Thread by @barandbench

#DelhiHighCourt is set to hear Future Group appeals challenging the order of single-judge who dismissed its petitions for directions to arbitration tribunal in Singapore to consider the company’s termination application.
barandbench.com/news/amazon-fu…

Hearing starts.
Chief Justice DN Patel and Justice Jyoti Singh presiding.
#DelhiHighCourt @amazon

Senior advocates Mukul Rohatgi and Harish Salve appearing for the Future Group Companies.
#DelhiHighCourt

Rohatgi: Future coupons entered into an agreement with @amazon which was supposed to buy 49% stake in the company. The arbitration here is Delhi based but tribunal sits in Singapore.

Rohatgi: Future retail operates Big Bazar. They had an agreement with Reliance which was supposed to pay Rs 29000 crores. Under my agreement Amazon went to Singapore and got an injunction.

Rohatgi: They said they not only have agreement with Future Coupons but with other companies of Mr Ashok Biyani as well.

Rohatgi: The immediate problem is that Amazon came with Rs 1400 crore to invest in an Indian compnay. They require @CCI_India prior permission for this because it can have adverse impact on market forces and dominant positions.

Rohatgi: In layman term we can say there is a Joint-Venture. This JV requires @CCI_India approval. This approval was secured on the ground that this agreement was with Future Coupons. But the fact they are dealing with Future Retail was withheld from CCI.

Bench: What detail was suppressed?
Rohatgi: They told the arbitrators that since Biyanis control both coupons and retails arms therefore this was an integrated transaction. The role of retail arm was suppressed before CCI.

Rohatgi: We told the CCI that this was suppressed and therefore its permission should be withdrawn. CCI recorded a finding that the approval was obtained by fraud. They recorded this in their judgment.

Rohatgi: They imposed a fine of Rs 202 crore on @amazon They have kept the approval in abeyance.
#DelhiHighCourt

Rohatgi: The approval is gone. Once that is gone, the agreement loses all legal value.
#DelhiHighCourt

Rohatgi: Once the agreement has no legal value, arbitration has no legal effect in India.
#DelhiHighCourt

Rohatgi: We brought the CCI judgment before the tribunal on December 23. We filed the termination application asking them to terminate the arbitration.
#DelhiHighCourt

Rohatgi: A competent authority in India has declared that the approval which brings life into the agreement is withdrawn. We therefore requested them to terminate the arbitration and be done with it.
#DelhiHighCourt

Rohatgi: All they have to do is hear this application before proceeding with other things.

Rohatgi: We are not running away but we want them to hear this application because it is in our interest.
#DelhiHighCourt

Rohatgi: Half of our office is down with Covid.
#DelhiHighCourt

Rohatgi: The question is our application must be taken first because of superseding order from @CCI_India .

Rohatgi now takes the Court through the CCI order
#DelhiHighCourt

Rohatgi: The fact that FCPL was a vehicle to acquire FRL is suppressed.
#DelhiHighCourt #future #Amazon

Rohatgi: Amazon is arguing that no doubt they will invest 49% but the business of FRL through its retail stores is important for their business.
#DelhiHighCourt #future #Amazon

Rohatgi: The arbitrators are not taking this CCI order seriously. They are saying we can decide it later. No one has filed an appeal against CCI order. The tribunal is insisting that the case must commence.
#DelhiHighCourt #future #Amazon

Rohatgi: We requested the single bench to declare the the arbitral proceedings to be having no legal effect.
#DelhiHighCourt #future #Amazon

Rohatgi: It has been held by the Delhi HC that in rare cases, a writ will lie against arbitral proceedings. There are two judgments of this Court.
#DelhiHighCourt #future #Amazon

Rohatgi: Both judgments say this can be done in rare cases and my cases is fit for that. We have an order of statutory body in our favour.
#DelhiHighCourt #future #Amazon

Rohatgi: The learned single-judge here did not appreciate the importance of order in my favour.
#DelhiHighCourt #future #Amazon

Rohatgi: The judge said my grievance has been addressed and that the tribunal has accommodated everybody.
#DelhiHighCourt #future #Amazon

Rohatgi: When we said six people are down with Covid, they said it doesn't matter you have so many lawyers on our side. The single-judge also said the same thing. He said the world has to live with Covid.

Rohatgi: Justice cannot be denied and hurried in this manner.
#DelhiHighCourt #future #Amazon

Rohatgi: Everyday Your Lordships and Supreme Court has been postponing manners. What heavens will fall if the tribunal does the same. In the entire order of single-judge there is no consideration of CCI order.

