The Hon'ble Supreme Court in the landmark decision of Amazon.com NV Investment Holdings LLC v. Future Retail Ltd. & Ors.1 has held that emergency arbitral awards are orders under Section 17(1) of the Arbitration and Conciliation Act, 1996 (Arbitration Act). The Apex Court also held that an order passed under Section 17(2) of the Arbitration Act in enforcement of an award of an emergency arbitration was not appealable. In this article, we briefly analyze the findings of the Hon'ble Supreme Court which led to the aforementioned conclusions.
The present matter concerned proceedings which were initiated by the appellant, Amazon.com NV Investment Holding LLC (Amazon) before the High Court of Delhi (High Court) under Section 17(2) of the Arbitration Act to enforce the award/ order (Order) dated 25 October 2020 of an emergency arbitration under Rules of the Singapore International Arbitration Centre Rules (SIAC).
The Order was passed against the Respondents No. 1 to 13 (Biyani Group) who are described as under:
- Respondent No. 1 - Future Retail Limited (FRL)
- Respondent No. 2 - Future Coupons Pvt. Ltd. (FCPL)
- Respondent No. 3 - Mr. Kishore Biyani (Executive Chairman and Group CEO of FRL)
- Respondent No. 8 - Mr. Rakesh Biyani (Managing Director of FRL)
- Respondents No. 4 to 7 and 9 to 11 - (Promoters and Shareholders of FRL)
- Respondents No. 12 and 13 - Future Corporate Resources Pvt. Ltd. and Akar Estate and Finance Pvt. Ltd. (Group Companies of FRL)
The parties signed three agreements amongst themselves. Firstly, a Shareholders Agreement dated 12 August 2019 was entered into amongst the Biyani Group (FRL SHA). Under the FRL SHA, FCPL was accorded negative, protective, special, and material rights with regard to FRL including in particular, FRL's retail stores (Retail Assets). Secondly, the rights granted to FCPL were mirrored to the benefit of Amazon in another Shareholders Agreement dated 22 August 2019 entered into between Amazon, FCPL and Respondents 3 to 13 (FCPL SHA). Thirdly, Amazon agreed to invest a sum of INR 1431 Crores in FCPL based on the rights granted to FCPL under the FRL SHA. The investment was recorded in the Share Subscription Agreement dated 22 August 2019 entered into between Amazon, FCPL, and Respondent No. 3 to 13 (SSA).
The basic understanding amongst the parties was that Amazon's investment in retail assets of FRL would continue to vest in FRL. Consequently, FRL could not transfer its retail assets without FCPL's consent which in turn could not be granted unless Amazon had provided its consent. Moreover, FRL was prohibited from encumbering/ transferring/ selling/ divesting/ disposing of its retail assets to restricted persons being prohibited entities with whom any of the member of the Biyani Group could not deal with. Mukesh Dhirubhai Ambani Group (Reliance Group) was a restricted person under FRL SHA and FCPL SHA. On 26 December 2019, Amazon invested a sum of INR 1431 Crores in FCPL which flowed down to FRL on the very same day.
Disputes arose amongst the parties as Biyani Group entered into a transaction (Disputed Transaction) with Reliance Group which envisaged amalgamation of FRL with Reliance Group and consequential cessation of FRL as an entity with complete disposal of assets in favour of Reliance Group. Aggrieved by the Disputed Transaction, Amazon initiated arbitration proceedings and filed an application for emergency interim relief under the SIAC Rules requesting for an injunction against the Disputed Transaction. The emergency arbitrator upon hearing both parties held that rendered an award injuncting the Biyani Group and the Reliance Group from continuing with the Disputed Transaction.
The Biyani Group continued with the Disputed Transaction describing the award as a nullity and emergency arbitrator as coram non judice. FRL, consistent with this stand did not challenge the emergency arbitrators award under Section 37 of the Arbitration Act and rather chose to file a civil suit before the High Court to interdict the arbitration proceedings calling it tortious interference with civil rights. A Single Judge of the High Court while finding a prima facie case of tortious interference refused to grant interim relief. The Amazon group filed an appeal against certain observations made in the order.
Amazon went ahead with an application filed under Section 17(2) of the Arbitration Act which was heard and disposed of by a Single Judge of High Court with passing of a status-quo order (Status-Quo Order) in which he restrained Biyani Group from going ahead with Disputed Transaction. An appeal against this was filed by FRL in which a Division Bench of the High Court vide order dated 8 February 2021 stayed the operation, implementation and execution of Status-Quo Order. On 18 March 2020, the Single Judge of the High Court passed a detailed judgment holding that emergency arbitrator's award was an order under Section 17(1) of the Arbitration Act. FRL filed an appeal against the judgment of Single Judge dated 18 March 2020. In the appeal, the Division Bench once again stayed the Single Judge's judgment.
