Zecha Adam Cornell Lauw Roberts v CSI Sports Network Pte Ltd

• Judge: Hairul Hakkim
• Judgment Date: 30 October 2020
• Neutral Citation: [2020] SGDC 243
• Citation: [2020] SGDC 243
• Court: District Court (Singapore)
• Published date: 05 November 2020
• Docket Number: Suit No 186 of 2020 (District Summons No 727 of 2020)
• Plaintiff Counsel: Edmond Pereira and Jessica Cheung Shu Jia (Edmond Pereira Law Corporation)
• Defendant Counsel: Lim Ker Sheon and Zeng Hanyi (Characterist LLC)
• Subject Matter: Conflict of Laws,Choice of jurisdiction,Multi-jurisdictional,Exclusive or non-exclusive,Strong cause,Contract Law,Contractual terms,Express terms
• Hearing Date: 02 October 2020,28 August 2020

Deputy Registrar Hairul Hakkim: Introduction

This was an application by the defendant to stay the proceedings in DC/DC 186/2020 (“the Suit”) on the primary ground that the Suit was brought in breach of an agreed jurisdiction clause.

After I ordered the matter to be stayed, the plaintiff appealed against my decision. I now give my written grounds of decision.

Relevant facts and procedural history

The plaintiff and defendant were parties to a contract of service dated 27 September 2013 (“the Agreement”) under which the defendant had engaged the plaintiff as an exclusive full-time consultant with the title “Managing Director, Asia Pacific”. Subsequently, certain disputes arose between the parties. The details of the precise disputes are however not germane to the issues at hand.

Before me, the parties agreed that the governing contract for these disputes was the Agreement, which contained the following choice of law and jurisdiction clause (“the Jurisdiction Clause”): V. Jurisdiction

This Agreement shall be governed by, and construed in accordance with, the laws of (1) the State of New York without regard to conflicts of law principles if an action is initiated in New York; or (2) England if an action is initiated in England, or (3) Singapore if an action is initiated in Singapore. Any disputes under this Agreement shall be brought in the (1) state courts and/or federal courts located in New York county, New York, and the Parties hereby consent to the exclusive personal jurisdiction and venue of these courts, if an action is filed in New York; or (2) courts of England if an action is filed by either party in England or (3) courts of Singapore if an action is filed by either party in Singapore.

It was also not in dispute that on 20 December 2019, the defendant had commenced a suit against the plaintiff in the Supreme Court of the State of New York, County of New York (“the New York Action”). In the New York Action, the defendant alleges breaches of the plaintiff’s obligations under the Agreement and claims among other things, that: the plaintiff granted, without the defendant’s knowledge or consent, a significant discount on fees and other discounts owed to the defendant by one of its Indonesian client; and in breach of the plaintiff’s obligation to work exclusively full-time with the Defendant, the plaintiff had worked on other projects during the contractual term of his engagement with the defendant without seeking the defendant’s approval.

On 17 January 2020, the plaintiff filed the present proceedings in the Suit against the defendant, claiming, among other things, unpaid remuneration and commission.

Parties’ argument

The defendant argued that the Suit should be stayed on account of either the Jurisdiction Clause and/or grounds of forum non conveniens.

The plaintiff argued that the Jurisdiction Clause was unenforceable and in any event, the Jurisdiction Clause was not exclusive and did not apply on the facts of the case to bar the Suit. In the alternative, the plaintiff contended that it was able to demonstrate strong cause to depart from the Jurisdiction Clause. The plaintiff also argued that Singapore was the more appropriate forum for the trial of the Suit.

The issues

Based on the parties’ submissions, the following issues arose for my consideration: first, whether the Jurisdiction Clause was enforceable; second, if the answer to the first issue was in the affirmative, whether strong cause could be shown to refuse a stay; and third, whether the Suit should be stayed on the grounds of forum non conveniens.

Application to the facts Whether the Jurisdiction Clause was enforceable

In deciding whether the Jurisdiction Clause was enforceable, this issue is to be determined according to the governing law of the Agreement (see The “Jian He” [1999] 3 SLR(R) 4324 (“Jian He”) at [10]). While it was not clear before me what was the governing law of the Agreement, in the absence of any affidavit evidence before me to show that the laws under either New York or English law or any other jurisdiction for that matter was different from Singapore law, I approached the issue on the basis of Singapore law only (see also Jian He at [10]).

Here, I am guided by the Court of Appeal’s recent decision in Shanghai Turbo Enterprises Ltd v Liu Ming [2019] 1 SLR 779 (“Shanghai Turbo”) where the clause in question read as follows:

Governing law

This Agreement shall be governed by the laws of Singapore/or People’s Republic of China and each of the parties hereto submits to the non-exclusive jurisdiction of the Courts of Singapore/or People’s Republic of China.

In summary, the Court of Appeal in Shanghai Turbo held that the first part of the clause (ie, the choice of law) was invalid but could be severed from the second part of the clause (ie, the choice of forum) as the choice of forum was not parasitic on the choice of law (at [55] and [64]). I reproduce below the material parts of the Court of Appeal’s reasoning in Shanghai Turbo (at [64]):

… Clause 17 of the Service Agreement related to both the choice of law and the choice of jurisdiction. But the two were not expressed to be interdependent, unlike the clause in The Iran Vojdan, where Iranian / German / English law was expressly paired with the Iranian / German / English courts respectively. This was a decisive factor in Bingham J’s decision. Indeed, he intimated that he would have upheld the clause if the choice of law options and the choice of jurisdiction options had been “expressed in the clause as separate options”. Bingham J also said at 385 col 2 that it is: … the duty of the Court to give a sensible meaning so far as possible to what the parties have agreed and not readily to reject the text of an agreement between the parties as unintelligible.

We agreed. It was possible to give cl 17 a sensible meaning by excising its first half (the words “This Agreement shall be governed by the laws of Singapore/or People’s Republic of China and”). Like the clause in The Frank Pais, the two parts of cl 17 did not “hang together”. They were connected only by the word “and”. The Judge thought this showed that the two parts of the clause were “intimately linked” (GD at [46]). We respectfully disagree. The word “and” was merely conjunctive; it did not convey any interdependence or contingency. Nothing in cl 17 made the choice of jurisdiction parasitic...