Rohatgi: A Rs 200 crore penalty is not a small penalty.
#DelhiHighCourt #future #Amazon

Rohatgi: I am saying the arbitration must be stopped it it is not, it would be like committing a coup on CCI Order.
#DelhiHighCourt #future #Amazon

Sr Advocate Harish Salve is now making his submissions.
#DelhiHighCourt #future #Amazon

Salve: We asked for a writ of certiorari under 226.
#DelhiHighCourt #future #Amazon

Salve: They wrote to CCI saying FCPL is a coupon company and that it is soon going to bring a payment option. They said we have a great interest and India's payment landscape is still nascent therefore we have opportunity for business.

Salve: What came before the CCI now were three internal documents of Amazon. They have started Amazon Fresh which is for ultra-fast delivery. For that you need local stores. Amazon wanted to secure this through Future Retail.
#DelhiHighCourt #future #Amazon

Salve: They told the CCI that the proposed combination will help them increase their portfolio in payment landscape in India. They are guilty of doublespeak.
#DelhiHighCourt #future #Amazon

Salve: This is not an ordinary commercial dispute. Their tongue and cheek argument is that we are a trillion dollar company. You can fine us few hundred crores, doesn't matter.
#DelhiHighCourt #future #Amazon

Salve: The CCI has said they suppressed material documents and misrepresented.
#DelhiHighCourt #future #Amazon

Salve: After looking at all the allegations, CCI says that the Amazon has suppressed the details of the combination. It failed to disclose the fact that FRL was part of the combination.
#DelhiHighCourt #future #Amazon

Salve: This is not a choice before the tribunal. This is jurisdictional therefore the learned single-judge is wrong.
#DelhiHighCourt #future #Amazon

Salve: On December 22, the tribunal writes an email to Amazon asking please tell how are you claiming damages. This is very interesting.

Salve: We said we are happy to get on with the matter on termination. We said for the cross-examination we will have to sit with the experts. Normally when someone says I am unwell, you take the word of the lawyer. This did not happen here.
#DelhiHighCourt #future #Amazon

Sr Advocate Gopal Subramanium begins his submissions for Amazon.

Subramanium: The tribunal is of three very senior arbitrators know across the world for their expertise in the field.
#DelhiHighCourt #future #Amazon

Subramanium: They wanted more time to file their written submissions because of Covid. On January 8, the application will be heard. It is wrong to say the tribunal is umindful of application.

Subramanium: Let me come to the CCI order now. For the sake of record I want to say that Mr Rohatgi never pressed for his prayer A. His submission was that the court will not excercise its jurisdiction. All he wanted was priority be given to his application.

Subramanium: Please look at the progress in this case. The notice for arbitration was given in October 2020. An emergency arbitrator was appointed, he gave notice and passed an order of injunction 2020. Since then went denying the order and violated it left, right and Centre.

Subramanium: The Supreme Court finally said that the emergency arbitrator is not an alien under the law.
#DelhiHighCourt #future #Amazon

Subramanium: When the enforcement proceedings are going on in High Court. They move an application before three-member tribunal to vacate the emergency arbitrator's order.

Subramanium: Mr Salve then also moved an application raising the jurisdiction infirmity. These applications were heard for a full week.

Subramnium: When the matter was pending in SC on the question whether Justice Midha of Delhi HC was correct in enforcing the order of emergency arbitrator, Mr Rohatgi's client who received the money filed a complaint before CCI.
#DelhiHighCourt #future #Amazon

He now alleges that the approval which he himself was party to should be withdrawn: Subramanium.

Subramanium: SC judgment comes in our favour. The tribunal also dismissed the applications. He (Kishor Biyani) now files a fresh application before CCI.
#DelhiHighCourt #future #Amazon

Subramanium: Their argument is because CCI has passed this order the agreement becomes invalid.
#DelhiHighCourt #future #Amazon

Subramanium: It is clear principal in arbitrational jurisprudence that it does not.

Subramanium: The approval given by CCI has not been revoked, it has been kept in abeyance. There is no effacement of approval.
#DelhiHighCourt #future #Amazon

Subramanium: We are going to appeal that order anyways. The single-judge was very circumspect in his order. He correctly said that the Arbitration Act being a self-contained code, the judicial intervention is only in very exception cases.
#DelhiHighCourt #future #Amazon

Subramanium: Courts cannot interfere in terms of the procedure of the arbitration tribunal. If the tribunal makes a mistake then there is a provision under the same act.

Subramanium: The circumstances for correction of tribunal order under Article 227 is very narrow and therefore there cannot be any intervention here.

Subramanium: The tribunal has not relinquished its duties. In fact from day after tomorrow they will hear the termination application.
#DelhiHighCourt #future #Amazon

Subramanium: Therefore the question is of priority. The tribunal members are spread across the world. These dates were fixed keeping in mind the convenience of the members and experts.
#DelhiHighCourt #future #Amazon

Subramanium: What is being done in these three days is the determination of damages.

