Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd

• Judge: Sundaresh Menon CJ
• Judgment Date: 22 October 2018
• Neutral Citation: [2018] SGCA 65
• Citation: [2018] SGCA 65
• Defendant Counsel: Ting Yong Hong, Chen Zhida and Dinesh Sabapathy (Rajah & Tann Singapore LLP),Prof Yeo Tiong Min SC (School of Law, Singapore Management University) as amicus curiae.
• Docket Number: Civil Appeal No 159 of 2017
• Hearing Date: 31 July 2018
• Plaintiff Counsel: Teh Kee Wee Lawrence, Loh Jen Wei and Chan Wai Yi, Kevin (Chen Weiyi) (Dentons Rodyk & Davidson LLP)
• Published date: 15 November 2018
• Court: Court of Appeal (Singapore)
• Date: 22 October 2018
• Subject Matter: Conflict of Laws,Exclusive,Choice of jurisdiction,Contractual terms,Contract

Steven Chong JA (delivering the judgment of the court):

Exclusive jurisdiction clauses are ubiquitous provisions in international commercial contracts. Owing to the transnational dimensions of such contracts, including the nationalities of the parties and the place(s) of performance, parties typically agree to refer all disputes arising from such contracts to a particular jurisdiction in an effort to avoid disputes over the proper forum. Quite often, to minimise or eliminate any disagreement over the effect of such clauses, parties would provide for the selected forum to have exclusive jurisdiction.

Regardless of the reason for the choice of the agreed forum, an exclusive jurisdiction clause has full contractual force unless and until it is invalidated. However, courts have somewhat whittled down the contractual force of such clauses. Where a plaintiff begins proceedings in breach of an exclusive jurisdiction clause, and the defendant applies for a stay on the basis of the clause, the court may examine the merits of the claim in order to determine whether there is any purpose in staying the proceedings. Such an approach has been rationalised on the basis that absent any merits in the defence, a defendant does not genuinely desire trial in the selected foreign court and accordingly, the court should exercise its discretion to refuse a stay. To hold otherwise, the courts have reasoned, would be to permit an abuse of process.

Yet this approach would only be consistent with the parties’ jurisdiction agreement if the parties had intended the jurisdiction clause to apply only in the event of a genuine dispute. In other words, the approach assumes that the parties intended to exclude the application of the clause in the most obvious cases of liability. Such a theory does not accord with commercial reality. In agreeing to an exclusive jurisdiction clause, the parties express a clear desire in advance of any dispute that a selected court will hear the case whatever the merits of the claim. This must be so because parties would have no idea how a dispute would arise or pan out.

There can be no doubt that parties attach considerable importance to exclusive jurisdiction clauses. This is entirely understandable as they are usually an integral part of the commercial agreement, without which the agreement may never have been formed. The fact that parties place much significance on such clauses is perhaps best exemplified by the volume of stay applications reaching this court for final determination. The volume of these cases may well have been the unintended consequence of the existing law. Much time and resources have been expended to address the hitherto crucial merits issue.

This appeal raises the interesting issue of whether we should depart from a long line of authorities laid down by this court, where we held that the merits of a defence, or lack thereof, are relevant in deciding whether proceedings should be stayed to give effect to an exclusive jurisdiction clause. In the courts below, the assistant registrar (“the AR”) and the High Court Judge (“the Judge”) found themselves bound by this line of precedents, and thus dismissed the application for a stay in favour of the English High Court. Given the importance of the issue at hand, we appointed Prof Yeo Tiong Min SC (“Prof Yeo”) as amicus curiae. Prof Yeo’s excellent submissions greatly assisted us in our deliberations.

Facts The parties

The appellant, Vinmar Overseas (Singapore) Pte Ltd (“Vinmar”), is a Singapore-incorporated company in the business of trading in chemical commodities.¹ Vinmar is a related company of Vinmar International Ltd (“Vinmar International”), a company based in Houston.

PTT International Trading Pte Ltd (“PTT”) is a Singapore-incorporated company in the business of trading in oil and petroleum products. PTT is a subsidiary of PTT Public Company Limited (“PTT Public”), a Thai company.²

The previous dealings

Between December 2013 and October 2014, Vinmar entered into four contracts to purchase chemical commodities from PTT and PTT Public (“the Four Contracts”).³ The first two contracts were with PTT Public. The third and fourth contracts were with PTT. The fourth contract (“the 4th Contract”) was made on around 3 October 2014 and was for the purchase of styrene monomer, which was also the subject matter of the contract in issue here (“the Contract”).⁴

