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  • The "Eastern Trust"[1994] 2 SLR 526; [1994] SGHC 148
    Apurva were an Indian state shipping company with a registered office in Bombay at p 178 The actions arose as a result of a collision between the Vishva Apurva and a Greek ship in the Suez Canal The bills of lading upon which the actions were founded concerned a voyage from various European ports to various ports in India The bills of lading provided expressly that any disputes should be litigated in Indian courts and should be governed by Indian law Numerous actions had been commenced in India prior to the commencement of the respondents actions in Singapore and in fact all the respondents except for the holders of two bills of lading in Admiralty in Rem No 232 of 1988 had also commenced actions in the Bombay High Court against the appellants claiming the same relief as in the Singapore actions There was absolutely no connection with Singapore save that a vessel owned by the appellants which was not involved in the collision was arrested by the respondents in Singapore As was pointed out by the Court of Appeal at pp 187 and 188 The cargo was being carried to Indian ports on an Indian ship by Indian shipowners under contracts of carriage governed by Indian law It was highly probable that the risk and title to the cargo lay not with the European exporters but with the Indian importers and their insurers We agreed with counsel s contention that the real plaintiffs were in all likelihood the consignees in India T here was no suggestion whatever that the Indian consignees did not know that the goods were being shipped on one of the defendants vessels We find it ironical that in these circumstances the Indian consignees or their Indian insurers should now complain that it was unjust to them that they should have to litigate with the appellants in India 14 Based on such a fact situation it is not surprising that the Court of Appeal required the respondents to show a very strong cause indeed before refusing a stay I do not think the Court of Appeal purported or intended to lay down a new test which should be applied to all cases where an exclusive jurisdiction clause is present In my view the court was merely applying the general test as set out in Amerco Timbers and at pp 179 and 180 of the judgment of the Court of Appeal in The Vishva Apurva However the court also took the view that on the facts of that case it was necessary for the plaintiff to show that the circumstances were so exceptional as to lead to the conclusion that he would be effectively deprived of his day in court in the contractual forum before it would find that a strong enough cause to resist a stay had been established 15 Support for this view may be derived from The Vishva Apurva itself where the Court of Appeal clearly considered each of the factors raised by the parties for and against a stay in order to decide whether exceptional circumstances had been shown by the respondents Further support may be found in the judgment of the United States Supreme Court in the case of Zapata Off Shore Co v The Bremen and Unterweser Reederei GmbH That case concerned a contract to tow an ocean going self elevating drilling rig owned by the plaintiff from Louisiana in the United States to Ravenna in Italy The plaintiff solicited for bids for the contract and the defendant was the lowest bidder The plaintiff asked the defendant to submit a contract which it did The contract contained a clause providing that all disputes under the contract should be resolved before the High Court in England After reviewing the contract the plaintiff made several changes but left the jurisdiction clause intact The parties then entered into the contract as amended by the plaintiff The drilling rig was damaged in the Gulf of Mexico whilst being towed by the defendant s tug from Louisiana to Ravenna The plaintiff then commenced an action in breach of the jurisdiction clause in the United States District Court in Florida against the defendant seeking US 3 500 000 damages An application by the defendant to stay the action based on the jurisdiction clause failed before the United States District Court and the appeal against this decision was dismissed by the Court of Appeals The matter then came before the United States Supreme Court The record before the court contained an affidavit deposed to by the managing director of the defendant claiming that the defendant considered the choice of forum clause to be of overriding importance and that the English High Court had been proposed by the defendant in an effort to meet the plaintiff halfway It was also alleged that the defendant would not have entered into the towage contract if the jurisdiction clause had not been accepted by the plaintiff On these facts Burger CJ who delivered the majority judgment of the court Douglas J dissenting said We are not here dealing with an agreement between two Americans to resolve their essentially local disputes in a remote alien forum In such a case the serious inconvenience of the contractual forum to one or both of the parties might carry greater weight in determining the reasonableness of the forum clause The remoteness of the forum might suggest that the agreement was an adhesive one or that the parties did not have the particular controversy in mind when they made their agreement yet even there the party claiming should bear a heavy burden of proof This case however involves a freely negotiated international commercial transaction between a German and an American corporation for towage of a vessel from the Gulf of Mexico to the Adriatic Sea As noted selection of a London forum was clearly a reasonable effort to bring vital certainty to this international transaction and to provide a neutral forum experienced and capable in the resolution of admiralty litigation Whatever inconvenience Zapata would suffer by being forced to litigate in the contractual forum as it agreed to do was clearly foreseeable at the time of contracting In such circumstances it should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court Absent that there is no basis for concluding that it would be unfair unjust or unreasonable to hold that party to his bargain Emphasis added 16 In my judgment therefore it is not necessary for the plaintiff to show in every case that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court Such exceptional circumstances may have to be shown in cases where it is clear that the clause governing the contractual forum was an essential term of a freely negotiated contract as was the case in Zapata Off Shore Co v The Bremen and Unterweser Reederei GmbH Similarly if the case is one that cries out to be tried in the contractual forum apart from any jurisdiction clause as was the case in The Vishva Apurva then very exceptional circumstances indeed will have to shown How exceptional the circumstances must be in each particular case will turn on the facts of that case It is always a question of fact and degree 17 The court will consider all relevant circumstances of each particular case before deciding whether a strong cause for a stay exists In coming to a decision the court will take a cumulative approach and give each circumstance due weight A single circumstance may not by itself be sufficient to justify refusing a stay However taken together the circumstances may be found to be sufficiently exceptional Conversely a single circumstance which by itself would be sufficient to warrant refusing a stay may be off set to by another circumstance such an extent that on balance a stay should be granted 18 It should be noted that when considering the circumstances the court will not give much weight to any substantive or adjectival legal disadvantages or advantages that the plaintiff may be subjected to or obtain if the action is stayed or not as the case may be I agree fully with the following passage from the judgment of Kan