Thread by @LawBeatInd

Delhi HC agrees to urgently hear Future Retail's plea against a single bench order refusing to stay continuation of arbitration with @amazon. Future had moved Court against a Delhi seated Tribunal's refusal to hear its Termination Application before Amazon's claim for damages.

After an urgent hearing earlier the Delhi High Court had refused to interfere in the matter stating that writ jurisdiction under A.227 could not be invoked to intervene in mere case management orders of a Tribunal.

It is to be noted that the Delhi based Tribunal had not rejected Future's Termination plea but merely posted it for hearing AFTER @amazon's claim for damages in the main arbitration proceedings.

Future moved a single bench of the Delhi High Court stating that it was being compelled to undergo hearings for claim for damages arising out of a deal whose very existence has been put under a question mark following a CCI order in December.

The Competition Commission of India (CCI) had in December put the Amazon-Future deal in question, at abeyance, after noting that Amazon had not disclosed strategic information regarding the same to the statutory authority before getting an approval on the deal.

Therefore, Future had moved the Delhi based Arbitral Tribunal hearing Amazon and Future's main arbitration case, stating that with the deal itself being in abeyance now, the arbitration arising out of the deal ought to be terminated.

The matter is being heard by a bench of Chief Justice DN Patel and Justice Jyoti Singh.

Sr. Adv. Mukul Rohatgi takes the Court through all facts, on behalf of FCPL.

Rohatgi: S.32(2)(c) of the Arbitration and Conciliation Act says the Arbitral Tribunal shall issue an order for termination where it finds that the continuation of proceedings, for any other reason, has become unnecessary or impossible.

Rohatgi: My case is much higher in light of the CCI order. They've said that they'll hear our Termination Application on 8th Jan and Second Tranche hearing on 5th Jan, but the Termination App should be heard *first* because of a supervening statutory order staring us in the face.

HC: Where are the words "fraud" and "abeyance" in the CCI order?

@amazon #FutureGroup

Rohatgi points out, says, "They were pleading one thing before the CCI and another before the Tribunal."

"A holistic appreciation reveals that there has been a wilful and deliberate design" to suppress the true nature of "combination of Amazon and FCPL," he reads CCI order.

Rohatgi continues: The "misrepresentation, false statements, and misleading submissions" have denied the CCI to assess the true nature of the combination of @amazon and Future Coupons Ltd.

#Amazon #FutureGroup

Rohatgi: The effect is that your agreement today has no legal sanctity because the approval has been withdrawn in light of fraud, misrepresentation and false statements.

The Arbitral Tribunal is not taking this seriously.

Rohatgi: The Arbitral Tribunal has not dealt with this preliminary issue, but want to go on with the main case. They are saying, "Oh, we don't know what is the effect of this CCI order."

Rohatgi: So I approached the Single Judge - that either you decide the termination or direct the Arbitral Tribunal to decide.

Someone interjects - under A.227.

Rohatgi: The subject of the petition has to be seen, not the title. Please look at my prayers.

Rohatgi: We have come under A.226 and A.227, it has to be seen whether the petition is predominantly under A.226 or A.227.

He presses that their first prayer seeks a declaratory relief which falls under A.226 of the Constitution.

Rohatgi: The learned Single Judge did not appreciate the importance of the CCI order.

Rohatgi: Either this Court may stay continuation or direct the Tribunal to stay continuation of the Amazon-Future Group main arbitration.

If an Arbitral Tribunal will not give proper perspective of a statutory authority of this country, then Your Lordship may decide Prayer A.

Rohatgi: If they're not willing to do their duty, Your Lordship, may please take over and pass appropriate orders.

We told the Tribunal that 6 officers of the Solicitor's office are down with Covid-19, but the Tribunal said, "You've got so many lawyers on both sides."

Rohatgi: The Ld. Single Judge also makes the same error, he says the world has to live with Covid-19, yes the world may have to live with Covid-19 but the process of justice doesn't have to be jeopardized.

