AMAZON VS FUTURE ARBITRATION UPDATE | INTERNATIONAL EMERGENCY AWARDS ENFORCEABLE IN INDIA
The Supreme Court of India (SC) in a very recent case of Amazon.Com NV Investment Holdings LLC v Future Retail Limited & Ors has upheld the enforcement of an order by the Singapore International Arbitration Centre (SIAC)`s Emergency Arbitrator in favour of Amazon that puts on hold the Future Group`s deal with Mukesh Ambani Group of Companies (Reliance Group).
This update briefly analyses the said judgement of the Supreme Court.
- Amazon.Com NV Investment Holdings LLC (Amazon), the appellant in the present case, invested INR 14310 million in the Future Coupons Private Limited (FCPL), on 26 December 2019 by way of a Shareholders Agreement (SHA). The said investment amount had `flown down`` transferred, on the same day, to Future Retail Limited (FRL), basis an internal agreement between the two companies (together, along with other promoters, Future Group)
- On 29 August 2020, FRL entered into an agreement with the Reliance Group, by way of a slump sale of the retail and wholesale businesses (Future-Reliance Deal)
- Amazon objected to the said deal on the ground that the Reliance Group was listed in the category of “Restricted Persons” in the SHA between Amazon and FCPL, as well as in the other agreements entered into between Future Group companies and promoters. Amazon challenged the said deal before the Emergency Arbitral Tribunal constituted under the SIAC Rules, pursuant to the SHA which provided for/ had prescribed arbitration in accordance with the SIAC Rules..
- The Emergency Arbitrator passed an award on 25 October 2020, granting interim relief to Amazon, putting on hold the Future-Reliance Deal (Emergency Award). Future Group, instead of challenging this award, went ahead with the deal..
- FRL in the meantime filed a Suit before the Hon’ble Delhi High Court and sought to interdict the arbitration proceedings before the SIAC and restrain Amazon from taking any action in accordance with the Emergency Award. Delhi High Court refused to grant any interim relief to FRL on the ground that the balance of convenience went in favour of Amazon. No appeal was filed by FRL against this order. However, Amazon filed an appeal before the Division Bench of the Delhi High Court, challenging some portions of the order, which is pending.
- In the meantime, Amazon filed an Application against FRL under Section 17(2) of the Arbitration and Conciliation Act, 1996 (Arbitration Act) before the single bench of Delhi High Court. By Order dated 2 February 2021 and Order dated 18 March 2021, the single bench of Delhi Court granted a stay in favour of Amazon and restrained Future Group from going ahead with the Future-Reliance Deal.
- Aggrieved by the said order of the Single Judge, FRL filed an appeal before the Division Bench of Delhi High Court, which stayed both the Orders of 2 February 2021 and 18 March 2021. Aggrieved by this stay order, Amazon challenged the order before the Hon’ble Supreme Court in appeal..
Whether an “award” delivered by an Emergency Arbitrator under the SIAC Rules can be said to be an order under section 17(1) of the Arbitration Act?
The Supreme Court answered the first question in the Affirmative based on the following reasons:
- In the interpretation of the Arbitration Act, party autonomy is considered paramount. Thus, when the parties had agreed to abide by the SIAC Rules, the question of then contesting the legality and correctness of those rules does not arise.
- Secondly, the SIAC Rules on Emergency Arbitration reflect similar provisions as provided in Section 9 and 17 of the Arbitration Act. It can thus be said that the award passed by an “Emergency Arbitrator” can be construed as an “Interim Order” passed by an arbitrator under Section 17(1) of the Arbitration Act.
- SIAC Rules and the Arbitration Act go hand in hand in achieving the common objective of decongestion of the arbitration proceedings in the civil courts for the grant of interim relief.
Whether an Order passed by High Court under Section 17(2) of the Arbitration Act for enforcement of an award passed by Emergency Arbitrator is appealable?
The Court answered this question in the negative on the basis of following reasons:
- Section 37 of the Arbitration Act provides for appealable orders, wherein the orders of the arbitral tribunal “granting or refusing to grant an interim measure under section 17” have been included.
- However, the intention of the legislature becomes clear from the wording that only the orders under section 17(1) which are passed by the tribunal are covered by this section and not the orders passed by the court under Section 17(2), thereby enforcing the orders passed under Section 17(1).
The Supreme Court has taken one significant step in developing the Indian Arbitration Jurisprudence, reducing the judicial interference in the Arbitration process to the minimum. The Court has once again unequivocally demonstrated the judicial intent of promoting arbitration as a preferred method of dispute resolution. Supreme Court has also reaffirmed that in order to augment faith and trust in the arbitral proceedings, enough powers and teeth need to be given to the arbitrators, both domestic as well as international. The present judgment is with respect to the SIAC Rules. In view of the 2019 amendments to the Arbitration Act, seeking to foster institutional arbitration within India, this judgment will serve as an important precedent for similar disputes that may arise in future.
Author: Bhushan Shah - Partner
This update was released on 12 Aug 2021.
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