Ting Chiu JC as he then was in the case of Owners of Cargo Lately Laden on Board the Ship or Vessel Humulesti v Owners of and Other Persons Interested in the Ship or Vessel Humulesti where he said at p 16 I am also of the view that we must be very careful in acting on any lost juridical advantage or inferring that any foreign system is inferior to our own especially when counsel point to one or two points of difference in their clients favour without attempting a comprehensive or balanced comparison I agree with Brandon LJ as he then was when he said in The El Amria 1981 2 Lloyd s Rep 119 that It is not only invidious in the extreme to attempt comparisons between two different systems of administering justice it is in any case impossible on the hearing of a application of this kind to examine the merits and demerits of the two systems in sufficient depth to reach a conclusion that either is to be preferred to the other Parties who have agreed on a forum when goods are shipped should not lightly be allowed to change the forum when a dispute arises because where parties have agreed beforehand on the choice of jurisdiction they must be deemed to have done so with sufficient knowledge of how it works and what it can and cannot do and to accept the situation for what it is If the parties have chosen to submit their dispute to the exclusive jurisdiction of a foreign court it is difficult to see how either party can in the ordinary circumstances complain of the procedure of that court Yong Pung How J as he then was The Asian Plutus 1990 2 MLJ 63 If the jurisdiction clause is accorded real recognition rather than lip service then only very severe factors should be taken into consideration such as a paralysis of the court system the breakdown of law and order the inavailability sic of legal representation the inavailability sic of translation or interpretation services or a fundamental change in the legal system of the agreed country of jurisdiction The inability to apply for summary judgment to have pre trial discovery the lower rate of interest on judgments and the payment of court fees are not taken together sufficient to release the plaintiffs from their agreement to sue in Romania In my view all that they had shown is that their interests are better served if the claims are heard in Singapore and that is not enough 19 When parties enter into a contract that contains an exclusive jurisdiction clause they are agreeing at the very least that the substantive and adjectival law of the chosen forum should apply to any dispute Any complaint made when a dispute arises that the law of the contractual forum is procedurally deficient or substantively unsatisfactory should only be given little if any weight Circumstances relevant to the granting of a stay 20 I shall now deal with the circumstances of the present appeal which I considered to be relevant to the granting or withholding of a stay The law governing the dispute 21 Clause 3 of the bill of lading provides that the law of the country where the carrier has its principal place of business shall be applied to any dispute arising under the bill of lading subject to any other term of the bill of lading From the evidence of the defendants the principal place of business of the carrier was in Taiwan so Taiwanese law would prima facie apply It is clearly advantageous for questions of foreign law to be decided by the courts of that country and this advantage has been recognized and given due weight in numerous cases However the importance of this factor will depend to a large extent on the difference between the applicable law and Singapore law There will be no real prejudice to either party if the law of the foreign court does not differ significantly from the relevant law of Singapore As Brandon J as he then was said in The Eleftheria It is true that in The Athenée 1922 11 Ll L Rep 6 and The Fehmarn 1958 1 WLR 159 in both of which a stay was refused the circumstance that the law of the foreign country governed does not appear to have been given much weight But in those cases there was no evidence that the foreign law was different in any material respects from English law 22 On a similar question the Court of Appeal in Amerco Timbers said at p 184 There is no evidence before this court that Indonesian law differs from our law in any significant respect concerning matters relating to this claim or that there is likely to be any serious dispute on the application of Indonesian law to the issues in this case Besides there is no material to show that a Singapore court would have any difficulty in applying Indonesian law should the need arise There may be cases where complicated issues of law are likely to arise when the application of the law by a foreign court may not be desirable and at best avoided but there is no material before us to infer that this is one such case That being so we would attach little weight to this factor 23 In the present appeal there was no evidence adduced by either party as to whether and if so to what extent Taiwanese law differed from Singapore law Accordingly I did not give much weight to this factor The location of evidence and witnesses 24 Counsel for the plaintiffs made much of the fact that most of the evidence was already in Singapore or was in the People s Republic of China and that little if any was in Taiwan In this regard he referred me to the affidavit of a director of the consignees Mr Tan Kek Sing filed on 11 February 1993 and in particular to paras 4 and 5 thereof I reproduce the relevant portions 4 At the discharge port Singapore the cargo and the carrying vessel Eastern Trust were inspected during and after discharge by myself Tan Kek Sing Capt HT Lim of Integral Marine Consultants Pte Ltd as plaintiffs surveyors Mr Chan Cheow Teng for plaintiffs underwriters Mr Francis Tan of Tri Spec Services Pte Ltd as underwriters surveyors and Capt Simon Wong of SSI Marine Surveying Pte Ltd for the charterers P I Club 5 Based partly on my own knowledge and partly from information from Mr Francis Tan of Tri Spec Services Pte Ltd and Capt HT Lim of Integral Marine Consultants Pte Ltd which information I verily believe to be true I say the following a The cargo originated from the People s Republic of China PRC The shipper named on the material bill of lading is a PRC company China National Native Produce Animal By Products I E Corp of Tibet The cargo was sold to Sinre Development S Pte Ltd a Singapore company through CITEC Development Inc another PRC company b The cargo was loaded at Qingdao PRC on board Eastern Trust a vessel registered in Monrovia Liberia c The cargo was on time charter during their voyage d The Master of Eastern Trust Capt Rodolfo C Lagapa and several officers were Filipinos e The cargo was discharged at Berth No J8 Jurong Commercial Wharves Singapore and stored at Jurong Port Godown J8 and J17 Singapore f The cargo was damaged and short delivered as detailed in the statement of claim g A tender sale of the damaged cargo was carried out in Singapore by Mr Francis Tan of Tri Spec Services Pte Ltd No offers were received due to the extent of the damage The damaged cargo has been disposed of by Sinre Development S Pte Ltd by dumping the same at the Ministry of Environment dumping ground in Singapore 25 Counsel for the plaintiffs also relied on the fact that it would be very difficult for witnesses from the People s Republic of China to travel to Taiwan to give evidence while it would be easy for them to come to Singapore He based this submission on the affidavits of Mr Tan Kek Sing filed on 11 March 1993 and 22 March 1994 wherein Mr Tan stated that he believed that witnesses from the People s Republic of China would find it very difficult to travel to Taiwan based on what he had been told by a manager of a large Chinese corporation 26 In reply to these contentions counsel for the defendants relied on the following paragraphs of the affidavit of Mr Sea Strong Lee the president of the owners of the vessel and the president of Venture Marine Corporation the managers of the vessel filed on 18 October 1993 6 Further I am advised that as the sea and cargo worthiness of the vessel Eastern Trust is in issue as raised by the plaintiffs in their statement of claim filed herein it will be necessary for the defendants to adduce documentary records and evidence relating to these issues which records and evidence are kept and maintained in Taiwan in Mandarin the official language of Taiwan by the said Venture Marine Corporation 7 Apart from documentary records and evidence the technical manager of Venture Marine Corporation who will be able to give evidence in respect of the sea cargo worthiness of the said vessel in particular

