Amazon.com v Future Retail Ltd
The SC allowed the arbitration proceedings between Amazon and Future Retail Limited before the Singapore International Arbitration Tribunal to continue.
Lawyers: Mr. Gopal Subramanium, Sr.Adv.; Mr. Ranjit Kumar, Sr.Adv.; Mr. Aspi Chinoy, Sr.Adv.; Mr. Gourab Banerji, Sr.Adv.; Mr. Amit Sibal, Sr.Adv.
Respondent : Future Retail
Lawyers: Mr. Mukul Rohatgi, Sr.Adv.; Mr. Dayan Krishnan, Sr.Adv.; Mr. Harish Salve, Sr.Adv.; Mr. K.V. Viswanathan, Sr.Adv.
Whether Amazon has control over Future Retail through its Shareholder Agreement with Future Coupon.
Whether the sale of FRL to Reliance breached FCPL’s Shareholder Agreement with Amazon.
In August, 2019, Future Coupon Private Ltd (FCPL) entered into a Shareholder Agreement with Future Retail Limited (FRL). FCPL is a subsidiary company of FRL that sells corporate merchandise. FRL is the second largest retail company in India. The Agreement bound FRL to take FCPL’s approval before transferring assets of the company to other parties.
Later that month, Amazon.com NV Investment Holdings LLC (Amazon) and FCPL entered into a Share Subscription Agreement and Shareholders Agreement, which gave Amazon a 49% stake in FCPL. As part of the agreements, Amazon had the right of first refusal for any sale made by Future Coupons. In a broader sense, these agreements bound FCPL to obtain Amazon’s consent before implementing any decision in FRL. Through these agreements, Amazon effectively claimed control over FRL.
Affected by lockdowns in the first wave of COVID-19, FRL was on the verge of bankruptcy. A whopping ₹22,000 crore in debt, FRL decided to sell its retail businesses and assets to Reliance for ₹25,000 crore in August, 2020. This sale will allow Reliance to completely dominate the Indian retail market with over 1,800 retail outlets. This marriage of two retail heavy weights in the Indian market will make it virtually impossible for Amazon to establish a competitive e-commerce business in India.
Amazon claimed that the sale was a violation of its Shareholder Agreement with FCPL. It approached the Singapore International Arbitration Centre (SIAC) in October of 2020 claiming that the FRL-Reliance deal violated the Amazon-FCPL Agreement. In the meanwhile, FRL filed a case before the Delhi High Court (HC) arguing that Amazon unlawfully interfered with the sale of its assets to Reliance. On October 25th, 2020, SIAC passed an Emergency Arbitral Award halting the FRL-Reliance deal. FRL later appealed the Emergency Award before the SIAC Arbitral Tribunal.
The sale of FRL to Reliance required approval from the Competition Commission of India (CCI), Securities and Exchange Board of India (SEBI), and the National Company Law Tribunal (NCLT). CCI and SEBI approved the FRL-Reliance Agreement in December, 2020. In January 2021, despite ongoing disputes at SIAC and the Delhi HC, FRL approached the NCLT to approve the sale.
In 2021, the case escalated on various levels. Amazon sought the implementation of the SIAC Emergency Award, which the Delhi HC granted. Multiple appeals to the Supreme Court (SC) on various issues were filed by both parties. The Court then halted hearings until the SIAC Arbitral Tribunal made its decision on the validity of the Emergency Award.
Amidst this chaos of multiple complaints, hearings, and fora, on December 17th, 2021, the CCI revoked the original Shareholder Agreement between Amazon and FCPL. The CCI stated that Amazon failed to disclose the interconnected set of agreements that effectively gave it control over FRL, and imposed a penalty of ₹202 crore on Amazon. Amazon then appealed this Order before the National Company Law Appellate Tribunal (NCLAT).
This revocation changed the very basis of the dispute—now it was a question of whether Amazon had any rights over FRL in the first place at all, as opposed to the initial question of the extent of Amazon’s rights over FRL. In December of 2021, FRL approached the Delhi High Court to stay the arbitration proceedings underway in Singapore. On the 5th of January, 2022, a two-judge Bench of the Delhi HC stayed the arbitration proceedings, on the grounds that the CCI’s revocation of the Agreement rendered a dispute arising from it invalid.
Meanwhile, the appeals on various Orders of the Delhi HC were being heard in the SC. In February, 2022, the SC noted that the Delhi HC had not given sufficient time to FRL and FCPL to establish a defence and file counter arguments. It requested the Delhi High Court begin fresh adjudication, by posting the numerous petitions filed in the case before the same Bench of the Delhi HC
While the Delhi HC is hearing the matters afresh, and the NCLAT is deciding the validity of CCI’s revocation Order, Amazon approached the SC to allow the Singapore Arbitration proceedings to continue.
Based on the joint memo submitted by Amazon and Future Group, On 6th April 2022, the SC passed an Order allowing arbitration at SIAC to continue. They directed SIAC to first hear Future Retail’s plea to terminate the arbitration on the grounds that the Competition Commission of India had revoked Amazon’s permission to invest in Future Coupon.