I. Introduction
The dispute before the Supreme Court of India between Amazon.Com NV Investment Holdings LLC (Amazon) and Future Retail Ltd. (FRL) stemmed from Amazon’s move to enforce the order which was given against FRL by the Emergency Arbitrator, who was appointed under the Singapore International Arbitration Centre (SIAC’) Rules.1 This dispute arose in consequence of agreements that were entered into between Amazon and FRL (Respondent 1 before the Supreme Court) and other connected parties including FCPL (Future Coupons Pvt. Ltd.) which was arrayed as Respondent 2 in the lis. In these agreements, the rights of FCPL were to be exercised for the benefit of Amazon, which mirrored subsequently in the FCPL Shareholders’ Agreement, and consequently, Amazon agreed to invest INR 1431 crores in FCPL, which was recorded in a Share Subscription Agreement (SSA). It was expressly stipulated in SSA that investment in FCPL would directly flow to FRL and it was an understanding that Amazon’s investment in retail assets of FRL would continue to vest in FRL and that FRL’s retail assets could not be transferred without the consent of FCPL which was in turn dependent on the consent of Amazon. Contrary to the restrictions that were imposed, on 29-8-2020, the respondents entered into a transaction with Mukesh Dhirubhai Ambani Group (MDA Group) which envisaged the cessation of FRL and disposition of its assets to the MDA Group. Amazon initiated arbitration proceedings and filed an application on 5-10-2020 seeking emergency interim relief under the SIAC Rules, asking for injunctions against the aforesaid transaction. Defying the directions issued by the emergency arbitrator by calling its award a nullity and the emergency arbitrator as coram non judice (not before a Judge), the respondents i.e. the Biyani Group went ahead with the transaction while FRL filed a separate civil suit before the Delhi High Court in restrainment of Amazon’s move to enforce the award of the emergency arbitrator under Section 17(1)2 of the Arbitration and Conciliation Act, 19963 (the Arbitration Act).
The SIAC Rules contain provisions for arbitration hearings to be conducted by an emergency arbitrator. Pursuant to Rule 1.3, an award under the SIAC Rules will include an award of an Emergency Arbitrator, who may be appointed by a party in need of emergency interim relief under Rule 26.2. Concurrently, Schedule 1 to the SIAC Rules outline the roles and responsibilities of an emergency arbitrator, scope of the power vested with an emergency arbitrator in delivering an award or order and the life of such an award or order passed by it post the constitution of a tribunal, the right of the parties to seek for an emergency interim relief under these Rules, among other rights and powers provided thereunder. Situations where parties have agreed to the seat of the arbitration proceedings beforehand, such seat shall be deemed to be the seat of the emergency arbitrator as well. The emergency arbitrator, unlike the Tribunal, is bound by time limits in conducting arbitration hearings, but also enjoys the freedom to apply or omit the application of the SIAC Rules depending on the circumstances.
“The parties agree that an order or award by an emergency arbitrator pursuant to this Schedule 1 shall be binding on the parties from the date it is made, and undertake to carry out the interim order or award immediately and without delay. The parties also irrevocably waive their rights to any form of appeal, review or recourse to any State court or other judicial authority with respect to such award insofar as such waiver may be validly made.”
In India, the Arbitration and Conciliation Act, 1996 (the Arbitration Act) does not have an express provision for an emergency arbitrator/emergency award codified in the statute. Nevertheless, it is apparent from the wordings of certain provisions that, there exists a scope for judicial interpretation without resorting to or adopting the path of casus omissus/judicial legislation, which is inapplicable to the Indian legal system, which are: (a) Section 2(1)(d)[6]; (b) Section 2(1)(c);[7] (c) Section 17(1)[8] and (d) Section 21[9]. Apart from the aforesaid, the object and purpose of the Arbitration Act, mirror the fact that the Arbitration Act must be read along with the provisions of the United Nations Commission on International Trade Law, 1985 (the Model Law) and the UNCITRAL Arbitration Rules, 1976 (the UNCITRAL Rules) , as India has ratified and adopted the aforesaid Model Law to be a part of the municipal system under Article 253 of the Indian Constitution.[10] Although not expressly but in some cases, the courts in India interpreted and have adopted the concept of emergency arbitrators into the Arbitration Act, and prevailing of party autonomy in arbitration agreements. Having established this, it is of significance to acknowledge that the “context” in Section 2(1)(c) the Arbitration Act allows for the adoption of measures that parties deem fit including the appointment of an emergency arbitrator through the principle of party autonomy[11].