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  • The "Hyundai Fortune"[2004] 4 SLR 548; [2004] SGCA 41
    applies and if so whether it differs from Singapore law in any material respects c With what country either party is connected and if so how closely d Whether the defendants genuinely desire trial in the foreign country or are only seeking procedural advantages e Whether the plaintiffs would be prejudiced by having to sue in the foreign court because they would i be deprived of security for their claim ii be unable to enforce any judgment obtained iii be faced with a time bar not applicable here or iv for political racial religious or other reasons be unlikely to get a fair trial 17 These principles were approved and adopted by numerous subsequent English cases eg The El Amria 1981 2 Lloyd s Rep 119 as well as by this court in Amerco Timbers Pte Ltd v Chatsworth Timber Corp Pte Ltd 1975 1977 SLR 258 and other later cases In The Vishva Apurva 1992 2 SLR 175 this court further reiterated the point that where the case involved an exclusive jurisdiction clause the discretion of the court should not be exercised just by balancing the conveniences Thus in dealing with this question the court should not approach it as if it were dealing with a case of forum non conveniens 18 In more recent years this court had in a trilogy of cases namely The Jian He 2000 1 SLR 8 The Hung Vuong 2 2001 3 SLR 146 and Golden Shore Transportation Pte Ltd v UCO Bank 2004 1 SLR 6 the occasion to determine how the test for a stay should be applied where there was effectively no defence to the claim 19 In The Jian He goods carried on board the vessel were wrongly delivered against a false bill of lading On 24 July 1996 the carrier was unable to deliver the goods to the rightful consignee There was an exclusive jurisdiction clause in favour of China in the bill of lading On 14 June 1997 the plaintiff instituted an action in rem It was amended on 17 July 1997 and the amended writ was served on the defendant owner on 28 August 1997 Appearance was filed the next day A year later the plaintiff applied for summary judgment The hearing of the application was twice postponed The defendant had yet to file their show cause affidavits It was only on 4 November 1998 that the defendant applied to stay all further proceedings in Singapore on the ground that there was an exclusive jurisdiction clause China had a limitation period of one year and it was then too late for the plaintiff to commence any action there The critical point which made this court decide to refuse a stay was that the defendant had no real defence to the claim and there was nothing to proceed to trial in China Following from that it held that the defendant was not really interested in a trial but was only seeking a procedural advantage as limitation had set in in China 20 In The Hung Vuong 2 a cargo of raw sugar was shipped on board The Hung Vuong 3 from Bangkok to be discharged at the main port of South China The carrier eventually delivered the cargo to a party who did not present the bill of lading The holder of the bill sued in Singapore The carrier applied to have the proceedings stayed on the ground of an exclusive jurisdiction clause It would appear that at the time limitation had not yet set in in Vietnam Again this court having ruled that there was no defence to the claim refused a stay which would only result in unnecessary delay 21 In Golden Shore Transportation Pte Ltd v UCO Bank see 18 supra it was a case of the shipowner issuing a second set of bills of lading without ensuring that the original set of bills of lading was returned The person holding the second set of bills of lading used it to obtain the cargo The original set was with the plaintiff which sued in Singapore for its loss The plaintiff did not issue a protective writ in the contractual forum ie India and the time bar had set in in that forum This notwithstanding as there was no real defence to the claim and all factors favoured an action in Singapore except for the time bar defence which had arisen in India the High Court refused a stay of the Singapore proceedings This decision was upheld on appeal by this court With reference to the time bar defence having arisen in the contractual forum it said at 52 In a case where the plaintiff could satisfactorily explain why he did not institute a protective writ in the contractual forum this factor would assist the plaintiff in establishing strong cause But if he could not this factor would not assist him However this did not mean that the plaintiff could not rely on other factors to show strong cause As for the defendant where the plaintiff could not explain the failure to institute a protective writ within time in the contractual forum the benefit to the defendant would be that the plaintiff could not rely on it Our consideration 22 It was settled law that in refusing a stay of proceedings the judge was exercising a discretion and unless it was shown that the judge had wrongly applied the law or had wrongly appreciated the facts or that her decision was plainly wrong the appellate court should not interfere in the exercise of his or her discretion see The Vishva Apurva see 17 supra at 16 23 It was clear to us that the judge had not erred in any manner She correctly set out the principle which should apply in a case of this nature ie exceptional circumstances amounting to strong cause She also held that the burden of showing such strong cause rested with the party who sought to have the action continued

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  • Citibank NA v Robert
    ordinarily not be granted unless the defendant shows strong cause Baiduri at 25 13 The underlying principle of the above scenarios is that where there is an agreement between parties as to choice of jurisdiction the court would strongly lean in favour of giving effect to the contractual bargain unless exceptional circumstances warrant otherwise see eg Golden Shore Transportation Pte Ltd v UCO Bank and another appeal 2004 1 SLR R 6 at 33 Golden Shore By inserting a jurisdiction clause the parties indicate that they regard certain jurisdictions as more appropriate forums than others Therefore where parties have agreed to litigate exclusively in Country A the balance would lie heavily in favour of finding that Country A is a more appropriate forum and the plaintiff who in breach of that brings an action in Singapore has to show strong cause why he is now reneging on the bargain Vice versa where the parties have agreed to litigate only in Singapore the defendant who wishes to obtain a stay has to convince the court that despite the agreement there is a more appropriate forum elsewhere Similarly where parties agree to litigate in either Singapore or Country A but no specific right of election is given to either party a defendant would have to explain his preference for Country A but as the defendant has not promised to litigate in Singapore and nowhere else the burden of proving a more appropriate forum exists is less onerous than in the case where an exclusive jurisdiction clause exists For the same reason where the plaintiff but not the defendant has a