The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
Future Retail- Case number: CS(COMM) 493/2020.Decided on: 21st December, 2020
Judge Bench: Hon’ble Justice Mukta Gupta
Plaintiff counsel: Mr.Harish Salve
Defendants counsel: Mr.Gopal Subramanium
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Future Group-owned by Kishore Biyani entered into an agreement with Reliance Retail, a subsidiary of Reliance Industries Limited (RIL) group and as a part of the deal they decided to sell its supermarket chain Big Bazaar, premium food supply unit food hall, and fashion and clothes supermart Brand Factory’s retail as well as wholesale units to Reliance Retail[1].
Amazon came into this picture as Future Group had signed another deal. With amazon where it had acquired a 49 percent stake in Future Coupons. While providing Future Group as a medium of selling their products online, The deal had also given Amazon a ‘call’ option acquiring all or part of Future Coupon’s promoter, within 3-10 years of the agreement.
After Future’s agreement with Reliance, Amazon said the deal was a violation of a non-compete clause and a right-of-first-refusal pact it had signed with the Future Group[2]. The agreement also requires the future group to tell Amazon before entering any sales agreement with third parties. Amazon also sent a letter to the Securities and Exchange Board of India (SEBI), Bombay Stock Exchange, and the National Stock Exchange (NSE) asked them not to approve the agreement that relies on the Future group because
there was an interim injunction from the Emergency Award of the Singapore International Arbitration Centre.
Future Group Limited (FRL) had moved a plea in the Delhi High Court seeking appropriate relief against Amazon Investment Holdings to stop the latter from interfering in
its deal with Reliance Industries Limited’s (RIL) Reliance Retail Ventures Limited (RRVL).
Whether the concept of an emergency arbitrator lacked legal status under the Arbitration and Conciliation Act? [3]
It is prominent to specify that the Arbitration and Conciliation Act, 2015 (“Arbitration Act“) does not define or prescribe Emergency Arbitrations. There are no specific provisions for recognition and enforcement of awards passed in Emergency Arbitrations. The issue is further burning up as the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards, 1958 does not specifically provide for Emergency Arbitrations, and
part 2 of the Arbitration Act specifically deals with enforcement of foreign awards.
For Grant of relief in Emergency Arbitrations, two principles are taken into account – first, the requesting party must have a reasonable possibility of succeeding on merits, umusboniiuris–(Reasonable possibility that the requesting party will succeed on merits); Periculum in mora – (if the measure is not grant immediately, the loss would not and
could not be compensate by way of damages).[4]
Assessment of the Supreme Court in NTPC vs. Singer Company & ORS upholds the parties to choose a different government and procedural laws for the arbitration process. Emergency arbitration awards will apply during regulations governing the arbitration processes not opposing Indian public policies or mandatory requirements of procedural laws[5] under the arbitration and conciliation actions, 1996 High court stated along with combining the rule of 30 SIAC allowed parties to approach judicial authority or emergency arbitrator for interim assistance before the Arbitration Court was formed. Thus, they did not take the right of the parties to approach the court in India for temporary assistance, the High Court said.
The Delhi High Court chose to adopt an expansive definition of section 2(1)(d) of the Arbitration and Conciliation Act which defines an arbitral tribunal. The court cited the apex court’s ruling in Avital Post which was held that the legal development could not be thwarted only because certain provisions recommended in the Law Commission report were not applied by Parliament and stated “in this case, the parties did it with open eyes leaving themselves, for Choosing between utilizing temporary assistance from the emergency arbitrator on the one hand, or the court under the 9 A & C act on the other side[6].
Thus, Amazon has carried out the choice of forum for temporary assistance according to the arbitration agreement between the parties. There is not in action A & C that prohibits the parties do it. “
To conclude, the legislative recognition for the enforcement of an emergency award. In the Arbitration that sits foreign is still a distant possibility. However, the parties can register to court for temporary assistance under Section 9 of the Arbitration Law. In order to succeed in this method, the parties must ensure that the application of the section. Or the provision of temporary assistance. It is not prohibited from the contract or based on the terms of the Arbitration Rules.
Delhi’s honorable high court has chosen correctly. That the process below section 9 of the arbitration law is independent. To be tried without being influence by every similar/identical relief adjudicate in an emergency arbitration. It’s just a matter of coincidence that the high court above arrives at the same conclusion with each emergency arbitrator. Only time will tell the problems, when the court in India may not follow the interim actions given in the emergency arbitration and arrive with conflicting findings. Such situations can be avoided by imposing allowance for recognition and enforcement of emergency arbitration in arbitration actions in line with recent international developments.
[1] Aashish Aryan, What is the tussle between Future Group and Amazon and what happens next,The Indian Express,November 2,2020.
[2]Shreya Agarwal, Future Retails v. Amazon: Delhi High Court’s Findings on 4 Major Issues, Live Law (Dec 21, 2020) ,https://www.livelaw.in/news-updates/future-retail-limited-amazon-reliance-delhi-high-court-major-issues-167499
[3]Arpan Chaturvedi,Future Retail Vs Amazon: Delhi High Court Upholds Legal Status Of Emergency Arbitrators, BloombergQuint, December 21, 2020
[4] Sonal Kumar Singh and Ashutosh Nagar, Emergencies Not Allowed In Arbitrations: Examining Status, Validity, And Enforceability Of Emergency Arbitration Awards In India, MONDAQ(December 14, 2020)
[5]Madhu Sweta, Emergency Arbitration in India: Concept and Beginning, Singhania & Partners LLP, (November 14, 2016), https://singhania.in/wp-content/uploads/practice_lead_files/Emergency%20Arbitration%20Article.pdf
[6]Aditi Singh, Arbitration Act does not prohibit parties from obtaining relief from emergency arbitrator:
Delhi High Court in Future Retail v. Amazon, Bar and Bench( December 21, 2020), https://www.barandbench.com/news/litigation/arbitration-act-does-not-prohibit-relief-emergency-arbitrator-future-amazon-delhi-high-court
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