Mr V.K. Rajah, who was appointed as the emergency arbitrator in Singapore, while ruling in favour of Amazon held the following:
(a) the respondents were injuncted from taking any step in aid of the Board resolution;
(b) the respondents were injuncted from completing the disputed transaction; and
(c) the respondents were “injuncted from directly or indirectly transferring, encumbering, alienating or disposing of any FRL’s retail assets by promoters, injuncted from issuing securities of FRL or obtaining any securities from prohibited persons”.
What is apparent from the adjudication by the emergency arbitrator in delivering the interim award is, the interests and rights of Amazon which were created through a contractual arrangement and were on the verge of getting violated due to anti-competitive measures taken by the respondents were duly protected under the law.
II. Observations of Delhi High Court with respect to FRL
When Amazon moved before the Delhi High Court to enforce the interim award which was passed by the emergency arbitrator against FRL and other respondents, various issues concerning non-signatory parties to an arbitration agreement, party autonomy, recognition of an emergency arbitrator and enforceability of its award stemmed up. The context here was: Amazon claimed to have been wronged from the breach of contractual agreements by Respondents 1-13 i.e. the Biyani Group and therefore, appeared before the Delhi High Court to enforce the emergency arbitrator’s interim award, while FRL claimed that it had never entered into any agreement with Amazon and that it was a non-signatory to the FCPL Shareholders’ Agreement (FCPL SHA) – one of the three agreements that FCPL and Respondents 3-13[12] had entered into with Amazon for an investment in FCPL and subsequent acquisition of FRL’s retail assets by Amazon.
While passing an order[13] that enforced the directions of the emergency arbitrator, the learned Single Judge Midha, J. made certain observations. First, for a non-signatory to be subject to an arbitration without their prior consent, the touchstone of their direct relationship to the party signatory to the arbitration agreement, direct commonality of the subject-matter and the agreement between the parties being a composite transaction are to be considered. This criteria was referred to in Chloro Controls (India) (P) Ltd. v. Severn Trent Water Purification Inc.,[14] where a composite transaction was defined to mean the performance and execution of ancillary or supplementary agreements for achieving the common objective of the mother agreement. Second, language of the contract was given deference through the case of Owners and Parties interested in the Vessel M.V. Baltic Confidence v. State Trading Corpn of India Ltd.,[15] where the Court was considering the question “as to whether the arbitration clause in a charter party agreement was incorporated by reference”, to ascertain the intention of the parties, and in answering to it held that efforts must be made to give meaning to a clause incorporated by reference and should not be frustrated by literal or pedantic interpretation. This, coupled with commercial business transactions corroborate to determine the intention of parties, as Dr Chandrachud, J. had ruled in Cheran Properties Ltd. v. Kasturi and Sons Ltd.,[16] that the effort should be to unravel the true commercial arrangements between the parties to an agreement. It is on this relationship between the non-signatory and the signatory parties that gets established through a composite transaction that makes the applicability of the doctrine of the group of companies inevitable in determining their intention to enter into agreement(s).
When analysing the merits of the dispute before the Court, Midha, J. acknowledged the widespread network of retail assets that FRL had built across India, and how Amazon would have irretrievably lost its special and protective rights if FRL were allowed to continue with the disputed transaction with MDA Group, given that many of respondents had also responded in affirmative to having had breached the contractual agreements with Amazon. Through his rationale, Midha, J. made it clear with the information on record that neither the directors nor the respondents especially FRL could be absolved of its liability.
However, the Division Bench of the Delhi High Court was pleased to stay[17] the operation of the judgment of the learned Single Judge, and thereafter the dispute/lis reached the doors of the Supreme Court.