Against the order of the Division Bench of the High Court, special leave petitions were filed before the Hon'ble Supreme court. The moot proposition culled out in the instant matter were as follows:
- Firstly, whether an "award" delivered by an emergency arbitrator under the SIAC Rules could be said to be an order under Section 17(1) of the Arbitration Act?
- Secondly, whether an order passed under Section 17(2) of the Arbitration Act for enforcement of the award of an emergency arbitrator by Single Judge of the High Court was appealable?
Arguments for Amazon
On behalf of Amazon, it was argued that the order of the Division Bench suffered from the non-application of mind and errors on face of record. The Apex Court was lead through the provisions of the Arbitration Act including Sections 2(1)(a), 2(1)(c), 2(1)(d), and 19(2) to argue that the foundation of Arbitration Act was party autonomy. It was stated that the principle of party autonomy was respected by the aforementioned provisions and delineated in several judgments of the Hon'ble Supreme Court.
It was further argued that an appeal under Section 37(2)(b) of the Arbitration Act was restricted to granting of an interim measure under Section 17(1) and not Section 17(2). It was submitted that the Arbitration Act was a complete code in itself and if an appeal did not fall within the four corners of Section 37, then it would be incompetent of being heard.
It was argued that emergency arbitrator's award could never be characterized as a nullity and ignored in entirety. Section 17(2) was once again referred to argue that enforcement orders were made under the Arbitration Act and not under the Code of Civil Procedure, as a result of which the appeal filed under Order XLIII, Rule 1(r) would not be maintainable. Lastly, the Senior Counsel for Amazon argued that the legislative object of allowing arbitral tribunal to pass interim orders under Section 17 was to decongest courts and free them form the burden of Section 9 petition under the Arbitration Act before them. When viewed from this perspective, the emergency award served the same purposes.
Arguments for FRL
On behalf of FRL, it was argued that an emergency arbitral award could not be said to fall under Section 17(1) of the Arbitration Act. Reliance was placed on the 246th Law Commission Report in which the Law Commission advocated the amendment of Section 2 of the Arbitration Act to include within sub-section (1)(d) a provision for the appointment of an emergency arbitrator. Despite the recommendations of the Law Commission, the Parliament did not adopt the same when the Arbitration Act was amended in 2015. According to FRL, the lack of Parliamentary sanction to the Law Commission's recommendations indicated that emergency arbitral orders would not fall under Section 17(1) of the Arbitration Act.
It was also argued on behalf of FRL that the scheme of Section 17(1) made it clear that a party may during arbitral proceedings apply to the arbitral tribunal. However, it was contended that under the SIAC Rules, an emergency arbitrator was appointed prior to the arbitral tribunal was constituted. Hence, emergency arbitrator in the instant matter was not appointed during arbitral proceedings and fell outside the ambit of Section 17(1).
On Section 17(2), it was argued that the words "as if" contained a legal fiction which when taken to its logical conclusion would necessarily mean that enforcement proceedings would be outside the pale of Arbitration Act and in confines of Code of Civil Procedure, 1908 (CPC).
I. Party autonomy permits arbitral proceedings to be administered by an arbitral institution
At the outset, the Hon'ble Supreme Court referred to provisions of the Arbitration Act to observe that a proceeding could be administered by a permanent arbitral institution. Importantly, Section 2(6) made it clear that parties are free to authorize any person including an institution to determine issues that arose between the parties. Also, under Section 2(8), the Apex Court noted that party autonomy went to the extent of including an agreement to be governed by the arbitration rules of an institution. Likewise, under Section 19(2), parties are free on the procedure to be followed by an arbitral tribunal in conducting its proceedings.
The Hon'ble Supreme Court then referred to a number of judgments2 which highlighted the importance of party autonomy as being one of the pillars of arbitration in the Arbitration Act. It was thus concluded that by agreeing to the SIAC Rules the parties in the instant matter had not bypassed any mandatory provision of the Arbitration Act. There is nothing in the Arbitration Act that prohibits contracting parties from agreeing to a provision providing for an award being made by an emergency arbitrator. On the contrary, the Apex Court held that when properly read, various Sections of the Arbitration Act which speak of party autonomy in choosing to be governed by institutional rules would make it clear that the said rules would apply to govern the rights between the parties.
