AMAZON.COM NV INVESTMENT HOLDINGS LLC v. FUTURE RETAIL LIMITED & ORS.

The Judgment of the Court was delivered by R. F. NARIMAN, J.

1Copy pinpoint1. Two important questions arise in these appeals – first, as to whether an “award” delivered by an Emergency Arbitrator under the Arbitration Rules of the Singapore International Arbitration Centre [“SIAC Rules”] can be said to be an order under Section 17(1) of the Arbitration and ciliation Act, 1996 [“Arbitration Act”]; and second, as to whether an order passed under Section 17(2) of the Arbitration Act in C enforcement of the award of an Emergency Arbitrator by a learned Single Judge of the High Court is appealable.

2Copy pinpoint2. The brief facts necessary to appreciate the context in which these two questions arise are as follows:

D 2.1. Proceedings were initiated by the Appellant, Amazon.com NV Investment Holdings LLC [“Amazon”] before the High Court of Delhi under Section 17(2) of the Arbitration Act to enforce the award/ order dated 25th October, 2020 of an Emergency Arbitrator, Mr. V.K. Rajah, SC. This order was passed in arbitration proceedings being SIAC Arbitration No. 960 of 2020 commenced by Amazon against E Respondents No. 1 to 13, who are described as under: (i) Respondent No.1 – Future Retail Limited, India’s second- largest offline retailer [“FRL”] (ii) Respondent No.2 – Future Coupons Pvt. Ltd., a company that holds 9.82% shareholding in FRL and is controlled and F majority-owned by Respondents No. 3 to 11 [“FCPL”] (iii) Respondent No.3 – Mr. Kishore Biyani, Executive Chairman and Group CEO of FRL (iv) Respondent No.8 – Mr. Rakesh Biyani, Managing Director G of FRL (v) Respondents No. 4 to 7 and 9 to 11 – other members of the Biyani family, namely, Ms. Ashni Kishore Biyani, Mr. Anil Biyani, Mr. Gopikishan Biyani, Mr. Laxminarayan Biyani, Mr. Sunil Biyani, Mr. Vijay Biyani, and Mr. Vivek Biyani, H who are promoters and shareholders of FRL

AMAZON.COM NV INVESTMENT HOLDINGS LLC v. 787 FUTURE RETAIL LIMITED [R. F. NARIMAN, J.]

(vi) Respondents No. 12 and 13 – Future Corporate Resources A Pvt. Ltd. and Akar Estate and Finance Pvt. Ltd., group companies of FRL Respondents No. 1 to 13 are hereinafter collectively referred to as the “Biyani Group”. 2.2. The seat of the arbitral proceedings is New Delhi, and as per B the arbitration clause agreed upon by the parties, SIAC Rules apply. 2.3. Three agreements were entered into between the parties. A Shareholders’ Agreement dated 12th August, 2019, was entered into amongst the Biyani Group, i.e., Respondents No. 1 to 13 [“FRL Shareholders’ Agreement”]. Under this Shareholders’ Agreement, C FCPL was accorded negative, protective, special, and material rights with regard to FRL including, in particular, FRL’s retail stores [“retail assets”]. The rights granted to FCPL under this Shareholders’ Agreement were to be exercised for Amazon’s benefit and thus were mirrored in a Shareholders’ Agreement dated 22nd August, 2019 entered D into between Amazon, FCPL, and Respondents No. 3 to 13 [“FCPL Shareholders’ Agreement”]. Amazon agreed to invest a sum of Rs.1431 crore in FCPL based on the rights granted to FCPL under the FRL Shareholders’ Agreement and the FCPL Shareholders’ Agreement. This investment was recorded in the Share Subscription Agreement dated 22nd August, 2019 entered into between Amazon, FCPL, and Respondents E No. 3 to 13 [“Share Subscription Agreement”]. It was expressly stipulated that this investment in FCPL would “flow down” to FRL. It appears that the basic understanding between the parties was that Amazon’s investment in the retail assets of FRL would continue to vest in FRL, as a result of which FRL could not transfer its retail assets without FCPL’s consent which, in turn, could not be granted unless Amazon had provided its consent. Also, FRL was prohibited from encumbering/transferring/selling/divesting/disposing of its retail assets to “restricted persons”, being prohibited entities, with whom FRL, FCPL, and the Biyanis could not deal. A list of such restricted persons was then set out in Schedule III of the FCPL Shareholders’ Agreement and also under the FRL Shareholders’ Agreement vide letter dated 19th December,

2019. There is no doubt that the Mukesh Dhirubhai Ambani group (Reliance Industries group) is a “restricted person” under both these Shareholders’ Agreements. H

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A 2.4. On 26th December, 2019, Amazon invested the aforesaid sum of Rs.1431 crore in FCPL which “flowed down” to FRL on the very same day. The bone of contention between the parties is that within a few months from the date of this investment, i.e., on 29th August, 2020, Respondents No. 1 to 13 entered into a transaction with the Mukesh Dhirubhai Ambani group which envisages the amalgamation of FRL with B the Mukesh Dhirubhai Ambani group, the consequential cessation of FRL as an entity, and the complete disposal of its retail assets in favour of the said group. 2.5. Amazon initiated arbitration proceedings and filed an application th on 5 October, 2020 seeking emergency interim relief under the SIAC C Rules, asking for injunctions against the aforesaid transaction. Mr. V.K. Rajah, SC was appointed as the Emergency Arbitrator and heard detailed oral submissions from all parties and then passed an “interim award” dated 25th October, 2020, in which the learned Arbitrator issued the following injunctions/directions: D “B. Dispositive Orders/Directions

285. In the result, I award, direct, and order as follows: (a) the Respondents are injuncted from taking any steps in furtherance or in aid of the Board Resolution made by the Board of Directors of FRL on 29 August 2020 in relation to the Disputed E Transaction, including but not limited to filing or pursuing any application before any person, including regulatory bodies or agencies in India, or requesting for approval at any company meeting; (b) the Respondents are injuncted from taking any steps to complete F the Disputed Transaction with entities that are part of the MDA Group; (c) without prejudice to the rights of any current Promoter Lenders, the Respondents are injuncted from directly or indirectly taking any steps to transfer/ dispose/ alienate/ encumber FRL’s Retail G Assets or the shares held in FRL by the Promoters in any manner without the prior written consent of the Claimant; (d) the Respondents are injuncted from issuing securities of FRL or obtaining/securing any financing, directly or indirectly, from any Restricted Person that will be in any manner contrary to Section H 13.3.1 of the FCPL SHA;

AMAZON.COM NV INVESTMENT HOLDINGS LLC v. 789 FUTURE RETAIL LIMITED [R. F. NARIMAN, J.]

