Tjong Very Sumito v Antig Investments Pte Ltd

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 26 August 2009
• Neutral Citation: [2009] SGCA 41
• Citation: [2009] SGCA 41
• Date: 26 August 2009
• Year: 2009
• Plaintiff Counsel: Hri Kumar Nair SC and Wong Chin Soon Wilson (Drew Napier LLC), Sree Govind Menon (Manjit Govind & Partners)
• Docket Number: Civil Appeal No 171 of 2008
• Defendant Counsel: Michael Hwang SC and Charis Tan En Pin (Chambers of Michael Hwang SC), Nicholas Jeyaraj s/o Narayanan (Nicholas & Co)
• Court: Court of Appeal (Singapore)
• Published date: 31 August 2009

26 August 2009

V K Rajah JA (delivering the grounds of decision of the court):

1 “Dispute” is a protean word that derives its meaning from its context. The word is deceptively simple to understand in everyday usage but elusively difficult to explain as a legal term. It has (together with its other less frequently used legal cousins such as “differences” and “controversies”) particular significance in the field of arbitration as most arbitration clauses stipulate that before a reference to arbitration can be made, a dispute must exist. As a consequence, it is commonplace for legal challenges to be made on: (a) whether a “dispute” exists; and (b) whether a court or an arbitral tribunal has jurisdiction to hear a particular matter. Not surprisingly, such challenges are also usually accompanied by heated debates about whether the alleged dispute is bona fide.

2 Unfortunately, the common law courts, particularly those in England, have generated not entirely consistent strands of thought on the meaning of the word; apparently for historical reasons. These historical reasons need not detain us at this juncture; see below at [36]. While the current position appears to be more settled, it continues to be a matter of importance to the arbitral community that there should be clarity as to what constitutes a “dispute”. However, attempts to define what constitutes a “dispute” with hard-edged precision will necessarily be unsuccessful, given the infinite circumstances in which disputes may arise or cease to exist. That said, the Sisyphean nature of the task should not deter measured judicial attempts to further illuminate how this word (and like words) may be ordinarily interpreted with the proviso that all cases must fall to be decided on their own special facts and the frank acknowledgement that further glosses will arise. In these grounds, we explore the existing case law on this topic and the genesis of the present approach to the interpretation of the word “dispute” in Singapore. We shall also elaborate on the current judicial philosophy towards arbitration.

Background facts

3 This case concerns the granting of a stay of proceedings in favour of arbitration under ss 6(1)−6(2) of the International Arbitration Act (Cap 143A, 2002 Rev Ed) (“IAA”) where a party to an arbitration agreement had, despite the existence of the arbitration agreement, commenced proceedings in court.

4 The appellants and the respondent entered into a Shares Sale and Purchase Agreement (the “SPA”) on 23 November 2004, under which the appellants agreed to sell and the respondent agreed to buy 72% of the entire paid-up share capital of PT Deefu Chemical Indonesia (“PT Deefu”), a company with interests in coal mining in Indonesia. Section 11.06 of the SPA required the parties to resolve any dispute by arbitration if it could not be resolved by negotiation:

Section 11.06 Governing Law and Arbitration

(1) Governing Law

This agreement is governed by the laws of Indonesia.

(2) Arbitration

(a) Any and all disputes, controversies, and conflicts between the parties in connection with this Agreement shall, so far as is possible, be settled amicably between the parties through negotiation.

(b) Failing such amicable settlement, any and all disputes, controversies and conflicts arising out of or in connection with this Agreement or its performance (including the validity of this Agreement) shall be settled by arbitration by a three (3) member arbitration board which will hold its sessions in Singapore in English under the SIAC (Singapore International Arbitration Centre) Rules. The tribunal of three (3) arbitrators shall be appointed by each party with the third member appointed by the Chairman of the SIAC.

[emphasis added]

5 Between 3 January 2005 and 19 August 2005, the parties entered into four further agreements (collectively “the supplemental agreements”):

(a) a Supplemental Agreement dated 3 January 2005 (“SSPA”);

(b) a Second Supplemental Agreement dated 18 February 2005 (“Second SSPA”);

(c) a Third Supplemental Agreement dated 19 July 2005 (“Third SSPA”); and

(d) a Fourth Supplemental Agreement dated 19 August 2005 (“Fourth SSPA”).

6 Each of these agreements was expressed to be supplemental to the SPA. In particular, the Second SSPA, Third SSPA and Fourth SSPA specifically stated that they were “supplemental to and an integral part of the SPA and the terms and conditions of the SPA are hereby amended, modified, added to and/or varied accordingly to the extent provided herein”. The Fourth SSPA also incorporated the terms of the SPA and the first three supplemental agreements in its preamble:

The term “SPA” in this Agreement shall refer to the Shares Sale and Purchase Agreement as amended, varied and/or supplemented by the First Supplemental Agreement, Second Supplemental Agreement, the Vendors’ Letter and the Third Supplemental Agreement.

