Delhi High Court continues hearing Amazon v. Future Retail: LIVE UPDATES

The Delhi High Court is hearing Amazon's plea seeking the enforcement of the Emergency Award restraining Future Group from going ahead with its deal with Reliance Retail. The matter is before Justice JR Midha.

. Read an account of yesterday's hearing here .

.Amazon seeks to restrain Future Group from going ahead with deal with Reliance Retail: Live updates from Delhi High Court. A live account of today's hearing features on this page.

. I have emailed the rejoinder note : Senior Advocate Gopal Subramanium for Amazon.

. They have sent an email to Arbitral Tribunal that they intend to file an application for vacation of the interim order: Subramanium

. I'm going to rely on the rejoinder note. I will deal with the email also : Senior Advocate Darius Khambata for Future Retail

. Khambata remarks that Amazon has not shown any earth shattering urgency in the plea.

. Parties argue over when the NCLT petition was filed. Please tell us the sequence. Who all want to follow?: Court

. I will take about 45 mins. Then Mr Salve ..: Khambata

. For maintainability? ..that is not fair : Court

. You've sent your note? : Court

. Yes. Our submissions are in the note : Khambata

. If required, I will also address : Senior Advocate Vikram Nankani

. We'll start post lunch. Let me go through whatever you have sent : Khambata

. All of you should restrict to 20 mins each: Court

. Arbitrator concluded the heating after hearing for one hour.. he has written such a nice award. I'm not on the finding. It is not happening here in our country : Court

. He records everything. Very rarely we find such recordings: Court

. Your Lordship may also go through Justice Mukta Gupta's judgement: Khambata

. Court breaks for lunch. Hearing to resume at 2:45 pm.

. Hearing resumes.

. Yesterday I showed the SIAC Rules to show that Emergency Arbitrator is not the Tribunal: Khambata begins.

. Let's start from para 1.. (of the notes). So that I don't have to make new notes: Court

. Khambata explains the Single Judge order on Emergency Arbitration not being quorum non judice.

. I accept all of that.. the learned Single Judge came to certain conclusions that completely supersede the findings of the Emergency Arbitrator: Khambata

. Khambata continues to state the single judge order.

. She finds that Amazon would get control over FRL which would violate the FDI rules: Khambata

. Appeal has gone in appeal against these findings: Khambata

. Mr Salve is going to address this. I'll stick to the first part..section 17(2) can't be stretched beyond Arbitral Tribunal: Khambata

. Each of these Rules show that even under SIAC Rules, an Emergency Arbitrator is something else. It is not an Arbitral Tribunal. Under Section 17, only Arbitral Tribunal orders can be included. Justice Gupta does not say that Emergency Award is under Section 17: Khambata

. Not one line in their note would show that Justice Gupta said that it was under section 17. Justice Gupta said it was under section 9. Emergency Arbitrator was not outside Arbitration Act. But he is not under section 17: Khambata

. India's Arbitration Centres do provide for Emergency Arbitration but they state that it cannot be in conflict with the mandatory provisions of law : Khambata

. These Institutions are international institutions. In foreign Jurisdiction, emergency Arbitrations are recognised. The fact that there is a rule, it doesn't ipso facto mean that Emergency Arbitrator becomes Tribunal under Part I: Khambata

. Khambata reads Delhi High Court judgment in Raffles case.

. Court said one has to file a suit or section 9 plea. Here it was an interim order of a fully constituted Tribunal: Khambata It is not directly enforceable in India : Khambata as he states that in present case there is an Emergency Arbitrator who is not an Arbitral Tribunal

. Khambata : The suit by FRL was filed because Amazon's was writing to Regulators on the basis of the Emergency Award. We said it was tortuous interference.

. I want to point out a few findings now: Khambata as he reads the judgement passed by Justice Mukta Gupta in FRL suit against Amazon.

. Khambata reads portion on FRL suit being maintainable

. There is no Arbitration Agreement between FRL and Amazon. Finding No 1: Khambata

. Khambata continues to read..

. It's (Emergency Arbitration) an alternative to Section 9 provision. It was not held to be a section 17 order: Khambata as he continues to read.

. Maybe Emergency Award holds some value. They should get it enforced under a suit like court said it Raffles: Khambata

. Law Commision had recommended that include Emergency Arbitrator in Arbitral Tribunal. That did not happen. This was one of many arguments. It was rejected: Khambata

. Single Judge only rejects the submission with respect to the law Commision recommendation..this must be read in the context of the Judge's finding that Emergency Arbitration is not covered under section 2(1)(d) of the Act : Khambata

. Khambata further reads the Single Judge judgement.

. What count holds is that you can go to another authority before Arbitration Tribunal is constituted..but it did not say you can go under section 17. This is pre constitution of Arbitral Tribunal. It is section 9: Khambata

. Khambata continues to read.