Upon an observation from these developments, it is of essence to foreground the objective of interim reliefs/awards, as has been recognised by the international and national arbitration practices, as well the eminent authorities in arbitration like Gary Born. Interim reliefs play a crucial role in arbitrations, not just in terms of efficiency and cost-effectiveness but concerning the subject-matter of the dispute.[18] The important question that tickles the mind of many is why emergency arbitrators are created when Arbitral Tribunals have already been given the authority to adjudicate upon disputes? Answer to this question lies in the nature of the portfolio of these two distinct yet similarly placed positions. While Arbitral Tribunals exist to dispose of matters quickly and lessen the burden of courts, emergency arbitrators have an additional role to play in terms of managing the disputes. The creation of emergency arbitrators was with the objective to preserve the subject-matter of a dispute. Without going through the relatively lengthier process of appointing and constituting an Arbitral Tribunal, a party can seek interim relief from an emergency arbitrator if a matter requires urgent hearing and without which there could be substantial impact to the rights or interests of a party to an agreement. The situation of Amazon and FRL is analogous to this very illustration. Upon probing into the observations made by the Single Judge, it is apparent that a situation was created where one of the parties i.e. FRL tried to ooze out of its responsibilities in the agreements with Amazon when it was presented with an opportunity to benefit from a different market player (here MDA Group). Such kind of anti-competitive practices, if encouraged, would lead to promoters of a company openly flouting the terms of a private arrangement thereby significantly impacting the interests and rights of an investor in the commercial world.
III. A disquisition on How Supreme Court ruled through the lens of the Single Judge of the Delhi High Court
In furtherance of the points that were observed by the learned Single Judge of the Delhi High Court, the Supreme Court emphasised on certain other key points that form the basis for the foundation of emergency arbitrators under the Arbitration Act in India.
When interpreting the facts of the situation, the Supreme Court made a rhetorical observation on the grundnorm of arbitration being “party autonomy”. Emphasis was laid on Sections 2(6)[19], 2(1)(d)[20] and 34[21] read along with Article 34[22] of the Model Law, to demonstrate how a party enjoys the freedom to choose the terms of an arbitration agreement and to determine the applicable law governing its procedure and merits. Contextualising this to the present case, it held that the intention of the parties i.e. Amazon and FRL along with other respondents to the lis, must be construed according to the context in which the terms of the contracts between them were concluded. At this juncture, two bifurcated interpretations were made into parties’ choice of SIAC Rules and Section 34 of the Arbitration Act being analogous to Article 34 of the Model Law. When the parties agreed to the applicability of the SIAC Rules and the provision regarding emergency arbitrator covered thereunder, they “did not bypass the mandatory provisions of the Arbitration Act” since nothing in this Act prohibits them from “agreeing to a provision that provides for an emergency arbitrator”. Concurrently, it was held that Parliament did not intend for a “creative or purposive interpretation” of Section 34 of the Arbitration Act, and thus, the Court has the power to modify the awards besides being authorised to set them aside.
Having established party autonomy through this, the Supreme Court then made the following inferential conclusions: Section 1719 which is concerned with “Arbitral Tribunal” includes emergency arbitrators as has been interpreted under Section 2(1)(d) i.e. the context of Section 17(1) “otherwise requiring” as per parties’ choice of SIAC Rules to include emergency arbitrator. The conjoint reading of Section 17(1)20 and Sections 9(1)21 and 9(3)22 provide that they form a part of the same scheme, including the grounds for institution of interim measures and the “Arbitral Tribunal” to include interim -awards/emergency awards passed by emergency arbitrators.
In consequence to this, the Court did opine that if an emergency arbitrator’s award in a foreign-seated arbitration could be enforced in India, it is possible to interpret Section 17(2) to allow enforcement of the interim award that was passed by the emergency arbitrator in Amazon v. FRL, thereby upholding the recommendation of the Srikrishna Committee’s Report on the need to amend the Arbitration Act to bring “in line with international practice in favour of recognising and enforcing an emergency award”. This major development has definitely reinstated the objective behind introducing arbitration practice as a mechanism of dispute resolution in the first place.
