CCI does not have powers to keep own order in abeyance: Amazon tells NCLAT in Future case

PTI, Feb 25, 2022, 8:46 PM IST

Amazon on Friday questioned Competition Commission’s decision to keep in abeyance the more than two-year-old approval for the e-commerce major’s deal with Future Coupons Pvt Ltd (FCPL), arguing that the regulator does not have the power to keep its own order in abeyance.

The e-commerce major made the submission before the National Company Law Appellate Tribunal (NCLAT), which is hearing its plea against the decision of the Competition Commission of India (CCI). Amazon is seeking an interim stay on CCI decision.

In December last year, the watchdog said the approval for the Amazon-Future Coupons deal ”shall remain in abeyance”, citing that the e-commerce player had suppressed information while seeking clearance for the transaction back then. Besides, the company was directed by CCI to file a fresh form regarding the deal.

Senior counsel Gopal Subramaniam, representing Amazon, submitted before the appellate tribunal that the jurisdiction and statutory authority of CCI are in question in the appeal filed by the company.

”This is the first time, it is happening in India and it is a serious matter. After two years, when an approval has been granted and FDI has come in, can you now say that I am going to keep it in abeyance and directing to file a new form too,” he said.

He also pointed out that the regulator passed the order despite knowing the fact that Amazon is at loggerheads with the Future group in an arbitration process at Singapore International Arbitration Centre (SIAC).

CCI is not vested with the power to keep its own order in abeyance and direct Amazon to file a fresh notification when the threshold for filing Form II has not been met, especially when it is aware that the parties are now at loggerheads with each other, Subramaniam said.

Form II pertains to submission of summary of a proposed combination.

While listing the matter for Monday, NCLAT also said that it would try to commence day-to-day hearing in the matter.

Earlier this week, Supreme Court asked for fast-tracking proceedings at NCLAT in the matter.

Subramaniam said the complaint filed by FCPL before the regulator was only to derail the arbitration proceedings at SIAC.

”Immediately (after CCI order), they (Future) filed an application before the arbitral tribunal (SIAC) saying the Commission has said that there is misrepresentation and contract itself has gone and the arbitration process also goes,” he said.

However, he noted that Section 16 of the arbitration law says that an arbitration agreement is an independent agreement and it does not perish even when the underlined contract is void.

”That is a settled law but they filed the application,” he said, adding that on the basis of CCI order, they want to finish the arbitration process at SIAC as per the terms and agreement of the clauses.

Subramaniam also said there was no violation of FDI rules by Amazon as it has invested in FCPL, which is an IOCC (Indian Owned and Controlled Company) by the Biyani family, who owns the majority stake.

Amazon and Future have been locked in a bitter legal tussle after the US e-commerce giant dragged Future group to arbitration in October 2020. The US e-commerce major has argued that Future Retail Ltd (FRL) had violated their contract by entering into a deal for the sale of its assets to Reliance Retail on a slump sale basis for Rs 24,713 crore.

Recently, FRL also approached SIAC to stay the arbitration proceedings on the basis of the order passed by CCI. However, SIAC had rejected the plea.

Subsequently, Future group approached Delhi High Court, where a division bench on January 5, stayed proceedings that was scheduled on January 5-8 at SIAC.

The said order has also been challenged by Amazon before Supreme Court.

SIAC is adjudicating Amazon’s objections against Future group’s Rs 24,713-crore deal with Reliance Retail Ventures Ltd, a subsidiary of Reliance Industries Ltd, announced in August 2020.

Earlier this month, Supreme Court set aside three Delhi High Court orders, including the refusal to grant a stay on the final arbitral award, which had restrained FRL from going ahead with its merger deal with Reliance Retail.