On 9th August 2020, Amazon approached the Singapore International Arbitration Centre (the SIAC) alleging that the deal between Future Group and Reliance Industries Ltd. where Reliance would take over the assets of Future Retail for consideration of 24,713 crore rupees violates the contract between Amazon and Future Coupons. In response to this, the SIAC has issued an Emergency Arbitration Order (EA Order) in favour of Amazon on 25th October 2020 restraining Future Group from proceeding with the deal with Reliance. However, there is no express legal mechanism under Indian law to enforce the EA Order. New York Convention 1998 makes only foreign arbitral awards enforceable but not interim/provisional/interlocutory orders of the foreign seated arbitral tribunal. Though the parties have the liberty to voluntarily comply with the EA Order, the Future Group is not in a mood to do so. Therefore, the question arises, how can Amazon avoid this legal hurdle and enforce the EA Order in India against the Future Group?
There are two options available to Amazon to enforce the EA Order in India:
- Amazon can approach an Indian court under Section 9 of the Arbitration & Conciliation Act, 1996 to duplicate the EA Order granted by the SIAC.
- Amazon can get EA Order converted into an order/judgment of the Singapore High Court that can be enforced through a civil court in India.
While availing the first option, Amazon can rely on Avitel Post Studioz Ltd. & Ors. v. HSBC PI Holdings (Mauritius) Ltd. where the Petitioner has successfully enforced the EA Order by duplicating it into a court-ordered interim measure under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act). However, this option will not be a cakewalk for Amazon as Indian courts will independently adjudicate the Petition of Amazon under Section 9 because Indian courts neither have an enforcement jurisdiction nor are required to rely on the EA Order. This effectively means that Amazon must go through all the legal proceedings afresh what it has already done before the SIAC because the Indian court may not take EA Order into consideration. This option will bring Amazon back to the same position it was in before approaching the SIAC.
In the second option, Amazon can appeal before a Singapore High Court for the leave under Section 12 (6) of the International Arbitration Act (IAA). This will convert the EA Order into an Order of the Singapore High Court. Subsequently, Amazon can approach Indian courts for enforcement of the Order of the Singapore High Court under the principle of comity of courts. India has a positive jurisprudence upon the principle of comity of courts and Indian courts usually enforced the order passed by foreign courts barring few exceptions for any special and compelling reasons. Section 44A of the Code of Civil Procedure, 1908 (CPC) permits execution of a decree passed by any of the superior courts of any reciprocating territory. In this regard, it is noted that Singapore has been notified as a reciprocating territory and high courts therein have been given the status of a superior court in India. However, Section 44A of CPC is not applicable in this case because the Explanation 2 therein restricts the definition of decree, for the purpose of this Section, only to decree/judgment under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of like nature. Since the decree in the instant matter would be of an injunction, it would not fall under the domain of Section 44A of CPC.
Nevertheless, the road does not end here as Amazon still has the option to institute a suit in a civil court to enforce the Order of the Singapore High Court. In such a situation, the Indian Court will determine any objection of Future Group on the threshold of “special and compelling” reasons. Therefore, unlike Section 9 petition under A&C Act, there will be a higher possibility for Amazon to secure an interim relief from the Indian Court until the suit is finally decided considering the Indian courts’ deference for foreign courts and their decree. Hence, considering the complexities and possibility of a delay to establish the whole case afresh involved in the Section 9 Petition, the second option would be a viable alternative for Amazon to enforce the interim relief granted by the SIAC in India.