WSG Nimbus Pte Ltd v Board of Control for Cricket in Sri Lanka

• Jurisdiction: Singapore
• Judgment Date: 13 May 2002
• Date: 13 May 2002
• Docket Number: Originating Summons No 601627 of (Summons in Chambers No 600107 of 2002)
• Court: High Court (Singapore)

WSG Nimbus Pte Ltd

Plaintiff

and

Board of Control for Cricket in Sri Lanka

Defendant

[2002] SGHC 104

Lee Seiu Kin JC

Originating Summons No 601627 of 2001 (Summons in Chambers No 600107 of 2002)

High Court

Arbitration–Agreement–International–Anti-suit injunction–Relevant principles for grant of anti-suit injunction–International Arbitration Act (Cap 143A, 1995 Rev Ed)–Order 69A r 3 (3) Rules of Court (Cap 322, R 5, 1997 Rev Ed)–Civil Procedure–Judgments and orders–Issue estoppel–Relevant test–Conditions to be met–Whether court of competent jurisdiction–Whether plaintiff submitted to jurisdiction of foreign court–Whether it would manifestly be against public policy to give recognition to foreign judgment–Courts and Jurisdiction–Jurisdiction–International arbitration–Whether International Arbitration Act applied to arbitration–Whether agreement within meaning of International Arbitration Act–Whether arbitration mandatory under agreement–Whether court had jurisdiction over matter in dispute–Sections 2 and 12 (6) International Arbitration Act (Cap 143A, 1995 Rev Ed)–Words and Phrases–“Arbitration agreement”–Section 2 International Arbitration Act (Cap 143A, 1995 Rev Ed)

The plaintiff, a company, entered into an agreement with the defendant, a national association for cricket, for the commercial rights to certain cricket matches. The agreement provided for reference to arbitration in Singapore. Differences arose between the parties over payment and the defendant commenced proceedings against the plaintiff in the Colombo High Court (the “First Action”). The First Action was subsequently settled. However, the parties fell out again and the defendant took out a second action against the plaintiff in the Colombo High Court (the “Second Action”) for breach of the agreement and the settlement agreement. The plaintiff took out an application in the Second Action to object to the Colombo High Court exercising jurisdiction on the basis that there was an arbitration agreement. At the same time, the plaintiff proceeded to issue a notice of arbitration. The plaintiff then applied to the Singapore High Court for, inter alia,a prohibitive injunction restraining the defendant from dealing with the subject matter of the dispute with any third party and an anti-suit injunction restraining the defendant from proceeding with the Second Action. These orders were granted by the Singapore High Court on the plaintiff's ex parte application. Notwithstanding the two injunctions, the defendant continued with the Second Action and the Colombo High Court heard and dismissed the plaintiff's application. The defendant then took out an application, inter alia, to discharge the two injunctions obtained by the plaintiff.

Held, maintaining the anti-suit injunction but discharging the prohibitive injunction:

(1) The court's jurisdiction to make the orders under s 12 (6) of the International Arbitration Act (Cap 143A, 1995 Rev Ed) (the “Act”) was dependant on whether the arbitration in question was one to which Pt II of the Act applied. In turn, this would depend on whether the arbitration agreement was an agreement by the parties to submit to arbitration all or certain disputes which had arisen or which might arise between them in respect of a defined legal relationship, whether contractual or not. In the instant matter, the arbitration agreement provided that parties were, in the event of a dispute, required to first use their best endeavours to resolve it through good faith negotiations and if this was unsuccessful after 14 days, a right was given to either party to elect to submit the dispute to arbitration. Upon such an election, both parties were bound to submit the dispute to arbitration. Hence, once a party made an election, arbitration was mandatory. Such an agreement constituted an arbitration agreement within the meaning of the Act: at [17], [21] and [30].

(2) It was the right of a party to a contractual dispute to commence an action in a court of competent jurisdiction for the determination of his claims, but this right was subject to any agreement that the parties should resolve such disputes by way of arbitration: at [22].

(3) A party seeking to raise an estoppel per rem judicatam against another party had to show the following conditions: (a) an earlier judgment was made by a court of competent jurisdiction, that was final and conclusive and made on the merits; (b) the parties in the earlier action had to be the same as those in the later action in which estoppel was raised; and (c) the issue in the later action had to be the same as that decided by the judgment in the earlier action. In the instant case, the Colombo High Court was not a court of competent jurisdiction as the plaintiff had not waived its objection to its jurisdiction. Further, it would be manifestly against public policy to give recognition to the foreign judgment which had been procured by the defendant in breach of an order from the Singapore Court: at [32], [54] and [65].

(4) The plaintiff's application was sufficiently urgent to justify being taken out on an ex parte basis: at [71].

(5) In the instant matter, there was a reference to arbitration in respect of the dispute between the parties and the plaintiff had sought in this application an anti-suit injunction to prevent the defendant from proceeding with the Second Action. Accordingly, the grant of an anti-suit injunction fell within the ambit of s 12 (6) of the Act read with s 12 (1) (g)of the Act: at [72] and [78].

