By Andy Mukherjee
What should be an ordinary commercial dispute between Amazon.com Inc. and the founders of a near-bankrupt retailer is shining a harsh light on the quality of legal and regulatory protection investors actually receive in India.
The long drawn-out saga has thrown up two questions for prospective investors, or those who already have business interests in India. First, what does a go-ahead from the country’s antitrust authority even mean if an entire chain of investment based on that approval has to be unwound or reversed after two years? Second, can one rely on international arbitration to enforce Indian contracts, or will local courts get involved and throw a spanner into alternative dispute-resolution mechanisms?
Last month, Amazon was fined Rs 202 crore ($26.7 million) by the Indian competition watchdog. Worse, its $192 million capital infusion in Future Coupons Pvt. — a 2019 transaction — was put “in abeyance” for being economical with disclosures. The commission said it was denied an opportunity “to assess the effects of the actual combination,” which gave Amazon strategic rights over publicly traded Future Retail Ltd. Never mind that those “effects,” even if the trustbuster did get a chance to study them, are unlikely to have included concentration of power in the retail industry, for the simple reason that Amazon is not a retailer in India. It’s an electronic marketplace for buyers and sellers.
Globally, the definition of what constitutes abuse of dominance is expanding beyond price fixing. As part of a broader crackdown on its tech titans, Beijing imposed a record $2.8 billion antitrust fine on Alibaba Group Holding Ltd. for using data and algorithms to obtain an unfair advantage over merchants. Tencent Holdings Ltd. was hauled up for not properly reporting past acquisitions and investments, and food-delivery app Meituan was punished for forcing restaurants into exclusive arrangements. Even outside China, large consumer tech platforms are facing increasingly hostile scrutiny. The Italian regulator recently handed a €1.1 billion ($1.2 billion) penalty to Amazon for discriminating against third-party sellers who do not use its logistics service.
Amazon’s travails in India, however, have little to do with dominance. The foreign firm is legally barred by India’s overseas investment rules from acting as a retailer that owns or discounts inventory. That explains why Amazon sought to control Future Retail indirectly, via its investment in Future Coupons, a related firm. To keep on the right side of Indian law, the global ecommerce giant has similarly kept its voting rights in another of its acquisitions — the local grocery chain More — below 26 per cent. In doing those deals, however, the US firm hasn’t started wielding outsize influence on India’s $800 billion-a-year consumer commerce. Mom-and-pop stores control 80 per cent of the grocery market.
Future Retail founder Kishore Biyani did his deal with Amazon in 2019 because he was desperate: He wanted to channel funds to his debt-laden retail network, and Jeff Bezos was willing to be his white knight. The competition regulator gave the deal its approval. While providing the money, though, Amazon insisted on a list of restricted parties to which Future’s assets couldn’t be divested without its permission. On that list was Mukesh Ambani, Asia’s richest man who also controls India’s largest retail chain.
However, when the retail industry fell into an abyss after India’s Covid-19 lockdown in March 2020, Biyani turned around and sold his 1,500-plus stores to Ambani’s Reliance Industries Ltd. Amazon began arbitration proceedings in Singapore for breach of contract, jeopardizing the $3.4 billion acquisition. Without that obstacle, Reliance’s own 37 million square feet of retail space would by now have received a nice boost from Future’s 16 million square feet. (Reliance is not a party to the legal squabbles between Future and Amazon.)
The freezing of the antitrust approval has put a question mark around the very contract that Amazon is trying to enforce. When Future tried to use that loophole to get further hearings in Singapore quashed, a Delhi High Court judge remarked that for arbitration to speedily settle disputes, interference by courts must be kept to a minimum. “If the parties are encouraged to approach the court at every stage of the arbitration proceedings, the whole purpose of the arbitration would stand frustrated,” the judge said. And yet, just a day later, a two-judge bench of the same court set aside the order, and imposed a stay on proceedings by the Singapore tribunal.
The clock is ticking. Future Retail recently missed a payment to banks, and Reliance’s offer to buy the stores from the cash-strapped firm expires in March. Yet the dispute about the fate of its assets is far from over. Amazon is challenging the latest Delhi High Court order in India's Supreme Court and has appealed against the antitrust agency’s volte face before a company-law tribunal. And that’s the final point investors need to bear in mind: They must be ready for expensive and time-consuming litigation to protect the value of their transactions. Prime Minister Narendra Modi’s government claims — with some justification — to have made India’s bureaucratic labyrinth easier for global firms to navigate. Once they do enter, however, contract enforcement can be a whole different story.
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