As discussed in our previous Updates on the Amazon-Future group dispute, the Hon’ble Supreme Court of India (“Supreme Court”) upheld the Judgement dated 18 March 2021 of the Single Bench of the Delhi High Court in favour of Amazon.com NV Investment Holdings LLC (“Amazon”). The Supreme Court vide order dated 6th August, 2021 set aside the Division Bench Order dated 22nd March, 2021 and held that the award passed by an Emergency Arbitrator is not open to challenge under Section 37 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”).
Pursuant to this, the Single-Judge Bench of the Delhi High Court took steps to enforce its judgement dated March 18th 2021 in order to restrain the deal between Future Coupons Private Limited (“FCPL”) and Reliance Retail. However, on a plea by FCPL and Future Retail Limited (“FRL”), a three-judge bench of the Supreme Court comprising Chief Justice N V Ramana, and Justices A S Bopanna, and Hima Kohli, vide Order dated 9th September, 2021 stayed the Delhi High Court from taking adverse steps to enforce its Order, and also ordered all the concerned statutory authorities to not pass any orders connected to the dispute for a period of 4 weeks.
In October 2019, the Competition Commission of India (“CCI”) granted its approval for the purchase of FRL’s assets by Reliance Retail, which was subsequently sanctioned by the National Company Law Tribunal (“NCLT”) as well. In this background, FRL sought relief from the Singapore International Arbitration Centre (“SIAC”) Tribunal (”the Tribunal”) to vacate the stay passed in an Emergency Award (“EA”) dated 25th October, 2020, in order to move forward with its transaction with Reliance Retail.
In its application before the Tribunal, FRL contended that it was not a party to the deal between Amazon and FCPL. The Tribunal refused to vacate the stay, holding that the EA was correctly passed. Against this, FRL sought an Order by the Delhi High Court, staying the Tribunal’s order refusing to vacate the EA Order. The Delhi High Court, vide Order dated 29th October, 2021 refused to stay the SIAC Tribunal’s order. Subsequently, FRL and FCPL have moved the SC through Special Leave Petitions (“SLPs”) against the Order of the Delhi High Court dated 29th October 2021.
CCI’s recent order
The CCI, vide Order dated 17th December 2021 revoked its 2019 approval to the Amazon-Future deal, reasoning that the actual scope of the deal was suppressed by Amazon. The CCI put its 2019 approval in abeyance, and also directed Amazon to pay a fine of INR 202 Crores within 60 days.
FRL then filed a termination application before the SIAC Tribunal contending that the FRL-Reliance deal cannot be stayed any longer based on the agreements between FCPL and Amazon, in the light of the CCI Order dated 17th December 2021. FRL also asked for the termination application to be given primacy over the arbitration and expert witness hearings. The Tribunal vide Orders dated 29th, 30th, and 31st of December 2021, declined to reschedule the hearing dates, observing that no prejudice would be caused to FRL and FCPL if the hearing on the termination applications would be conducted after the hearing on the parties’ expert witnesses on damages.
FCPL and FRL approached a single-judge bench of the Delhi High Court under Article 227, challenging the SIAC Tribunal’s Orders dated 29th, 30th and 31st December 2021, praying for it to direct the SIAC Tribunal to hear the termination application before the other arbitral proceedings.
Parties’ Arguments before the Single-Judge
The Petitioners (FRL and FCPL) submitted that the Amazon-FCPL agreement is no longer in existence pursuant to the CCI Order, thereby invalidating the arbitral proceedings instituted by Amazon before SIAC, and thus the same must be terminated. It further submitted that the termination application should be given primacy and be heard first due to the recent developments. The Petitioners also submitted that the Tribunal had consistently violated the principles of fair and equal treatment, and that a single day fixed for the hearing of the termination application is not sufficient.
Making contrary submissions, Amazon contended that the Writ Petition under Article 227 was not maintainable, and that the dates for hearing the expert witnesses were fixed in October 2021, which if rescheduled now would cause unnecessary inconvenience to the participants of those hearings, appearing from different parts of the world.
Submitting that the Tribunal had provided equal opportunity for both the parties to present their case, it stated that the date fixed for hearing the termination application affords sufficient time for the parties to file their written arguments.
Decision of the Single-Judge
The Single Judge vide Order dated 4th January 2022, declined to interfere with the Tribunal’s orders that were challenged by the Petitioners. While doing so, the Court observed that:
- The window for interference with orders passed by an Arbitral Tribunal becomes narrower when the nature of the orders passed are procedural, and the same cannot be challenged especially when they are orders related to case management.
- The Tribunal has total discretion and domain over the case management orders, and that there should be minimum interference by the Courts in arbitration proceedings, in order for the purpose of arbitration to not be frustrated.
Division Bench of the Delhi High Court
FRL and FCPL approached the Division Bench on appeal against the 4th January order of the Single-judge. The Division Bench, vide Order dated 5th January 2022 stayed the arbitration proceedings before the Tribunal, and also the 4th January Order passed by the Single Judge bench until the next date of hearing. While granting the stay, the Division Bench observed that owing to the CCI order, there appears to be a prima facie case in favour of the appellants (FCPL and FRL). The next hearing is scheduled to 1st February, 2022.
In addition to the above matter, Amazon has filed a plea before the National Company Law Appellate Tribunal (“NCLAT”), challenging the CCI order dated 17th December 2021, revoking its approval to the Amazon-Future deal, and the same is scheduled to be heard on 2nd February 2022. On the other hand, the SC, after hearing the SLPs filed by FCPL and FRL on 11th January 2022, has reserved its orders on the same.
Three Judge Bench of the Supreme Court
The SC decision dated 1st February 2022 set aside the Delhi HC’s Orders dated 2nd February,2021 and 18th March, 2021 while also referring the matter back to the HC to be considered again, including on the applicability of the SIAC award. This decision also set aside the imposition of costs on FRL (20 lakh) and found that the banks could not enforce attachment of property at the present stage.
While the original arbitration claim remains to be adjudicated by SIAC, there have been multiple cases filed and orders passed in connection with the dispute, producing parallel decisions relating to the arbitration. It remains to be seen how the High Court considers the matter again, pursuant to the SC decision.