Another aspect that was acknowledged but was not discussed at length by the Supreme Court, concerns the principles governing contractual agreements in light of the Foreign Exchange Management Act (FEMA), 1999[23] and public policy[24]. It was claimed by the respondents’ representative that the exercise of control by Amazon on FRL is in violation of the provisions of FEMA, thereby questioning the enforceability of the emergency arbitrator’s award under the same. One of the important pillars of contract law is pacta sunt servanda, a Latin maxim that translates into “a party that freely enters a contract should honour its commitments”.[25] This principle has significance especially in matters where foreign companies or investors are involved in any kind of transactions with a domestic company, mostly to protect the interests of the investors and further the economic growth of a country. In a situation like that of Amazon and FRL, where the facts corroborate to respondents’ active knowledge of the former’s involvement with the functioning of the latter but are accompanied by a denial of responsibilities by FRL, it becomes important to gauge at the nature of the regulation(s) under whose umbrella FRL has sought protection.
Supporting the claim of Amazon’s representative, FEMA is wholly different from that of the Foreign Exchange Regulations Act (FERA), 1947[26] as the former concerns with management and overseeing of activities unlike the latter that exercised regulatory powers in terms of controlling and conservation. Along with the fact that there is no provision under it for nullifying an award in case there is a breach of contract, the Supreme Court in Vijay Karia v. Prysmian Cavi E Sistemi SRL[27] had ruled that any violation of the provisions of the rules made under FEMA in enforcement of an arbitral award would not constitute a violation of public policy in India.
In consequence to these developments, it can be asserted that the Court through its judgment affirmed the learned Single Judge’s observations from Delhi High Court wherein interim injunction must be granted only upon the fulfilment of the trinity test of prima facie case, irreparable loss, and balance of convenience; only prima facie case is not sufficient to impose injunction against a party to a contract. Through recognition of the fact that balance of convenience will be violated against Amazon if it is not allowed to appeal before the authorities, then an irreparable loss shall be caused in terms of pre-emptive rights that Amazon claims to have created in its favour by entering into an agreement with FRL. This observation around the balance of convenience has reinstated the faith in foreign investors that no party can gain undue advantage by misrepresenting the laws before the adjudicatory authorities. Moreover, public policy as defined under the Arbitration Act, 1996 clearly demonstrates that the arbitral award given by the emergency arbitrator is not in contravention on any of the specified grounds.[28]
IV. Conclusion
So far, the status quo of emergency arbitrators in India was legally recognised and enforceable for foreign-seated arbitrations. However, post the Supreme Court’s ruling in Amazon.com NV Investment Holdings LLC v. Future Retail Ltd.[29] in August 2021, has resulted in a milestone achievement in the arbitration practice for Indian-seated arbitrations. With major observations that were made by the Court, it can be ascertained that the future of foreign and domestic investors is secured as well. Moreover, the Amazon judgment is a rhetorical recognition of various pillars of arbitration such as party autonomy, protection of rights and obligations through contractual interest, public policy in India, and so on. What thus remains is the codification of the proposed amendment by the Srikrishna Committee i.e. introduction of a provision of “emergency arbitrator” into the Arbitration Act. In any case, the various obiters and ratios that were observed by Nariman, J., were much needed in the context of Indian arbitration as they will serve as a torchbearer for many arbitration hearings to take place, both remotely and physically, in the future.
*Principal Associate, Saraf and Partners Law Offices.
** 3rd year student, BA LLB (Hons.), National Law University, Odisha.
1Amazon.Com NV Investment Holdings LLC v. Future Retail Ltd., 2021 SCC OnLine SC 145.
2http://www.scconline.com/DocumentLink/27KJ0N1c.
3http://www.scconline.com/DocumentLink/QWdt5a4f.
[6]S. 2(1)(d) states—“Unless the context otherwise requires, an ‘arbitral tribunal’ means a sole arbitrator or a panel of arbitrators.”
[7]S. 2(1)(c) states—“Unless the context otherwise requires, ‘arbitral award’ includes an interim award.”
[8]S.17(1) (prior to substitution by Act 3 of 2016) states —“Unless otherwise agreed by the parties, the Arbitral Tribunal may, at the request of a party, order a party to take any interim measure of protection as the Arbitral Tribunal may consider necessary in respect of the subject-matter of the dispute.”
[9]S. 21 states— “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.”
[10]Constitution of India, Art. 253.
[11] Redfern and Hunter, International Arbitration (6th Edn., Oxford University Press, 2015) pp. 353-414, Para 6.07; Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2016) 4 SCC 126.
