Denmark Skibstekniske Konsulenter A/S I Likvidation (formerly known as Knud E Hansen A/S) v Ultrapolis 3000 Investments Ltd (formerly known as Ultrapolis 3000 Theme Park Investments Ltd)

• Judge: Belinda Ang Saw Ean J
• Judgment Date: 09 April 2010
• Neutral Citation: [2010] SGHC 108
• Citation: [2010] SGHC 108
• Docket Number: Originating Summons No 807 of 2009
• Published date: 16 April 2010
• Hearing Date: 22 January 2010,24 November 2009,26 October 2009,17 August 2009
• Plaintiff Counsel: Herman Jeremiah, Loh Jen Wei and Wendy Goh (Rodyk & Davidson LLP)
• Date: 09 April 2010
• Defendant Counsel: Sarbjit Singh and Cheryl Monteiro (Lim & Lim)
• Court: High Court (Singapore)
• Subject Matter: Arbitration,Enforcement,Foreign award

Belinda Ang Saw Ean J:

The plaintiff, Denmark Skibstekniske Konsulenter A/S I Likvidation (formerly known as Knud E Hansen A/S)(“DSK”) took out this Originating Summons No 807 of 2009 (“OS 807”) to obtain leave under s 29 of the International Arbitration Act (Cap 143A, 2002 Rev Ed)(“IAA”) to enforce a final award made by the Danish Arbitration Institute (“the Tribunal”) on 16 April 2009 against the defendant, Ultrapolis 3000 Investments Ltd (formerly known as Ultrapolis 3000 Theme Park Investments Ltd) (“Ultrapolis”). In the arbitration before the Tribunal, DSK was the claimant and Ultrapolis was the respondent.

Background facts

DSK is a Danish company specialising in providing consultant services for ship design. Ultrapolis engaged DSK to provide professional design services for a 90m mega yacht by entering into a written agreement dated 29 August 2005 (“First Agreement”). Enclosed in the First Agreement was DSK’s Standard Conditions of Sale, Work and Delivery (July 2001 version) which Ultrapolis signed on all pages of the printed standard conditions.

Thereafter, the parties mutually rescinded the First Agreement in favour of a new agreement for design services for a 100m mega yacht (“New Agreement”). It is not in dispute that both parties signed the New Agreement. Counsel for DSK, Mr Herman Jeremiah, informed the court that the contract was concluded on 21 December 2005. I interpose here to mention that a preliminary issue in dispute before the Tribunal was whether the November 2005 version of the Standard Conditions of Sale, Work and Delivery (“the Standard Conditions”), which included the arbitration clause, formed part of the New Agreement. It is an issue that has surfaced as a ground in opposition to OS 807.

DSK said it completed and delivered 95% of the contracted work to Ultrapolis. DSK duly claimed for 95% of the remuneration but Ultrapolis refused to pay. DSK then referred the matter to arbitration before three members of the Tribunal on 24 November 2006, namely Professor Vibe Ulfbeck(chairman), Attorney Peter Bang and Attorney Lars M. Hareskov. Ultrapolis challenged the Tribunal’s jurisdiction on the ground that there was no agreement to arbitrate as the New Agreement did not incorporate the arbitration clause in the Standard Conditions. After a contested hearing on the preliminary issue of jurisdiction, the Tribunal held that it had jurisdiction to hear the dispute having found that the Standard Conditions, including the arbitration clause, formed part of the New Agreement, and that the wording of the arbitration clause clearly referred to the Tribunal, the Danish Arbitration Institute. Ultrapolis did not challenge the Tribunal’s decision on jurisdiction in the Danish Court (as it was entitled to do). Ultrapolis also chose to be absent from the main oral hearing of the substantive dispute before the Tribunal which took place on 5 December 2008. The Tribunal then passed its award on 11 February 2009 (“First Award”) and subsequently, a corrected award on 16 April 2009 (“Corrected Award”). The explanation for the Corrected Award is found in [51] below.

OS 807

DSK is applying for leave to enforce the Corrected Award (it being the final award of the Tribunal) under s 29 of the IAA. Such an application is usually made ex-parte, but on this occasion, DSK asked for OS 807 to be fixed for hearing on an inter partes basis. The Duty Registrar acceded to DSK’s request on 15 July 2009.

Ultrapolis is resisting the enforcement of the Corrected Award on the grounds that: DSK is not able to produce the original arbitration agreement and the copy that has been produced does not constitute an arbitration agreement as required under s 30(1)(b) of the IAA; the award which DSK seeks to enforce is founded on a non-existent arbitration agreement and so enforcement should be refused under s 31(2)(b) of the IAA; if there was an arbitration agreement as claimed by DSK, the composition of the arbitral authority was not in accordance with it and, therefore, enforcement of the Corrected Award should be refused under s 31(2)(e) of the IAA; and the Corrected Award was made and passed at a time when the Tribunal was functus officio with the consequence that the enforcement of the Corrected Award should be refused under s 31(2)(e) of the IAA.