. There was no question of single judge discussing derogation from section 9 if the court treated the Emergency Award as section 17: Khambata

. Nowhere does the Single Judge hold that it was Section 17 order. There was no need for so much discussion then : Khambata

. Findings of Justice Gupta on this part completely support me : Khambata

. The rejoinder submissions .. I want to make three points: Khambata

. Khambata reiterates that Single Judge held that Emergency Award had legal status under Part I but not in terms of Section 17.

. Despite the court asking if there is any judgment, nothing is shown to show that Emergency Award is order of an Arbitration Tribunal: Khambata

. Third, it is an attempt to prejudice: Khambata

. The email sent to Tribunal is annexed.. we say without prejudice to the stand that the order of the EA is invalid.. R2 shall file an application for vacation of the interim order. It is without prejudice: Khambata

. The Arbitral Tribunal was constituted on Jan 5.. it's very clear that before that there was no Arbitral Tribunal to pass an order under Section 17: Khambata

. The petition is filed for collateral purposes. This order has been there for over two months. Desperate attempt to get some observation. Thousands of employees will go under : Khambata

. Senior Advocate Harish Salve begins for FRL.

. Salve refers to Section 37 of the Arbitration Act.

. If we read the emergency Arbitrator here, it will clear all types of problems. Sections 16 and 17 are joint at the hips: Salve

. Of emergency Arbitrator refuses me relief, I go to section 9 and not 17. This is a very self serving argument: Salve

. Please see where this is will end .. section 9 has now been amended. I can't mov court if I have remedy before Tribunal. Emergency Arbitrator are not the main Tribunal: Salve

. Salve argues that if Emergency Arbitrator is included as Arbitrator, a party because of section 9 (3) would never be able to approach court.

. When regular Arbitral Tribunal is constituted, there is an order under section 17: Salve

. I'm just supplimenting what Mr Khambata said : Salve

. I have a right of appeal against an interim order passed by Arbitral Tribunal under 17. You can't enforce an award without challenge. This is an abuse of process: Salve

. Section 17 point is covered .. : Salve

. Now comes the other aspect. The implications of the Single Judge: Salve

. There are two agreements. One is between Amazon and FCPL (Future Coupons). There is a listed entity FRL. FCPL is a Biyani company. While India opened up FDI, in certain sectors it was held back. FDI in multi brand retail was held back: Salve

. Today if M&S wants to come in, they can. But if a big store like Walmart comes to India, they can't: Salve

. These giants will put pressure of Indian shops. It will get crushed: Salve

. Everyone wants to come and stand at the door. Amazon had a deal with FCPL and signed an agreement with Biyani. FCPL has A shareholding agreement with FRL. FRL has no agreement with Amazon: Salve

. Amazon told CCI that it was here to grow FCPL business. There was an agreement that of Indian Govt opens the door, Biyani shall sell their share. This door is yet to open : Salve

. They invoke Arbitration under FCPL agreement but make FRL a party. You will violate FEMA if you conflate the agreements. I don't have any Arbitration agreement with Amazon. Emergency Arbitrator says you read the agreements together: Salve

. I filed the suit to stop Amazon from saying that they have rights in me. Single judge says you are write. Single judge says since matter is before statutory authorities, they will decide in accordance with law and not Emergency Arbitrator Award : Salve

. Hence they are in appeal.. today if there is an Emergency Award and a Single Judge order, the court has to go with the Single Judge: Salve

. They didn't get any stay from Division Bench: Salve

. Without a stay they've come to say enforce this award : Salve

. Court asks Salve to show these findings in the Single Judge judgement.

. Show me the clause they are seeking to enforce: Court

. You can continue if it's taking some time to open: Court

. Just one moment: Salve

. Salve shows the FCPL and FRL SHA.

. It is a tripartite agreement: Salve

. The third parties are investors in me. I am a listed company: Salve

. Salve reads the SHA.

. Salve refers to the substantive rights under the SHA.

. Salve refers to the substantive rights under the SHA

. AoA is the contract between all shareholders. For whatever reasons, the AoA was never amended: Salve

. My computer has hanged. Give me one minute: Court

. I've got it: Court

. Salve continues to read the SHA and the rights under it.

. There was a problem. Pandemic hit FRL very badly..when all shops close, the revenue went to zero. The company tanked. For the first three months, all shops were closed. You can't stop the banks from invoking the pledge : Salve

. Salve continues to read the SHA.

. Salve refers to "permitted transaction".

. My agreement was that unless FCPL permits, I will not sell. I have permission from FCPL.. by their mathematics, FRL needs Amazon's permission: Salve

. If I need this permission from an American company, it will mean that it has management rights over me.. Single Judge says yes: Salve

. Salve states that Amazon may take FCPL to Arbitration in case it has any issues.

