AMAZON VS FUTURE RETAIL: INDIAN RETAIL AND FUTURE OF EMERGENCY ARBITRATION IN INDIA

Reading time : 8 minutes 

Contents:

  1. INTRODUCTION TO RETAIL
  • TYPES OF RETAIL
  • SOCIETAL IMPACT UPON RETAIL-COLLECTIVE VS INDIVIDUALIST SOCIETY
  • PRESENT CONDITION OF RETAIL IN INDIA
  • AMAZON VS FUTURE RETAIL: FUTURE OF EMERGENCY ARBITRATION IN INDIA
  • BACKGROUND
  • WHY AMAZON CHOSEN A SINGAPORE BASED ARBITRATION ORGANIZATION?
  • WHAT HAPPENED AT SIAC?
  • WHAT WAS THE REACTION OF FUTURE RETAIL OVER THE INTERIM ORDER OF SIAC?
  • DELHI HIGH COURT SINGLE BENCH JUDGEMENT
  • DELHI HIGH COURT DIVISIONAL BENCH JUDGEMENT
  • SUPREME COURT PROCEEDINGS
  • IMPACT OF INDIAN RETAIL
  • FURTHER DEVELOPMENTS IN THIS CASE
  • CONCLUSION

INDIAN RETAIL

  1. INTRODUCTION TO RETAIL

Retail is the dealing in which sellers sells small quantities of products to the customers as per their wants[1].

The word “retail” derived from the French word “retailer” which means “to cut a piece off”. It entails undeviating linkage with the customers and synergism of business activities far and wide, It works from the beginning when the product is at design stage or just an offering, to its delivery and post delivery service to the customers.  This industry plays a very vital role in the economic growth of any country and one of the most effective industry in the world. With 10 percent GDP contribution, retailing has rooted itself as one of the pillars of economy in India. Its market cap is estimated to be at 600 billion US dollars which is the fifth largest in the world.

  • TYPES OF RETAILS

There are generally two types of retailing[2]

  • Organized Retailing

It refers to running a business which are generally associated with production or sales of goods in an efficient, well-structured and scientific manner. Huge quantities of goods are just piled up in a retail store with various marketing strategies functioning. Giving discount is one of the most important features here to attract customers. Getting attracted customers walks into the retails stores for buying their necessary products. Today it is marked for providing quality comfort, style and speed. These are generally registered by some legal authority.

Example of such organized retailing incorporates TATA GROUP. LANDMARK GROUP, PANTALOON RETAIL, RPG GROUP etc.

  • Unorganized Retailing

It is a conventional way of opening a small business. It is very small in size lacking infrastructure, skilled manpower, technology, funding etc. It is generally a family business which is continuing through ages. Most of the times, these are not registered by any legal authority.

Examples of such unorganized retailing incorporates Kirana stores, betel leaf seller, fruit and vegetable sellers, fair etc.

  • SOCIETAL IMPACT UPON RETAIL-COLLECTIVE VS INDIVIDUALIST SOCIETY

Understanding the culture of the people is one of the most important tasks of the retail industry. Complete study of behavior and interactions of the customers should be done. Social trends of the customer should be followed. Based upon behavior, interactions and social trends, the societies can be divided into the category of either a collective society or an individualistic society[3]. Such behavioral trends differ from place to place and country to country but rudiments of these will be same.

Collective Society

 The members of this society put more focus on the needs, wants and goals of a whole group. They are little preoccupied with oneself and one’s affairs and always thinks about the welfare of their society as a whole. They are generally philanthropist. They consider helping people as an essential work of their life. Surprisingly, People may reject their happiness and enjoyment for the sake of helping others. Good relations with family and with the friends are very important. Countries where such societies exist are Portugal, Mexico, and Turkey.

They follow the crowd for shopping and always gives preference quality over lesser prices.

Suppose, in a shop, there are two packets of biscuits of worth 5 rupees and 15 rupees. Now the question is if you would be there then which one you will choose? You may say the cheaper one i.e., 5 rupees one. But that is not the case with the collective society. They will firstly critically analyze the quality of each product. If it would be found that the 25 rupees one is good in quality than 5 rupees one, then they will prefer quality over the inexpensive ones.

They buy for their families and for themselves. They generally stick to the same retail store which they trust and loyal to it. They don’t buy products online because they want to feel the product before purchasing it. Returning of product after purchasing is also less frequent here because they only buy quality product.

