Tjong Very Sumito and Others v Antig Investments Pte Ltd
Jurisdiction | Singapore |
Court | Court of Three Judges (Singapore) |
Judge | Andrew Phang Boon Leong JA |
Judgment Date | 26 August 2009 |
Neutral Citation | [2009] SGCA 41 |
Citation | [2009] SGCA 41 |
Subject Matter | Arbitration,Section 6 International Arbitration Act (Cap 143A, 2002 Rev Ed),Significance of silence or prevarication on part of defendant,Stay of proceedings,Whether court should assess merits of defence or genuineness of dispute,Civil Procedure,What constituted a dispute,Significance of admission by defendant,Costs,Stay of court proceedings,When stay of court proceedings would not be granted,Mandatory stay under International Arbitration Act (Cap 143A, 2002 Rev Ed),Judicial policy towards arbitration,Whether indemnity costs should be ordered when defendant instituted court proceedings in breach of arbitration clause |
Plaintiff Counsel | Hri Kumar Nair SC and Wong Chin Soon Wilson (Drew Napier LLC), Sree Govind Menon (Manjit Govind & Partners) |
Defendant Counsel | Michael Hwang SC and Charis Tan En Pin (Chambers of Michael Hwang SC), Nicholas Jeyaraj s/o Narayanan (Nicholas & Co) |
Published date | 31 August 2009 |
Docket Number | Civil Appeal No 171 of 2008 |
Date | 26 August 2009 |
26 August 2009 |
|
V K Rajah JA (delivering the grounds of decision of the court):
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
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]
(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”).
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.
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]
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$3.7m at a 6% and 5.6% discount respectively.[note: 2]
We are further instructed that your client’s Suit is without merit and misconceived, least of all for the reason that the Share Sale and Purchase Agreement which forms the basis of your client’s allegations is governed by Indonesian Law, and all disputes arising out of or in connection with the Share Sale and Purchase Agreement is subject to a binding arbitration clause.
13 The appellants’ solicitors replied in a letter dated 28 May 2008[note: 4]:
Our clients are unable to appreciate your contentions. The point is a simple one – are your clients making payment of US$ 3.7 million to our clients? Your...
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