Thread by @barandbench

Delhi High Court starts hearing @amazon's plea seeking enforcement of Emergency Award restraining Future Group from going ahead with its deal with Reliance Retail.

Matter is before Justice JR Midha.

@kishore_biyani @fg_buzz

#Future #Amazon #Reliance

Senior Adv Gopal Subramanium appears for @amazon.

The Emergency Arbitrator has passed interim order. All parties were heard, detailed order was passed. He found he has jurisdiction and that Future Retail was bound by Arbitration : Subramanium

Senior Advocate Darius Khambata for Future Retail: We have objections to the maintainability of the petiton. This is not a section 17 of Arbitration Act. It can't be enforced.

It is based on SIAC Rules and fundings of the coordinate court: Khambata

Under section 17, only the final arbitration tribunal can pass the order. What @amazon is seeking to enforce is something else. Whatever order is passed at interim stage is not an order under section 17 : Khambata

This emergency order will remain in force only till the final Arbitrator is appointed: Khambata

The SIAC Rules contemplate an Emergency Arbitrator who can decide its own jurisdiction. Counsel representing all parties were heard : Subramanium

These are the specific orders passed: Subramanium refers to the emergency award.

Court reads the directions passed in the award.

Subramanium reads the order out loud.

This order was passed on Oct 25, 2020.. after hearing all parties including FRL: Subramanium

He asks court to see the SIAC Rule 10 under which emergency award was passed.

The Emergency Arbitrator is appointed by SIAC Rules and he decides whether there should be any interim order : Subramanium

Subramanium reads the Rule.

Within 90 days, a three member tribunal has been constituted and no step has been taken to vacate the Emergency Arbitrator Award. The Arbitration Tribunal was constituted on January 5th: Subramanium

Subramanium reads a letter written by Michael Hwang, the presiding Arbitrator, on January 12.

He addresses a mail to all the counsel.. the tribunal in the matter has been constituted. He asks if there are any preliminary matter that the counsel wished to raise: Subramanium

There is a letter from Mr Khambata's solicitor.. raising issues that FRL was not a party to the arbitration agreement: Subramanium

Mr Hwang notes this objection and .. that others did not wish to raise any preliminary issues : Subramanium

This question of jurisdiction was raised before the Emergency Arbitrator and it was rejected on account of Group of Companies approach. It was raised before SIAC Court and it was rejected: Subramanium

No action has been taken by any Respondents to reverse or modify the emergency award: Subramanium

Subramanium notes that the parties undertook to abide by the order passed by the Emergency Arbitrator.

They have chosen not to file any appeal : Subramanium

Series of letters are written by FRL to authorities saying that the award should be ignored, it is a nullity.. there is an express provision that interim awards are orders of the court under section 17(2): Subramanium

Subramanium reads section 17(2).

All these contensions were rejected.. they wrote to statutory authorities..there is no law under which a party can unilaterally declare an award to be a nullity: Subramanium

Subramanium presses for an injunction restraining FRL and others from taking steps in furtherance of the deal with Reliance and disposing of FRL's retail assets.

After this order was passed, they write to every statutory authorities.. but they say this order doens't bind. The CCI, SEBI.. contrary to the Award, pursue the authorities. The award is completely disregarded : Subramanium

Subramanium informs that CCI and SEBI have given their approval.

On Nov 7, they institute a suit against me that I'm interfering with their contractual obligations: Subramanium

Before the Single judge, they say Emergency Arbitrator is quorum non judice.. it was held that the Arbitrator was not quorum non judice.. they again write to the authorities saying the award is vitiated: Subramanium

Until the award is alive, it is efficacious. No party can sit in judgement and declare an order to be a nullity : Subramanium

In that suit, some observations were passed in relation to my client. We have filed an appeal: Subramanium

The single judge dismissed their application to restrain me from writing to the authorities: Subramanium

The regulator has given the approval.. is the Award so ineffective that somebody can completely disregard the Award? Even the single judge says deal with it in accordance with law: Subramanium

Our appeal has nothing to do with the enforceability. They have moved no application before the newly constituted Arbitration Tribunal: Subramanium

The Emergency Arbitrator found that it was clear that promoters controlled all the companies.. the promoters have not moved any application against the Emergency Award : Subramanium

Subramanium refers to an order passed by Justice Nariman, Supreme Court.

