Accent Delight International Ltd and another v Bouvier, Yves Charles Edgar and Others

• Jurisdiction: Singapore
• Judgment Date: 17 March 2016
• Date: 17 March 2016
• Docket Number: Suit No 236 of 2015 (Summonses Nos 1763 and 1900 of 2015)
• Court: High Court (Singapore)

Accent Delight International Ltd and another

and

Bouvier, Yves Charles Edgar and others

[2016] SGHC 40

Lai Siu Chiu SJ

Suit No 236 of 2015 (Summonses Nos 1763 and 1900 of 2015)

High Court

Conflict of Laws — Natural forum — Forum non conveniens — Plaintiffs commencing equitable and proprietary claims in Monaco and in Singapore — Defendants seeking stay of Singapore proceedings in favour of having claims heard in Monaco — Whether Singapore natural forum to hear dispute

The three defendants filed Summonses Nos 1763 and 1900 of 2015 (“the Summonses”) applying for a stay of the proceedings of Suit No 236 of 2015 (“this Suit”). This Suit was commenced by the plaintiffs against the defendants for, inter alia, breach of fiduciary duty, dishonest assistance, knowing receipt and conspiracy.

The plaintiffs were British Virgin Isles-incorporated companies controlled by a Russian oligarch, Dmitriy Rybolovlev. The first defendant, Yves Charles Edgar Bouvier, operated a storage facility for artworks and other valuables, and assisted with the plaintiffs’ acquisition of 37 valuable paintings between 2003 and 2014. The second defendant was the corporate vehicle through which Bouvier purchased the artworks from their respective sellers and then re–sold them to the plaintiffs. The third defendant, Tania Rappo, received a commission from Bouvier whenever the plaintiffs purchased an artwork. She had introduced Bouvier to Rybolovlev in 2003.

The defendants sought to stay this Suit on two grounds. First, that Rybolovlev was running duplicate proceedings in Monaco and Singapore involving identical parties and causes of action, which was an abuse of the court’s process. Secondly, that Switzerland was the more appropriate forum to hear this Suit under the two-stage test in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 (“Spiliada”). Rappo added that Monaco was the more appropriate forum for her dispute with Rybolovlev, but accepted that Switzerland was in any event more appropriate than Singapore.

The plaintiffs submitted that Singapore had the closest connection with this Suit because the alleged torts underlying this Suit took place in Singapore, and most of the 37 artwork transactions took place when Bouvier was based in Singapore. The documents pertaining to Bouvier’s communications with third parties for the artworks were also likely to be stored in Singapore and compellable by the Singapore court.

Held, dismissing the applications but imposing certain conditions:

(1) The common issue in the Monaco and Singapore proceedings was whether Bouvier acted as the agent of the plaintiff in respect of the 37 artworks that he assisted in procuring for them: at [73].

(2) Since the plaintiffs had, during their submissions, informed the court that they would discontinue their Monaco civil proceedings against the defendants were the court to dismiss the Summonses, there was no need for the court to decide whether this Suit was an abuse of its process: at [73], [74] and [105].

(3) The plaintiffs’ proprietary claims were better classified as matters of substantive law to be resolved by the law applicable to their respective causes of action, rather than as mere procedural mechanisms the availability of which varied according to the law of the forum: at [82] to [85].

(4) Swiss law did not admit the plaintiffs’ substantive claims in breach of fiduciary duties, deceit, fraudulent misrepresentation and knowing receipt. The plaintiffs could pursue these claims only by re-characterising them as claims in tort, contract, or unjust enrichment under Swiss law. This was highly unsatisfactory. Further, if the Swiss courts were to then decide the plaintiffs’ claims in accordance with Singapore law, that would defeat the very purpose of staying this Suit: at [86] and [101].

(5) The first stage of the Spiliada test pointed to Singapore as the more appropriate forum. First, Bouvier was a permanent resident of Singapore. Secondly, this Suit dealt primarily with factual disputes. Moving the trial to Switzerland would require the documents/papers filed in this Suit to be translated into French. Competent French interpreters were also readily available in Singapore if parties chose to testify in French. Thirdly, neither the Monaco proceedings nor this Suit had progressed much: at [88], [95] and [108].

(6) Switzerland was the main location where Rybolovlev and Bouvier met for negotiations, where the second defendant generated the invoices it issued to the plaintiffs, and where the certificates of deposit for storage of the artworks were prepared and signed. However, in this era of instantaneous communication using smartphones, these factors did not tilt the balance in favour of Swissjurisdiction. The mere fact that Rybolovlev made telephone calls and sent e- mails (to Bouvier) from his office in Switzerland did not mean that the artwork contracts were concluded there: at [91].

(7) It was irrelevant that Rybolovlev’s family members and staff were not compellable as witnesses in Singapore. Issues of compellability were significant only in relation to non-party witnesses who were not in the employ of a party to the proceedings. Moreover, only witnesses whose evidence was potentially material and relevant to the issues in the action were to be reckoned: at [96] to [98].