(e) the orders in (a) to (d) above are to take effect immediately and will remain in place until further order from the Tribunal, when constituted; and (f) the Claimant is to provide within 7 days from the date hereof a cross-undertaking in damages to the Respondents. If the Parties are unable to agree on its terms, they are to refer their differences to me qua EA for resolution; and (g) the costs of this Application be part of the costs of this Arbitration.” 2.6. The Biyani Group thereafter went ahead with the impugned transaction, describing the award as a nullity and the Emergency Arbitrator C as coram non judice in order to press forward for permissions before statutory authorities/regulatory bodies. FRL, consistent with this stand, did not challenge the Emergency Arbitrator’s award under Section 37 of the Arbitration Act, but instead chose to file a civil suit before the Delhi High Court being C.S. No. 493 of 2020, in which it sought to interdict the D arbitration proceedings and asked for interim relief to restrain Amazon from writing to statutory authorities by relying on the Emergency Arbitrator’s order, calling it a “tortious interference” with its civil rights. A learned Single Judge of the Delhi High Court, after finding a prima facie case of tortious interference, then refused to grant any interim injunction as follows: E

“12.3 Thus the trinity of the principles for grant of interim injunction i.e., prima facie case, irreparable loss and balance of convenience are required to be tested in terms of principles as noted above. Since this Court has held that prima facie the representation of Amazon based on the plea that the resolution dated 29th August, F 2020 of FRL is void and that on conflation of the FCPL SHA and FRL SHA, the ‘control’ that is sought to be asserted by Amazon on FRL is not permitted under the FEMA FDI Rules, without the governmental approvals, this Court finds that FRL has made out a prima facie case in its favour for grant of interim injunction. G However, the main tests in the present case are in respect of “balance of convenience” and “irreparable loss”. Even if a prima facie case is made out by FRL, the balance of convenience lies both in favour of FRL and Amazon. If the case of FRL is that the representation by Amazon to the statutory authorities /regulators H

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A is based on illegal premise, Amazon has also based its representation on the alleged breach of FCPL SHA and FRL SHA, as also the directions in the EA order. Hence it cannot be said that the balance of convenience lies in favour of FRL and not in favour of Amazon. It would be a matter of trial after parties have led their evidence or if decided by any other competent forum to determine whether the representation of Amazon that the transaction between FRL and Reliance being in breach of the FCPL SHA and FRL SHA would outweigh the plea of FRL in the present suit. Further in case Amazon is not permitted to represent its case before the statutory authorities/Regulators, it will suffer an irreparable loss as Amazon also claims to have created pre- emptive rights in its favour in case the Indian law permitted in future. Further there may not be irreparable loss to FRL for the reason even if Amazon makes a representation based on incorrect facts thereby using unlawful means, it will be for the statutory authorities/Regulators to apply their mind to the facts and legal issues therein and come to the right conclusion. There is yet another aspect as to why no interim injunction can be granted in the present application for the reason both FRL and Amazon have already made their representations and counter representations to the statutory authorities/regulators and now it is for the Statutory E Authorities/Regulators to take a decision thereon. Therefore, this Court finds that no case for grant of interim injunction is made out in favour of the FRL and against Amazon. Conclusion

F 13. Consequently, the present application is disposed of, declining the grant of interim injunction as prayed for by FRL, however, the Statutory Authorities/Regulators are directed to take the decision on the applications/objections in accordance with the law.” No appeal against this order has been filed by the Biyani Group. G On the other hand, Amazon has filed an appeal against certain observations made in the order. This appeal is pending. 2.7. Meanwhile, Amazon went ahead with an application filed under Section 17(2) of the Arbitration Act which was heard and disposed of by a learned Single Judge of the Delhi High Court. On 2 nd February, 2021, the learned Single Judge passed a status-quo order in which he H

AMAZON.COM NV INVESTMENT HOLDINGS LLC v. 791 FUTURE RETAIL LIMITED [R. F. NARIMAN, J.]

restrained the Biyani Group from going ahead with the impugned A transaction, stating that reasons and a detailed order will follow. An appeal against this was filed by FRL, in which a Division Bench, vide order dated 8th February, 2021, after setting out the facts of this case and after reaching certain prima facie findings, stayed the operation, implementation, and execution of the Single Judge order dated 2nd B February, 2021 till the next date of hearing, and listed the appeal for further hearing on 26th February, 2021. Meanwhile, on 22nd February, 2021, the Supreme Court allowed the amalgamation proceedings pending before the National Company Law Tribunal to continue, but not to culminate in any final order of sanction of scheme of amalgamation. 2.8. On 18th March, 2020, the learned Single Judge passed a C detailed judgment giving reasons for an order made under Section 17(2) read with Order XXXIX, Rule 2-A of the Code of Civil Procedure, 1908 [“Code of Civil Procedure”] in which it was held that an Emergency Arbitrator’s award is an order under Section 17(1) of the Arbitration Act. Since breaches of the Agreements aforementioned were admitted, the only plea being raised being that the Emergency Arbitrator’s award was a nullity, the learned Single Judge held that such award was enforceable as an order under the Arbitration Act, and further held that the injunctions/directions granted by the said award were deliberately flouted by the Biyani Group. He also found that any so-called violations of Foreign Exchange Management Act, 1999 [“FEMA”] did not render the Emergency Arbitrator’s award a nullity, and therefore, issued a show- cause notice under Order XXXIX, Rule 2-A of the Code of Civil Procedure, after imposing Rs.20 lakh as costs to be deposited with the Prime Minister Relief Fund for being used for providing COVID vaccinations to the Below Poverty Line category of senior citizens of F Delhi. The learned Single Judge then directed as follows: “Conclusion

188. The Emergency Arbitrator is an Arbitrator for all intents and purposes; order of the Emergency Arbitrator is an order under Section 17(1) and enforceable as an order of this Court under G Section 17(2) of the Arbitration and Conciliation Act.

189. Respondent No.2 is a proper party to the arbitration proceedings and the Emergency Arbitrator has rightly invoked the Group of Companies doctrine by applying the well settled H

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A principles laid down by the Supreme Court in Chloro Controls (supra), Cheran Properties (supra) and MTNL (supra). The respondents have raised a plea contrary to the well settled law relating to Group of Companies doctrine laid down by the Supreme Court.

B 190. The respondents have raised a vague plea of Nullity without substantiating the same. The interim order of the Emergency Arbitrator is not a Nullity as alleged by respondent No.2.

191. Combining/treating all the agreements as a single integrated transaction does not amount to control of the petitioner over FRL C and therefore, the petitioner’s investment does not violate any law.

192. All the objections raised by the respondents are hereby rejected with cost of Rs.20,00,000/- to be deposited by the respondents with the Prime Minister Relief Fund for being used for providing COVID vaccination to the Below Poverty Line (BPL) category - senior citizens of Delhi. The cost be deposited within a period of two weeks and the receipt be placed on record within one week of the deposit.

