Thread by @barandbench

Justice RF Nariman led bench of #SupremeCourt to continue hearing plea by @amazon challenging Delhi HC order staying a single-judge order which had upheld Emergency Award passed by a Singapore Tribunal halting the Reliance-Future deal @FutureGroup

Hearing to begin shortly.

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Senior Advocate Harish Salve continues submissions.

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Tribunals are contractual and if they have to be given any power of the State, it has to be by express registration.

That is one of the fundamental differences. I had covered this part, submits Salve.

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Salve: I will show you that there is not a single judge that takes a different view. I will take the Court through 6-7 judgements.

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Salve begins taking the Court through judgements.

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Salve: I am citing this only to show that this Order is under O39 of the CPC. Section 9 creates its own jurisdiction in the Court.

Section 9 is a substantive power of the Court, 17(1) is a substantive power of the tribunal.

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Salve: 17(2) is the Court stepping in for the first time. It is not an original power of the Court, it is an enforcement power.

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Salve relies on the Supreme Court's Judgement in M/S Arvind Constructions Co. vs. M/S Kalinga Mining Corporation.

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Next, Sr. Advocate Harish Salve relies on Board of Control For Cricket vs. Kochi Cricket Pvt Ltd.

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Salve: It is not my case that any of these judgements have studied with focus my point, however no judgement is in dissonance with my submissions.

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Salve discusses a Judgement by Justice Rohinton Fali Nariman in BGS SGS Soma Jv vs. Nhpc Ltd, noting that there was no reason for the same to be cited by the other parties.

"Quite frankly, I don't know why this was referred to."

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Salve relies on Chintels India Ltd. vs Bhayana Builders Pvt. Ltd.

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Senior Advocate Harish Salve relies on Alka Chandewar vs Shamshul Ishrar Khan.

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Salve: May I bring the Court's attention to a Bombay HC Judgement in Gemini Bay Transcription Pvt. Ltd. vs Integrated Sales Service Ltd?

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I accept that none of these judgements focused on the issue your Lordships are deciding. But they addressed a more fundamental principle- once arbitration proceedings end and an award is passed, you bid goodbye to the Arbitration Act and are governed by the CPC.

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The point is very clear, the language is very clear that enforcement is under the CPC.

If I am right that appeal would lie under 43, these appeals are pending.

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Salve: The Appeal Court would have to deal with whether 17(2) was at all available to enforce the award.

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Salve: I continue with a Caveat, if I am right then all the questions to be decided must be argued before the Appellate Court.

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My Ld. Friend’s application referred to O39, they correctly understood that O39R2 would apply. In those proceedings, I was entitled to argue two matters.

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Salve: One, there is no award under Section 17 that can be enforced.

It has been my client’s case that I have no privity of contract, forget arbitration agreement with Amazon.

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We argue before the Single Judge, our suit was that I have no contract with you. I have a contract with FCPL under which for certain transactions I need their written consent- which I have.

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Amazon has committed a tort of unlawful interference.

In the hearing of the O39 motion, they elected to argue on merits as will be clear from the order.

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Salve: There is no notion of an emergency arbitrator under Indian Law and there is no arbitration agreement in any case.

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My submission is that the phrase “arbitral tribunal” is expressly defined under Indian law and we limit it to a tribunal which has been constituted by an agreement.

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The CIAC Rules establish emergency arbitration.

Either we take up the UK Law or we take NZ, Hong Kong etc. All those where emergency arbitration has been expressly allowed by law, you require the leave of the Court.

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Salve: If your Lordships are inclined to decide it, I can assisst.

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Court: As we see it, we do not need to decide on anything other than the two issues argued. If it is maintainable, you go and argue. If not, you are out the door.

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Salve: If it is not, I will file an SLP before your Lordships.

Everyone laughs.

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Court: We will decide the matter of maintainability and whether order of emergency arbitrator is enforceable.

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Salve: As per the CIAC Rules, an emergency arbitrator cannot decide on merits. The Order's shelf life will be 90 days and if a tribunal is not established in 90 days, the Order dies.

