Emergency Arbitrator Award is a "Piece of Paper", Future Retail Ltd Argues Before Delhi High Court

Khambata went on to cite case laws from the Supreme Court of India to concretize his contention that the award passed by the Emergency Arbitrator was passed outside its jurisdiction and therefore was "void, non este" and did not have to be challenged or set aside.

It was also argued that before the Competition Commission of India, Amazon had mentioned its acquisition of 49% stake in Future Coupons Pvt Ltd and its shareholder agreement with Future Retail Ltd separately, which itself showed that they were meant to be read as two separate agreements and the two could not be conflated now.

Admission is the best evidence, Khambata argued, relying on case laws from the Supreme Court, and contended that Amazon Inc's admission before the Competition Commission was Future Retail's best argument and evidence against Amazon, and Amazon couldn't lead the court away from its admission now, at the interim stage.

Urging the court to not allow the conflation of the two agreements, Khambata stated that under the FRL Shareholder Agreement, the arbitration agreement does not provide for an international commercial arbitration either, and conflating the two agreements was resulting in the complication of Future Retail being dragged into an international commercial arbitration that it didn't agree to.

Future Retail's main grievance through the hearings has been highlighted as the fact that Amazon Inc has written letters to regulators such as CCI and SEBI, whose approvals would be necessary on the Reliance-Future, presenting to them the Emergency Arbitrator's award.

Khambata referred to another judgment to argue that, an order passed outside jurisdiction was a 'quorum non judice, non este and its invalidity can be set up at any stage, whenever it is sought to be acted upon'. He stated that Amazon had sought to act upon the Emergency Arbitrator's award by producing it before regulators, even though it had 'no business showing off the award to the regulators as a binding award', as it was not an award at all, not being recognized under Part I.

In the previous hearing, in response to Sr. Adv. Abhishek Singhvi and Sr. Adv. Salve's claims that the concept of an Emergency Arbitrator is outside the scope of Indian law, Sr. Adv. Gopal Subramanium had argued that the International Arbitration Centres at Delhi, Mumbai and Madras had provisions for an Emergency Arbitrator, similar to the Singapore International Arbitration Centre.

Responding to this, Sr. Adv. Khambata stated that,

Indian arbitration centres' inclusion of the provisions for Emergency Arbitrator could very well be in anticipation of change of law or even a misinterpretation of law or merely to administer international arbitrations of parties whose legal jurisdictions recognize the provision of Emergency Arbitrator.

Khambata argued that, "None of the international Centres' purport to act outside the scope of Part I. They merely provide the flexibility for an Emergency Abritrator to administer international arbitrations as international laws may recognize Emergency Arbitrators, but Indian law does not."

He also pressed the contention that, even under the Singapore International Arbitration Centre's Rules, an Emergency Arbitrator was not treated as an Arbitral Tribunal, stating that the two are different altogether - with the EA merely preceding the formation of a tribunal and not being empowered to pass any final orders.

Referring to the bare provisions of the Indian Arbitration Act, Khambata stated that the whole concept of Emergency Arbitrator was outside the scope of the Act. Referring to Section 17, he stated that only any arbitral tribunal was mentioned in it, and the definition of arbitral tribunal in Section 2(d) did not include an Emergency Arbitrator.