We must give teeth to the enforcement of interim orders of arbitration award: Subramanium

Subramanium refers to a Kerala HC judgement.

It is not maintenance of a kind of status quo: Subramanium as he explains the directions in the award.

The next day of the award, they say they are not bound by the award. They pursue it before the statutory authorities contrary to the award: Subramanium

Senior Advocate Rajiv Nayar points out the portion of single judge order stating that the award is enforceable.

Khambata prays for time to file an objection to the petition.

Very sorry. We will deal with it today. No adjournment: Court

Is there any judgement on your proposition? : Court

No. Section 17 says the award has to be during the arbitral tribunal. Emergency Arbitrator is not an arbitral tribunal: Khambata

Emergency Arbitrator is before an arbitration tribunal is constituted. The rules make a distinction between Emergency Arbitrator, court and Arbitrator : Khambata

There must have been many emergency arbitrations before SIAC. There must be cases to show whether it is enforceable or not : Court

Those were all Part II Arbitrations, Delhi HC has held that separate suit had to be filed for enforcement. This is a Part I Arbitration: Khambata

We argued there that emergency Arbitrator is quorum non judice. The single judge says it's not because parties can agree to a procedure. However, the findings did not turn on section 17 : Khambata

Court says it is an alternative to Section 9. Territory is for this court to decide: Khambata

We filed this two months later. That's why I said we should be allowed to file a response: Khambata

Single judge said let the regulator decide. She has squarely held that the transaction propounded by Amazon is illegal and my transaction with Reliance is valid and we could act on the consent given for it : Khambata

I have 1000s of employees. I am a public Ltd companies. He knows that it the transaction doesn't go through, I will collapse : Khambata

Every prima facie finding was in my favour. He has gone in appeal, I haven't: Khambata

Do you propose to take any action in violation of the Emergency Award in the near future? : Court

The matter is already in regulatory sphere: Khambata

Some action you've already taken. Do you want to take any further action? : Khambata

I'm being told that there is a petition before NCLT for demerger: Khambata

Would you hold you hand back? : Court

I want to proceed. The NCLT Petition will not get over in one week. Normal routine orders will be passed : Khambata

We will continue the hearing at 3 pm. Give 5 page note with summary.. attach whatever judgements you want to refer to: Court

List of dates can be given separately. Give a note on action you have already taken and what you propose to take : Court

Give the note in half an hour : Court

In the interest of efficiency, may we request that it would be taken up tomorrow : Khambata

Can you give a statement that you would hold your hand till then : Court

No..: Khambata

Then don't embarass yourself: Court

I don't think one day will make a difference: Khambata

Client is burdened with huge liability (on paying additional day's fee to senior counsel) : Court

Half an hour will not be possible: Khambata

Okay,45 mins. Send it in parts : Court

Court asks for caselaws as well.

I will show orders of Delhi High Court and Surpreme Court: Subramanium

Hearing adjourned till 3 pm.

Hearing resumes.

#Amazon #FutureRetail #Future #Reliance

I will keep it very brief : Subramanium

Proceed according to the note submitted by you : Court

During the course of the morning arguments, the NCLT petiton was filed : Senior Adv Nayar

Most unfortunate: Subramanium

Our note is under process: Khambata

First thing is that the question whether the Emergency Arbitrator could have passed the order was raised for the first time before the Emergency Arbitrator itself. The arguments are being made over and over and rejected: Subramanium

The Emergency Arbitrator gave notice to all parties, heard everyone patiently .. this argument was made before him : Subramanium

Which is this point on the note? : Court

I'll just give an overview..This (the objections) is all repetition..: Subramanium

This is clear from the Award that these objections were raised .. : Subramanium

Subramanium reads the order of the Emergency Arbitrator.

