ICC cannot challenge a party’s pleadings in court: Amazon tells NCLAT

A statutory authority with a mandate to regulate markets cannot challenge a party’s pleadings in court, Amazon argued Wednesday before the National Company Law Appellate Tribunal (NCLAT). The US e-commerce giant made this argument in relation to the Indian Competition Commission’s (ICC) show cause notice issued to it in June last year. In its opinion, the regulator had pointed to contradictory statements by Amazon before the ICC and the arbitral tribunal as well as the courts on several points.

“Such an exercise of authority is neither recognized nor desirable. Argument supported by the fact that after the ICC order, the arbitration itself was suspended. Case of direct interference by a statutory authority,” Amazon pleaded through its attorney, lead attorney Gopal Subramanium, on Wednesday.

Subramanium rebutted the TCC’s findings in its Business Commercial Agreements (“BCA”) non-disclosure order.

Last year, in December, the ICC suspended Amazon’s 2019 deal worth Rs 1,500 crore with Future Retail, citing the company’s alleged deliberate design to remove information on the scope and the purpose of the agreement. The anti-trust regulator has imposed a penalty of Rs 200 crore on Amazon to be paid within 60 days of receiving the order.

Last month, Amazon filed a lawsuit with the NCLAT against the ICC’s suspension of the e-commerce company’s 2019 agreement with Future Retail (FRL). Meanwhile, Amazon’s Indian unit has also filed a petition with the Supreme Court against the termination of an arbitration case against the sale of assets of Future Retail (FRL) to Reliance Industries (RIL).

On Wednesday, the scope of all contemplated BCAs between Amazon entities and Future Groups was explained to the bench by Amazon through its attorney. The fact that some of these agreements had existed since 2016 and not a condition precedent to the merger was highlighted.

Finally, the competitive assessment provided by Amazon in its written submissions and the TCC’s BCA analysis in the November 2019 Approval Order were read to the Chamber.

The basis of the show cause notice (“SCN”) and the entire procedure were declared contrary to the established rule of law.

Amazon argued that the complaint filed by a party undergoing an injunction should not have been heard by the TCC. He argued that the timing of the original complaint and subsequent documents filed after the partial award was passed were conveniently ignored by the TCC. “Even failed to acknowledge that the Combination Notice was signed by the Future Group,” Amazon argued.

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