Thread by @barandbench

#SupremeCourt is hearing the plea filed by @amazon against #DelhiHighCourt March 22 order which stayed Single Judge’s order restraining @FutureGroup from going ahead with the 24,713 crore merger with Reliance Retail

Sr Adv Harish Salve: please take a look at the Raffles Design International vs Educomp Professional Education delivered by Delhi High Court in October 2016

#supremecourt @amazon

Salve: the precedent states that order of emergency arbitrator may have some role to play although it cant be enforced per se

#supremecourt @amazon

Sr Adv Salve: Our submission is the emergency arbitrator is not an arbitral tribunal. Even under our agreement, this was not an arbitral tribunal & even under the SIAT rules this was not an Arbitral Tribunal

#supremecourt @amazon

Salve: Section 9(3) and 17 must be read in harmony. Now what my friends want again, is to bring an overlap.

And if the two sections are harmonised- an EA does not come into the picture.

#supremecourt @amazon

Salve: Reading “arbitral tribunal” to include an EA, I submit that is wrong and incorrect.

Textually, I have discussed my submissions. Contextually also, 17(2) gives Court-like powers to a Tribunal. This can only be done by application of a law.

#supremecourt @amazon

Salve relies on Commissioner Of Income Tax, ... vs M/S Pearl Mech. Engg. & Foundry.

"Jurisdiction can't be created by construction."

#supremecourt @amazon

Salve: I want to place before you Para 152 of Justice Srikrishna’s report.

#supremecourt @amazon

@amazon Salve: Bringing in a completely new process, is not as per the Court's power. It needs to be dealt with by the Parliament.

#supremecourt @amazon

Salve: If your Lordships do take the view that it is enforceable under 17, then also there are several other points that need to be argued including nullity.

#supremecourt @amazon

Salve, concluding: Our recourse will depend on what the Lordships finally hold.

#supremecourt @amazon

Senior Advocate KV Viswanathan, appearing for FRL begins submissions.

#supremecourt @amazon

Viswanathan: There are two legal fiction that have been created. “as if under the CPC”- creates a legal fiction.

#supremecourt @amazon

Viswanathan begins discussing authorities relied upon.

#supremecourt @amazon

Viswanathan discusses Rajasthan State I.D.I.Corpn vs. Diamond & Gem Dev. Corpn. Ltd. to read the interpretation of the phrase- "as if"

#supremecourt @amazon

Viswanathan goes on to rely on Bhatinda Improvement Trust vs Balwant Singh to show that incorporation under 17(2) and 36, the execution is not brought out by the language or the scheme of the Act.

#supremecourt @amazon

CPC should be allowed to operate. If that is taken-our appeals would be allowed to operate, submits Viswanathan.

#supremecourt @amazon

Viswanathan relies on Pam Developments Private Ltd vs The State Of West Bengal discussing the interpretation of "have regard to"

#supremecourt @amazon

While submitting that different words convery different meanings, B.R. Enterprises vs State Of U.P. is discussed by Viswanathan.

#supremecourt @amazon

Senior Advocate KV Viswanathan: Having made my submissions regarding the four rules of interpretation, I wish to discuss a few High Court judgements that support the arguments I am making.

This is to show that CPC will govern execution.

#supremecourt @amazon

Court: Mr. Viswanathan, how do you overcome the specific words, “and from no other”?

#supremecourt @amazon

Viswanathan: The order has to be of an arbitral tribunal. 37 has to be understood as orders under the Act.

The EA falls short of a party with judicial character. The orders of the EA does not have binding powers.

#supremecourt @amazon

The EA is not recognised under our Act. His order cannot be on a pedestal higher than the Court order under the Act.

The opposite parties are trying to fit a round peg in a square hole, submits Sr. Adv Viswanathan.

#supremecourt @amazon

Viswanathan: I will keep your Lordships query in mind as I move forward and I will discuss it.

#supremecourt @amazon

Viswanathan: There are three High Court judgements, these are illustrative cases only. I am simply borrowing their reasoning.

#supremecourt @amazon

Viswanathan: These judgements are merely illustrative, it is a practice for parties to follow hierarchy appeals.

#supremecourt @amazon

Viswanathan: An inefficacious remedy is also available before the arbitral tribunal.

The parliament felt that for interim measures should come to 9, once the tribunal is constituted in its full authority, they were given status that could be enforced.
The rest fell under 9.

Viswanathan: They, for some reason did not choose to go under 9.

With this EA, they got an order and even if you get it, you must reinforce it under Section 9.

@amazon #SupremeCourt

Viswanathan: I now go to the next point to supplement the status of this emergency arbitrator. The fulcrum of their argument is that party autonomy gives an EA the status of an arbitral tribunal.

My Lord, who is this EA?

@amazon #SupremeCourt

Viswanathan discusses the CIAC Rules drawing attention to the status of EA.

@amazon #SupremeCourt

Viswanathan while discussing CIAC Rules also relies on Champsey Bhara And Company vs The Jivraj Balloo Spinning.

@amazon #SupremeCourt

Court: Mr. Viswanathan, Justice Joseph was the youngest Judge appointed to the United States SC, described arbitration as “rough justice.”

