The Future Of The Future Group Transaction - Arbitration & Dispute Resolution

In 2019 Amazon.com NV Investment Holdings (“Amazon”) had acquired a 49% stake in Future Coupons Limited (“Future Coupon”). As part of the transaction, Amazon was provided a ‘call' option, which enabled it to exercise the option of acquiring all or part of Future Coupon's promoter, Future Retail Limited's (“Future Retail”) shareholding in the company¹ (Future Coupon and Future Retail are hereinafter collectively referred to as the “Future Group”). Allegedly, as per the terms of the transaction, there was a list of 30 entities, with whom the Future Group could not transact, including the subsidiary of Reliance Industries Limited.

On August 29, 2020, Reliance Retail Ventures Limited (“RRVL”) had announced a deal to acquire the entire retail, wholesale, logistics and warehousing businesses of the Future Group as a going concern basis for Rs 24,713 crore. As a result, Amazon.com Inc (“Amazon Inc”) triggered arbitration under the Singapore International Arbitration Center Rules, 2016 (“SIAC Rules”). Amazon Inc also filed an application for an emergency arbitration under the SIAC Rules to halt the transaction between RRVL and the Future Group. On October 25, 2020, it was announced that the emergency arbitrator had injuncted the Future Group from taking any steps in furtherance to the transaction with RRVL, including but not limited to filing or pursuing any application before any body or agency in India (“Award”).

Emergency Arbitration: The Concept

In an emergency arbitration procedure, an emergency arbitrator is appointed by an arbitral institution before the constitution of an arbitral tribunal on an urgent basis to deal with an application for emergency interim relief. The concept of emergency arbitration, though while not present in the Arbitration and Conciliation Act, 1996 (“Act”) or even in the Arbitration and Conciliation (Amendment) Act, 2019 (“2019 Amendment”) is an unique procedure found in many arbitral institution rules. Arbitral institutions rules such as the SIAC Rules² and the International Chambers of Commerce Rules of Arbitration (“ICC Rules”)³ have laid down elaborate emergency arbitration procedures. The types of relief sought through these applications include preservation orders, freezing orders, mareva injunctions and general injunctive relief.

Ever since the introduction of the emergency arbitration procedure, the arbitral institutes have witnessed a steady growth in the number of emergency interim relief applications received, with over 94 emergency arbitrations applications received under the SIAC Rules in total by the end of 2019⁴ and 117 emergency arbitrations applications received under the ICC Rules in total by the end of 2019⁵. Under an emergency arbitration, the entire procedure, from the appointment of the arbitrator to the delivery of the emergency arbitration award, is time bound. The rules governing the emergency arbitration procedure permit the emergency arbitrator to set his/her own procedure. Such procedures may include the timelines for exchange of submissions, a hearing (if any), the scope of the reply submissions, the mode of communications between the parties and evidence which can be adduced. For example, under the SIAC Rules, an emergency arbitrator is required to be appointed within a day of the receipt of the emergency arbitration application⁶, prepare a schedule for the emergency arbitration within two days of his/her appointment⁷ and pass an award within 14 days of his/her appointment⁸.

Enforcement of these emergency awards or orders⁹ have been recognized in countries such as Singapore, however the problem arises with enforcing such emergency awards or orders when it comes to India.

Suggestions of the Law Commission

The 246^th Report of the Commission on ‘Amendment to the Arbitration and Conciliation Act, 1996' (“Law Commission”) sought to accord legislative sanction to rules of institutional arbitration such as the SIAC Rules that recognized the concept of an “emergency arbitrator”. It aimed at doing so by amending the definition of arbitral tribunal. Under the Act, an arbitral tribunal means “a sole arbitrator or a panel of arbitrators”¹⁰. The Law Commission wished to expand this definition and add the words after the phrase “panel of arbitrators” the words “and, in the case of an arbitration conducted under the rules of an institution providing for appointment of an emergency arbitrator, includes such emergency arbitrator”¹¹. However, despite the recommendations of the Law Commission, this suggestion has not been implemented even in the 2019 Amendment. As a result, it is often argued that any other person other than a sole arbitrator or a panel of arbitrators are not vested with any powers as granted under the Act.

Enforceability

The Delhi High Court in Raffles Design International India Pvt. Ltd. Versus Educomp Professional Education Ltd. (“Raffles Decision”) had held that “the emergency award passed by the Arbitral Tribunal cannot be enforced under the Act and the only method for enforcing the same would be for the petitioner to file a suit.”¹²

A party may also file a petition seeking interim reliefs under Section 9 of the Act. According to the Raffles Decision the courts would then independently apply their minds and grant interim relief in cases where it is warranted. The Raffles Decision noted that a party seeking interim measures cannot be precluded from doing so only for the reason that it had obtained a similar order.

Future of the Transaction

On October 25, 2020, Reliance Industries Limited filed a media statement on behalf of RRVL with the Bombay Stock Exchange (“BSE”), with copies issued to the Luxembourg Stock Exchange and the Singapore Stock Exchange stating that they were aware of the Award. RRVL further stated that they intend to enforce their rights and complete the transaction in terms of the scheme and agreement with the Future Group without any delay. The Future Group took a similar stance as RRVL and in its letter to the BSE, Future Retail communicated its intention to challenge the Award before the appropriate forum in India. Future Retail also informed the BSE that it would take appropriate steps to ensure that the proposed transaction with RRVL would proceed unhindered without any delay. As a result, Amazon Inc complained to the Securities and Exchange Board of India (“SEBI”). Despite Amazon Inc's complaint, the Future Group has been adamant that the Award is not binding and have even gone on to call the proceedings before the emergency arbitrator void¹³. It would be interesting to see the next steps taken by Amazon to give effect to the Award.