The Four Contracts were concluded in the same way.⁵ The parties would first negotiate over the telephone. They would then agree on certain key terms that would be reflected in emails or other correspondence. Finally, PTT or PTT Public would send a Supply Agreement to Vinmar. This would contain the full terms of the parties’ contract. There were four Supply Agreements (“the Four Agreements”) corresponding to the Four Contracts.⁶ Notably, none of the Four Agreements included an execution page for the parties’ signature. We agree with Vinmar that this indicates that the parties intended the terms in the Four Agreements to be binding even without formal execution of those agreements.⁷

All of the Four Agreements contained broadly two kinds of terms. There were terms specific to the contract in question, such as terms pertaining to product, quantity, price and delivery. In addition, there were several identical provisions – for example, regarding insurance and limitation of liability – which appear to be standard terms on which PTT and PTT Public contract. One such term found in all of the Four Agreements was the following exclusive jurisdiction clause (“the EJC”):⁸

LAWS AND JURISDICTION

THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE ENGLISH LAW. ANY DISPUTE ARISING OUT OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY QUESTION REGARDING ITS EXISTENCE, VALIDITY OR TERMINATION, SHALL BE REFERRED TO AND FINALLY RESOLVED BY HIGH COURT OF ENGLAND SITTING IN LONDON WITHOUT RECOURSE TO ARBITRATION AND TO SERVICE OF PROCESS BY REGISTERED MAIL. [emphasis added in italics and bold italics]

Events leading up to the dispute

In November 2014, Vinmar required styrene monomer to fulfil its obligations under a contract to sell the same to its customer (“Visen”).⁹ On or around 20 November 2014, Mr Sumit Verma of Vinmar (“Mr Verma”) met Mr Bhuvarahan Krishnan (“Mr Krishnan”) of PTT to discuss terms for Vinmar to purchase around 3,000mt of styrene monomer (“the Cargo”) from PTT.

On 21 November 2014, Mr Krishnan sent an email to Mr Verma (“the Deal Recap”).¹⁰ The Deal Recap set out several key terms including the product to be sold, its quality, quantity, origin and price, and the mode and timing of payment. The term on price provided for the price of the Cargo to be determined based on certain published prices (for styrene monomer) for November 2014. The Deal Recap also included a term on shipment stating: “Shipment [:]- as per nomination and acceptance …” [emphasis added] as well as a term stating “Lay can:- 2nd half Dec. (15–22 Dec likely)”. The Deal Recap did not include the EJC or any other dispute-resolution clause.

Later that day, Mr Verma sent an email to Mr Krishnan stating “[w]e are pleased to confirm the below” (referring to the terms in the Deal Recap which were reproduced in the email with minor alterations).¹¹

By an email dated 24 November 2014, PTT nominated the SC Shenzhen as the vessel to ship the Cargo.¹²

On 27 November 2014, PTT sent an email to Vinmar which enclosed a “Styrene Monomer Spot Supply Agreement” (“the Written Terms”). The email referred to the Written Terms as a “draft contract” and stated that PTT would “revert back with [a] final contract in due course”.¹³ Like the Four Agreements, the Written Terms included terms specific to the Contract such as terms pertaining to price and delivery, as well as certain provisions found in all of the Four Agreements (see [10] above). One such provision was the EJC.¹⁴ Again, like the Four Agreements, the Written Terms did not include an execution page for the parties’ signature (see [9] above).

The breakdown in relations and subsequent events

By an email dated 28 November 2014, Vinmar informed PTT that its sub-purchaser, Visen, had rejected the Cargo.¹⁵ PTT replied later that day stating that Vinmar was “bound by the deal” and requested Vinmar to confirm the nominated vessel.¹⁶

By an email to PTT dated 30 November 2014 (“the 30 November Email”),¹⁷ Vinmar stated that the shipment of the Cargo could proceed if it was shipped between 15 and 20 December 2014 and the price was determined based on published prices for styrene monomer for December 2014 (rather than the prices for November 2014 as provided for in the Deal Recap: see [12] above). Vinmar also stated the following in relation to the Written Terms:

The contract is still a point that is under discussions [sic]. On Thursday 27th November we have received a draft contract from your good side which is still under further review. However, if any, such is required to be updated in line with the further commercial discussions related to this shipment, such as the shipment arrival and the pricing mechanism. [emphasis added in italics and bold italics]

By an email dated 1 December 2014, PTT replied to the 30 November Email to reject Vinmar’s proposed conditions as to shipment and pricing, stating that these conditions were not in accordance with the parties’ agreement.¹⁸

Subsequently, representatives of PTT Public and Vinmar International began to correspond on behalf of PTT and Vinmar. For convenience, we will continue to refer to the corresponding parties as PTT and Vinmar respectively.

By an email to Vinmar dated 19 December 2014, PTT nominated a new vessel, the Sea Charming, with a laycan of 19–20 December 2014.¹⁹ In reply, Vinmar sought confirmation that the Cargo would be loaded by 20 December 2014.²⁰ PTT responded to this stating that it would do its best to load the Cargo by 20...