specific right to select Singapore or Country A as the forum the latter will have to explain why the plaintiff may not exercise his entitlement Ultimately however even though the existence of a jurisdiction clause may prima facie weigh the scales more heavily in one direction than another the court in exercising its discretion must still take into account factors relevant to the particular factual matrix The above examples are not exhaustive but they are illustrative of two points First the court upon construing the terms of agreement between parties would ordinarily give effect to those contractual intentions unless the defendant has strong cause to renege Second as endless permutations of jurisdiction clauses are possible and limited only by the ingenuity of the draftsman each jurisdiction clause has to be construed carefully to determine the precise ambit of the agreement between parties 14 In Baiduri I made a distinction between different types of jurisdiction clauses and the considerations that are pertinent in deciding whether or not a stay ought to be granted when sought on the grounds of forum non conveniens The plaintiff relied heavily on that case and its categorisation of types of jurisdiction clauses in its argument that the strong cause case should apply in situations such as the present where according to its characterisation of cl 13 a semi exclusive jurisdiction clause exists I would state however that my decision in that case should not be construed as standing for the proposition that jurisdiction clauses ought to be pigeonholed into categories with different tests applicable for each Rather different factual circumstances may call for an application of different principles and approaches Baiduri at 7 and it would be futile to attempt to exhaustively categorise each scenario Rather the basic principle is that in cases involving jurisdiction clauses a party should prima facie be held to his contractual commitment and has to show exceptional circumstances amounting to strong cause why the court should exercise its discretion in his favour and assist him in breaching his promise to bring the action in the contractual forum Golden Shore at 33 The court has to carefully construe what promises parties have made The test not dissimilar to that set out in Spiliada but heavily weighted against the party attempting to breach its obligation 15 Summarising the above when a stay is sought on the grounds of forum non conveniens the Spiliada principles summarised in CIMB would ordinarily apply However where a jurisdiction clause exists the court has to examine such carefully and construe the ambit of what was agreed to between parties The clause will ordinarily weigh heavily in favour of the party seeking to uphold the agreement However that does not preclude the grant of a stay where strong cause against enforcing the agreement is shown Application 16 Clause 13 of the Guaranty provides 13 This Guaranty shall be governed by and interpreted in accordance with the laws of the State of New York without prejudice to or limitation of any other rights or remedies available to the Bank under the laws of any other jurisdiction For the above purpose the undersigned irrevocably consents to any New York state or United States federal court located in New York City and hereby irrevocably submits to the non exclusive jurisdiction of the aforesaid courts The undersigned upon request of the Bank irrevocably designates appoints and empowers an entity or person acceptable to the Bank and having an address in New York as its agent to receive for and on its behalf service of process in New York in any legal action or proceeding with respect to this Guaranty The foregoing however shall not limit the right of the Bank to serve process in any other manner permitted by law or to commence any legal action or proceeding in any appropriate jurisdiction including without limitation the Republic of Indonesia For this purpose the undersigned elects general and permanent domicile at the clerk s office of the district Court in South Jakarta Without limiting the foregoing the undersigned agrees that the Bank may at its option submit any dispute to any other District Court or to District Court where the undersigned s Deed of Establishment is registered or to any court in Indonesia or elsewhere having jurisdiction over the undersigned assets emphasis added As the Guaranty is governed by New York law cl 13 has to

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  • Orchard Capital I Ltd v Ravindra Kumar Jhunjhunwala
    the present appeal in accordance with the two stages enunciated in Spiliada and consistent with the terminology adopted in CIMB Bank will refer to each stage as stage one of the Spiliada test and stage two of the Spiliada test respectively 13 The thrust of the Appellant s case was that the Clause in and of itself did not suffice in discharging the Respondent s burden of proving that Hong Kong is a distinctly more appropriate forum As a corollary to this argument the Appellant contended that the Judge had erred in concluding that the parties had selected Hong Kong as the appropriate forum In advancing this contention the Appellant focused on the purported nature of the Clause which was non exclusive The Appellant contended that the Clause only demonstrates that Hong Kong is an appropriate forum while parties are at liberty to commence proceedings in other forums Towards this end the Appellant relied upon both local and foreign case law as well as academic literature The main authorities and literature cited by the Appellant as well as the Appellant s arguments founded upon them are summarised below 14 The Appellant first cited the Singapore High Court decision of OCBC Capital Investment Asia Ltd v Wong Hua Choon 2010 4 SLR 904 OCBC Capital where the parties entered into an agreement containing a non exclusive jurisdiction clause clause 9 5 which read as follows see OCBC Capital at 14 a This Agreement and the rights and duties of the parties hereunder shall be governed by and construed and interpreted in accordance with the laws of Malaysia and in relation to any legal action or proceedings arising out of or in connection with this Agreement Proceedings the parties irrevocably submits sic to the non exclusive jurisdiction of the courts of Malaysia and waive any objections to Proceedings in any court on the grounds that the Proceedings have been brought in an inconvenient forum b Such submission shall however not affect the right of OCIA to take Proceedings in any other jurisdiction nor shall the taking of Proceedings in any jurisdiction preclude OCIA from taking Proceedings in any other jurisdiction and OCIA shall be at liberty to initiate and take actions or Proceedings or otherwise against the defendant in Malaysia and or elsewhere as OCIA may deem fit In response to proceedings brought under this agreement the defendant in that case applied for a stay of proceedings on the ground of forum non conveniens One of the issues that the court had to consider was the effect of the non exclusive jurisdiction clause ie clause 9 5 The court held that on a plain reading of clause 9 5 b above the plaintiff ie OCIA could commence proceedings in any other jurisdiction see OCBC Capital at 16 In relation to clause 9 5 a the court interpreted the portion of the clause concerning a waiver of any objections to proceedings on the ground of forum non conveniens as applying to only proceedings in Malaysia see OCBC Capital at 21 Accordingly the usual principles governing applications for a stay of proceedings on the ground of forum non conveniens see above at 12 were applicable In the course of applying the principles in Spiliada the court had to consider the role of the non exclusive jurisdiction clause The court cited several decisions which took the view that the effect of a non exclusive jurisdiction clause was that the parties could not argue that the selected non exclusive