3 March 2022 1:43 PM GMT
In the Future- Amazon dispute, the lawyers on behalf of the American e-commerce giant Amazon on Thursday proposed to have an informal dialogue with the Future Group to settle the dispute amicably."Let us have a conversation. We can't allow spinners wheel to continue, with four different proceedings. Please consider. We must at least discuss, and see what's the best possibility. Let us put...
In the Future- Amazon dispute, the lawyers on behalf of the American e-commerce giant Amazon on Thursday proposed to have an informal dialogue with the Future Group to settle the dispute amicably.
"Let us have a conversation. We can't allow spinners wheel to continue, with four different proceedings. Please consider. We must at least discuss, and see what's the best possibility. Let us put our heads together and find a solution", Senior Advocate Gopal Subramanium told Supreme Court today
"We are always supportive of solving things amicably", a Bench comprising CJI Ramana, Justice AS Bopanna and Justice Hima Kohli responded.
"Throughout we've always believed there could be a conversation, there could be other resolutions to a matter, do we need to have a spinners wheel in an arbitration? I'm concerned, if any investor thinks there's no sanctity to Arbitrator's award, arbitral awards can be simply wished away, or can take law into his own hands", Mr Subramanium added
Senior Advocate Harish Salve appearing for Future Retail submitted that while he has no problem with the idea of amicably solving the dispute, if Amazon wanted to have a conversation they could have called the promoters of the Future Group.
"I've no problem. The conversation the business people have to have let them have. If he has seen light of the day and wants to have a conversation what prevents the Big Boss at Amazon from calling Biyanis and having a conversation. We are not stopping them, as lawyers we will encourage them", Mr Salve remarked.
"You also have to cooperate" the Bench told Mr Salve
"Let me assure, nobody is winning this battle.The Amazon God has to come down to talk to us lesser mortals", Mr Salve remarked.
The Bench however asked Mr Salve to not make such remarks, and observed that all parties involved will have to cooperate and be part of the dialogue.
"We aren't happy or here to fight. If you want to fight legally, you do and we will decide. But we only thought for interest of parties. You yourself said nobody is winning", CJI said
"Instead of saying they should pick phone and call, why don't you facilitate that to happen", Justice Bopanna told Mr Salve
"He (Mr Subramanium) hasn't said Mediation but we understand they (Amazon) are ready for mediation. So you decide. All options are fine. If you want to talk to your client please do " the Bench told Mr Salve
"I'll try and make sure meeting can be arranged. Whatever your Lordships have said will be communicated" ,Mr Salve said
Senior Advocate Mukul Rohatgi appearing for Future Coupons Private Ltd submitted that the problem is that their scheme has been injuncted, it is stuck and Amazon is not willing to give any amount even close to what Reliance is giving. He added that a discussion cannot happen if a level playing field is not there.
"Ultimately its for you to take a call, we are simply adjourning matter for 10 days, won't pass any orders, meanwhile you work out. Whatever's the gentleman understanding. Its better for you to see something." CJI told the Senior Counsels
The bench comprising CJI NV Ramana, Justice AS Bopanna and Hima Kohli was hearing a special leave petition filed by Amazon against Delhi High Court's order staying further arbitration proceedings before the Singapore Tribunal against Future Group.
The Bench today simply adjourned the case for 10 days to enable the parties to have an informal dialogue to solve the Amazon- Future dispute amicably.
The Bench however did not allow request made on behalf of Amazon by Senior Counsel Subramanium to direct the withholding of pronouncing of orders in proceedings before Delhi High Court and NCLAT to enable the parties to have an informal dialogue.
The Bench recorded the submissions made by the Senior Counsels that the proceedings going on before Delhi High Court and NCLAT relating to the Amazon - Future dispute is going on and will take some more time in passing orders.
Senior Advocate Harish Salve and Senior Advocate Mukul Rohatgi appearing for Future Group opposed Amazon's request and submitted that no orders are going to be passed by the Court and the Tribunal so an order isn't needed.
The Bench after being assured that no final orders will be sought by Future, agreed to not pass any orders directing the High Court and Tribunal to not pass any orders.
On last occasion, Supreme Court had adjourned the hearing on being told that the NCLAT is hearing the appeal a day later and that the High Court's stay order was based on the CCI's action.
The court had asked the parties to await the outcome of the appeal filed by Amazon in the National Company Law Tribunal against the Competition Commission of India revoking its sanction for the deal with Future Retail.
"The present SLP is in one way connected to the outcome of the order challenged before the NCLAT. We direct parties to request NCLAT to decide the case. List on March 9", the bench led by the Chief Justice of India said in the order.
The impunged order of the division bench also stayed the Single Judge order which had dismissed Future Group's plea challenging the two orders passed by the Singapore Arbitration Tribunal which deferred the hearing in Future's plea seeking termination of the arbitration proceedings instituted by Amazon.
The High Court had also issued notice on the two appeals filed by Future Retail Ltd. and Future Coupons Pvt. Ltd. impugning the said Single Judge order and made it returnable on February 1, 2022.
Before the High Court, Future Group in its plea had placed reliance on an order passed by the Competition Commission of India on December 17, 2021, which had kept the approval granted for Amazon's deal with Future Group in abeyance.
Before the Supreme Court, Amazon has argued that the impugned interim order injuncting an ongoing international commercial arbitration seated in New Delhi under SIAC Rules presided over by a distinguished Arbitral Tribunal and involving parties and experts from across the world is strikingly contrary to the provisions, intent and purpose of the Arbitration and Conciliation Act which emphasises party autonomy and minimum judicial interference.
Amazon has submitted before Supreme Court that the sole reason given in the Impugned Interim Common Order is certain observations made in the CCI Order. Further, the CCI Order itself was a subject matter of consideration before the Arbitral Tribunal in the Termination Applications, to which replies had already been filed and the matter was scheduled for hearing on 07.01.2022 and 08.01.2022. In any event, the CCI Order is subject to an appeal before the National Company Law Appellate Tribunal, New Delhi, which is being pursued by the Petitioner.
According to Amazon, the observation of the Division Bench that the Termination Applications should have been taken up on priority and before recording evidence is a direct interference in the procedural autonomy of the Arbitral Tribunal and wholly uncalled for, given that the said Termination Applications were listed for hearing just two days later, on 07.01.2022.
Amazon has stated that though , in the Impugned order, lip service has been paid to the requirement of balance of convenience and irreparable injury, both were overwhelmingly in favour of continuance of the Arbitration Proceedings, which were fixed and ongoing.
On receipt of the CCI order, an application was moved before the Singapore Tribunal seeking closure of arbitration proceedings stating that any assertion of contractual rights against Future Group by Amazon would be in direct contravention of the CCI order.
Single Judge's Observations
The Court was of the view that just because the hearing of the termination application was scheduled for a date after the hearing of the expert witnesses, it did not mean that the Arbitral Tribunal was not willing to consider the said applications on merits or was discounting the merits of the said applications.
The Court further noted that prima facie, there was nothing to suggest that the Arbitral Tribunal denied equal opportunity to the parties or that the Arbitral Tribunal was not accommodating towards requests made by the Future Group.
Case Title: Amazon.com NV InvestmentHoldings LLC vs Future Coupons Private Limited & Ors, Amazon.com NV Investment Holdings LLC vs Future Retail Ltd & Ors
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