The recent deal between Future Group and Reliance has sparked debate in India’s legal and business circles, with the point of contention being whether the emergency arbitrator’s decision on Reliance’s acquisition may be extended for applicability in India. If not, does Amazon have any legal remedy to get it implemented under Indian law? However, before getting into these technical details, we must first comprehend the origins of this deal and the background of this dispute.
How did the battle begin?
After establishing India’s first hypermarket retail chain Big Bazaar in 2001, Kisore Biyani, becoming the uncrowned retail king, was under tremendous economic pressure in 2019. The Future Group’s debts were mounting, with a total debt of Rs12,778 crore in 2019. Having no choice, Biyani reached an agreement with Amazon to sell 49 percent of its unlisted company, Future Coupons, for more than 1,500 crores.
The agreement also included a non-compete clause that prohibited Future from interacting with Amazon’s potential competitors, which included Reliance, Walmart, Google, SoftBank, Alibaba, Naspers, eBay, Target, Paytm, Zomato, and Swiggy, among others. It also prevented Future from selling a stake to anyone involved in food, non-food, or retail online or offline.
Amazon’s proposed acquisition was also approved by the Competition Commission of India (CCI) in November 2019.
Future’s market position deteriorated more because of Covid induced lockdown in 2020, and by April 2020, Future Retail’s sales had fallen by nearly 75% from typical levels, putting great strain on working capital flows.
Reliance entered the battle in May-June 2020 when the future for Biyani looked bleak and positioned itself as a credible candidate for Future Retail. Future sold its retail, wholesale, logistics, and warehousing divisions to Reliance in August 2020 under a new 24,713 crore contract.
Future Retail, Future Lifestyle, and Future Consumer were all included in the deal. Biyani has kept its consumer and fashion goods manufacturing and distribution.
Amazon, aggrieved by the Future-Reliance agreement, filed an emergency arbitration case with the Singapore International Arbitration Centre (SIAC) in October 2020. Amazon requested SIAC to stop Future Group from selling its assets to Reliance, alleging a violation of a non-compete clause it had signed with the company.
Timeline of the legal battle
|September 2020||Ø Emergency arbitration proceeding initiated by Amazon at SIAC|
|October 2020||Ø SIAC rules in Amazon’s favor and granted a restraining order against Future, putting the Future-Reliance agreement on hold.
Ø The SIAC stated that the deal cannot be completed until it reached a final decision.
|November 2020||Ø Future Retail went to Delhi High Court against Amazon, accusing Amazon of interfering in its arrangement with Reliance.
Ø CCI accepts the Reliance -Future Retail agreement later that month.
|December 2020||Ø Future Retail’s request to stop Amazon from writing to the statutory authorities was denied by the Delhi High Court.
Ø However, the court upholds the Future Retail board’s decision of approving the deal with Reliance Retail
|January 2021||Ø Amazon moves to the division bench in Delhi High Court against the December order.
Ø Further, SEBI approved the Reliance-Future Retail agreement, forcing Amazon to seek implementation of the SIAC verdict in the High Court. This petition also demanded the detention of Kishore Biyani and other Future Group directors, as well as the seizure of their assets.
|February 2021||Ø The single judge of the High Court upheld the SIAC’s emergency award and ordered the status quo.
Ø The next day, Future appealed the order to a division bench of the High Court.
Ø The division bench stayed the single-judge order on February 9, 2021, allowing the Future-Reliance agreement to proceed.
Ø Amazon files an appeal to the Supreme Court, and the court agrees to hear it.
Ø In the same month, Future and Amazon had a legal battle at the National Company Law Tribunal (NCLT) as well.
Ø Supreme Court also agrees to let Future proceed with its motion to have the Future-Reliance agreement approved by the NCLT, but it restraints NCLT from issuing a final decision.
|March 2021||Ø On March 18, a single judge of the Delhi High Court, who had issued a short interim order in February, issued a detailed order not only affirming SIAC’s order but also ordering the attachment of Biyani’s and other Future Group directors’ properties.
Ø Future took this order to a division bench in HC, where he was able to secure another stay from the larger bench.
Ø Amazon then appealed the stay order to the Supreme Court, which instructed all lower courts to stay their hands until it pass a final decision.
|August 2021||Ø The Supreme Court, ruled on August 6, 2021, that the Future Group is bound by the SIAC’s emergency award, which is enforceable under the Indian arbitration law.
Ø Future then appealed to the Supreme Court the single judge’s March 18 order.
|September 2021||Ø The Supreme Court heard Future’s appeal against the single judge ruling on September 9, 2021, and barred the Delhi High Court from issuing any adverse directives against Future’s transaction with Reliance.|
|October 2021||Ø SIAC denied Future’s request to lift the interim stay on its agreement with Reliance.|
The current turn of events
On December 17, things took a surprise turn when CCI suspended its approval for Amazon’s 2019 investment in Future Coupons. CCI discovered that Amazon did not disclose the terms of the shareholder agreement at the time of acquisition and that its goal was to gain strategic control over Future Retail and gain a foothold in Indian retail.
CCI gives Amazon 60 days to give notice of the acquisition, after which the Commission will “re-examine the acquisition.” Amazon was also fined with Rs. 200 crores for concealing material facts when seeking the CCI’s approval.
The CCI’s order revoking Amazon-Future Deal gives a boost to Future Group and can be very effectively used by Future Group to quash proceedings initiated by Amazon in various forums i.e Supreme Court, NCLAT, and SIAC, to block the Future-Reliance deal. Thus the CCI’s order holds immense importance in the dispute. Alongside, it is also important to observe the Supreme Court ruling that without the completion of arbitration proceedings before SIAC, the Reliance-Future deal cannot be executed.
Thus the climax is still to come, and only time will tell which way the pendulum will swing. It will be fascinating to watch who benefits the most from all of this.