forum was inappropriate see OCBC Capital at 41 43 In the court s view therefore the legal consequence of the non exclusive jurisdiction clause was that the selected forum was an appropriate forum In the final analysis however the court considered that the defendant had not discharged his burden of proving that another forum was clearly or distinctly more appropriate than Singapore see OCBC Capital at 49 15 The Appellant next relied upon the treatise by Prof Adrian Briggs Agreements on Jurisdiction and Choice of Law Oxford University Press 2008 Briggs in which the learned author summarised the various interpretations of non exclusive jurisdiction clauses as follows at para 4 20 Suppose for example that the parties agree that the courts of Ruritania are to have non exclusive jurisdiction and say no more about it than that There are in fact several ways to interpret their agreement They may have agreed 1 that either side may seise the nominated court but that the freedom of the other to seise any other court or courts is unrestricted or 2 that either side may seise the nominated court and once this is done making it the first court to be seised the jurisdiction of that court becomes exclusive or 3 that either side may institute proceedings in any court but if either party then seises the nominated court any proceedings in the first court will be discontinued and the defendant will appear and defend in the nominated court The Appellant not surprisingly contended that only the first interpretation stated above was applicable on the facts of this case as neither party had instituted proceedings in Hong Kong the nominated forum Hence it was argued that the Clause did not limit the Appellant s right to commence proceedings in Singapore 16 The Appellant also relied on the Hong Kong Court of Appeal decision of Noble Power Investments Ltd v Nissei Stomach Tokyo Co Ltd 2008 5 HKLRD 632 Noble the salient facts of which are as follows The first plaintiff in Noble was a company registered in the British Virgin Islands whilst the second plaintiff and the defendant were entities registered in Japan The parties entered into an agreement known as a Cooperation Agreement Disputes subsequently arose when the defendant informed the second plaintiff that it was repudiating its obligations under the Cooperation Agreement The plaintiffs accepted the repudiation and claimed damages from the defendant by commencing action via a writ However leave of court was required to serve the writ upon the defendant as it was a Japanese company The defendant objected to the grant of such leave on the basis of forum non conveniens In the course of adjudication the court had to consider the effect of a non exclusive jurisdiction clause contained within the Cooperation Agreement which read as follows 27 1 This Agreement shall be construed and governed in accordance with the laws of Hong Kong and the parties hereto submit to the non exclusive jurisdiction of the courts of Hong Kong 27 4 Nothing contained in this Clause shall limit the right of any party to take any suit action or proceedings arising under this Agreement against the other parties in any other court of competent jurisdiction nor shall the taking of any suit action or proceedings arising under this Agreement in any one or more jurisdictions preclude the taking of any suit action or proceedings arising under this Agreement in any other jurisdiction whether concurrently or not to the extent permitted by the law of that jurisdiction The court in Noble considered the effect of non exclusive jurisdiction clauses at some length as follows at 31 33 31 In considering the effect of a non exclusive jurisdiction clause it is critical to recognize that there are differences in approach depending upon where proceedings have been instituted Where proceedings are instituted in the named forum to which the parties have agreed to submit the party who seeks a stay or otherwise to contest the jurisdiction or appropriateness of that forum has a very heavy burden to discharge since that party has by definition agreed contractually to submit to the jurisdiction In other words he is seeking to avoid a forum to which he has by contract agreed to submit The extent of this burden is discussed below 32 Where however proceedings are instituted in a forum other than the identified one an altogether different approach may be required Here much depends on the precise wording of the clause in question If the other forum is one to which the parties have also agreed to submit in the event of their being sued it may be that there is little difference between the two situations Where however as is more common the other forum is merely one in which proceedings can be instituted without any obligation on the party sued actually to submit to that forum the approach is different The party who then seeks to contest the jurisdiction or appropriateness of that forum is in a better position so to do compared with the situation articulated in the previous paragraph simply because he would not be seeking to avoid a forum to which he has contractually agreed to submit 33 Some simple illustrations to summarize the foregoing propositions might assist 1 A sues B in Hong Kong Hong Kong is named as a non exclusive jurisdiction to which the parties have agreed to submit in the event of their being sued The burden on B if he contests the appropriateness of the Hong Kong courts is a heavy one 2 A sues B in Hong Kong Hong Kong is on this occasion not named as a jurisdiction but the courts of say Japan are named as the non exclusive jurisdiction However on a true construction of the relevant clause the parties have nevertheless agreed to submit to the jurisdiction of the courts of any other forum which would include Hong Kong in the event of their being sued there Again in view of the agreement actually to submit the burden on B is also a heavy one 3 A sues B in Hong Kong Again Hong Kong is not named as the non exclusive jurisdiction but the courts of Japan are However this time the parties have not agreed to submit to any jurisdiction other than the Japanese courts In other words while the parties have agreed to submit to Japanese jurisdiction in the event that they are sued there and while they have also agreed that they are at liberty to institute proceedings in a jurisdiction other than Japan no positive obligation exists for a party to submit to any jurisdiction other than Japan Here the burden on B is less heavy emphasis in original As alluded to earlier in this paragraph the procedural context in Noble an application to set aside the leave that had been granted to the plaintiffs for the service of a writ out of jurisdiction is different from the context of the present appeal an application for a stay of proceedings Hence while the outcome in Noble might not be relevant the court s comments at 31 33 as reproduced above are relevant insofar as they explain the general effect of non exclusive jurisdiction clauses 17 At the hearing before this court the Appellant repeated in substance its arguments made in the court below viz that the Clause does not preclude commencement of proceedings in Singapore and that the Respondent bears the burden of proving that Hong Kong is a clearly or distinctly more appropriate forum based upon the illustration stated at 33 3 of Noble as reproduced in the preceding paragraph The Respondent s arguments 18 The Respondent not surprisingly supported the Judge s views above at 10 and took the position that by virtue of the Clause the parties had submitted to the non exclusive jurisdiction of the courts of Hong Kong This factor it was submitted tilted the balance in favour of the Respondent in the application of the Spiliada test see above at 12 19 The Respondent also attempted to argue that the court should also take cognisance of the fact that parties had agreed inter alia to waive all rights to a trial by jury above at 8 As such the parties had by