Future Group and Amazon are entangled in a legal battle over a decision by the former to sell its Big Bazaar retail business to Reliance Retail, a subsidiary of RIL. Amazon claims that the transaction violates an agreement that it has with the Future group’s Future Coupons Pvt. Ltd. (FCPL).
The legal battle between the two sides has been running for more than a year and an early resolution seems nowhere in sight.
So, why should a transaction between Future and Reliance bother Amazon? It so happens that in August 2019, Amazon acquired a 49 percent stake in Future Coupons Pvt Ltd for a sum of Rs 1,431 crore. FCPL is one of the promoters of the publicly listed Future Retail Ltd (FRL), and, as per the arrangement with Amazon, the monies pumped in by the US e-commerce giant in FCPL were to be transmitted to FRL, which owns the Big Bazaar chain.
The two parties also entered into a shareholders’ agreement that provided Amazon with certain rights and protections. It was agreed that Amazon would have a call option to acquire FCPL’s stake in FRL in the event of a change in Indian laws on Foreign Direct Investment in multi-brand retail.
Additionally, the terms of the agreement also stated that Future group would not alienate any of its assets, nor would it engage in business with a list of entities. This list included RIL as well.
The deal with Reliance
In August 2020, shortly after the pandemic hit the world and India saw several months of lockdown, FRL announced that it was selling its retail assets to Reliance Retail, a wholly-owned subsidiary of RIL. Like other businesses, the Big Bazaar chain was hit hard by the pandemic, and to safeguard the jobs of over 27,000 employees and facilitate debt repayment, a deal to sell its retail assets was struck between India’s two leading retail chains. This deal was valued between Rs 24,000 crore and 27,000 crore.
It was this deal that set off the long-drawn-out legal battle between Amazon and Future group, with the former trying to stop the merger and the latter trying to expedite it.
In this big fight, no stone has been left unturned and no legal forum ignored.
Amazon was the first to move and invoked arbitration to stop the Future-Reliance deal from going through.
As is the usual practice, parties entering into contracts can decide which forum to approach in the event there is a dispute. Most commercial contracts choose the arbitration route to minimise litigation time. In the case of Amazon and FCPL, the parties chose the Singapore International Arbitration Centre’s (SIAC) rules to govern the process.
Moneycontrol takes you through the status of the case in various courts and fora:
- SIAC proceedings
Emergency award: In October 2020, after Amazon invoked arbitration, an emergency arbitrator appointed under the Singapore International Arbitration Centre's rules passed an award in favour of Amazon and stayed the asset sale deal between FRL and Reliance. Such emergency awards are interim in nature and remain in force for a set period and can be extended after a tribunal is set up to hear the main dispute.
The validity of this emergency award was challenged in Indian courts but ultimately, in August 2021, the Supreme Court ruled that these awards are valid and enforceable under the Indian law on arbitration.
Partial award: In October 2021, the arbitration tribunal set up under SIAC rules gave a partial award in favour of Amazon. The tribunal is a Delhi-seated tribunal which is governed by the SIAC rules in line with the terms of the agreement between the parties. This tribunal passed two awards; one held that FRL was bound by the arbitration agreement, and the second refused to lift the stay on the asset sale deal between FRL and Reliance.
Termination proceedings: After the Competition Commission of India suspended its approval for the 2019 deal between Amazon and FCPL (more on that later), the Future group filed an application before the SIAC appointed tribunal for termination of arbitration proceedings. It contended that with the Indian competition regulator suspending its approval for the FCPL-Amazon deal, there were no legal grounds for the proceedings at the SIAC tribunal to continue. Future asked the Singapore tribunal to prioritise the termination application but the tribunal, on account of scheduling constraints, could not give this application a priority hearing.
- Delhi High Court
On the SIAC emergency arbitration: The Delhi High Court first came into the picture after the emergency award was passed by the arbitration tribunal. Future group had moved the high court for the limited purpose of getting Amazon to stop writing to Indian regulators. It was Amazon’s subsequent plea seeking enforcement of the emergency award that assumed more significance.