7 The appellants and the respondent were the only parties to the SPA and the four supplemental agreements. For the purposes of this appeal, only the Fourth SSPA was relevant. The Fourth SSPA purported to “vary the payment terms of the purchase consideration payable by the [respondent] to the [appellants] for the Sale Shares” (at cl (2)(B)). More particularly, cl 2.2 of the Fourth SSPA provided:

The parties hereto agree that Section 4.02(2) of the SPA shall be deleted in its entirety and replaced with the following new clause:-

(2) The Parties hereby agree and the Vendors hereby instruct and authorise the Purchaser to pay the Purchase Price due to them in the following manner:-

…

(e) the balance US$8,500,000.00 (“Balance Purchase Price”) to be paid in the following manner:-

(i) on the date falling 12 months from the Completion Date of which US$2,800,000.00 shall be paid to Vendor 1 and US$2,000,000.00 shall be paid to Aventi who is authorised to receive the same for and on behalf of the Vendors; and

(ii) on the date falling 24 months from the Completion Date US$3,700,000.00 shall be paid to Aventi, who is authorised to receive the same for and on behalf of the Vendors.

[emphasis added]

8 Aventi Holdings Limited (“Aventi”) is a company incorporated in the British Virgin Islands, and was controlled by the original owner of the shares sold by the respondent to the appellants. Under cl 2(e)(i) of the Fourth SSPA, US$2m would become due 12 months after the completion date of 13 June 2006 (ie, 13 June 2007). However, on 20 July 2006, Aventi requested early settlement of the US$2m and offered the respondent a discount of 6% in consideration for the early settlement. The respondent, without notifying the appellants, acceded to Aventi’s request and was granted a discount equivalent to US$120,000.

9 Under cl 2(e)(ii) of the Fourth SSPA, US$3m would become due 24 months after the completion date of 13 June 2006 (ie, 13 June 2008). In late September 2007, Aventi again requested early settlement, of the US$3.7m, in return for a discount of 5.6%. The respondent agreed and released the aggregate sum of US$3,492,800 (less the discount of US$207,200) without notifying the appellants.

10 On 12 November 2007, the first appellant, Mr Sumito, wrote to the respondent requesting “final settlement of the Balance Purchase Price”^{[note: 1]}:

I refer to the Shares Sale and Purchase Agreement … dated 23 November 2004, whereby the Vendors agreed to sell and the Purchaser agreed to purchase 396 issued shares … in the capital of PT Deefu, upon the terms and conditions therein contained, as amended varied and/or modified by [the supplemental agreements] …

I have agreed on 29 October 2007 that the final amount of the Balance Purchase Price due to me is US$1,138,772. Kindly issue a cheque for the sum of $1,630,038.24 (equivalent to US$1,138,772), being final settlement of the Balance Purchase Price.

[emphasis added]

11 The respondent accordingly paid $1,630,038.24 to Mr Sumito by way of a cheque dated 12 November 2007. The next day, on 13 November 2007, the respondent’s parent company, Magnus Energy Group Ltd (“Magnus”), announced over SGXNet that Antig had “completed the settlement of the balance purchase price for the acquisition of 72% equity interest in [PT Deefu]”, setting out the agreed payment arrangement in sub-cll (i) and (ii) of the Fourth SSPA (see [7] above), and, pursuant to Aventi’s requests, early settlement of the US$2m and US$3.7m at a 6% and 5.6% discount respectively.^{[note: 2]}

12 Almost six months later, on 9 April 2008, the appellants’ solicitors, out of the blue, notified the respondent that the sum of US$3.7m was to be paid to the appellants, and that no further payments were to be made to Aventi. The respondent did not respond to this letter. The appellants’ solicitors sent a reminder on 30 April 2008, but this too failed to elicit any reaction from the respondent. On 8 May 2008, the appellants’ solicitors gave notice that court proceedings would be initiated if payment was not made to their clients. Again, there was no response. On 20 May 2008, the appellants commenced proceedings for an injunction to restrain the respondent from effecting payment of the US$3.7m to any party other than the appellants, as well as for damages. It is common ground that the proceedings were not in aid of arbitration proceedings. On 26 May 2008, after service of the writ, the respondent’s solicitors, DLA Piper, replied (at para 3)^{[note: 3]}:

We are further instructed that your client’s Suit is without merit and misconceived, least of all for the reason that the Share Sale and Purchase Agreement which forms the basis of your client’s allegations is governed by Indonesian Law, and all disputes arising out of or in connection with the Share Sale and Purchase Agreement is subject to a binding arbitration clause.

13 The appellants’ solicitors replied in a letter dated 28 May 2008^{[note: 4]}:

Our clients are unable to appreciate your contentions. The point is a simple one – are your clients making payment of US$ 3.7 million to our...