Subramanium: The petitioners have continuously violated the orders of Courts. They now seek extraordinary jurisdiction of this Court.
#DelhiHighCourt #future #Amazon

Subramanium: The order of CCI is there and it needs to be interpreted. However even the CCI said the proceedings before arbitration tribunal is different. They said the two are independent of each other.
#DelhiHighCourt #future #Amazon

Subramanium: Everyone is conscious of their jurisdiction. If there was an abdication of jurisdiction, this would have been different. The reason single-judge did not go against us is because he saw that the tribunal has been accommodating.

Subramanium: The arbitration is now on its last legs. On the question of Covid, the tribunal had to make an assessment.
#DelhiHighCourt #future #Amazon

Subramanium: Before the single-judge Mr Rohatgi argued that he did not want him to decide the termination of proceedings. He only wanted the decision on termination application.

Subramanium: Everything was disclosed before the CCI. We were looking for a long-term relationship with future group. The retail landscape was disclosed. Even though the CCI order operates, it is interim. They have kept the permission in abeyance. It has not effaced the approval.

Subramanium: Where the tribunal is cognizant of the matter, there Your Lordship's jurisdiction does not exist.
#DelhiHighCourt #future #Amazon

Subramanium: There is no case for interference of the learned single judge required at the moment. The Prayer A was nowhere in discussion at all.
#DelhiHighCourt #future #Amazon

Subramanium: The common criticism is arbitration tribunal do not complete matters quickly. There is no abdication of jurisdiction by the tribunal. Therefore I request Your Lordships to dismiss the appeal. Even in any case if this is under 227, the intra-court appeal does not lie.

Sr Advocate Rajiv Nayar also argues for Amazon.
Nayar is arguing on the maintainability of the appeals.

Bench: You are appearing in which matter.
Nayar: Whichever matter Your Lordships choose. I can bill them only for one matter.

Bench: Both you and Gopal Subramanium arguing for Amazon.
Subramanium: Yes, Your Lordships. We always count on your indulgence.
#DelhiHighCourt #future #Amazon

Nayar: They describe their petitions under Article 227. Your Lordships know that now LPA is available against the order of single-judge order in 227.

Nayar: Both these petitions were under 227. If we take away their Prayer A, as noticed by the the single-judge, the petition then only was in supervisory jurisdiction.
#DelhiHighCourt #future #Amazon

Nayar: No intra-court appeal is maintainable under Article 227. There is no indication in the order that single-judge exercised any powers under Article 226.
#DelhiHighCourt #future #Amazon

Nayar is now reading 2010 judgment of Supreme Court in Shalini Shyam Shetty case regarding powers of High Courts under Article 226 and 227.
#DelhiHighCourt #future #Amazon

Nayar: Both Mr Rohatgi and Mr Salve raised questions on the conduct of the tribunal. They said it was in violation of principles of natural justice and arbitration act.
#DelhiHighCourt #future #Amazon

Nayar: My submission is that it was only a 227 petition and therefore single-judge having exercised his jurisdiction, no appeal lies.
Bench goes on mute for discussion.
#DelhiHighCourt #future #Amazon

Order:
These LPA were mentioned and hear today. We have heard the counsels for appellant and respondents in both the LPAs. Looking at the contents, notice issued on respondents.
#DelhiHighCourt #future #Amazon

Order:
Notice is made returnable on Feb 1.
Looking at the order passed by CCI, especially paragraphs 70, 75, 76, 78, 79 and 80 the approval granted by order dated October 2019 is kept an abeyance...

Order:
In view of these facts, there is a prima facie case in favour of appellant and balance of favour is also in their favour. If stays is no granted there will be irreparable loss.

Order:
Much has been argued by both side including on the maintainability. We will deal with all these issued on the returnable date. Meanwhile we stay the proceedings of arbitral tribunal till next date of hearing. We also stay the order of single-judge.

Subramanium: Your Lordships may just clarify that this will not prejudge the appeal we file against CCI order.
Bench: What sentence do you want?
Subramanium: We want Your Lordship's order to not affect that appeal. We want just one sentence.
Bench: We will consult and see.

#Breaking Delhi High Court stays @amazon arbitration proceedings against Future Group before the Singapore Tribunal.

Amazon - Future: Delhi High Court stays arbitration proceedings before Singapore tribunal

#Amazon #DelhiHighCourt #future

[BREAKING] Amazon-Future Group dispute: Delhi High Court stays proceedings before Singapore Tribunal

report by @prashantjha996

#DelhiHighCourt #Amazon #future

Read story: bityl.co/AMJt