Before I consider each of the objections (which are, for expediency, formulated as issues) in turn, I should mention the case advanced by Ultrapolis was initially limited to issues (a), (c) and (d). Issue (b) was introduced in the course of argument and that necessitated an adjournment for further affidavits to be filed by experts on Danish law.

The issues opposing enforcement First issue: whether DSK has satisfied s 30(1)(b) of the IAA to produce a certified true copy of the arbitration agreement

Section 30(1)(b) of the IAA requires the production of the “original arbitration agreement” under which the award purports to have been made. The provision reads as follows:

Evidence

30. —(1) In any proceedings in which a person seeks to enforce a foreign award by virtue of this Part, he shall produce to the court —

…

(b) the original arbitration agreement under which the award purports to have been made, or a duly certified copy thereof; …

The manner of complying with the statutory provision is prescribed by O 69A r 6 of the Rules of Court (Cap 322, R5, 2006 Rev Ed) (“ROC”) which requires the applicant to exhibit the arbitration agreement, among other documents, in an affidavit. Order 69A r 6(a) of the ROC also allows for production of duly certified copies of the relevant documents. The affidavit in support of OS 807 was deposed by DSK’s Danish lawyer, Mr Carsten Pedersen. Mr Pedersen had the conduct of the Danish arbitration on behalf of DSK. In his affidavit, he exhibited a copy of the New Agreement that was executed by the parties and a certified true copy of the Standard Conditions. I must mention at the outset that the dispute was not with the propriety of the certification of the Standard Conditions. The dispute centred on the absence of an “arbitration agreement”.

I start with the New Agreement. It is common ground that the New Agreement was entered into between the parties. Counsel for Ultrapolis, Mr Sarbit Singh, in the course of argument, accepted that DSK would not have the original of the signed New Agreement as the original signed copy was couriered by DSK to Ultrapolis and its whereabouts thereafter is unclear. The copy of the New Agreement exhibited in Mr Pedersen’s affidavit is affirmed to be a true a copy of the original signed New Agreement. On at least three occasions, Ultrapolis had admitted that the copy of the signed New Agreement is a true copy of the original signed New Agreement, namely: Mr Christopher Bridges, a Singapore advocate and solicitor, who previously represented Ultrapolis had confirmed in a letter dated 16 January 2007 to the Tribunal that the copy of the signed New Agreement produced by DSK was a true copy; The Managing Director of Ultrapolis, Mr Rinaldo Romani, had confirmed to the Tribunal that he had signed the New Agreement produced by DSK when giving evidence at the preliminary hearing on 18 January 2008; and In written submissions tendered on behalf of Ultrapolis to the High Court on 12 June 2009 in relation to Summons No 1654 of 2009/S filed in Suit No 300 of 2008, Mr Singh’s firm, M/s Lim & Lim, confirmed that the copy of the New Agreement produced by DSK was duly executed by Ultrapolis.

The real issue before me is whether the Standard Conditions which contained the arbitration clause formed part of the New Agreement. This issue is considered in two contexts: (a) the first stage of enforcement under s 30(1)(b) of the IAA, and (b) the second stage is the refusal of enforcement under s 31(2) of the IAA. For now, the discussions concern the first stage of enforcement under s 30(1)(b) of the IAA.

Section 27(1) of the IAA defines an “arbitration agreement” as an agreement in writing of the kind referred to in Article II.1 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards concluded at New York on 10 June 1958 (“New York Convention”). An “agreement in writing” includes an agreement contained in an exchange of letters, telegrams, telefacsimile or in a communication by teleprinter.

In the present case, the existence of an arbitration agreement in writing is disputed. Ultrapolis argues that the arbitration clause in the Standard Conditions did not form part of the New Agreement because Ultrapolis executed the New Agreement without signing the Standard Conditions. The omission is significant, so the argument develops, because in the case of the First Agreement, Ultrapolis had signed on all pages of the Standard Conditions of Sale, Work and Delivery (July 2001 version) to signify its acceptance of the printed standard conditions as forming part of the First Agreement. As such, in the absence of a duly signed copy of the Standard Conditions, there was no agreement to arbitrate disputes arising in connection with the New Agreement. In addition, Mr Singh submits that cl 13 of the New Agreement was not deleted by an oversight, and further points out that the Standard Conditions were not enclosed together with the signed original copy of the New Agreement. In any case, Mr Singh argues that cl 13 in itself is insufficient in law to incorporate the arbitration clause in the Standard Conditions. Clause 13 of the New Agreement reads:

The clauses of this contract prevail on the enclosed standard conditions that are applicable only if the matters are not regulated between the Parties by this contract.

Putting Mr Singh’s argument in perspective, the question is whether at the first stage of enforcement the court has to determine if the arbitration clause in the Standard Conditions formed part of the New Agreement before it can be satisfied that an arbitration...