Thread by @lawbarandbench

The #DelhiHighCourt will continue hearing arguments in a batch of petitions related to ongoing dispute between #Amazon and #FutureGroup

In the last hearing, Sr Advocate Harish Salve, appearing for Future Retail, had argued that once a court expresses a view, the arbitration tribunal must defer to that observation.

Read the full story here:
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Justice C Hari Shankar will hear the arguments at around 2:30pm.
#DelhiHighCourt @amazon #FutureGroup

Hearing starts.
Harish Salve informs the Court about the hearing in Supreme Court.

Salve: I want clarity that till the final orders are passed I can go on with the various steps. This is what I will argue immediately.

Read today's development before Supreme Court here:
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Salve refers to CCI's order of last year which rescinded its permission for the deal between Amazon and Future Copons Private Limited.

Salve: They (amazon) kept arguing that FCPL has no right to complain etc etc. CCI said I am not concerned with all that. The CCI said it is concerned only with statutory proceedings.
#DelhiHighCourt
@amazon
#futuregroup

Salve reads the CCI order.
#DelhiHighCourt @amazon #futuregroup

Salve: I told the arbitration tribunal that if it continues with the arbitration, it will fall foul of the CCI order.

Salve: We said if CCI order is correct then there is no permission. I said if you have any rights, they are inchoate.

Salve: Today the tribunal is told that the transaction documents comprise three agreements whereas CCI is told that the transactional documents comprise only two.

Salve: There is a fallacious answer to this. Now FCPL and FRL's answer is that there are only two transaction documents. Amazon is doing flip flops. You are the flip flop master.

Salve: I have not changed my story. I continue to say there are two documents.

Salve: Today your lordships are being told that FRL should not have acted without Amazon's permission.
#DelhiHighCourt @amazon #futuregroup

Salve: They are completely distancing themselves saying they have no right in FRL and its SHA was negotiated independent of us. We argued this before the tribunal saying these three transactions as being one is completely nonsense.
#DelhiHighCourt
@amazon
#futuregroup

Salve: We told the tribunal to look at what Amazon told the CCI.

Salve continues reading the CCI order.
#DelhiHighCourt @amazon #futuregroup

Salve: It was Amazon which had applied to the CCI so it had to disclose its intention to the commission.

Salve: The Commission noted that Amazon had suppressed the intention and criticized its conduct. The commission said it amounts to fraud.

Salve: The pulled a wool over the eyes of the CCI and got their approval. Please also bear in mind the factor that what Justice Mukta Gupta had found is exactly what CCI said.

Salve now refers to SIAC order.
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@amazon
#futuregroup

Salve: The order is wrong. The Court is not an emergency court. An emergency arbitrator (EA) is not a party's chose arbitrator. he is appointed on the assumption that he will not be the main arbitrator. It is the SIAC rules which govern and these rules for the EA are set out...

... it says the tribunal may reconsider or vacate any order of EA. The tribunal is now bound by the reasons given by EA. You can say I do not agree with the reasoning.

Salve continues reading the SIAC order whereby it refused to vacate the stay by the Emergency Arbitrator on Reliance-Future deal.

Salve: The order of tribunal is like the attitude of Mari Antoinette.

Salve: For the present, some things have now overtaken us. Banks have declared my accounts NPAs. We filed a 32 petition but the banks came and said sorry.

Salve: My only hope as of today is to finish this scheme. In fact, the very first round of meeting is on 24 April. For the present I am saying your lordships to say let the NCLT go on and you hear the appeal with the safeguard that NCLT should not pass a final order.

Salve: The EA order today is merged in the vacation order of the tribunal.

Salve: We are saying that the direction of the tribunal runs in teeth of Justice Mukta Gupta's directions.

Salve: I am repeatedly told that the EA order is there but it is not there is the tribunal's order that is in force.

Salve: To say that the majesty of rule of law will suffer if interim prayers is allowed is wrong.

Salve: Allow me this much and please fix this appeal according to your convenience.
Salve concludes.

Sr Advocate Mukul Rohatgi now begins his submissions for Future Coupons.

Rohatgi: FCPL has an agreement with Amazon. There are two agreement, SSA and SHA. FRL has no agreement with Amazon. Under these agreements, Amazon was to bring investment to take 49% equity in Coupons.

Rohatgi: A pre-requisite for them was to get the CCI approval. Please note that coupons business is like a reward business. the more you use the more points you get. It is a paltry business compared to FRL.

Rohatgi: Amazon was only interested in coupons and not retail. Under our agreement there is an arbitration clause and CCI approval is mandatory. They have to give information to CCI.

Rohatgi: They have no information that they wanted to acquire business of FRL and therefore they got the approval. Please note that FRL has no agreement with Amazon therefore it entered into an agreement with Reliance.

Rohatgi: When that happened, Amazon showed its true colours, they invoked emergency arbitration against FCPL but they also invoked against promoters and FRL even though it is not a party.