193. The respondents have deliberately and wilfully violated the interim order dated 25th October, 2020 and are liable for the consequences enumerated in Order XXXIX Rule 2-A of the Code of Civil Procedure.

194. In exercise of power under Order XXXIX Rule 2-A(1) of the Code of Civil Procedure, the assets of respondents No.1 to 13 F are hereby attached. Respondents No.1 to 13 are directed to file an affidavit of their assets as on today in Form 16A, Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure within 30 days. Respondent No.1, 2, 12 and 13 are directed to file an additional affidavit in the format of Annexure B-1 and respondents No.3 to 11 are directed to file an additional affidavit in the format G of Annexure A-1 to the judgment of M/s Bhandari Engineers & Builders Pvt. Ltd. v. M/s Maharia Raj Joint Venture, (supra) along with the documents mentioned therein within 30 days.

195. Show cause notice is hereby issued to respondents No.3 to 13 to show cause why they be not detained in civil prison for a H term not exceeding three months under Order XXXIX Rule 2-

AMAZON.COM NV INVESTMENT HOLDINGS LLC v. 793 FUTURE RETAIL LIMITED [R. F. NARIMAN, J.]

A(1) of the Code of Civil Procedure for violation of the order dated 25th October, 2020. Reply to the show cause notice be filed within two weeks. Rejoinder within two weeks thereafter.

196. The respondents are directed not to take any further action in violation of the interim order dated 25th October, 2020. The respondents are further directed to approach all the competent authorities for recall of the orders passed on their applications in violation of the interim order dated 25th October, 2020 within two weeks. The respondents are directed to file an affidavit to place on record the actions taken by them after 25th October, 2020 and the present status of all those actions at least three days before the next date of hearing. C

197. Respondents No.3 to 11 shall remain present before this Court on the next date of hearing.” He listed the matter for further directions on 28th April, 2021. 2.9. Against this detailed judgment, FAO No. 51 of 2021 was filed D by FRL. By the second impugned judgment in this case dated 22nd March, 2021, a Division Bench of the Delhi High Court referred to its earlier order dated 8th February, 2021 and stayed the learned Single Judge’s detailed judgment and order for the same reasons given by the earlier order till the next date of hearing, which was 30th April, 2021. Against E the said order, Special Leave Petitions were filed before this Court, and this Court by its order dated 19th April, 2021 stayed further proceedings before the learned Single Judge as well as the Division Bench of the Delhi High Court, and set the matter down for final disposal before this Court. F

3Copy pinpoint3. Mr. Gopal Subramanium, learned Senior Advocate appearing on behalf of Amazon, took us through the record with painstaking detail. He castigated the impugned orders of the Division Bench as suffering from a complete non-application of mind in that the order dated 8th February, 2021 referred to three agreements, the third being between FRL and Reliance Retail Ltd., which is an error apparent on the face of G the record. Secondly, it went on to observe that in the aforesaid agreement, Amazon is not a party. It then went on to hold that an appeal against an order under Section 17(2) of the Arbitration Act would be maintainable under the provisions of the Code of Civil Procedure on the basis of the reasoning contained in a Delhi High Court judgment in South Delhi H

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A Municipal Corporation v. Tech Mahindra, (2019) SCC Online Delhi 11863, relying upon paragraphs 8 to 11 thereof. Mr. Subramanium argued that had the learned Division Bench bothered to refer to paragraphs 12 and 13 of the aforesaid judgment, it would be clear that this authority would be an authority for exactly the opposite proposition, thereby rendering an appeal under Order XLIII, Rule1(r) of the Code of Civil B Procedure non-maintainable when it is read with Section 37 of the Arbitration Act. Further observations that prima facie, the agreements are between different parties, and therefore, the group-of- companies doctrine cannot be invoked, without any reasoning, again betrays a complete non-application of mind. Since the second impugned order of the Division Bench relies upon this very order to stay even the detailed judgment of the Single Judge, the learned senior counsel argued that the second order, being a reiteration of the first, suffers from the same malady. 3.1. Mr. Subramanium then referred us to Sections 2(1)(a), 2(1)(c), 2(1) (d), 2(6), 2(8) and 19(2) to argue that the Arbitration Act reflects the grundnorm of arbitration as being party autonomy, which is respected by these provisions and delineated in several judgments of this Court. He then referred to Section 37, pointing out that an appeal under Section 37(2)(b) is restricted to granting or refusing to grant an interim measure under Section 17, which would refer to Section 17(1) and not Section 17(2). He went on to argue that the Arbitration Act is a complete code in itself and if an appeal does not fall within the four corners of Section 37, then it is incompetent, as has been held by several judgments of this Court. 3.2. He also referred to various judgments of this Court, arguing that an Emergency Arbitrator’s award can never be characterised as a F nullity and ignored, and cited a number of judgments to show that until the said award is set aside, it must be obeyed. He also referred to the important fact that the award must be taken as it stands as no appeal was made therefrom by the Biyani Group and that, therefore, it was not permissible to go behind the award. G 3.3. He also cited judgments to show that non-signatories to arbitration agreements would nevertheless be bound thereby and on facts, it was admitted that the “Ultimate Controlling Person” behind the entire transaction was Mr. Kishore Biyani, who was defined as such under the three Agreements. H

AMAZON.COM NV INVESTMENT HOLDINGS LLC v. 795 FUTURE RETAIL LIMITED [R. F. NARIMAN, J.]

3.4. He also argued that, as has been held in the judgments of this A Court, the FEMA is wholly unlike the Foreign Exchange Regulation Act, 1973 [“FERA”] and does not contain any provision nullifying an agreement, even assuming that there was a breach thereof.

4Copy pinpoint4. Mr. Aspi Chinoy, learned Senior Advocate also appearing on behalf of Amazon, took us through various parts of the Emergency B Arbitrator’s award and argued that no equity can possibly be found in favour of the Biyani Group as the breach of the Emergency Arbitrator’s award had been admitted by them. Thus, they have come to the Court with a dishonest and immoral case and if this is appreciated, it will be clear that on facts, after openly flouting the Emergency Arbitrator’s award, they would have no case on merits to resist the directions issued C by the learned Single Judge under Section 17(2) of the Arbitration Act. Even otherwise, he referred to Section 17(2) and argued that enforcement orders were made under the Arbitration Act and not under the Code of Civil Procedure, as a result of which the appeal filed under Order XLIII, Rule 1(r) would not be maintainable. Mr. Chinoy also referred to a D Division Bench judgment of the Bombay High Court in Kakade Construction Co. Ltd. v. Vistra ITCL, 2019 SCC OnLine Bom 1521 : (2019) 6 Bom CR 805 [“Kakade Construction”] to buttress his submission.