In February 2021, a single judge ruled that the emergency award was valid and enforceable and held that FRL, Future group CEO Kishore Biyani and other key persons in the group companies were guilty of wilfully disobeying the emergency award. Future group was asked to get a reversal of all the regulatory approvals it had received. A division bench of the high court stayed this order, but it was reinstated in August 2021 after the Supreme Court’s precedent-laying ruling on the validity of emergency arbitration. With the single judge’s order reinstated, Future group filed an appeal before the Supreme Court and sought permission to take precipitative steps in furtherance of the stalled deal with Reliance.
On the SIAC’s partial award: The Delhi High Court once again became the centre of action when Future group moved the high court for a stay on the partial award of the tribunal under SIAC rules. This request for a stay was denied by a single-judge bench and Future group then appealed before the Supreme Court.
On termination of the arbitration proceedings: After the SIAC-governed arbitration tribunal expressed its inability to hear Future group’s application seeking a termination of proceedings on priority, the Delhi High Court was approached once again. While a single-judge rejected Future group’s petition and refused to give directions to the tribunal, a division-bench stayed the arbitration proceedings after Future group appealed. The division bench cited the CCI’s suspension of approval for the 2019 FCPL-Amazon deal (more on that later) as the reason for the balance of convenience in favour of Future group and the need for the arbitration proceedings to be stayed. Amazon has appealed against this stay order before the Supreme Court.
- Competition Commission of India and NCLAT: Earlier in 2021, FCPL, which had inked a contract with Amazon for the Rs 1,400 crore investment in 2019, itself complained to the CCI that Amazon had withheld some pertinent information about the agreement while seeking the body’s approval for the investment deal. FCPL told the CCI that Amazon had not divulged its strategic interest in FRL. This complaint was backed by the Confederation of All India Traders as well as some independent directors of FRL.
In December 2021, CCI concluded its hearing on the issue and in what was a major jolt for Amazon, the Indian competition regulator decided to keep its approval for the FCPL-Amazon deal in abeyance. It asked Amazon to make fresh applications for approval after opining that Amazon had indeed kept strategic information about its interest in FRL hidden from the commission. The CCI also imposed a fine of Rs 202 crore on Amazon and gave it a 60-day window to pay.
After the Future group cited the CCI ruling in the Delhi High Courtto seek termination of arbitration and successfully secured a stay on the SIAC-governed arbitration proceedings, Amazon filed an appeal against this ruling before the National Company Law Appellate Tribunal.
NCLAT is scheduled to hear this appeal on February 2.
- Supreme Court of India
All issues in this case appear to be headed towards the Supreme Court for a final decision and ultimate closure of the matter.
On the SIAC emergency award: The question of the validity of the SIAC emergency award gained finality only after the Supreme Court laid down the law in its August 2021 judgment and held such awards to be valid and enforceable in India.
On the partial award and regulatory approvals for the FCPL-Amazon deal: The Supreme Court concluded hearing four appeals by Future group firms in January 2022 and has reserved its orders. The court heard the parties on two issues: on whether the Future group could be allowed to take precipitative steps in furtherance of the contentious asset-sale deal with Reliance, and on the issue of a stay on the SIAC tribunal’s partial award. “It will not be a lengthy order,” Chief Justice of India NV Ramana had said while reserving the order on this batch of appeals.
On the stay on arbitration proceedings: Amazon filed an appeal before the Supreme Court after the Delhi High Court stayed the arbitration proceedings in the case. This appeal is expected to be heard by India’s top court in the coming days.
All eyes are on the Supreme Court now.
Discover the latest Business News, Sensex, and Nifty updates. Obtain Personal Finance insights, tax queries, and expert opinions on Moneycontrol or download the Moneycontrol App to stay updated!