How companies can target such collective societies?

  • Companies should work on increasing the quality of their products. Even if the product is not cheap but the quality of the product should be high.
  • Offers on multi-buying should be implemented as people in such societies often buy for others also.
  • Sponsoring or partnering with the local authorities would also do good.
  • Brands should try to become a face of this community to make people more and more loyal towards the product and brand.

Individualistic Society

As the name suggests, the members of this society will always give priority to the needs of the individual rather as a group. They think to be independent from each other and develops the attitude and behavior as the individualistic norms. They feel embarrassed and humiliated when they get dependent on any other person.

Countries which dominate in individualistic society are US, Western Europe, Australia etc. They never prefer to be in the crowd while shopping. They tend to be idiosyncratic. They keep their eyes on the latest trends and always prefer cheaper but fashionable products. Huge time spent by them in search of cheaper products rather focusing on the quality products. They don’t differentiate between instore and online stores. They buy from online in a considerable amount. They shop on a very frequent basis and with very impulsive attitude. They do follow fashion trends.

How companies can target such individualistic society?

By offering discounts, offers and sales, companies can fascinate more and more people and entice them to buy products from them specifically.

Instant incentives would perfectly do the work for the companies.

If company is operating online, then by providing good facilities like fast shipping, extra discounts, vouchers, gift hampers they can attract good amount of people. If the customer is not happy with the product, then return policy should also be there and should be properly implemented.

How much quickly you will fulfill the demands of your customers, it is more likely your business would do good.

  • PRESENT CONDITION OF RETAIL IN INDIA

Retail Industry in India has surfaced itself as one of the most breakneck industry.3600 billion US dollar was recorded as total consumption expenditure in 2020 which was almost the double of what was recorded in 2017 and according to the recent GDP reports, it is covering 10% of the GDP of India and giving approximate 8% of the total employment in India.

India ranked itself 73 globally in the United Nations Conference on Trade and Development business to Consumer(B2C) concerning the E-Commerce index.

India stands 5th in the world as the largest global destination in the retail space in the rankings of published in the year 2019 and positioned 63rd as the world’s largest global destination in the retail price in the ranking of The World Bank. FDI confidence index ranked India in the 16th position.

Presently, the retail market in India is immensely unorganized but the government and also on the ground level retailers are trying to make it organized and Lots of work has been done and to be done in this space. According to some reports it has increased by 50% between 2012 and 2020 to its current value of nearly 12% of the total retail.

Some state governments on the ground level are also trying to boost the retail investment. Recently, in July 2021, the Andhra Pradesh Government set forth the “Retail Park policy 2021 2026” banking on the selected retail investment of 5000 crore in the span of next five years.

Introduction of various reforms by the government of India to draw the attention of Foreign Direct Investment (FDI) in our retail industry like The Government licensed 51% MTR in multi brand retail and also approved 100% F.D.I/ in the single brand retail in expectation to give a elevation to ease of doing business.

In the Ease of Doing Business index of World Bank Group India has positioned itself at 63rd position. In the coming future, India will certainly try to improve its ranking.

Presently, we are more focusing on the making of the Make in India schemes and have made up various plans which will allow 100 % Foreign Direct Investment in India.

Active FDI influx settled at 3.6 billion U.S. dollars in the E-Commerce Domain between 20th April 2020.Indian steel Sector is also doing well and putted 6.2 billion dollars from different private equity and venture capital funds in the year 2020.

Most of The Fintech Companies are trying to establish their presence on the local levels. Fintech Companies are those who use modern technologies to provide best automated financial services. This is the new technology in India and have lots of capabilities to do well in the future, It requires little bit of push from the governments and big well established retailers.

State-wise, the highest spending state in the retail market was Maharashtra with a 15 percent share of the total retail spending across country in 2017. It was Followed by Tamil Nadu with 8 percent share of the total retail spending in that particular year.

Currently, the top retail companies operating in India are:

Aditya Birla fashion and retail Limited (Pantaloons), Avenue Supermarket Limited (India MART), Future Enterprises Limited, Future lifestyle fashion Limited, Future Retail Limited, Reliance Retail Limited, Shoppers Stop Limited Trent Limited (V Mart) retail Limited, V2 retail Limited etc.[4].

  • Amazon vs Future Retail: Future of Emergency Arbitration in India
  1. Background

AMAZON informed Competition Council of India about its decision to take 49% of FUTURE COUPONS, a part of FUTURE RETAIL stake in September 2019.