5Copy pinpoint5. Mr. Ranjit Kumar, learned Senior Advocate appearing on behalf of Amazon, referred to Sections 9 and 17 of the Arbitration Act and the Arbitration and Conciliation (Amendment) Act, 2015 [“2015 Amendment Act”] which brought Section 17 into line with Section 9. He then referred to Section 9(3) to argue that the legislative intent is to obtain interim orders from an arbitral tribunal then constituted so as to decongest courts and free them from the burdens of Section 9 petitions being filed before them. If this is appreciated, then it would be clear that an Emergency Arbitrator’s award would be a step in the right direction under institutional rules, furthering this very objective. He also pointed out that by the very same amendment, a non-obstante clause was added to Section 37(1), thereby making it abundantly clear that unless an appeal falls within the four corners of Section 37, the moment an order is passed under the Arbitration Act, no other appeal could possibly be filed if it was outside the four corners of Section 37.

6Copy pinpoint6. Mr. Harish Salve, learned Senior Advocate appearing on behalf of FRL, stated that he would not go to the extent of arguing that an H

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A Emergency Arbitrator’s award would be outside the ken of the Arbitration Act, but that it was sufficient for his purpose to argue that an Emergency Arbitrator’s award cannot be said to fall under Section 17(1) of the Act. He placed before us an extract of the 246th Law Commission Report, in which the Law Commission advocated the amendment of Section 2 of the Arbitration Act, to include within sub-section (1)(d) a provision for B the appointment of an Emergency Arbitrator. He said that despite this suggestion being made, Parliament did not adopt the same when it amended the Arbitration Act by the 2015 Amendment Act, thereby indicating that such orders would not fall within Section 17(1) of the Arbitration Act. He then took us through the definition sections in the C Arbitration Act and read out Sections 10 to 13, 16, 17, 21, 23, 27, 29A, and 30, in particular, to argue that an arbitral tribunal as defined by Section 2(1) (d) of the Act can only mean a tribunal that is constituted between the parties, which then decides the disputes between the parties finally and cannot, given the scheme of the Act, include an Emergency Arbitrator who is not an “arbitral tribunal” but a person who only decides, at best, an interim dispute between the parties which never culminates in a final award. He argued that Mr. Subramanium was trying to fit a square peg in a round hole as the Arbitration Act only speaks of arbitral tribunals that are constituted between the parties and that can finally decide the disputes between the parties. As an example, if the tribunal rules on its own jurisdiction and rejects a plea stating it has no jurisdiction, it must only continue with the arbitral proceedings and make a final arbitral award, which can never be done by an Emergency Arbitrator. The scheme, therefore, of the entirety of Part I of the Act, would show that an Emergency Arbitrator is a foreigner to the Indian Arbitration Act and cannot fit within its scheme unless an amendment is made by Parliament. F 6.1. He further argued, pointing to section 25.2 of the arbitral agreement contained in the FCPL Shareholders’ Agreement (which is mirrored in the FRL Shareholders’ Agreement as section 15.2), that in any case, the provisions of the SIAC Rules relating to an Emergency Arbitrator’s award, which were agreed to between the parties, were subject to the provisions of the Arbitration Act; and since the Arbitration Act did not provide for Emergency Arbitrators, this part of the SIAC Rules would not apply, making it clear that an Emergency Arbitrator’s award cannot fall within Section 17(1) of the Act. He also argued that the scheme of Section 17(1) made it clear that a party may, during arbitral proceedings, apply to the arbitral tribunal. Even under the SIAC Rules,

AMAZON.COM NV INVESTMENT HOLDINGS LLC v. 797 FUTURE RETAIL LIMITED [R. F. NARIMAN, J.]

an Emergency Arbitrator is appointed before the arbitral tribunal is constituted, as is clear from Rule 30 read with Schedule 1. This being the case, an Emergency Arbitrator, not being appointed during arbitral proceedings, falls outside Section 17(1). 6.2. He also contrasted the Arbitration Act with provisions contained in the Singapore, New Zealand, Hong Kong, and English B statutes which made it clear that under those statutes, an Emergency Arbitrator’s awards were expressly included and could thus be enforced under their provisions. 6.3. Mr. Salve made it clear that the appeal that was filed in the present case was not under Section 37 of the Arbitration Act but was under Order XLIII, Rule 1(r) of the Code of Civil Procedure. He then read Section 9 together with Section 37 of the Arbitration Act to stress that orders may be made under Section 9 until enforcement of an award in accordance with Section 36, and then read Section 36 to make it clear that the contours of Section 37 did not go beyond orders and awards made under the Arbitration Act. Since orders made in enforcement proceedings are not under the Arbitration Act but only under the Code of Civil Procedure, therefore, in enforcement proceedings – both under Section 17(2) and under Section 36(1) – appeals can be filed from such orders under the Code of Civil Procedure. He stressed upon the language of Section 36(1), which made it clear that when a final award is made, it shall be enforced in accordance with the provisions of the Code of Civil Procedure in the same manner as if it were a decree of the court, thereby arguing that by a legal fiction, an award is deemed to be a decree for the purposes of enforcement, which would include all purposes, including appeals from orders passed in enforcement proceedings. He also stressed upon the language of Section 17(2) to indicate that an order passed under Section 17(1) is deemed to be an order of the court for all purposes and shall be enforceable under the Code of Civil Procedure in the same manner as if it were an order of the court, making it clear that enforcement is not under the Arbitration Act but only under the Code of Civil Procedure. He stressed the fact that the order of the learned Single G Judge also made it abundantly clear that he was exercising powers only under Order XXXIX, Rule 2-A of the Code of Civil Procedure and not under the Arbitration Act. He then pointed out that there would be various anomalies which cannot be addressed if we were to accept the construction suggested by Mr. Subramanium. As is well known, third- H

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A party objectors may object to an order under Section 17(2) or an award. If their rights are affected, it cannot be that they would have no right of appeal, as a perverse order against their interests would certainly be appealable. He also pointed out that, as of today, the application for modification/setting aside of the Emergency Arbitrator’s award had been argued before a regularly constituted arbitral tribunal, which would issue its order either agreeing with or rejecting the Emergency Arbitrator’s award, from which either his clients or Mr. Subramanium’s clients would file appeals, depending upon the orders so passed. He referred to a number of judgments to buttress his submissions.