[12](i)Respondent 1 – Future Retail Limited, India’s second-largest offline retailer (FRL),
(ii) Respondent 2 – Future Coupons Pvt. Ltd., a company that holds 9.82% shareholding in FRL and is controlled and majority-owned by Respondents 3 to 11 (FCPL),
(iii) Respondent 3 – Mr Kishore Biyani, Executive Chairman and Group CEO of FRL,
(iv) Respondent 8 – Mr Rakesh Biyani, Managing Director of FRL,
(v) Respondents 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, who are promoters and shareholders of FRL, and
(vi) Respondents 12 and 13 – Future Corporate Resources Pvt. Ltd. and Akar Estate and Finance Pvt. Ltd., group companies of FRL.
[18]Gary Born, International Commercial Arbitration (3rd Edn., 2001).
[19]S. 2(6) states—“Where this Part, except S. 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.”
[20]S. 2(1)(d) states—“Unless the context otherwise requires, an ‘Arbitral Tribunal’ means a sole arbitrator or a panel of arbitrators.”
[21]S. 34 states—“Arbitration for setting aside arbitral award.—(1) Recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-sections (2) and (3).
(2) An arbitral award may be set aside by the court only if—
(a) the party making the application furnishes proof that—
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:
Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or
(b) the Court finds that—
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
(ii) the arbitral award is in conflict with the public policy of India.
Explanation 1.—For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,—
(i) the making of the award was induced or affected by fraud or corruption or was in violation of S. 75 or S. 81; or
(ii) it is in contravention with the fundamental policy of Indian law; or
(iii) it is in conflict with the most basic notions of morality or justice.
Explanation 2.—For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.
(2-A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the court, if the court finds that the award is vitiated by patent illegality appearing on the face of the award:
Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under S. 33, from the date on which that request had been disposed of by the Arbitral Tribunal:
Provided that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.”
[22] Art. 34. Application for setting aside as exclusive recourse against arbitral award.—
(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this article.
(2) An arbitral award may be set aside by the court specified in Article 6 only if:
(a) the party making the application furnishes proof that:
(i) a party to the arbitration agreement referred to in Article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of this State; or
(ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or
(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Law; or
(b) the court finds that:
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or
(ii) the award is in conflict with the public policy of this State.
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award or, if a request had been made under article 33, from the date on which that request had been disposed of by the arbitral tribunal.
(4) The court, when asked to set aside an award, may, where appropriate and so requested by a party, suspend the setting aside proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside.
19http://www.scconline.com/DocumentLink/27KJ0N1c.
20S. 17(1) states—“A party may, during the arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with S. 36, apply to the Arbitral Tribunal—
(i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or
(ii) for an interim measure of protection in respect of any of the following matters, namely—
(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;
(b) securing the amount in dispute in the arbitration;
(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken, or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
(d) interim injunction or the appointment of a receiver;
(e) such other interim measure of protection as may appear to the Arbitral Tribunal to be just and convenient,
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.”
21S. 9(1) states—“A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with S. 36, apply to a court—
(i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or
(ii) for an interim measure of protection in respect of any of the following matters, namely—
(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;
(b) securing the amount in dispute in the arbitration;
(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
(d) interim injunction or the appointment of a receiver;
(e) such other interim measure of protection as may appear to the Court to be just and convenient,
and the court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.”
22S. 9(3) states—“Once the Arbitral Tribunal has been constituted, the Court shall not entertain an application under sub-s. (1), unless the Court finds that circumstances exist which may not render the remedy provided under S. 17 efficacious.”
[23]Foreign Exchange Management Act, 1999.
[24]Explns. I and II from S. 34(2)(b) of the Arbitration and Conciliation Act, 1996 define “public policy” as—“For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if—
(i) the making of the award was induced or affected by fraud or corruption or was in violation of S. 75 or S. 81; or
(ii) it is in contravention with the fundamental policy of Indian law; or
(iii) it is in conflict with the most basic notions of morality or justice.”
[25]Ashish Kabra et al., Arbitration and Exchange Control Laws of India, (2021) International Arbitration Law Review (1) <https://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Articles/Arbitration_and_Exchange_Control_Laws_of_India.pdf > accessed 25-8-2021.
[26]Foreign Exchange Regulation Act, 1947.
[28] (2020) 11 SCC 1, 23.