AMAZON WINS, Supreme Court holds Singapore Emergency Arbitrator award enforceable in India, VERDICT AGAINST Future -Reliance deal

AMAZON WINS, Supreme Court holds Singapore Emergency Arbitrator award enforceable in India, VERDICT AGAINST Future -Reliance deal

Amazon win today at the Apex court of India set another example of Indian judiciary affirming fair practices of trade.

The appeal filed by Amazon against the order passed by the Single Judge bench of Delhi High Court. The Supreme Court upheld the award of an emergency arbitrator & restrained Future Retail & Reliance Retail ₹24,713 cr merger granting relief to Amazon.

The Bench of Justices Rohinton Fali Nariman and BR Gavai restrain Future Retail from proceeding with its merger deal with Mukesh Ambani's Reliance Retail & allowed the order of an emergency arbitrator of Singapore enforceable in India, under Section 17(2) of the Arbitration Act

Justice Nariman said reading out the judgment "We have framed two questions and answered them as Emergency Arbitrator's award holds good and can be enforced under Section 17(2). Appeal is allowed," Justice Nariman said reading out the judgment.

The Supreme Court set aside the Division Bench of the Delhi High Court order who had pursuant to the emergency arbitrator's award, directed attachment of properties of Future Group companies and Kishore Biyani in relation to the Future-Reliance deal

The Supreme Court bench stated that Section 17(1) of the Arbitration and Conciliation Act, 1996 covers an Emergency Arbitrator's awards; and affirms that the same can be enforced under Section 17(2).

Leading Senior Counsel Aspi Chinoy represented Amazon submitted that both Kishore Biyani and Rakesh Biyani, the promoters of Future Retail negotiated and induced Amazon by entering into multiple agreements and subsequently, wilfully breached Amazon.

"In the clash of corporates, one must not lose sight of the dramatis personae as that is where the driving force comes from," he said.

Chinoy urged the Bench to resolve the epiphany of the the Biyans that struck them at a later stage that an award by the emergency arbitrator is contrary to the Arbitration Act.

Senior Advocate Gopal Subramanium for Amazon argued that the parties consented to arbitration governed by the Singapore International Arbitration Centre (SIAC) Rules, subject to Indian law.

Therefore, they agreed to emergency arbitration when they agreed to be governed by the SIAC Rules till the constitution of an arbitral tribunal.

Senior Advocate Harish Salve, appearing for FRL, made submissions regarding the error in the order passed by Single Judge, Justice JR Midha.

Salve submitted that there is no concept of an emergency arbitrator under Indian law, and that it is a matter of right that once an award comes for execution to an Indian court, its jurisdiction can be argued.

Further, it would amount to amendment by construction, should the emergency arbitrator's awards be given the same legal efficacy as orders under Section 17 of the Act, submitted Salve.

"The exercise of amendment to include EAs as tribunals under the 1996 Act, must be by the Parliament and not by the courts."

Salve had also reiterated that there was no arbitration agreement between Amazon and FRL & that the prerequisite for an arbitration proceeding is the constitution of an arbitral tribunal, one that is competent to pass an award.

He further said, including an emergency arbitrator (EA) into the scheme of the Act would create a fork in the road, where parties will have recourse to either go to an EA or seek redressal under Section 9.

P&A Law Offices and AZB & Partners (the law firms) representing Amazon briefed Senior Advocate Gopal Subramanium in this matter.

Naik Naik & Co represented FRL briefed Senior Advocate Harish Salve, appearing for FRL

Agarwal Law Associates represented Future Coupon Private Limited and the promoters briefed Vikram Nankani

The Bench had reserved its judgment on July 29, 2021 & passed the oder in favour of AMAZON, the e-commerce giant, today on 6th August 2021.