. How did Emergency Arbitrator deal with it? : Court

. It said these are two corporate agreements. I will deal with this : Salve

. Salve refers to agreement between FCPL and Amazon. The real intention of Amazon as it shows now was to blow smoke in the eyes of the Indian authorities: Salve

. Salve refers to other FCPL documents and shareholding rights.

. The court may take it that they have invested in FCPL. Emergency Arbitrator said that money was used to buy FRL shares. I'm a listed company. You can't get management rights because of that: Salve

. All rights of Amazon are in respect of FCPL shares: Salve

. My promoters gave me the permission. Company and jobs have to be saved. Reliance said I'll keep all the jobs and business. If this transaction cancels, the shops will close. Just because this fat American company wants to make money: Salve

. Show me how Emergency Arbitrator has dealt with it : Court

. Salve refers to the Emergency Award.

. How many future group companies are there? : Court

. The court is concerned with two. : Salve

. What is the business: Court Salve explains the relationship between FRL and FCPL and their businesses.

. Amazon in its representation to CCI said I'm investing in FCPL to promote its business of gift and loyalty card: Salve

. FRL is the main listed the company: Salve

. How much money did Amazon invest in FCPL?: Court

. 1,430 crore in FCPL..there is not agreement with Amazon. FCPL bought shares in FRL. But it was not money to buy shares. : Salve

. It was given with an understanding?: Court

. Amongst others.. : Salve

. What is the stake in FCPL? : Court

. 49%: Salve

. And in FRL: Court

. Less than 10%: Salve

. Salve reiterates that Amazon's issue is that FRL agreed to sell its asset without its permission.

. They want to collapse the two agreements: Salve

. This matter is so many reels within wheels: Salve as the counsel try to locate the relevant portions from documents.

. Salve suggests that the matter be taken up on Monday after a note is given to court.

. Court agrees.

. The court will have to accommodate us. I'm told your lordship has physical dates on Monday and Tuesday: Salve

. Subramanium urges that FRL should not further precipitate the situation. First let us understand the matter: Court

. Subramanium explains the agreements between FCPL, Amazon. What was the understanding? : Court

. That we would invest in FCPL and the monies would be transferred to FRL. Therefore we had certain protective rights in the agreements read together: Subramanium

. I had the right that FCPL would not transfer the business of FRL to restricted persons. That's why we invested 1431 crores.. if any transfer had to take place, it had to be done with my consent: Subramanium

. The transaction is in favour of a restricted entity. The Emergency Award said prima facie there is a breach: Subramanium

. FCPL is not a controlling share. And FRL has not given you any assurance: Court

. FRL did because in the agreement with promoters, they said we would not touch FRL assets unless we have your consent: Subramanium

. I'm only stating my case. There are three agreements which make cross references. Arbitrator has referred to them: Subramanium

. Now they say they have done to closure...it is not possible to operate without funds: Court

. We wanted to rescue the company and Emergency Arbitrator found substance. We wanted to have a long term relationship with this party: Subramanium

. The Emergency Arbitrator said that one on hand they wanted to help you and you went with a restricted party without my consent: Subramanium

. If they go ahead, what will happen to you? : Court asks Amazon

. You will get yout money back: Salve

. What is left of the investment? It was coupled with the assurance that assets would be protected: Subramanium

. Nothing..devil lies in the details in this case: Salve

. These promoters are in debt..we are concerned with FRL : Subramanium

. An American company cares tuppence for Indian banks..: Salve

. I didn't say that : Subramanium

. We care. Of course Amazon doens't. It is an American giant : Salve

. If FRL goes into IBC..this investment is a bogey. Their concern is that Reliance shouldn't expand it's business in India. It is not about 1,400 crore. American company doens't want this competition: Salve

. Court proceeds to adjourn the matter.

. Issue notice: Court

. Arguments heard from 2:45 to 4:30 pm.. list for continuation of arguments on Monday: Court

. Court allows parties to respond to other's note.

. If they take further steps..: Senior Advocate Amit Sibal

. We're hearing the matter. The court has to form a view: Court

. They are taking steps every day: Sibal

. Court can always pass orders.. hearing is for the interim relief. Conclude the hearing and let me form a view: Court

. But the understanding it is that they would not go beyond court : Subramanium

. I've to be clear on the facts : Court

. To appreciate the award, the court must appreciate the facts: Subramanium

. I'm only saying that they are not challenging the award: Sibal

. It is void: Salve

. The single judge rejected it : Sibal

. Single judge also threw your case ..: Salve

. Facts have to be clear : Court

. Directions have to be given to registry for virtual hearing: Senior Advocate Rajiv Nayar

. I hope my friend has noted that we are anxious that some protective orders are passed. We are requesting for some interim orders : Subramanium

. Some respect should be shown to the court who is hearing the matter: Subramanium

. We will see on Monday: Court

. Hearing adjourned till Monday.

Delhi High Court continues hearing Amazon v. Future Retail: LIVE UPDATES

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