Rohatgi: Rs. 200 cr is not a small amount of fine on Amazon, it shows the mind of the CCI.

Sr. Adv. Dayan Krishnan: Today another plea was moved before a Single Judge seeking relief for non-appearance before an ED investigation. They say, if we appear we may get Covid-19, and they got relief. Here, 6 lawyers have got Covid-19, yet the Tribunal refused to hear them.

The updates to the hearing being referred to by Sr. Adv. Krishnan may be found here:

https://twitter.com/LawBeatInd/status/1478622023861428226?s=20

Sr. Adv. Harish Salve appears for Future Retail Ltd.

Salve: This is not an ordinary commercial dispute.

Salve: Amazon failed to disclose the real purpose of the combination which was to find a footprint in retail segment.

Salve points out Amazon has come up with Amazon Fresh, which offers ultra fast 3 hr deliveries for which it needs retail tie-ups.

He suggests that one of the objects of the FCPL - Amazon combination was these retail tie ups.

Sr Adv Gopal Subramanium for #Amazon: Their whole case was that their Termination Application should be given a priority hearing.

Subramanium: The question was whether the jurisdictional application should be heard first or later. While we pressed that the application can be heard later as well, the Tribunal did hear the matter and application for stay for a whole week.

Subramanium argues on severability of arbitration agreement says that even if the parent agreement is invalid, the agreement to arbitrate survives.

Subramanium: The conspectus of matter before the Single Judge was only on priority. Further like My Lords pointed out, the approval to the Future Coupons-Amazon deal has not been revoked.

Subramanium: The Single Judge was circumspect in his approach. He held that the Arbitration Act being a self-contained Code, interference through judicial review is only in exceptional cases. The jurisdiction in A.226 & 227 cannot be ousted but is exercised only exceptionally.

Subramanium: So far as A.226 is concerned, Future's Prayer A is not a Writ of Certiorari because an Arbitral Tribunal is not inferior to Courts.

Subramanium: The Tribunal has not relinquished its duties, infact they are going to hear the Termination Application on 8th Jan.

Subramanium: Future's applications will be heard on 7th and 8th Jan. The dates were fixed merely for the convenience of Tribunal, counsels and experts. Hearing on merits is over. These dates were fixed on 13th Oct with consent of parties.

Subramanium: We've claimed specific performance and in the alternative one claims damages, on 5th, 6th and 7th that is what's going to be heard. The fact that they're hearing the evidence doesn't mean they have any view on termination.

Subramanium: Who are these petitioners? Those who have violated orders of the Court, for them to ask for this extraordinary relief...!

Sr. Adv. Gopal Subramanium says of Future Group.

Subramanium: Further, the CCI itself says that its order is independent of arbitration proceedings.

#Amazon #FutureGroup

Subramanium: The Ld. Single Judge also saw that the Tribunal has been accommodative of Future Group. We are dealing with a party that has defied the Court's orders.

Subramanium: They cannot be telling the Arbitral Tribunal, "Now you do this, now you do that."

Subramanium: This is a Delhi-seated arbitration.

Sr. Adv. Rajiv Nayar also appears for Amazon and addresses the Court on maintainability.

He argues that as against what has been stated by Sr. Adv. Rohatgi today, the matter, of FRL's and FCPL's own admission, has been filed u/A.227 only.

Nayar relies on a judgment.

[BREAKING] Delhi High Court grants ex-parte ad interim relief to Future Group in plea against single judge bench's order refusing to stay continuation of arbitration proceedings with Amazon.

"There is a prima facie case in favour of FCPL and FRL."

[BREAKING] In a major win for Future Group, Delhi High Court stays continuation of arbitration proceedings with Amazon, stating that keeping in mind CCI's order finding suppression of facts in the deal by Amazon, there is a prima facie case in favour of Future Group.

The Court notes that failure to grant relief to Future Group with staying continuation of arbitration proceedings with #Amazon will result in irreparable loss to Future Group, and that the balance of convenience is in favour of Future Group.

with respect to staying*