7Copy pinpoint7. Mr. K.V. Viswanathan, learned Senior Advocate also appearing on behalf of FRL, argued that four rules of interpretation of statutes in this case would necessarily require us to allow these appeals in favour of the Respondents. First, he argued that the words “as if” contained in Section 17(2) of the Act contain a legal fiction which, when taken to its logical conclusion, would necessarily mean that enforcement proceedings would be outside the pale of the Arbitration Act and within the confines of the Code of Civil Procedure. Further, he argued that the use of the expression “under the Code of Civil Procedure” in Section 17(2) is legislation by reference and not by incorporation, leading to the conclusion that it is the Code of Civil Procedure alone under which enforcement takes place. He then reiterated that the expression “due regard” contained in Section 36(3) is fundamentally different from the expression “under the Code of Civil Procedure”, and that Section 36(1) and Section 17(2) are pari materia provisions, distinct from Section 36(3), under which a stay of an award may be granted under the Arbitration Act with “due regard to the Code of Civil Procedure”. He then added that when different words are used in different provisions, they are meant to be differentiated. He also cited judgments to buttress each one of these submissions. He then went on to discuss various High Court judgments which show that, in practice, appeals that are filed against orders and awards sought to be enforced are filed under the Code of Civil Procedure and not under the Arbitration Act. G 7.1. He then referred to Section 17(1) and, in particular, to the expression “and the arbitral tribunal shall have the same power for making orders, as the court has for the purpose of, and in relation to, any proceedings before it” and argued that the expression “in relation to” refers only to incidental powers given to the tribunal and not H

AMAZON.COM NV INVESTMENT HOLDINGS LLC v. 799 FUTURE RETAIL LIMITED [R. F. NARIMAN, J.]

to powers of enforcement. He also argued that the expression “arbitral A tribunal” in Section 17(1) is to be read as defined by Section 2(1)(d), there being nothing in the context of Section 17(1) to the contrary which would obviate the application of Section 2(1)(d) in the context of Section 17(1). He then referred to the arbitration clause between the parties to argue that the parties contemplated, by virtue of section 25.2 of the B FCPL Shareholders’ Agreement, that only civil courts could pass interim orders until the arbitral tribunal is properly constituted by the parties. He then referred to a recent judgment of this Court, namely National Highways Authority of India v. M. Hakeem, 2021 SCC OnLine SC 473 [“NHAI”], arguing that Section 17 was like Section 34(1) of the Arbitration Act in that nothing could be read into Section 17 so as to C incorporate awards made by an Emergency Arbitrator. 7.2. He then argued that on a reading of Schedule 1 of the SIAC Rules, an Emergency Arbitrator cannot be said to be like an arbitral tribunal in that, under Rule 3, the President of the SIAC must first accept as to whether or not an Emergency Arbitrator be appointed at all. Also, D under Rule 9, an administrative authority alone is given the power to extend time in the circumstances mentioned in the Rule, and under Rule 10, an Emergency Arbitrator has no power to act after the arbitral tribunal is constituted, the tribunal not being bound by any reasons given by the Emergency Arbitrator. From this, he argued that an Emergency Arbitrator does not fit within the Arbitration Act as such arbitrator is not an independent quasi-judicial body under the Rules. 7.3. He then referred to certain judgments and authorities for the proposition that a proper reading of Exception 1 to Section 28 of the Indian Contract Act, 1872 would show that the civil court’s jurisdiction is ousted and that only what is expressly provided for by the ouster provisions can be given effect to as nothing can be implied therein. He then argued that the learned Single Judge was in a great hurry to decide the case and did not even give sufficient time to the Respondents to file objections to the enforcement application, though he did concede that notes of written arguments, including the objection as to an award by an Emergency G Arbitrator being a nullity, were raised before the learned Single Judge. He also cited various judgments to show that this was a case in which the Emergency Arbitrator lacked inherent jurisdiction, as a result of which his clients were justified in ignoring the award passed by the Emergency Arbitrator. H

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8Copy pinpoint8. Mr. Vikram Nankani, learned Senior Advocate appearing on behalf of Respondents No. 1 to 12 in Civil Appeal Nos. 4496-4497 of 2021 and Respondents No. 2 to 13 in Civil Appeal Nos. 4494-4495 of 2021, was at pains to point out that in the enforcement application, on the facts of this case, it was specifically pleaded that the High Court was being approached as a civil court, and that the application was filed only under Order XXXIX, Rule 2-A. He also cited judgments to show that the provisions of Order XXXIX, Rule 2-A, being punitive in nature and requiring a heightened standard of wilful disobedience to be applied cannot be applied routinely or in the cavalier manner in which the learned Single Judge has applied the said provision. He also referred to the fact that only the SIAC Rules pertaining to “arbitration” stricto sensu were agreed to between the parties, which would exclude rules relating to awards by an Emergency Arbitrator. He then distinguished the judgment in Kakade Construction (supra) relied upon by Mr. Chinoy and the judgment in Jet Airways (India) Ltd. v. Subrata Roy Sahara, 2011 SCC OnLine Bom 1379 : 2012 (2) AIR Bom 855 [“Jet Airways”], D stating that they applied only to Section 36 of the Act and are not authorities qua Section 17, which is the subject matter of argument in the facts of the present case.

9Copy pinpoint9. Having heard learned counsel for the parties, the first question to be determined by this Court is whether an Emergency Arbitrator’s E award can be said to be within the contemplation of the Arbitration Act, and whether it can further be said to be an order under Section 17(1) of the Act.

10Copy pinpoint10. The relevant provisions of the Arbitration Act, so far as this contention is concerned, are as follows: F “2. Definitions.—(1) In this Part, unless the context otherwise requires,— (a) “arbitration” means any arbitration whether or not administered by permanent arbitral institution; G *** (c) “arbitral award” includes an interim award; (d) “arbitral tribunal” means a sole arbitrator or a panel of arbitrators;” H ***

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(6) Construction of references.—Where this Part, except A Section 28, leaves the parties free to determine a certain issue, that freedom shall include the right of the parties to authorise any person including an institution, to determine that issue.” *** (8) Where this Part— B

(a) refers to the fact that the parties have agreed or that they may agree, or (b) in any other way refers to an agreement of the parties, that agreement shall include any arbitration rules referred to in that agreement.” “19. Determination of rules of procedure.— *** (2) Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings.” “21. Commencement of arbitral proceedings.—Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.”

