Delhi High Court begins hearing Future Retail vs Amazon matter.
Sr. Adv. Gopal Subramanium on behalf of Amazon begins submissions against Sr. Adv. Khambata's arguments.
Subramanium: Fundamentals issues exist in Khambata's submissions on arbitration law.
Subramanium: Arbitration is founded on consent of parties and that's why it's called an arbitration agreement.
Subramanium: Arbitration depends on party autonomy, which is why they can choose the terms of engagement, the Rules. Here the parties chose the SIAC Rules.
Subramanium: If parties agree to SIAC Rules the implication is that they agree to the entire gamut of Rules in totality.
Subramanium: The SIAC Rules themselves contemplates an Emergency Arbitrator.

#Amazon #FutureGroup
Subramanium: Khambata has omitted one of the most provisions of Part I of the Act, which is most vital for our case.

Section 2(8) which says that if the parties have chosen Rules that'll be part of the agreement itself.
Subramanium: SIAC Rules are an intrinsic part of the arbitration agreement and therefore the scheme of the Rules is a manifestation of consent.
Subramanium: Therefore the argument of inherent lack of jurisdiction is deeply flawed, because the parties consented to SIAC Rules and the clause is not under question here.
Subramanium: The relevant jurisdictional fact here is consent and if that exists one cannot argue inherent lack of jurisdiction.
Subramanium: Both the SIAC Rules and Section 16 give the EA the power to determine his own jurisdiction, so to claim that the award is a nullity is contrary to the Act and the Rules.
Subramanium: There is a difference in exercise and inherent lack of jurisdiction.
Subramanium: Stating to the Emergency Arbitrator that the EA is outside the scope of the Act, that FRL is not a party to the agreement, asking him not to grant emergency relief are all invitations to him to exercise his jurisdiction.
Subramanium: EA is no less than a regular arbitrator except that he only provides interim relief.
Subramanium: In Part I, arbitration agreement is very wide bodied.
Subramaniam: Yes, the EA's role is defined to a specific purpose but that is by consent of parties.
Subramanium: The provisions in part I has no bearing on whether SIAC Rules are a part of the Arbitration agreement and Your Ladyship has herself held that courts must act in aid of the Arbitration agreement.
Subramanium: An Emergency Arbitrator by consent of parties can be a sole Arbitrator.
Sr. Adv. Subramanium discusses the different provisions of the Arbitration Act.
Subramanium states that though FRL fought before the EA consciously, they have now approached the court because they failed before the EA.
Subramanium now refers to SIAC Rules.
Subramanium states that the definition of award in the SIAC Rules includes award of an Emergency Arbitrator.
Subramanium: Emergency Arbitrator means an arbitrator appointed according to the provisions of the Rules, he is an arbitrator for purposes of Part I.
Subramanium: Inherent lack of jurisdiction should be as good as usurpation of power
Subramanium: The entire argument on inherent lack of jurisdiction is completely unfounded
Subramanium: There's no intention or provision that makes the procedure followed in the present matter contradictory to Part I of the Act
Subramanium: There's a prima facie belief of the arbitrator that there's a breach, hence he allowed emergency provision to be invoked
Subramanium: The other side has challenged the very validity of the arbitration agreement
Subramanium: An attempt to stultify arbitration process is completely misplaced
Subramanium reads out another SC judgment to support his arguments on validity of the arbitration process
The court will resume the hearing at 2:20
hearing resumes
Subramanium: My lady has been told so much about the public listed company, but it is not revealed who it is controlled by
Subramanium: Let's deal with the FEMA argument straightaway

'Under FEMA, Schedule 2 deals with portfolio investments', he argues
Subramanium: Foreign entities can invest more than 10% in retail be taking the government route
Subramanium: There's absolutely no transgression of FEMA Rules or FDI policy in the present matter
Subramanium reads out FDI rules before the court
Subramanium: The investment made in the present matter is very well within the purview of law and prevailing policy on FDI
Subramanium reads out guidelines for calculation of FDI
Subramanium: the entire argument of the other side on the violation of FEMA and FDI policy has to fall
Subramanium rests his arguments.
Senior Advocate Harish Salve now commences his arguments in response to the submissions made by Mr Subramanium
Salve: I'll first deal with the arbitration points, and then the points on merits.

'section 2(6) is destructive to Mr Subramanium's case', he argues
Mr Salve reads out Section 2(6) of the Arbitration Act
Salve: This emergency award passed in the present case has no place in Indian law
Salve: This entire thing about people entering contracts and then backing out applies only to the East India Company
Salve: The problem arises when it is said that FRL can't operate without Amazon's consent
Salve: Like Anil Ambani couldn't enforce his MoU, Amazon can't enforce it's FCPL contract against FRL
Salve: Amazon should first look at its own conduct before it throws bricks on others
Salve: Amazon first make contracts to deviate from Indian regulatory system, and when its caught, it tries to scrape through
Mr Salve rests his arguments

Arguments are concluded in the present matter. Court asks both the sides to file their written submissions by Monday
Court reserves judgment on the interim application

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