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I submit that to say that an arbitral award by emergency arbitrator, can be enforced under Section 17 is taking it a step too far.

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Salve: There cannot be arbitral proceedings until a tribunal has been constituted, a tribunal with the power to pass an award.

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An emergency arbitrator is not a tribunal until a tribunal to decide the matter comes into place, Salve submits.

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Salve: 17(2) limits enforcement since the words are, "issued by arbitral tribunal under this section."

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Salve deals with provisions of the Arbitration Act, one by one.

The Lordship may look at Section 9 (3)- How will this section operate?

If we add an emergency arbitrator, we will again create a fork in the road, between 9 & 17.

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Salve: If someone has to accommodate emergency arbitrators, we will have to see where to fit them in. That, I submit the parliament will have to do.

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Senior Advocate Harish Salve draws the Bench's attention to laws from 3-4 different jurisdictions.

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Bench to continue hearing the matter after lunch.

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Senior Advocate Harish Salve resumes submissions.

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Salve: When a legislature recognises a body as a Court, the degree to which it shall be treated as a Court would be subject to Legislative policy.

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Even the Courts power under Section 31 would be limited if not for 31 (1) (d), However, Your Lordship has marked that Section 28 does not have this, submits Salve.

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Salve: We do not have any self-dissolving provision under 9 as we have in 31 (2).

When other legislatures have made provisions for emergency arbitrators- they have either made laws very loose as compared to ours or have made them very detailed.

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UK has compact provisions, very different from our model, submits Salve.

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Salve: Now, I want to show your Lordships the CIAC Rules.

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Salve: A lot of things have been said, if we enter a slinging match- we can also comment on Amazon’s conduct.

I am not getting into the contracts and those issues.

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Court: That’s what we told a few minutes back. Please stick to the two issues.

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Salve: Amazon has come here and said yes, all same agreements etc. and have gone and said the exact opposite at the CCI.

Now, CCI has sent them a show-cause notice, saying have you pulled a smart one on us?

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If you can come back to Section 9 (3) of our Act. The Arbitration agreement we entered into; the intention of the parties was to stay with the Act, submits Salve.

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Salve: I would submit that 17(1) and 17(2) must be strictly construed.

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Salve relies on Gerald Metals S.A. v Timis & Ors of the England & Wales High Court.

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Salve: This has interesting implications, see the contrast between 44 (5) and Section 9 (3).

These can't be ignored, just because 50 sets of Rules are filed in the Court. Not a single rule has been shown, I being the Respondent had to discuss the Rules for the first time.

Salve: Now, I will deal with the Order by Justice Midha.

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I will resist the temptation to get into the part where he deals with the merits, remarks Salve.

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Salve: I cannot argue that the EA order is wrong, that the findings are wrong, but I can argue that the order is not worth the paper it is written on.

I always have that right in execution.

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Salve: If there is no arbitration agreement, the Order is a nullity. The Single Judge heard all our arguments and says you have not argued nullity. You don’t know what nullity is.

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Salve: This is what happens when we rush execution, it should be expeditious but not at others’ cost.

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Salve: Now, I am referring to Justice Mukta Gupta’s order.

The larger issue- that India law doesn’t countenance emergency arbitration was argued.

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Salve: It is not necessary for me to discuss the larger issue from here because your Lordships are hearing appeals arising out of Justice Midha order which is limited to S. 17.

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Salve: The language of our arbitration agreement is that it will be subject to Indian Law, that point is missed.

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Our submission was this is a valid order, my Ld. Friend filed an appeal and till today they have not obtained a stay in that appeal, submits Salve.

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Salve: My lesser submission about 17(1) and (2) not being available, may still leave a room for the emergency arbitrator’s order.

It is one thing to say it is not contrary to our Act and it is another thing to say that it is the arbitral tribunal constituted under our Act.

Justice Midha clearly misdirected himself when he directed that the emergency arbitrators order is immediately enforceable, notes Salve.

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Salve: I have half an hour- 45 minutes more of submissions to make, a few cases have to be cited. Lordship may take it up tomorrow.

Court: Yes, thank you.

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Arguments by Senior Advocate Harish Salve to continue tomorrow.

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