The march of Big Tech in India reminds me of the vintage video game, Pac-Man — where the only thing that Pac-Man does is swallow everything in its path, while navigating a maze. Here the controls of Pac-Man lie with the mighty clout of a large global corporation like, say Amazon, that often acts as a powerful GPS guiding the gobbling giant along a maze. That maze, in turn, is regulation — both foreign and domestic, including the Indian regulatory system. The fodder is competition in every form — big or small — be it sellers on its platform, rival brands or large retail chains.
Still, who doesn’t love Pac-Man?
To be honest, as a consumer, I cannot do without Amazon, Apple or WhatsApp anymore, and that is where my dilemma lies. The pandemic has seen a lot of us rely solely on online browsing and shopping, and Amazon has been the mainstay. But as someone with an interest in policy matters, the way the ongoing Amazon-Future Retail Limited (FRL) saga has been playing out , I am truly conflicted.
Prompting me to write this opinion, even as the news has been full of all the various twists and turns in that potboiler.
Along with Amazon, other similarly large American digital platforms — Meta (Facebook), Microsoft, Alphabet (Google) and Apple — and their Chinese counterparts Alibaba, Baidu and Tencent — now command what a recent article called ‘a mass of economic power unprecedented in the history of capitalism.’
This new-age GPS-and-algorithm-guided Pac-Man has grown in both size and clout to such an extent that even India’s second-largest retail chain is embroiled in a bitter battle for a way out of the maze, to sell its assets to the largest. Its freedom to do so is tangled in a deal that prevents it from selling to a restricted list of entities, without Amazon’s nod and/ or right of refusal — a list that includes everyone who is anyone in India’s retail landscape.
A deal between Future Coupons Limited (FCL) and Amazon, that was initially cleared by the Competition Commission of India (CCI) in November 2019, was put in abeyance by the CCI two years later, based on what it called “false statements”, “material omissions” and “misrepresentations” by Amazon to conceal the scope of the investment. This includes the non-disclosure of Amazon’s rights in FRL, which allegedly led to “influencing” the line of enquiry in assessing the combination. Amazon was fined and given a 60-day notice to submit proper details regarding the scope and purpose of the deal.
Due to prevailing FDI rules in multi-brand retail trading (MBRT), Amazon cannot enter brick-and-mortar business in the country. It can only be an electronic platform, operating in a marketplace business model and not an inventory-held one, unlike domestic retail companies or foreign ones with up to 51 per cent stake only, government approval and conditions attached. Should this change in the future, Amazon is counting on the retail terra firma that FRL offers. Well, literally – all via an investment it claimed was aimed at strengthening its gift card and loyalty offerings — a deal that is now haunting FRL’s attempts to pay back its lenders.
In protecting that endgame, Amazon, in this case, has chosen to act like a jealous lover: ‘If I can’t have you, I won’t let anyone else either.’ In doing so, it has also become a glaring example of what a friend described as ‘forum shopping at its best’ — the practice of litigants having their case heard in the court thought most likely to provide a favorable outcome.
So, the same dispute is playing out in front of three variously-empowered litigation battlegrounds. And if the very deal that is at the heart of the dispute stands null and void — suspended as it is, for now by the CCI in its ruling – the locus standi of both the Indian courts and the Singapore International Arbitration Centre (SIAC) becomes more than a matter of regulatory oversight.
The brazenness with which Amazon has challenged India’s competition regulator has an unfortunate history of precedence when it comes to the former’s way of ‘business as usual’, globally.
Battle lines have regularly been drawn between Big Tech and regulators across the US and Europe, over the past few years, as they outpace and edge out competitors.
The unprecedented clout that an Amazon now wields in global e-commerce and online retail, for example, even prompted US Senator and former US President hopeful, Elizabeth Warren, to say in October last year that its ‘monopoly power’ was ‘one of the many reasons we need to break it up.’ It is the same sentiment expressed back home by Future Group CEO Kishore Biyani last year, when he likened Amazon’s ‘ruthless ambition to scorch the earth’ to the Greek king Alexander’s.
The e-commerce major claims its objection to the Reliance-FRL deal that is at the heart of it all, is to protect the value of its stake in FCL, but leaked internal emails consequently revealed that its interest in FCL (and via that, in FRL) is far more specific and less strategic in nature than it had represented to the CCI. This is where the Competition (Amendment) Bill, 2020 is worth a mention. It seeks to amend Section 6 of the Competition Act of 2002 that states, in case any false information is provided by any enterprise, then the CCI can refuse to grant approval or, if an approval is already granted, then such approval will be considered void-ab-initio. All this, as the amendment seeks to preserve the principles of natural justice and the ‘right to be heard’.
This right has allowed Amazon, for now, to prevail in India’s civil courts. Muddling matters, of course, is the fact that the dispute has also reached SIAC, which is, contractually, the authority to whom disputes are to be taken.
The immediate question for some may be whether there is a way around for the FRL-Reliance deal. But for me the more interesting, and longer-term one is: is there a dead end that can finally contain Pac-Man’s ravenous journey across regulatory mazes? The trick lies not in never-ending mazes that Pac-Man can easily navigate but in carving a straighter path, with clear lines of jurisdiction as well as redress. The absence of this is being manipulated by large global corporations’ collective legal might that, anecdotally, amounts to thousands of crores in legal spend in India alone.
The maze, then, has proven advantageous to players like Amazon, especially as they can come out relatively unscathed. Pac Man’s competitors will not be able conquer its twists and turns, for even the law works only when applied in both letter and spirit.
Besides, the natural tendency of power, if left unregulated, is to go rogue.
No one wants Pac Man to die, obviously, but no one wants it running around the maze, unchecked and unexhausted, either.
The situation reminds me of a brief I once wrote, ironically, on the UPA government and the lack of a credible opposition. What Amazon needs is the presence of a credible and competitive playing field to play the game as it should be played. The Indian market is the mother lode, for retail giants both foreign and domestic, where healthy competition must be encouraged and allowed to exist for it to be a truly fair one.
Preeti Singh is a former editor, journalist and a keen observer of policy issues. She now works as a freelance writer as well as a public engagement and communications specialist. She can be reached @TruthAbtNobody on Instagram & Twitter.