II. On date of commencement of arbitration proceedings
The Apex Court observed that Section 21 provides that arbitral proceedings under Arbitration Act commence upon the date on which request for referring the dispute to arbitration is received by respondent. Similar was the position for emergency arbitrations under SIAC Rules. This being the case, it was held that when Section 17(1) used the expression "during the arbitral proceedings", the expression would be elastic enough when read with Section 21 of the Arbitration Act to include emergency arbitration proceedings instituted in the instant matter.
III. On definition of an arbitral tribunal under the Arbitration Act
The Hon'ble Supreme Court then turned to the argument on behalf of FRL that an arbitral tribunal as defined under Section 2(1)(d) spoke only of an arbitral tribunal that was constituted between the parties and which could give interim and final relief. The Apex Court clarified that like every other definition section, the definition contained under Section 2(1)(d) only applied unless the context otherwise required. The definition of an arbitration meant any arbitration whether or not administered by a permanent arbitral institution. This, when read with Section 2(6) and 2(8) would make it clear that an emergency arbitrator would also be included within the ambit of Section 2(1)(d) of the Arbitration Act.
IV. On recommendation of the 246th Law Commission Report
The Hon'ble Supreme Court held that there was no doubt that the Parliament did not adopt the recommendation of the 246th Law Commission Report which provided for the insertion of an Emergency Arbitrator's order into Section 2(1)(d) of the Arbitration Act. However, the Apex Court relied upon the decision in Avitel Post Studioz & Ors. v. HSBC PI Holding (Mauritius) Ltd.3 to hold that the mere fact that a recommendation of a Law Commission Report is not followed by the Parliament, would not necessarily lead to the conclusion that what was suggested by the Law Commission could not be a part of the statute.
V. On the object of introducing amendments to Section 9 and 17 of the Arbitration Act vis-à-vis the nature of emergency arbitral orders
The Hon'ble Supreme Court noted that the object of introducing Sections 9(2) and 9(3) in the Arbitration Act was to decongest the clogged court system. Accordingly, the Apex Court opined that an emergency order would undoubtedly be an order which furthers the very object to decongest the court system. Given the fact that emergency arbitral order is exactly like an order of any other arbitral tribunal, the Hon'ble Supreme Court concluded that the same would be covered by Section 17(1).
VI. On maintainability of an appeal under Order XLIII Rule 1(r)
The Hon'ble Supreme Court held that there could be no doubt that the legal fiction created under Section 17(2) of the Arbitration Act for enforcement of interim orders was created only for the limited purpose of enforcement as a decree of the court. To extend this fiction to encompass appeals from such orders is to go beyond the clear intention of the legislature. Further, the Apex Court relied upon the decision in BGS SGS SOMA JV v. NHPC4 which specifically rules out appeals under Order XLIII Rule 1 of the Code of Civil Procedure when it comes to orders being made under the Arbitration Act. Thus, the Hon'ble Supreme Court concluded that there lies no appeal under Section 37 of the against an order of enforcement of emergency arbitrator's order made under Section 17(2) of the Arbitration Act.
The instant judgement is a big leap forward for Indian arbitration landscape as the Hon'ble Supreme Court has bestowed statutory recognition to emergency arbitration. Through this step, the Apex Court has reinforced the underpinning principle of party autonomy which is the fountain head of Indian arbitration jurisprudence. Given the high-stake commercial considerations at play, recognition of emergency arbitrations is dream come true for businesses which always look for speedy resolution of disputes. The judgement is a welcome boon for adoption of emergency and institutional arbitration by international conglomerates at both domestic and international levels. We expect this decision to be an important milestone in making India an attractive investment destination and further bolster the business ecosystem and ease of doing business in India.
* The author would like to acknowledge the research and assistance rendered by Harshvardhan Korada.
1. Civil Appeal Nos. 4494-4495 of 2021, and Civil Appeal Nos. 4496-4497 of 2021
2. Antrix Corporation Ltd. v. Devas Multimedia Pvt. Ltd., (2014) 11 SCC 560; Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2016) 4 SCC 126; Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd., (2017) 2 SCC 228; and PASL Wind Solutions Pvt. Ltd. v. GE Power Conversion India Pvt. Ltd., 2021 SCC OnLine SC 331.
3. Avitel Post Studioz & Ors. v. HSBC PI Holding (Mauritius) Ltd., 2021 4 SCC 713.
4. BGS SGS SOMA JV v. NHPC, (2020) 4 SCC 234.
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