CBX and another v CBZ and others
Jurisdiction | Singapore |
Court | International Commercial Court (Singapore) |
Judge | Anselmo Reyes IJ |
Judgment Date | 16 July 2020 |
Neutral Citation | [2020] SGHC(I) 17 |
Citation | [2020] SGHC(I) 17 |
Plaintiff Counsel | Alvin Yeo SC, Lin Weiqi Wendy, Chong Wan Yee Monica, Huang Meizhen Margaret, Kara Quek Tze-Min (WongPartnership LLP) |
Date | 16 July 2020 |
Published date | 30 July 2020 |
Hearing Date | 15 June 2020 |
Defendant Counsel | Francis Xavier SC, Disa Sim, David Isidore Tan Huang Loong, Kristin Ng (Rajah & Tann LLP) |
Docket Number | Originating Summons No 1 of 2020 |
Subject Matter | Setting aside,Recourse against award,Arbitration,Award |
The Plaintiffs apply to set aside parts of two Partial Awards dated 5 June 2019 (the “
By a Sale and Purchase Agreement dated 19 June 2015 (the “
The governing law of the SPAs was Thai law. The SPAs provided for ICC arbitration seated in Singapore in the event of dispute. When the SPAs were executed, AAA held 59.46% of [BBB] (“
CBX was to pay a first instalment to CBZ under the CBX SPA. CBY was to pay a first instalment to CCA and CCB under the CBY SPA. The first instalments were due within 60 days after the closing dates of the respective SPAs. By Article 3.1(ii) of the SPAs, subject to a proviso relating to the initial public offering of BBB which is not material to this judgment, the balance of the consideration under the SPAs (the “
CBX did not pay the first instalment under the CBX SPA. CBY paid the first instalment under the CBY SPA, partly on 30 November 2015 and partly on 29 December 2015. It did not pay interest for late payment. The Defendants contended that the Plaintiffs were in default due to non-payment or late payment. The Defendants maintained that, in consequence, they could treat the CBX SPA as rescinded. The Defendants further alleged that, not only were the outstanding principal and interest of the first instalments due, but the Remaining Amounts had additionally become accelerated and so immediately payable in full. The Plaintiffs denied that the Defendants were entitled to treat the CBX SPA as rescinded. They argued that the payment dates for the first instalments had been postponed and that the Remaining Amounts had not been accelerated. The Plaintiffs also raised set-offs and counterclaims which it submitted had the effect of reducing or extinguishing any amounts (including the Remaining Amounts) payable to the Defendants. Those set-offs and counterclaims were for damages arising from the Defendants’ wrongful rescission of the SPAs and from the Defendants’ “wrongful attacks” which (the Plaintiffs asserted) had brought about a significant diminution in the commercial value of AAA and BBB.
CBZ commenced arbitration (the “
The Phase I Partial Awards are similar, but not identical. The Tribunal dismissed the Defendants’ claim for rescission of the CBX SPA, as well as the Defendants’ claim for payment of the alleged shortfall in the first instalment due under the CBY SPA. It ordered that the Plaintiffs pay to the Defendants the first instalment under the CBX SPA and 15% annualised compound interest on the first instalments under both SPAs. The Tribunal directed that the Defendants’ claim for accelerated payment of the Remaining Amounts and the Plaintiffs’ set-offs and counterclaims be hived off to Phase II. This was because the Tribunal felt that the parties would benefit from a chance to put in “a full pleading on the issues of liability and damages” after having heard the evidence in Phase I. The costs of Phase I were reserved to Phase II.
The parties submitted further pleadings in the run-up to the Phase II substantive hearing. In their pleadings and submissions, the Defendants (among other contentions) introduced claims for “incidental fraud” and “fraudulent inducement”. The Plaintiffs objected to those claims as falling outside Phase II and outside the Tribunal’s jurisdiction. The Phase II substantive hearing took place on 30 and 31 August, and 1 and 4 September 2018. Afterwards, the parties exchanged several rounds of Post-Hearing Briefs (“
On 28 June 2019, the Defendants applied to the Tribunal for a correction of the Compound Interest Orders. The Defendants pointed out that, between Phases I and II, the parties’ Thai law experts had revised their opinions on compound interest under Thai law. In Phase I, the Defendants’ expert had thought that it was permissible under Thai law to award 15% annualised compound interest on monies due under loan agreements (including the SPAs). The Tribunal had accepted this evidence in ordering 15% compound interest in its Phase I Partial Awards. But, in the course of Phase II, the parties’ experts had become unanimous that Thai law did not allow interest payable under the SPAs to be compounded at all. Article 12.9 (“
On 9 August 2019, the Tribunal issued the Costs Award covering the costs of Phases I and II of both arbitrations (which had by then been consolidated). The Tribunal ordered the Plaintiffs to pay 66% of the Defendants’ costs of the two arbitrations, together with simple interest of 7.5% per annum from the date of the Costs Award.
Discussion The challenge to the Remaining Amounts Orders Additional backgroundThe Existing and Future Projects relate...
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