(8) Even under Swiss private international law rules, the Swiss courts had no jurisdiction over this Suit. None of the defendants were domiciled or habitually resident, or had a place of business, in Switzerland. Further, Switzerland was neither the place where Bouvier performed the characteristic obligation of the artwork contracts (for the plaintiffs’ claims in contract), nor the place where the

defendants committed the alleged acts of fraudulent misrepresentation or deceit

(for the plaintiffs’ claims in tort): at [92] and [93].

(9) The second stage of the Spiliada test also pointed against granting a stay of this Suit. The plaintiffs’ proprietary and equitable claims were not recognised under Swiss law, and could be pursued in Switzerland only if re–characterised as claims in tort or contract or unjust enrichment. Staying this Suit in favour of Switzerland as the forum would have caused grave prejudice to the plaintiffs: at [102] and [103].

(10) Rappo could not have the civil proceedings against her tried in Monaco while Bouvier and the second defendant had the civil proceedings against them tried in Switzerland. All three defendants had to move in tandem for this Suit. In any event, the evidence cast doubt on whether Rappo genuinely wished to litigate in Monaco: at [109] and [110].

[Observation: The perceived advantages (to the defendants) or disadvantages (to the plaintiffs) of Switzerland being the forum were levelled out if this Suit remained in Singapore but was transferred to the Singapore International Commercial Court (“SICC”). The international judges who sit on the SICC are eminent and very able. Moreover, some of the international judges hail fromcountries that have civil law systems, and are equally fluent in French and English. Consequently, the court urged all parties to agree to transfer this Suit to the SICC: at [111] and [116]].

Accent Delight International Ltd v Yves Bouvier [2015] HKCU 1367 (refd)

Bouvier, Yves Charles Edgar v Accent Delight International Ltd [2015] 5 SLR 558 (refd)

CIMB Bank Bhd v Dresdner Kleinwort Ltd [2008] 4 SLR(R) 543; [2008] 4 SLR 543 (folld)

FCD 133 111 90 of 21 November 2006 (Federal Court) (Switzerland) (refd)

JIO Minerals FZC v Mineral Enterprises Ltd [2011] 1 SLR 391 (folld)

Koh Kay Yew v Inno-Pacific Holdings Ltd [1997] 2 SLR(R) 148; [1997] 3 SLR 121 (refd)

Multi-Code Electronics Industries (M) Bhd v Toh Chun Toh Gordon [2009] 1 SLR(R) 1000; [2009] 1 SLR 1000 (refd)

PT Hutan Domas Raya v Yue Xiu Enterprises (Holdings) Ltd [2001] 1 SLR(R) 104; [2001] 2 SLR 49 (folld)

Ram Parshotam Mittal v Portcullis Trustnet (Singapore) Pte Ltd [2014] 3 SLR 1337 (distd)

Rickshaw Investments Ltd v Nicolai Baron von Uexkull [2007] 1 SLR(R) 377; [2007] 1 SLR 377 (folld)

Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (folld)

UBS AG v Telesto Investments Ltd [2011] 4 SLR 503 (refd)

Virsagi Management (S) Pte Ltd v Welltech Construction Pte Ltd [2013] 4 SLR 1097 (folld)

Yusen Air & Sea Service (S) Pte Ltd v KLM Royal Dutch Airlines [1999] 2 SLR(R) 955; [1999] 4 SLR 21 (folld)

Legislation referred to

Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 110 (consd); O 110 r 7(1)(a), O 110 r 7(1)(c), O 110 r 12(4), O 110 r 12(4)(b)(ii) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 18, First Schedule para 9 Civil Code of 10 December 1907 (cc 210) (Switzerland) Code of Criminal Procedure of 5 July 1963 (Monaco) Art 3 Code of Obligations of 30 March 1911 (cc 220) (Switzerland)

Federal Act on Private International Law of 18 December 1987 (Switzerland) Arts 5, 5(3), 6, 112, 112(s), 113, 116, 117, 127, 128, 129, 133 (consd)

Federal Code of Civil Procedure of 19 December 2008 (cc 272) (Switzerland) Arts 165, 165(a), 165(b)

Alvin Yeo SC, Monica Chong, Wendy Lin and Chan Xiao Wei (Wong Partnership

LLP) for the plaintiffs;

Edwin Tong SC, Kristy Tan, Peh Aik Hin and Leong Yi-Ming (Allen & Gledhill LLP)

for the first and second defendants;

Kenneth Tan SC (instructed), Paul Seah, Calvin Liang andRachel Chin (Tan Kok

Quan Partnership) for the third defendant.

Judgment reserved.

Lai Siu Chiu SJ:

Introduction

1 Yves Charles Edgar Bouvier (“Bouvier”) and Mei Investment Pte Ltd (“the second defendant”) (hereinafter referred to collectively as “the two defendants”) filed Summons No 1763 of 2015 (“Summons 1763”) for a stay of proceedings of Suit No 236 of 2015 (“this Suit”) commenced by Accent Delight International Ltd (“Accent”) and Xitrans Finance Ltd (“Xitrans”) (hereinafter referred to collectively as “the plaintiffs”). A similar application was taken out by the third defendant, Tania Rappo (“Rappo”), in Summons No 1900 of 2015...