FUTURE RETAIL is one of the India’s largest chains of retail owned by Kishore Biyani. It was founded in 2007.Its major subsidiaries are SHME FOOD BRANDS PRIVATE LIMITED, TRAVEL NEWS SERVICE INDIA PVT LIMITED, FUTURE RETAIL LLC etc.

It is a tributary of the FUTURE GROUP.

AMAZON in the notice to Competition Council of India said

  • It has plans to get 49% shares of Future Coupons.
  • Future Retail would transfer certain number of shares. It was held by Future Corporate Resource Private limited to Future Coupons. The acquired equity warrants of Future coupons of Future Retail could be converted to the equity shares.

These equity shares would represent 7.30% of the total shares of Future Retail.

  • Subsquently,3.58% of stakes in Future Retail would be obtained by the Amazon.

Now the problem is Future Retail had previously made a deal with Reliance Retail in which Reliance Retail will acquire the Future Retail at Rs 25,000 crores.

The aforesaid transactions of Amazon set off three agreements which was signed at the time when amazon invested Rs 1400 crore in Future Coupons Pvt Limited which owns 9.8 shares of Future Retail Limited under “shareholder agreement” between Amazon and Future Retail Pvt Limited in 2019.

  • First “shareholders agreement “was signed between Amazon and Future Coupon Retail Pvt Limited.
  • Second “shareholders agreement “was signed between Future Coupon Retail Pvt Limited and Bombay Stock exchange listed Future Retail.
  • Last “share subscription agreement “was signed between Future Coupon Retail Pvt Limited d and Future Group.

Under Shareholders Agreement, each party was bound for the arbitrations and share subscription Agreement puts an extension to the dispute under Shareholders Agreement. In addition to these agreements, Amazon had also obtained certain bargaining chips with the provision of “call option”. This option gives amazon the right to acquire all or any part of the promoter of Future Coupon Retail Pvt Limited i.e., Future Retail shares.

It was alleged that these deals prohibit Future Group to make any transacts with 30 entities specified including Reliance Retail. But interestingly, despite of all these contracts, agreements and deals, Future Group declared that they will do a deal with Reliance Retail. According to this deal, the reliance retail will obtain parts of the business of Future Group at Rs 24713 crores. The business included were logistics, retail, wholesale, ware-housing etc.

Amazon considered it as non-compliance of its previous agreement. It also claimed that this deal is violating the contractual rights of Amazon over Future Coupons. On its defense, Future Group said that it has not sold any of its stake to the Amazon and that deal with Amazon was just for selling its assets. Therefore, it has not infringed any contractual rights.

According to some reports, Amazon sent a legal notice to the Future Retail regarding this but of no avail. Using “share holders’ agreement” and “share subscription agreement” which talks about the arbitration if any dispute arises between the contractual parties, Amazon approached a Singapore arbitration Centre called SIAC.

SIAC stands for Singapore International Arbitration Council which is an independent and non-profitable arbitration organization. The work of SIAC is to provide alternate dispute resolution on any dispute arising out of international transactions or more precisely cross border transactions. It was founded in 1991.It is located at Maxwell Chambers formerly known as Custom Office in Singapore[5].

  • Why Amazon chosen a Singapore based Arbitration Organization?

There could be many reasons for it but the most probable reasons would be:

  • Reliance has huge political capital in India. So, Amazon would have thought that it might face much difficulties here because of the nature of the parties involved. In such cases it is always difficult to get the judgement in its favor.
  • As per the claims of SIAC, it can award an emergency arbitration within 14 days on the issue of cross border transactions. So, it was fast and also provided a short window to the nature of the transactions involved.
  • SIAC is a well-known international arbitrator and have very good reputation on issues of such transactions.
  • What happened at SIAC?

An interim order was passed in favor of the Amazon. After this interim order, Future Retail was prohibited to make any transactions or disposal of any assets with Reliance Retail or with any restricted parties mentioned in those three agreements. Rule 10 of SIAC state that any interim order passed by SIAC is only valid for 90 days if tribunal is not formed within 90 days or the claim was withdrawn or the final judgement of Emergency arbitrator have been made.

But in this case, the tribunal was set up so the validation of the interim order also got lengthened. Subsequently, the deal of Rs 24000 crore between Reliance Retail and Future Retail was on hold and any movement further into the deal was halted. Just after the issuance of the interim order, Amazon sent a letter to the Securities and Exchange Board of India and Competition Council of India (main market regulators of India) notifying about the interim order passed by the SIAC.