(6) The purpose of the International Arbitration Bill was to promote Singapore as an international centre for arbitration by facilitating arbitrations that were held in Singapore and it was the result of a review of Singapore's legislation to ensure adequate legal support for Singapore's regionalisation drive. The intention of the Bill was to promote the growth of Singapore as a venue for international arbitrations and the court had to accordingly take a robust approach when faced with applications under s 12 (6) of the Act. This was also the attitude of the English courts and entirely consistent with the principle that parties be made to abide by their agreement to arbitrate. Further, the New York Convention obliged state parties to uphold arbitration agreements and awards. In the instant case, since the court was satisfied that there was an arbitration agreement, the court had a duty to uphold the agreement and prevent any breach of it. Accordingly, the anti-suit injunction was continued: at [90] and [91].

(7) In the instant case, since damages were an adequate remedy for the plaintiff but not for the defendant, the balance tilted in the defendant's favour and the prohibitive injunction was discharged: at [106].

Aggeliki Charis Compania Maritima SA v Pagnan SpA, The Angelic Grace [1995] 1 Lloyd's Rep 87 (folld)

Beswick v Beswick [1968] AC 58; [1967] 2 All ER 1197 (distd)

Chua Kwok Fun Kevin v Etons Management Consultants Pte Ltd [1999] 1 SLR (R) 1088; [2000] 3 SLR 337 (distd)

Dulles' Settlement (No 2), Re [1951] Ch 842; [1951] 2 All ER 69 (folld)

Hammond v Wolt [1975] VR 108 (refd)

Harris v Taylor [1915] 2 KB 580 (distd)

Henry v Geoprosco International Ltd [1976] QB 726; [1975] 2 All ER 702 (distd)

Lobb Partnership Ltd v Aintree Racecourse Co Ltd [2000] BLR 65; 69 CLR 79 (refd)

Manningham City Council v Dura (Australia) Constructions Pty Ltd [1999] 3 VR 13; [1999] VSCA 158 (refd)

NV Daarnhouwer & Co, Handelmaatschappij v Boulos [1968] 2 Lloyd's Rep 259 (refd)

Philip Alexander Securities & Futures Ltd v Bamberger [1997] ILPr 73; [1996] CLC 1757; [1997] Eu LR 63; The Times (22 July 1996) (refd)

Sennar (No 2), The [1985] 1 WLR 490; [1985] 1 Lloyd's Rep 521; [1985] 2 All ER 104 (refd)

Sokana Industries Inc v Freyre & Co Inc [1994] 2 Lloyd's Rep 57 (distd)

Tang Hsiu Lan, a bankrupt, Official Assignee of the estate of v Pua Ai Seok [2001] 1 SLR (R) 656; [2001] 2 SLR 436 (refd)

Tracomin SA v Sudan Oil Seeds Co Ltd [1983] 3 All ER 137; [1983] 2 Lloyd's Rep 384 (refd)

Westfal-Larsen & Co A/S v Ikerigi Compania Naviera SA, The Messiniaki Bergen [1983] 1 All ER 382; [1983] 1 Lloyd's Rep 424 (refd)

Williams & Glyn's Bank plc v Astro Dinamico Compania Naviera SA [1984] 1 WLR 438; [1984] 1 Lloyd's Rep 453; [1984] 1 All ER 760 (distd)

World Pride Shipping Ltd v Daüchi Chuo Kisen Kaisha, The Golden Anne [1984] 2 Lloyd's Rep 489 (refd)

International Arbitration Act (Cap 143A, 1995 Rev Ed) ss 2, 12 (6) (consd);ss 4, 12 (1)

Rules of Court (Cap 322, R 5, 1997 Rev Ed) O 69A r 3 (3) (consd)

Arbitration Act 1950 (c 27) (UK) s 32

Arbitration Act No 11 of 1995 (Sri Lanka) ss 5, 50 (1)

V K Rajah and Aurill Kam (Rajah & Tann) for the plaintiff

Vinodh Coomaraswamy and Pradeep Pillai (Shook Lin & Bok) for the defendant.

Judgment reserved.

Lee Seiu Kin JC

1 The plaintiffs are a company incorporated in Singapore. The defendants are the national association for cricket in Sri Lanka constituted pursuant to the Sri Lankan Sports Law No 25 of 1973. The legal personality of the defendants was initially the subject of some dispute. The defendants had alleged that they were not a body corporate and did not have the capacity to be sued. However they eventually withdrew this preliminary objection on a without prejudice basis and that question is no longer in issue before me.

2 On 29 October 2001, on the plaintiffs' ex parte application under s 12 (6) of the International Arbitration Act (Cap 143A, 1995 Ed) (“the Act”), I made a number of interim orders of which the first two were the substantial ones. These are, respectively, a prohibitive injunction restraining the defendants from dealing with the subject-matter of the dispute with any third party, and an anti-suit injunction restraining the defendants from proceeding with an action they had commenced in the High Court of the Western Province of Holden in Colombo, Sri Lanka (“the Colombo...