This is to show that everything was considered and rejected: Subramanium

Subramanium states that the Delhi, Mumbai, Chennai Arbitration Centres have provisions for Emergency Arbitration and the same is recorded in the award.

Subramanium reads that Emergency Award noted that the Indian law accepted parties opting for emergency arbitration.

I issued notice of Arbitration on 15/10/2020 and interim order/award is during the pendency of the Arbitration: Subramanium

Subramanium continues to read the Emergency Award.

I've understood. Come to next point. Where is this point in your note: Court

This is for the first time, court is seeing it. Whatever is urged here, was urged before Justice Mukta Gupta .. can somebody keep on making claims?: Subramanium

There is no appeal or application: Subramanium

Please proceed according to your note : Court

Petiton is under section 17(2). It is a unique amendment: Subramanium

Even in Singapore, interim orders can be enforced by leave of court. Here, Parliament days straight away you can enforce them as order by court: Subramanium

We initiated Arbitration on the basis of breaches. The Emergency Award is not ex parte : Subramanium

In spite of the directions, FRL breached the order multiple times : Subramanium as he lists the date.

The Arbitrator injuncted steps in furtherance of the Board resolution and taking up the matter with the regulatory authorities..they did precisely this : Subramanium

Subramanium continues to list the breaches.

These are fruits of wilful disobedience: Subramanium

Khambata clarifies that the NCLT filing was done on January 26 and not today.

FRL is bound by the Award. It may be a contested jurisdiction but there is an order against it: Subramanium

Subramanium continues to refer to the "list of breaches" supplied by it.

Subramanium states that there is a disclosure on 26/10 by FRL saying that we will not abide by it.

There is some unique power and authority.. to now come out and say it is a nullity after participating in it : Subramanium

Subramanium refers to FRL writings to Regulators that it would not comply with the Award as it was a nullity.

He is also telling me that I should not show the order to others: Subramanium

FRL objection that it was not a party to the Arbitration Agreement was argued and rejected: Subramanium

Subramanium refers to FRL writing to CCI against the Emergency Award.

You need not go into details .. they have taken a stand and proceeding with it : Court

Subramanium: Each Respondent is in continuous breach. It cannot rely on fruits of a poisonous tree

Section 17 applies and section 17(2) gives it the color of the order of the court : Subramanium

Status of Emergency Arbitrator was questioned at two stages: Subramanium has he reiterates that the challenge was rejected each time.

Any advanced Jurisdiction has provisions for Emergency Award now : Subramanium

Emergency Arbitrator is not alien to Arbitration Act. The SIAC Rules are treated to be part of the act in the present case: Subramanium

There is no application before the Arbitration Tribunal. Only a collateral objection was taken before the Single Judge in the suit : Subramanium

Subramanium refers to the order passed by Justice Mukta Gupta.

Ld Judge rejected the argument that Emergency Arbitrator was quorum non judice. Hence it ought to be enforced : Subramanium

FRL cannot be allowed to re-agitate the objections : Subramanium

The SIAC Rules define an Arbitrator as including an Emergency Arbitrator and these are the Rules that he/Future Group agreed to : Subramanium

Emergency Arbitrator functions as an arbitrator. All over, in all texts, an Arbitrator and Emergency Arbitrator perform the same functions : Subramanium

The Emergency Arbitrator Order preserves the subject matter of the disputes during the Arbitration proceedings. Section 17 is attracted : Subramanium

Subramanium refers to Justice Nariman's judgement with reaffirmed an order by Delhi HC.

Which*

Subramanium refers to Kerala HC judgement.

If you want to file an appeal, you can: Subramanium as he continues to refer to the judgement.