11Copy pinpoint11. A reading of these provisions would show that an arbitration proceeding can be administered by a permanent arbitral institution. Importantly, Section 2(6) makes it clear that parties are free to authorise any person including an institution to determine issues that arise between the parties. Also, under Section 2(8), party autonomy goes to the extent of an agreement which includes being governed by arbitration rules referred to in the aforesaid agreements. Likewise, under Section 19(2), parties are free to agree on the procedure to be followed by an arbitral tribunal in conducting its proceedings. G

12Copy pinpoint12. Section 21 provides that arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. This Section is expressly subject to agreement by the parties. Rule 3.3 of the SIAC Rules reads as follows: H

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A “Rule 3: Notice of Arbitration *** 3.3 The date of receipt of the complete Notice of Arbitration by the Registrar shall be deemed to be the date of commencement of the arbitration. For the avoidance of doubt, the Notice of B Arbitration is deemed to be complete when all the requirements of Rule 3.1 and Rule 6.1(b) (if applicable) are fulfilled or when the Registrar determines that there has been substantial compliance with such requirements. SIAC shall notify the parties of the commencement of the arbitration.” C By agreeing to the application of the SIAC Rules, the arbitral proceedings in the present case can be said to have commenced from the date of receipt of a complete notice of arbitration by the Registrar of the SIAC, which would indicate that arbitral proceedings under the SIAC Rules commence much before the constitution of an arbitral tribunal D under the said Rules. This being the case, when Section 17(1) uses the expression “during the arbitral proceedings”, the said expression would be elastic enough, when read with the provisions of Section 21 of the Act, to include emergency arbitration proceedings, which only commence after receipt of notice of arbitration by the Registrar under Rule 3.3 of the SIAC Rules as aforesaid. E

13Copy pinpoint13. A conjoint reading of these provisions coupled with there being no interdict, either express or by necessary implication, against an Emergency Arbitrator would show that an Emergency Arbitrator’s orders, if provided for under institutional rules, would be covered by the Arbitration Act. F

14Copy pinpoint14. As a matter of fact, a number of judgments of this Court have referred to the importance of party autonomy as being one of the pillars of arbitration in the Arbitration Act. Thus, in Antrix Corporation Ltd. v. Devas Multimedia Pvt. Ltd., (2014) 11 SCC 560, this Court held as follows: G “35. In view of the language of Article 20 of the arbitration agreement which provided that the arbitration proceedings would be held in accordance with the rules and procedures of the International Chamber of Commerce or UNCITRAL, Devas was

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entitled to invoke the Rules of Arbitration of ICC for the conduct of the arbitration proceedings. Article 19 of the agreement provided that the rights and responsibilities of the parties thereunder would be subject to and construed in accordance with the laws of India. There is, therefore, a clear distinction between the law which was to operate as the governing law of the agreement and the law which was to govern the arbitration proceedings. Once the provisions of the ICC Rules of Arbitration had been invoked by Devas, the proceedings initiated thereunder could not be interfered with in a proceeding under Section 11 of the 1996 Act. The invocation of the ICC Rules would, of course, be subject to challenge in appropriate proceedings but not by way of an application under Section 11(6) of the 1996 Act. Where the parties had agreed that the procedure for the arbitration would be governed by the ICC Rules, the same would necessarily include the appointment of an Arbitral Tribunal in terms of the arbitration agreement and the said Rules. Arbitration Petition No. 20 of 2011 D under Section 11(6) of the 1996 Act for the appointment of an arbitrator must, therefore, fail and is rejected, but this will not prevent the petitioner from taking recourse to other provisions of the aforesaid Act for appropriate relief.” Similarly, in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2016) 4 SCC 126 [“Balco”], this Court stated thus: “5. Party autonomy being the brooding and guiding spirit in arbitration, the parties are free to agree on application of three different laws governing their entire contract — (1) proper law of contract, (2) proper law of arbitration agreement, and (3) proper law of the conduct of arbitration, which is popularly and in legal parlance known as “curial law”. The interplay and application of these different laws to an arbitration has been succinctly explained by this Court in Sumitomo Heavy Industries Ltd. v. ONGC Ltd. [Sumitomo Heavy Industries Ltd. v. ONGC Ltd., (1998) 1 SCC G 305], which is one of the earliest decisions in that direction and which has been consistently followed in all the subsequent decisions including the recent Reliance Industries Ltd. v. Union of India [Reliance Industries Ltd. v. Union of India, (2014) 7 SCC 603 : (2014) 3 SCC (Civ) 737].” H

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“5. Party autonomy being the brooding and guiding spirit in arbitration, the parties are free to agree on application of three different laws governing their entire contract— (1) proper law of contract, (2) proper law of arbitration agreement, and (3) proper law of the conduct of arbitration, which is popularly and in legal parlance known as “curial law”. The interplay and application of these different laws to an arbitration has been succinctly explained by this Court in Sumitomo [Sumitomo Heavy Industries Ltd. v. ONGC Ltd., (1998) 1 SCC 305] which is one of the earliest decisions in that direction and which has been consistently followed in all the subsequent decisions including the recent Reliance Industries Ltd. v. Union of India C [Reliance Industries Ltd. v. Union of India, (2014) 7 SCC 603 : (2014) 3 SCC (Civ) 737].” (emphasis in original) Later in para 10 of the Report, it was held: (SCC pp. 131-32) D “10. In the matter of interpretation, the court has to make different approaches depending upon the instrument falling for interpretation. Legislative drafting is made by experts and is subjected to scrutiny at different stages before it takes final shape of an Act, Rule or Regulation. There is another category of drafting by lawmen or document writers who are professionally qualified and experienced in the field like drafting deeds, treaties, settlements in court, etc. And then there is the third category of documents made by laymen who have no knowledge of law or expertise in the field. The legal quality or perfection of the document is comparatively low in the third category, high in second and higher in first. No doubt, in the process of interpretation in the first category, the courts do make an attempt to gather the purpose of the legislation, its context and text. In the second category also, the text as well as the purpose is certainly important, and in the third category of documents like wills, it is simply intention alone of the executor that is relevant. In the case before us, being a contract executed between the two parties, the court cannot adopt an approach for interpreting a statute. The terms of the contract will have to be understood in the way the parties wanted and intended them to be. In that context, H

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A particularly in agreements of arbitration, where party autonomy is the grund norm, how the parties worked out the agreement, is one of the indicators to decipher the intention, apart from the plain or grammatical meaning of the expressions and the use of the expressions at the proper places in the agreement.” B (emphasis in original) *** “42. Be that as it may, the legal position as we understand it is that the parties to an arbitration agreement have the autonomy to decide not only on the procedural law to be followed but also the substantive law. The choice of jurisdiction is left to the contracting parties. In the present case, the parties have agreed on a two-tier arbitration system through Clause 14 of the agreement and Clause 16 of the agreement provides for the construction of the contract as a contract made in accordance with the laws of India. We see nothing wrong in either of the two clauses mutually agreed upon by the parties.” *** “46. For the present we are concerned only with the fundamental or public policy of India. Even assuming the broad delineation of the fundamental policy of India as stated in Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] we do not find anything fundamentally objectionable in the parties preferring and accepting the two-tier arbitration system. F The parties to the contract have not by-passed any mandatory provision of the A&C Act and were aware, or at least ought to have been aware that they could have agreed upon the finality of an award given by the arbitration panel of the Indian Council of Arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration. Yet they voluntarily and deliberately G chose to agree upon a second or appellate arbitration in London, UK in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce. There is nothing in the A&C Act that prohibits the contracting parties from agreeing upon a second instance or appellate arbitration — either explicitly or implicitly. No such prohibition or mandate can be read into the H

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A&C Act except by an unreasonable and awkward misconstruction and by straining its language to a vanishing point. We are not concerned with the reason why the parties (including HCL) agreed to a second instance arbitration — the fact is that they did and are bound by the agreement entered into by them. HCL cannot wriggle out of a solemn commitment made by it voluntarily, deliberately and with eyes wide open.” (emphasis supplied) The principle of party autonomy, as delineated in Balco (supra) and Centrotrade (supra), has recently been quoted with approval by this Court in PASL Wind Solutions Pvt. Ltd. v. GE Power C Conversion India Pvt. Ltd., 2021 SCC OnLine SC 331 (see paragraphs 101 and 102).

