CIVIL APPEAL NOs. 4492-4493 OF 2021
[vi] The Foreign Exchange Regulation Act (FERA) 1973, Acts of Parliament, 2013 (India)
[vii] Supra note 5, at 3 – 3.4
[viii] Supra note 5, at 4.
[ix] Kakade Construction Co. Ltd. v. Vistra ITCL, 2019 SCC OnLine
Bom 1521 : (2019) 6 Bom CR 805
[x] Supra note 5, at 6 -6.3
[xi] National Highways Authority of India v. M. Hakeem, 2021 SCC OnLine SC 473 [“NHAI”]
[xii] Supra note 5, at 7 – 7.3
[xiii] Supra note 5