implication agreed to resolve all matters in a jurisdiction which allows trial by jury This issue is addressed shortly below at 29 20 In addition to contending that the Clause operated in favour of the Respondent the Respondent also submitted that there were a myriad of factors which indicated that Singapore was not an appropriate forum for the matter to be heard First of all the Respondent pointed out that the only factor connecting this case with Singapore is the fact that the Respondent resides in Singapore Secondly there is no evidence to suggest that he has any assets or properties locally Thirdly the Respondent highlighted that the Three Contracts as well as the Agreement were neither executed nor performed in Singapore Our decision 21 We will begin by considering as a preliminary matter the legal effect of a non exclusive jurisdiction clause We will then apply the Spiliada principles to the facts before us What is the legal effect of a non exclusive jurisdiction clause 22 As already mentioned the first port of call is the article by Prof Yeo cited above at 3 However it discusses a great many issues not all of which are germane to the present appeal In so far as the issues discussed including those relevant to the present appeal are concerned the analysis is complex in the main because the issues themselves are complex many of which have not been the subject of direct legal precedent as well We hope that we will not be doing a disservice to the article by distilling what is relevant in the context of the present appeal One reason for doing so is because as we shall elaborate upon in a moment one of the central strands whilst posing many hitherto unresolved legal questions and even conundrums can as alluded to at the outset of this judgment be addressed relatively easily on the facts of the present appeal hence there is no need to canvass the various issues arising from this particular strand in the detail that we might otherwise have had to 23 At the risk of oversimplifying the erudite analysis by Prof Yeo it appears to us that at least in so far as non exclusive jurisdiction clauses are concerned there are two central strands of analysis 24 The first central strand is contractual in nature Put simply depending on the intention of the parties concerned a non exclusive jurisdiction clause could taken at its highest be given the effect of an exclusive jurisdiction clause in which case strong cause would be required to be demonstrated by the party seeking to sue in a jurisdiction other than that stated in the relevant clause itself in this case the Appellant Such effect may for instance be given where it would be a breach of the non exclusive jurisdiction clause to object to the exercise of jurisdiction by the selected forum given the wording of the clause and the circumstances However a possible critique of such an approach is that on occasion at least the distinction between non exclusive jurisdiction clauses and exclusive jurisdiction clauses will be blurred if not effaced Prof Yeo frankly admits this see Yeo at 359 where Prof Yeo explains that the consequence of this contractual analysis is that there is no theoretical distinction between these two types of clauses Such a result runs of course counter to the Appellant s view as briefly noted above at 13 and perhaps is also not entirely consistent with the approach taken by the courts in OCBC Capital and Noble On the other hand as Prof Yeo argues such an approach is a principled one One can appreciate the persuasiveness of such an argument especially if one has regard to the substance as opposed to the mere form of the contractual arrangement entered into by the parties Further as just noted the result is by no means a forgone one if strong cause can in fact be demonstrated by the party seeking to act in breach of the clause itself 25 The second central strand is general in nature Put simply a non exclusive jurisdiction clause is a factor in all cases in ascertaining whether or not the action concerned ought to be stayed pursuant to the principles first laid down in the seminal House of Lords decision of Spiliada see 12 above although according to Prof Yeo its qualitative strength as a factor will differ depending on the precise circumstances before the court We will in fact return to these principles later see below especially at 31 As Prof Yeo correctly emphasises this second central strand is separate and distinct from the first inasmuch as it is not premised on the contractual intention of the parties as such see Yeo at 350 and 351 26 The parties arguments centred in substance on the second central strand although it was possible in our view for the parties in particular the Respondent to have canvassed arguments centring on the first as well However as we have already observed the various arguments in this last mentioned regard ie with respect to the first central strand which is contractual in nature are by no means clear and are clearly complex at least for the most part see generally Yeo at 336 353 When for example can there be an agreement in the context of a non exclusive jurisdiction clause to waive objection to jurisdiction see for example clause 9 5 a in OCBC Capital see above at 14 and if so ought a narrow or a broad approach to such waiver be adopted see Yeo at 341 344 To take another issue can it be implied from the non exclusive jurisdiction clause concerned that there has been an undertaking by the parties that the jurisdiction mentioned in that clause is the most appropriate forum so that it would be a breach of contract for one of the parties to argue that any other court other than the chosen court should adjudicate on the substantive issues between the parties see Yeo at 345 347 These are just a couple of a number of issues that could arise for consideration by

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  • Bank of America National Trust & Savings Association v Djoni Widjaja[1994] 2 SLR 816; [1994] SGCA 89
    action but the application was unsuccessful The plaintiffs attorney in Texas commenced a pre trial discovery and the date for the trial was fixed In the meanwhile SNIA applied to the High Court in Brunei for an order restraining the plaintiffs from continuing the prosecution of the Texas proceedings The application was dismissed and SNIA appealed In the course of the hearing of the appeal the plaintiffs gave the following undertakings to SNIA namely that the trial in Texas would be before a judge without a jury that the law applicable would be the law of Brunei and that no claim would be made against SNIA either in consequence of strict liability or for punitive damages In turn SNIA gave certain undertakings to the plaintiffs with reference to the Texas proceedings Furthermore at about that time a contribution notice was served on the Malaysian company by SNIA The Malaysian company intimated that it would accept service of a third party notice issued by SNIA in Brunei but that it would not submit to the jurisdiction in Texas as it was not carrying on business there The Court of Appeal in Brunei dismissed the appeal by SNIA But on further appeal the Privy Council allowed it It was held inter alia that the court in Brunei and not Texas was the natural forum for the dispute and that having regard to all the relevant circumstances it would be oppressive for the plaintiffs to continue the action in Texas because of the injustice to SNIA in not being able to claim in those proceedings an indemnity or contribution against the Malaysian company and that in view of the undertakings given by the plaintiffs no injustice would be caused to the plaintiffs by being restrained from continuing the proceedings in Texas 11 In coming to this conclusion the Privy Council restated and clarified the principles of law governing the grant of an injunction restraining a party from pursuing foreign proceedings Lord Goff of Chieveley who delivered the judgment of the Board