15Copy pinpoint15. A recent judgment in NHAI v. M. Hakeem (supra) dealt with certain provisions of the National Highways Act, 1956, which laid down a scheme of acquisition different from that contained in the Land D Acquisition Act, 1984. As part of the said scheme, arbitral awards passed under the National Highways Act were challengeable only under Section 34 of the Arbitration Act. The question squarely raised before this Court was as to whether, when a court was empowered to “set aside” awards under Section 34 of the Act, would this power include the power to modify an award. E

16Copy pinpoint16. In answering this question, this Court referred to Article 34 of the UNCITRAL Model Law on International Commercial Arbitration, 1985 [“Model Law”], and came to the conclusion that given the fact that Section 34 is a verbatim reproduction of Article 34 of the Model Law, it would not contain any power to modify an arbitral award. In this case, since the parliamentary intention was crystal clear, and there was no play in the joints to apply purposive or creative interpretation, this Court came to the conclusion that only an amendment of the Arbitration Act could set right the position as otherwise, the Court would be guilty of altering the material of which the Act was woven and not merely ironing out creases which were found in the statute.

17Copy pinpoint17. By way of contrast, the present is a case akin to Centrotrade (supra). As has been pointed out in Centrotrade (supra), the parties to the contract, in the present case, by agreeing to the SIAC Rules and the award of the Emergency Arbitrator, have not bypassed any mandatory H

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A provision of the Arbitration Act. There is nothing in the Arbitration Act that prohibits contracting parties from agreeing to a provision providing for an award being made by an Emergency Arbitrator. On the contrary, when properly read, various Sections of the Act which speak of party autonomy in choosing to be governed by institutional rules would make it clear that the said rules would apply to govern the rights between the B parties, a position which, far from being prohibited by the Arbitration Act, is specifically endorsed by it. This judgment is, therefore, entirely distinguishable from the fact situation in the present case.

18Copy pinpoint18. However, Mr. Salve argued, relying strongly upon the provisions of Sections 10 to 13, 16, 17, 21, 23, 27, 29A, and 30 of the C Arbitration Act, in particular, that the “arbitral tribunal” spoken of in these provisions, and referable to Section 2(1)(d) of the Act, is exhaustively defined, which means a sole arbitrator or a panel of arbitrators, which, when read with these provisions, would only include an arbitral tribunal which can not only pass interim orders, but which is constituted between the parties so that interim and/or final awards can be passed by this very tribunal. He also argued, contrasting the language of Section 9(1) with the language of Section 17(1), that Section 17(1) would only apply where a party, during arbitral proceedings, applies to an arbitral tribunal (as defined) for interim relief, which cannot possibly apply to an Emergency Arbitrator who is admittedly appointed only before an arbitral tribunal is properly constituted. By way of contrast, he argued that under Section 9(1), an interim measure by the courts may be availed by a party even before arbitral proceedings commence, up to the stage of enforcement in accordance with Section 36.

19Copy pinpoint19. There can be no doubt that the “arbitral tribunal” as defined in F Section 2(1)(d) speaks only of an arbitral tribunal that is constituted between the parties and which can give interim and final relief, “given the scheme of the Act”, as Mr. Salve puts it, as contained in the aforementioned Sections. However, like every other definition section, the definition contained in Section 2(1)(d) only applies “unless the context G otherwise requires”. Given that the definition of “arbitration” in Section 2(1)(a) means any arbitration, whether or not administered by a permanent arbitral institution, when read with Sections 2(6) and 2(8), would make it clear that even interim orders that are passed by Emergency Arbitrators under the rules of a permanent arbitral institution would, on a proper reading of Section 17(1), be included within its ambit. It is significant to H

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note that the words “arbitral proceedings” are not limited by any definition and thus encompass proceedings before an Emergency Arbitrator, as has been held hereinabove with reference to Section 21 of the Act read with the SIAC Rules. The short point is as to whether the definition of “arbitral tribunal” contained in Section 2(1)(d) should so constrict Section 17(1), making it apply only to an arbitral tribunal that can give final reliefs by way of an interim or final award.

20Copy pinpoint20. The heart of Section 17(1) is the application by a party for interim reliefs. There is nothing in Section 17(1), when read with the other provisions of the Act, to interdict the application of rules of arbitral institutions that the parties may have agreed to. This being the position, at least insofar as Section 17(1) is concerned, the “arbitral tribunal” C would, when institutional rules apply, include an Emergency Arbitrator, the context of Section 17 “otherwise requiring” – the context being interim measures that are ordered by arbitrators. The same object and context would apply even to Section 9(3) which makes it clear that the court shall not entertain an application for interim relief once an arbitral tribunal is constituted unless the court finds that circumstances exist which may not render the remedy provided under Section 17 efficacious. Since Section 9(3) and Section 17 form part of one scheme, it is clear that an “arbitral tribunal” as defined under Section 2(1)(d) would not apply and the arbitral tribunal spoken of in Section 9(3) would be like the “arbitral tribunal” spoken of in Section 17(1) which, as has been held above, would include an Emergency Arbitrator appointed under institutional rules.

21Copy pinpoint21. However, Mr. Salve relied upon Firm Ashok Traders v. Gurumukh Das Saluja, (2004) 3 SCC 155 and, in particular, the following passage: F “18. Under the A&C Act, 1996, unlike the predecessor Act of 1940, the Arbitral Tribunal is empowered by Section 17 of the Act to make orders amounting to interim measures. The need for Section 9, in spite of Section 17 having been enacted, is that Section 17 would operate only during the existence of the Arbitral Tribunal and its being functional. During that period, the power conferred G on the Arbitral Tribunal under Section 17 and the power conferred on the court under Section 9 may overlap to some extent but so far as the period pre- and post- the arbitral proceedings is concerned, the party requiring an interim measure of protection shall have to approach only the court. …” H

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A This judgment also does not carry the Respondents’ case any further as the question for decision in this case is whether the Emergency Arbitrator’s award can be said to be by an “arbitral tribunal” as defined, and does not have any reference to when a party may approach a court under Section 9.