That beginning point now, has been hemmed by legislation of course.

@amazon #SupremeCourt

Arguments to resume post lunch.

@amazon #SupremeCourt

Sr Adv Vishwanathan resumes submissions: This is an ouster, some ouster is in explicit terms or some are in implicit terms

@amazon
#SupremeCourt

Sr Adv Vishwanathan: we have to act within rights and remedies of the Arbitration and Concilliation Act, 1996. I want to reinforce the submissions of Mr Salve on terms of our contract

@amazon
#SupremeCourt

Sr Adv Vishwanathan: in the SIAC rules there is a format of arbitration given. Please take a look.

@amazon
#SupremeCourt

Sr Adv Vishwanathan: autonomy which the party exercise here is as per the legal regime laid down. fulcrum of party autonomy which is the bedrock of their case which strives to give emergency arbitrator a status of arbitral tribunal wholly falls short on law.

#SupremeCourt

Sr Adv Vishwanathan: the order of the emergency arbitrator carries a brand of invalidity on its forehead.

#SupremeCourt

Sr Adv Vishwanathan: where do we fit this emergency arbitrator ? it is certainly not an arbitral tribunal. other countries have recognized him with restrictions and ours is a work in progress to say the best.

#SupremeCourt

Sr Adv Vikram Nankani appears for Future Retail and other companies from Biyani family

Justice Nariman: we have heard others. Please do not repeat submissions

Nankani: I will be brief

Sr Adv Vikram Nankani: This is a case that squarely falls under Order 39 of CPC, 1908 against which appeal lies under Order 43

#SupremeCourt @amazon

Justice Nariman: This does not seem to be correct

Sr Adv Vikram Nankani: very well, My Lord

#SupremeCourt @amazon

Sr Adv Vikram Nankani: parties have clearly chosen that if there are multi-tier dispute resolution mechanisms, they have chosen arbitration.

#SupremeCourt @amazon

Sr Adv Nankani: Party autonomy, in this case, has only been made with regards to picking up of arbitral tribunal. short point was whether the award was an order or decree.

Sr Adv Nankani refers to the judgments on the point of miscarriage of justice.

whatever Mr Chinoy submitted there is an answer for that. We will keep the powder dry at the moment.

#supremecourt

Sr Adv Gopal Subramanium begins the rejoinder: most of the submissions mostly runs foul on mostly everything this court has said on the law of arbitration. Why is this code called a self sustained code? this is a consolidating statute.

Sr Adv Gopal Subramanium: if orders of tribunal have to be efficacious they has to have status of decree or award of the court. This is the idea of limited fiction. This was discussed elaborately by Justice Indu Malhotra in the Vedanta case

Sr Adv Gopal Subramanium: no proscription or prohibition by the 1996 act has been shown. its case of simple interpretation of statutes.

Sr Adv Gopal Subramanium: if you have rules of an arbitral institution then those rules are treated as a part of the arbitration agreement itself.

Subramaniam: This is not a case of reservation but a simple case of interpretation of the statute. Where one has institutional rules, then it is implied that parties have consented to the institutional rules. Arb proceedings commence moment arb notice is given

Subramanium: The same rule 3.3 is there in the SIAC Rules too. This rule is similar to section 21 of the Arb Act, 1996. The arbitral proceedings have commenced from Oct 5, 2020.

Sr Adv Subramanium: Under the SIAC Rules, an award also includes the award by Emergency Arbitrator & an arbitrator also includes an emergency arbitrator. Plus the emergency arbitrator here is of reputation and has given reasons for his order

Subramanium: We have not heard any of the allegations was incorrect or nothing was done in violation of the emergency arbitrator's order.

If a proper tribunal is constituted within 90 days, the order of the emergency arbitrator continues to be binding. after constitution of the tribunal and until it vacates the emergency order, the emergency order continues to hold: Subramanium

Subramanium: CPC is an act for enforcement & nothing else. If an arbitral award is constituted within 90 days under SIAC Rules and passes an order, then the award will be maintainable & enforceable. To vacate award, an application has to be made. No such application was made

Subramanium: The tribunal is present the moment the agreement comes into effect. it is with a tribunal and not sans a tribunal. parliament doesn't amend the law, i have great respect for Justice Srikrishna. but these are issues of interpretation.

Subramanium: Parties definitely contemplated that pending the constitution of Arbitral Tribunal, an emergency arbitral tribunal could be constituted. Parliament doesn't need to amend the law. How many bite of the cherry will a party have? section 36 prevents two bites

Subramanium: 8 days was spent in arguments. It cannot be said there is a violation of the principles of natural justice.

If there is nothing to contra indicate that appointment of emergency arbitrator was illegal then the award cannot be set aside. there can be no escape from the inoxerable conclusion that it is indeed an arbitral tribunal: Subramanium

Subramanium: there can be no such argument that emergency relief is alien to Section 17: Subramanium

Subramanium: The agreement of the parties determines the interpretation, question of the mandate. Interim reliefs in the form of Emergency Relief are similar to as under sec 9 & 17 of the Arb Act. There is no piece in the puzzle which is missing

Hearing to continue tomorrow

#SupremeCourt @amazon