first identified four basic principles which according to him are beyond dispute He said at p 892 The law relating to injunctions restraining a party from commencing or pursuing legal proceedings in a foreign jurisdiction has a long history stretching back at least as far as the early 19th century From an early stage certain basic principles emerged which are now beyond dispute First the jurisdiction is to be exercised when the ends of justice require it see Bushby v Munday 1821 5 Madd 297 at p 307 per Sir John Leach VC Carron Iron Co v Maclaren 1855 5 HL Cas 416 at p 453 per Lord St Leonards This fundamental principle has been reasserted in recent years notably by Lord Scarman in Castanho v Brown Root UK Ltd 1981 AC 557 and by Lord Diplock in British Airways Board v Laker Airways Ltd 1985 AC 58 at p 81 Second where the court decides to grant an injunction restraining proceedings in a foreign court its order is directed not against the foreign court but against the parties so proceeding or threatening to proceed Third it follows that an injunction will only be issued restraining a party who is amenable to the jurisdiction of the court against whom an injunction will be an effective remedy see eg Re North Carolina Estate Co Ltd 1889 5 TLR 328 per Chitty J Fourth it has been emphasized on many occasions that since such an order indirectly affects the foreign court the jurisdiction is one which must be exercised with caution See eg Cohen v Rothfield 1919 1 KB 410 at p 413 per Scrutton LJ and in more recent times Castanho v Brown Root UK Ltd 1981 AC 557 at p 573 per Lord Scarman 12 His Lordship next went on to consider a series of cases and opined that the principles applicable to a stay of proceedings on the ground of forum non conveniens and a grant of injunction to restrain foreign proceedings are not the same His Lordship said at p 895 where the parties are in dispute on the point whether the action should proceed in an English or a foreign court the English court would be prepared not merely to decline to adjudicate by granting a stay of proceedings on the ground that the English court was forum non conveniens but if it concluded that England was the natural forum to restrain a party from proceeding in the foreign court on the ground alone Their Lordships cannot think that this is right Not only does it conflict with the observation of Brett MR in Hyman v Helm 24 Ch D 531 at p 537 referred to above but it leads to the conclusion that in a case where there is simply a difference of view between the English court and the foreign court as to which is the natural forum the English court can arrogate to itself by the grant of an injunction the power to resolve that dispute W ith all respect such a conclusion appears to their Lordships to be inconsistent with comity and indeed to disregard the fundamental requirement that an injunction will only be granted where the ends of justice so require Furthermore if it were right it would lead to the remarkable conclusion that in a case such as MacShannon v Rockware Glass Ltd 1978 AC 795 the Scottish court having concluded that Scotland was the natural forum for the trial of the action might for that reason alone grant an interdict restraining the plaintiffs from proceeding in England 13 His Lordship further said that after examining the American authorities his Lordship could find no trace of any suggestion that the principles applicable in cases of stay of proceedings and in cases of injunctions are the same 14 In that case the court in Brunei was found to be the natural forum for the adjudication of the dispute But that alone was held not

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  • John Reginald Stott Kirkham and Others v Trane US Inc and Others[2009] 4 SLR 428; [2009] SGCA 32
    application was allowed by the Judge subject to the usual undertaking as to damages for the following reasons see the GD at 37 44 a In determining whether an anti suit injunction should be granted the natural and proper forum was one of the factors to consider Koh Kay Yew v Inno Pacific Holdings Ltd 1997 3 SLR 121 Koh Kay Yew at 18 19 quoted in the GD at 37 Once the issue of the natural forum had been considered the court should take into account all the relevant circumstances in the case and consider the injustice each party might suffer in determining whether the injunction should be granted or not Koh Kay Yew at 19 The injustice to each party would be the main consideration in determining whether or not the proceedings in the foreign court were vexatious or oppressive at 19 Should the court then come to the conclusion that the foreign proceedings were indeed vexatious or oppressive the court should exercise its discretion to grant an injunction restraining the party who had commenced the foreign proceedings from continuing with it at 19 b The Appellants had submitted a formidable list of connecting factors seemingly pointing to Indonesia as the natural forum for trying this dispute the GD at 39 These included the fact that the subject of the dispute related to things done in Indonesia the Respondents were foreign companies not incorporated in Singapore while the Third Appellant was an Indonesian company the majority of witnesses and relevant documents were likely to be located in Indonesia there was no express choice of law governing the distributorship arrangements of the Third Appellant and since the place of performance was Indonesia the governing law should be that of Indonesia the Appellants claims in the Indonesian Action were in tort and the general rule was that the place where the tort occurred was the natural forum no dispute arose from the three documents and therefore the relevant clauses there on the governing law being Singapore law and the non exclusive choice of jurisdiction being Singapore were irrelevant the three documents were merely background facts and there were no connecting factors to Singapore besides the fact that the First Appellant is a Singapore citizen and the Second Appellant is a Singapore company at 39 c However it could be said that the three documents were significantly connected to the claims of the Second Appellant and the Third Appellant The Judge stated at 40 W hen one examines the factual matrix in which the Second Appellant and the Third Appellant launched their claims the three documents are inextricably linked to their claims They are not merely backdrop issues but are integral to understanding and determining the relationships of the different parties involved The court looking at these agreements would have to construe their proper meaning and effect and decide whether or not they could conceivably give life to any other legal rights not residing in these agreements before considering the factual evidence relating to such non contractual rights If the Respondents are correct in their contentions the inquiry may not even proceed beyond this point The governing law would therefore have a vital role to play and the governing law is Singapore law There can be little doubt that the forum best suited to decide questions of Singapore law is the Singapore court There is also the additional factor of Singapore having been named as one of the jurisdictions of choice in one of the agreements d The significance of the fact that the Second Appellant was a Singapore company was generally cancelled out by the fact that the Third Appellant was an Indonesian company the GD at 41 The Respondents were foreign companies with a presence both in Singapore and in Indonesia and so this factor was accordingly neutral at 41 The Second Appellant and the Third Appellant were the plaintiffs in the Indonesian Action while the First Respondent was only one of several defendants in the Indonesian Action at 41 However all of the other defendants in the Indonesian Action were related to the Respondents at 41 Thus on the whole the same parties were before the courts in both jurisdictions and it would