22Copy pinpoint22. Mr. Salve then argued that in any case, the arbitration agreement between the parties, contained in section 25.2 of the FCPL Shareholders’ Agreement (pari materia with section 15.2 of the FRL Shareholders’ Agreement), makes it clear that the SIAC Rules would be subject to the Indian Arbitration Act, and being so subject, the provisions governing an award made by an Emergency Arbitrator under the SIAC C Rules would not be applicable between the parties. Sections 25.1 and 25.2 of the FCPL Shareholders’ Agreement (pari materia with sections 15.1 and 15.2 of the FRL Shareholders’ Agreement) read as follows: “25.1. Governing Law

D This Agreement shall be governed by and construed in accordance with the Laws of India. Subject to the provisions of Section 25.2 (Dispute Resolution), the courts at New Delhi, India shall have exclusive jurisdiction over any matters or Dispute (hereinafter defined) relating or arising out of this Agreement.

E “25.2. Dispute Resolution 25.2.1. Arbitration Any dispute, controversy, claim or disagreement of any kind whatsoever between or among the Parties in connection with or arising out of this Agreement or the breach, termination or invalidity F thereof (hereinafter referred to as a “Dispute”), failing amicable resolution through negotiations, shall be referred to and finally resolved by arbitration irrespective of the amount in Dispute or whether such Dispute would otherwise be considered justifiable or ripe for resolution by any court. The parties agree that they shall attempt to resolve through good faith consultation, any such G Dispute between any of the Parties and such consultation shall begin promptly after a Party has delivered to another Party a written request for such consultation. In the event the Dispute is not resolved by means of negotiation within a period of 30 (thirty) days or such different period mutually agreed between the Parties, H such Dispute shall be referred to and finally resolved by Arbitration

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in accordance with the arbitration rules of the Singapore A International Arbitration Centre (“SIAC”), and such rules (the “Rules”) as may be modified by the provisions of this Section 25 (Governing Law and Dispute Resolution). This Agreement and the rights and obligations of the Parties shall remain in full force and effect pending the award in such arbitration providing, which B award, if appropriate, shall determine whether and when any termination shall become effective.” As has been held by us above, it is wholly incorrect to say that Section 17(1) of the Act would exclude an Emergency Arbitrator’s orders. This being the case, even if section 25.2 of the FCPL Shareholders’ Agreement (pari materia with section 15.2 of the FRL Shareholders’ C Agreement) makes the SIAC Rules subject to the Arbitration Act, the said Act, properly construed, would include an Emergency Arbitrator’s awards/orders, there being nothing inconsistent in the SIAC Rules when read with the Act.

23Copy pinpoint23. Also, Mr. Nankani’s argument that the arbitration agreement D contained in section 25.2 of the FCPL Shareholders’ Agreement referred to hereinabove would indicate that the SIAC Rules were only agreed upon insofar as arbitration alone is concerned is wholly incorrect. Rule 1.3 of the SIAC Rules indicates that an award of an Emergency Arbitrator is included within the ambit of these Rules, and that an Emergency E Arbitrator, as defined, means an arbitrator appointed in accordance with paragraph 3 of Schedule 1. This makes it clear beyond doubt that “arbitration” mentioned in section 25.2 of the FCPL Shareholders’ Agreement would include an arbitrator appointed in accordance with the SIAC Rules which, in turn, would include an Emergency Arbitrator. F

24Copy pinpoint24. The SIAC Rules, with which we are immediately concerned, deal with the concept of an Emergency Arbitrator as follows: “Rule 1: Scope of Application and Interpretation *** G 1.3 In these Rules: “Award” includes a partial, interim or final award and an award of an Emergency Arbitrator; *** H

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A “Emergency Arbitrator” means an arbitrator appointed in accordance with paragraph 3 of Schedule 1;” “Rule 30: Interim and Emergency Relief 30.1. The Tribunal may, at the request of a party, issue an order or an Award granting an injunction or any other interim relief it deems appropriate. The Tribunal may order the party requesting interim relief to provide appropriate security in connection with the relief sought. 30.2. A party that wishes to seek emergency interim relief prior to the constitution of the Tribunal may apply for such relief pursuant to the procedures set forth in Schedule 1. 30.3. A request for interim relief made by a party to a judicial authority prior to the constitution of the Tribunal, or in exceptional circumstances thereafter, is not incompatible with these Rules.”

D “SCHEDULE 1 EMERGENCY ARBITRATOR

1. A party that wishes to seek emergency interim relief may, concurrent with or following the filing of a Notice of Arbitration but prior to the constitution of the Tribunal, file an application for emergency interim relief with the Registrar. The party shall, at the same time as it files the application for emergency interim E relief, send a copy of the application to all other parties. The application for emergency interim relief shall include: a. the nature of the relief sought; b. the reasons why the party is entitled to such relief; and F c. a statement certifying that all other parties have been provided with a copy of the application or, if not, an explanation of the steps taken in good faith to provide a copy or notification to all other parties. *** G

3. The President shall, if he determines that SIAC should accept the application for emergency interim relief, seek to appoint an Emergency Arbitrator within one day of receipt by the Registrar of such application and payment of the administration fee and deposits. H

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4. If the parties have agreed on the seat of the arbitration, such A seat shall be the seat of the proceedings for emergency interim relief. Failing such an agreement, the seat of the proceedings for emergency interim relief shall be Singapore, without prejudice to the Tribunal’s determination of the seat of the arbitration under Rule 21.1. B

5. Prior to accepting appointment, a prospective Emergency Arbitrator shall disclose to the Registrar any circumstances that may give rise to justifiable doubts as to his impartiality or independence. Any challenge to the appointment of the Emergency Arbitrator must be made within two days of the communication by the Registrar to the parties of the appointment of the Emergency C Arbitrator and the circumstances disclosed.

6. An Emergency Arbitrator may not act as an arbitrator in any future arbitration relating to the dispute, unless otherwise agreed by the parties. D ***

8. The Emergency Arbitrator shall have the power to order or award any interim relief that he deems necessary, including preliminary orders that may be made pending any hearing, telephone or video conference or written submissions by the E parties. The Emergency Arbitrator shall give summary reasons for his decision in writing. The Emergency Arbitrator may modify or vacate the preliminary order, the interim order or Award for good cause.

9. The Emergency Arbitrator shall make his interim order or Award F within 14 days from the date of his appointment unless, in exceptional circumstances, the Registrar extends the time. No interim order or Award shall be made by the Emergency Arbitrator until it has been approved by the Registrar as to its form.

10. The Emergency Arbitrator shall have no power to act after G the Tribunal is constituted. The Tribunal may reconsider, modify or vacate any interim order or Award issued by the Emergency Arbitrator, including a ruling on his own jurisdiction. The Tribunal is not bound by the reasons given by the Emergency Arbitrator. Any interim order or Award issued by the Emergency Arbitrator shall, in any event, cease to be binding if the Tribunal is not H

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