In this arbitration case, Michael Hwang was presiding as the barrister and arbitrator.

Albert Van den Berg was representing Amazon and Jan Paulson was representing the Future Group[6].

  • What was the reaction of Future Retail over the interim order of SIAC?

During the SIAC arbitration ongoing, the Future Retail was strongly opposing its inclusion in that arbitration. It said that the deal was signed between the Amazon and Future Coupons and Future retail have no involvement to it. So, it demanded that Future Retail should be kept away from this.

But, SIAC declined this plea and said FRL is also an active part as per the shareholder’s agreement and share subscription agreement. Future Retail abstained itself in acknowledging the interim order passed by SIAC and termed that order as “not enforceable and binding” and it will resist the enforcing of this order. Future Retail further said it was not the party mention in the arbitration clause through which amazon initiated emergency arbitration at SIAC and it has no legal statue under part 1 of the Indian Arbitration and Conciliation Act, 1996.Thus, the interim order which was given by the SIAC is “void and coram non-judice”

Additionally, the concept of International Arbitration and Emergency orders by such Tribunals do not recognize by the Indian Laws. But it is believed that such orders have been respected by the parties involved, With these, Future Retail approached Delhi High Court in November 2020. And this case referred to the Delhi High Court Single Bench.[7]

  • DELHI HIGH COURT SINGLE BENCH JUDGEMENT

The issue was in front of the court that whether the interim order passed by any international arbitrator outside the India falls under the jurisdiction of Indian Arbitration Act or not. Future Group argued that the interim order passed by SIAC have no jurisdiction as the concept of emergency arbitration is foreign to the Indian Arbitration Act. Moreover, Future Group also blamed Amazon for infringing the non-debt instruments rules,2019 of Future Exchange Management and Substantial Acquisition of Shares and Takeover Regulations,2011 of Security and Exchange Board of India.

Future Group further alleged that Amazon was not the party of the Share Holders Agreement with Future Retail and Future Retail was also not the part of the Future Coupons Pvt Limited’s Share Holder Agreement and Share Subscription Agreement. On the last note, Future Group demanded the injunction of Amazon’s continuously writing letters to S.E.B.I. and C.C.I. The single bench headed by Justice J.R. Midha given its decision in favor of the Amazon and dismissed the demand of Future Group to injunct Amazon’s writing letters to the S.E.B.I. and C.C.I.

In its order, Delhi High Court also inferred that the interim order passed by the Emergency Arbitrator in Singapore is valid and held Future Group for not obeying those orders. This decision came on 18th March 2021. After this judgement, the deal of transferring of assets worth Rs 24000 crores between Future Retail and Reliance Retail was completely restrained. This single bench judgement of Delhi High Court was further challenged in front of division bench of Delhi High Court[8].

  • Delhi High Court Division Bench Judgement

The division bench headed by the Chief justice of Delhi High Court D.N. Patel and Jasmeet Singh overturned the decision of single bench of Delhi High Court where it favors the jurisdiction of Emergency Arbitration in Indian Arbitration Act. The division bench issued noticed to the Amazon on the appeal of Future Group citing all the objections raised by amazon in front of single bench were rejected. The division bench also paused the order passed by single bench for attaching the assets of Kishore Biyani and imposing a penalty of 20lakh on Future Group and asking its directors to donate in the PM covid relief fund for the vaccination of the B.P.L. of Delhi.

It stayed the orders passed by the single bench until next hearing in 30tb April.

Amazon challenged this decision in the Supreme Court OF India[9].

  • Supreme Court Proceedings

The dual bench of Justice Robinton F. Nariman and Justice B.R. Gavai, held the decision in the favor of Amazon. The Apex Court also backed up the decision of single bench judgement of the Delhi High Court by upholding the validity and enforceability of the interim order given by Singapore based Emergency Arbitrator, SIAC which halted the deal of Rs 24,000 crore between Future Retail and Reliance Retail.

The top Court also dismissed the arguments of Future Retail that the interim order passed by SIAC has no jurisdiction in India under Indian Arbitration and Conciliation Act of 1996 and also said the concept of emergency arbitration is alien in India and is not an arbitral tribunal which should be recognized in India.

The direction was sent to the SEBI, CCI, NCLT and all the concerned authorities not to issue any final orders for the period of 4 weeks.