In the jurisdiction of enforcement, there is duty to give effect to orders and decrees. This involves adherence to law and rule or law. Why should we not enforce orders of Arbitrators? : Subramanium

Subramanium states that the Emergency Award is deemed to be passed in Delhi.

There are three questions. Is there an order? Is it clear? Is it by a competent authority? : Subramanium

Subramanium refers to Rule 10 and Rule 12 of SIAC Rules

Parties can not only go to an Emergency Arbitrator .. the parties may also agreed to treat it an final and binding. Or he may file an appeal for vacation of the order : Subramanium

For a party to continuously resist, the Arbitration Act will become completely meaningless. All centres have said that Emergency Award can be enforced: Subramanium

He must not get benefit of an approval which he extracted in violation of the Award : Subramanium.

Subramanium concludes.

Senior Advocate Khambata begins.

None of Justice Gupta's findings hold that the Emergency Award is enforceable under Section 17 : Khambata

Section 17 only recognises the interim order passed by the arbitral tribunal and no other authority: Khambata

This is a very far reaching provision. Even in Singapore, there is no direct enforcement. Section 17 cannot be overextended to orders that don't fall under it : Khambata

Khambata reads the definition of Arbitrator under the Act.

Once Tribunal is appointed, it is a permanent body: Khambata

Khambata states the provisions under which an Arbitral Tribunal can be terminated.

In out Act, there is The Arbitral Tribunal. It does not admit any temporary authority: Khambata

Under section 9, if interim relief is required, a party may move court : Khambata

This is the only time when there can be a relief pre or post Arbitration : Khambata

The single judge equates the Emergency Arbitrator to this court under section 9 and not the Arbitrator under Section 17 : Khambata

Even assuming that the Emergency Arbitrator was not quorum non judice, it is not an authority of an Arbitration Tribunal. There is nothing in Part 1 to say that it an order under Section 17: Khambata

Khambata refers to SIAC Rules.

The note is under process. We will give it : Khambata

You have sent us different Rules : Court

Khambata shares the Rules on the screen.

We can go to Rule 1.3 on definition of award.

The Emergency Arbitrator Award is treated seperately and Emergency Arbitrator is defined seperately: Khambata

There is definition of Tribunal .. SIAC rules also don't treat Emergency Arbitrator as Arbitrator: Khambata

Khambata reads rule on Interim and emergency interim relief.

Khambata reads the SIAC Rules.

You have three distinct authorities. The Tribunal, the Emergency Arbitrator who not is the Tribunal and the judicial authority. The SIAC rules create Emergency Arbitrator as a separate entity : Khambata

Emergency Arbitrator is prior to the constitution of the Arbitral Tribunal: Khambata

Emergency Arbitrator cannot act as Arbitrator even in future: Khambata

It is crystal clear that the two entries are different: Khambata

Two entities*

Emergency Arbitrator is outside the Tribunal: Khambata

Tribunal is not bound and if Tribunal is not constituted, the emergency award is dissolved : Khambata

Under section 17, it is only the Tribunal that can pass an order for direct enforcement. Nobody is saying don't give enforceability: Khambata

Delhi, Mumbai and Chennai have rules for Emergency Arbitrator but they start with the rule that they are subject to the mandatory provisions of mandatory law: Khambata

How long would your note take ? : Court

We can give it before the evening: Khambata

Senior Advocate Harish Salve says that the clients would want him to see the note before it is filed.

They would have to show that the world would be upside down if the interim order is not passed : Salve for Future.

Give a brief note. List of dates can be given seperately. We'll continue tomorrow: Court

A reply is called to the averments in the petition: Salve

We'll see. This is interim.. : Court

Let it be said that the nothing will happen : Nayar

We are hearing it.. : Court

This poor little American company will come to road (if interim order is not passed).. : Salve
Subramanium objects.

You will hear more of it : Salve

Try to send the note by 5:30 : Court

Hearing adjourned.

Matter to be taken up tomorrow.