Rohatgi: Their real intention was disguised when the approval was taken from CCI but it became open knowledge when they invoked arbitration. The EA passed an order, upheld by Justice Midha's order which in turn has been set aside by SC.

Rohatgi: We are in this appeal against the reiteration of the tribunal's order... When we came to know the real intention of Amazon we went to CCI. An application was made before the CCI to revoke its permissions.

Rohatgi: CCI passed a detailed order and kept its approval in abeyance. It imposed a penalty of Rs 200 crores for playing a fraud and it said that if you want make a fresh application for permission based on true facts.

Rohatgi now refers to CCI order.

Rohatgi: We applied for termination of the arbitration for the reason that the agreement under which arbitration clause exist requires the consent of CCI which had now disappeared and therefore the legal effect of agreement become a nullity.

Rohatgi: The tribunal said we will hear it but in April and said we will continue with the main arbitration.
#DelhiHighCourt
@amazon
#FutureGroup

Rohatgi: We approached the Delhi High Court with the grievance that they should have heard it first. The single-judge refused us relief. It was challenged before the division bench which granted us a stay on the arbitral proceedings. That stay continues today.

Rohatgi: That stay has been questioned before the SC. It was listed today and the Court has now adjourned it to 15 March. Amazon has not filed a fresh application for CCI approval but have appealed the CCI's order.

Rohatgi: It is now our case that there is no warrant for the order of tribunal to survive even for a moment because the bottom of their case has been knocked out.

Rohatgi: Prior permission of CCI having gone and penalty beign imposed, unless it is altered there is no permission for Amazon to enter India. The agreement containing arbitration clause is ineffective thus the arbitration is still born thus the legal effect is that the order...

... is a nullity. The other part is FRL's debt is Rs 27000 crore. They need oxygen. They have tied up with Reliance to get the money and stay afloat. All that is in danger because if this roadblock continues then that transaction can't happen.

J Shankar: Right now this CCI appeal is also before NCLAT. So NCLAT has two proceedings before it?
Rohatgi: Yes.

Rohatgi: The CCI order is operative today. It is pending appeal but as long as it is valid, there is no warrant for any arbitration much less an injuction.
#DelhiHighCourt
@amazon
#FutureGroup

Rohatgi: The reasoning of the tribunal's order is completely contrary to CCI order.

Rohatgi: This order has no legs to stand on and Justice Midha's order has been completely set aside by the SC. What is before your lordships is section 37 appeal.

Rohatgi: This injunction cannot survive even for a moment today. It is therefore our submission that our appeals should be allowed and order of both the EA and tribunal should go and the transaction of FRL must go on.

Rohatgi: If there is a change in future, as when we come by that passage they will be looked after but this oppressive injunction can stay.

Rohatgi: The SC asked me in the last hearing as to why don't they direct the tribunal to hear my section 32 appeal. But I told them 32 is dependent on CCI, CCI is dependent on NCLAT and therefore there is a jigsaw puzzle.

Rohatgi: This is the long and short of this case. The injunction of the tribunal therefore should be set aside.

Rohatgi concludes.
Sr Advocate Dayan Krishnan, appearing for Future Group promoters, now starts his submissions.
#DelhiHighCourt
@amazon
#FutureGroup

Krishnan refers to share subscription agreement (SSA) between Amazon and Future Coupons.

Krishnan: With this CCI approval in abeyance entire foundation is gone.
#DelhiHighCourt
@amazon
#FutureGroup

Krishnan: Keeping in view the fact that CCI has put everything in abeyance, there is no question of impugned order continuing to hold.

Krishnan concludes.
#DelhiHighCourt
@amazon
#FutureGroup

Sr Advocate Amit Sibal appears for Amazon.
Sibal: Just a factual submission, the tribunal did not say it will hear termination petition in April. They said it will hear it in January.

Sibal: This morning, the SC gave them three choices. They said either tribunal can be directed to hear the termination petition or that they can decide the matter in discussion. They chose this option.

Sibal: Mr Subramanium is leading is in this matter.
J Shankar: The SC's order not once but thrice says we should decide it expeditiously so someone can argue in place Mr Subramanium and then he can join.

Sibal: There have been two developments after there is no urgency in the present proceedings.
J Shankar: Alright, when will you argue?
Sibal: We want it on 8th March.

Bench: Okay, we will have it on 8.

Salve appears and disputes Sibal's submissions.
Salve: Let me clear this. They made a brazen effort to get this matter stayed.
Sibal: SC has recorded that if there is any prospect of an order being passed by the high court then there is liberty to mention the matter before SC.

J Shankar dictates order.
Order: In view of the aforesaid and the submissions that Mr Gopal Subramanium will be available on March 8, list on the said date.

Hearing over.
#DelhiHighCourt @amazon #FutureGroup