Further it was pointed out by the Apex Court that Reliance Retail is among the 20 entities enlisted in agreement between Future Coupons Pvt Limited (in which Future Retail Limited has 9.82% share holdings) and Reliance Retail which are prohibited and restricted to do any agreements and deals with Biyani Group i.e., Future Group. According to the Agreements signed, Only Amazon would be the right party to invest. The Apex Court noted that despite of these clauses and conditions, Future Retail entered into a deal with Reliance Retail which is a cessation of Future Retail as an entity in the shareholders agreement.

Justice Nariman further remarked FRL is not supposed to say that the order passed by emergency arbitration is not abiding and it is not arbitral tribunal after participated in such arbitration proceedings. Finally, the objections of the Future Retail were dismissed in the 103 pages judgement of the Apex Court. Surprisingly, the top court also acknowledged the validity ty of the decision of the emergency arbitrator and said such emergency arbitration orders will relieve the congestion of the pending cases in the civil courts and fast and affordable interim orders will surely provide relief to the parties involved[10].

  • Impact on Indian Retail

The result of this case will surely act as a pedestal for the introduction of Emergency Arbitration in India. Before this case, The Emergency Arbitration specifically the international one was alien to the Indian Arbitration Act but after seeing the prima facie proceedings of the Supreme Court, it may be legalized in India. Disputes in any Cross Border investment and Cross Border Transaction can be solved by the interim order of any international emergency arbitration which would be enforced in India. If it happens, then no of pending cases related to transactions will be decreasing and the idea of fast and fair trial in the private zone may inborne[11].

  • Further developments in this case:
  1. Supreme Court will have its final hearing on 23rd November 2021 on this case.
  2. The Confederation of All India Traders urges the Competition Council of India to annul the Amazon Deal with Future Coupons.
  3. Future Retail Limited hoped that CCI may open the Amazon Investment Case again so that they can expose Amazon misinterpretation and confutation before CCI.
  4. SC judge withdraws from hearing the matter
  1. Conclusion:

The future judgement of the apex will hold a very strong relevance in determining the enforceability of the option of the Emergency Arbitrations in India on the point of acceptance of interim order passed by them could be legalize/enforceable or not and consideration of guiding principle of the Act as spotlighting it as “Party autonomy. “ As of now, many industrialists, retailers and more surprisingly litigants also welcoming the idea of interim relief by the Emergency Arbitrators.

According to them it will lessen the burden of the courts and also helps in fast of disposable of the cases. Getting interim relief without burdening the court may revolutionize the legal system of our court in the future. Adoption of new changes certainly makes the judiciary with the same pace with the dynamic nature of the society[12].


[1] NCERT online material for Introduction to Retail

[2] Difference between Organized and Unorganized Retailing

[3] Collective vs Individualist Society: How do these impact upon retail?

https://beyo.global/thinking/collectivist-vs-individualist-societies-how-do-these-impact-upon-retail

[4] Indian Retail Industry Report,2021

[5] Amazon vs Future Feat.

https://inc42.com/features/amazon-vs-future-feat-reliance-the-massive-case-explained-in-6-points/

[6] SIAC concludes hearing over Amazon-Future Dispute

https://economictimes.indiatimes.com/industry/services/retail/siac-concludes-hearing-over-amazon-future-dispute/articleshow/84483697.cms?from=mdr

[7] Future Retail moves Delhi High Court Against SIAC order

https://www.newindianexpress.com/business/2021/oct/28/future-retail-moves-delhi-high-court-against-siac-order-2376836.html

[8] https://www.bloombergquint.com/law-and-policy/amazon-vs-future-retail-not-granted-adequate-hearing-by-high-court-future-group-tells-supreme-court

[9] http://delhihighcourt.nic.in/writereaddata/orderSan_Pdf/dnp/2021/1612803928882_2021.pdf

[10] https://indiankanoon.org/doc/104517457/

[11] https://inc42.com/features/amazon-vs-future-feat-reliance-the-massive-case-explained-in-6-points/

[12] https://www.mondaq.com/india/civil-law/1101076/amazon-v-future-retail–the-supreme-court-of-india-upholds-the-validity-of-emergency-arbitral-awards

Author: JAY KUMAR GUPTA,  NMIMS SCHOOL OF LAW, BENGALURU

Editor: Kanishka VaishSenior Editor, LexLife India

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