CCI cannot question pleadings of a party before a court: Amazon tells NCLAT

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

“Such an exercise of authority is neither recognized nor desirable. Argument supported by the fact that after the CCI order the Arbitration itself has been stayed. Case of direct interference by a Statutory Authority,” Amazon argued through its counsel Senior Advocate Gopal Subramanium on Wednesday.

Subramanium rebutted the findings of the CCI in its order relating to the non-disclosure of Business Commercial Agreements (“BCAs”).

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

Last month, Amazon filed a legal challenge at the NCLAT against the CCI suspension of the e-commerce firm’s 2019 deal with Future Retail (FRL). Parallelly, Amazon’s Indian unit also approached the Supreme Court against a halt on an arbitration case against Future Retail’s (FRL) asset sale to Reliance Industries (RIL).

On Wednesday the scope of all the contemplated BCAs between Amazon entities and Future Groups was explained to the Bench by Amazon through its counsel. The fact that some of these agreements were in existence since 2016 and not a condition precedent to the combination was highlighted.

Finally, the competitive assessment provided by Amazon in its filings and the analysis of the BCAs by the CCI in the Approval Order of November 2019 was read out to the Bench.

The foundation of the Show Cause Notice (“SCN”) and the entire proceedings was stated to be against the established rule of law.

Amazon argued that the complaint filed by a party suffering injunction ought not to have been entertained by the CCI. It contended that the timing of the initial complaint and the subsequent documents filed after the passing of the partial award was conveniently ignored by the CCI. “Even failed to recognize that the combination notification was signed off by the Future Group,” argued Amazon.

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