not be the case that some third party would be affected if an anti suit injunction is granted at 41 Furthermore the documents indicated that the First Appellant who is a Singapore citizen and who has residence in Singapore was a key party to the dispute and that he played a significant role in the relationship between the parties the GD at 42 e Taking all the relevant factors into account the conclusion to be arrived at would be that the most appropriate forum would be the Singapore court The Judge stated at 43 Looking at all the relevant factors here I am of the view that the most appropriate forum is the Singapore court As stated earlier should the court here decide that no other rights could emanate from outside the parameters of the three documents the inquiry need go no further Accordingly it would not be appropriate for the Indonesian court to have to decide the contention whether liability exists independently of contract This issue would have to be determined first before proceeding to the question whether a tort has indeed been committed on the facts and the court most suited to try this precedent issue is the Singapore one It would be highly undesirable if different conclusions are reached by the two jurisdictions It would therefore be vexatious or oppressive for the Respondents in this case to have to content with the Appellants allegations in the Indonesian A ction concurrently with the claims in the Singapore A ction f There would be no real prejudice to the Appellants if the Indonesian Action was to be put on hold temporarily In the circumstances there was a compelling case for the granting of anti suit injunction The Judge stated at 44 It is not in dispute that the Indonesian A ction is still at a very early stage and substantial energy and time have not yet been expended in its pursuit Further the injunction sought is only up to the time the Singapore court gives its decision in this action or until further order There is therefore no real prejudice to the Appellants if the Indonesian A ction is put on hold temporarily In the circumstances here I think the reasons for granting the injunction are sufficiently strong and compelling ones and I grant the injunction to the Respondents accordingly The submissions of the parties The Appellants submissions 18 The Appellants submitted that Singapore is not the natural forum for the claims in the Indonesian Action as the Third Appellant s rights to sell and distribute the Products related to Indonesia the Respondents sold the Products to the Third Appellant directly from the United States the Third Appellant paid for the Products directly to the United States the Products were sold in Indonesia the Respondents are not Singapore companies and the remedies rights and cause of action claimed by the Second Appellant and the Third Appellant arise under Indonesian law The three documents served only as the backdrop to the relationship between the parties The claims of the Second Appellant and the Third Appellant in the Indonesian Action were based in tort arising under Indonesian law and did not arise out of any breach of any rights emanating from the three documents In the circumstances the Indonesian Action has an indisputable connection with Indonesia and has hardly any connection with Singapore In short the Singapore connection merely provided the background as to how the Third Appellant came to become the distributor of the Products in Indonesia 19 The Appellants also submitted that even if Singapore was the natural forum the Indonesian Action could not be said to be oppressive and or vexatious as inter alia the Appellants did not commence concurrent proceedings in Indonesia as well as in Singapore and the claims in the Indonesian Action were entirely connected to Indonesia The Judge had erroneously held that whenever a party was made a defendant in a foreign action he could commence an action in Singapore and if the court in Singapore should find that Singapore was the natural forum it would be vexatious or oppressive for that party to have to contend with the foreign action while pursuing the Singapore action because there would be the possibility of the foreign court reaching a different finding from the Singapore court Furthermore there was no evidence that the Appellants have no cause of action under Indonesian law The Respondents had in response to the Appellants expert evidence that there was a cause of action under Indonesian law only made bare assertions that the Appellants have no such cause of action 20 Before us counsel for the Appellants Mr Chelva Rajah SC Mr Rajah further submitted that the damages claimed under the four heads in the Indonesian Action were alternative and cumulative The damages claimed under the first and last heads Mr Rajah said would be the largest by far The damages claimed under the second head would be the smallest and the damages claimed under the third head viz the ground which had a reference to the Shareholders Agreement and other related agreements would only total up to US 500 000 In the course of the hearing Mr Rajah expressed his clients willingness to undertake that they would not rely on or refer to the three documents in any way except for background purposes in the Indonesian Action The Respondents submissions 21 The Respondents submitted that the appeal hinged on the validity and veracity of the Indonesian Action and that its case was that there was no basis whatsoever for the Indonesian Action They contended that the Appellants had not adduced any reliable expert evidence of any value on the legal basis for the Indonesian Action and that the Appellants had not disclosed what rights they were relying on The Indonesian Action was commenced for the sole purpose of extracting a juridical advantage to press for a favourable settlement from the Respondents 22 The Respondents further submitted that the Judge had not erred in holding that the three documents were inextricably linked to the Appellants claims If the Appellants claimed rights in tort the question that would have to be determined at the outset would be whether such rights could arise from the three documents and as these agreements were governed by Singapore law the local courts would clearly be the most appropriate forum This question of whether the Appellants have rights in tort arising from the three agreements should also not be litigated both in Indonesia and Singapore It would be vexatious and oppressive for the Respondents to face such a multi pronged attack Moreover the Indonesian Action is bound to fail and the Appellants have never stated categorically what rights they have or how such rights came about The fact that the Appellants denied that the Indonesian Action is based on the Shareholders Agreement even though the Indonesian Action is clearly based on the Shareholders Agreement should be viewed with suspicion as well The appellate court s role 23 At this juncture it should be noted that where interlocutory injunctions are concerned it is trite law that the function of an appellate court is one of review In general the appellate court must not exercise an independent discretion of its own and must defer to the lower court s exercise of discretion This position was explained in the following dicta of Lord Diplock in Hadmor Productions Ltd v Hamilton 1983 AC 191 Hadmor a passage adopted by this court in inter alia Chiarapurk Jack v Haw Par Brothers International Ltd 1993 3 SLR 285 at 292 16 and Asian Corporate Services SEA Pte Ltd v Eastwest Management Ltd Singapore Branch 2006 1 SLR 901 at 13 In Hadmor Lord Diplock stated at 220 An interlocutory injunction is a discretionary relief and the discretion whether or not to grant it is vested in the High Court judge by whom the application for it is heard Upon an appeal from the judge s grant or refusal of an interlocutory injunction the function of an appellate court whether it be the Court of Appeal or your Lordships House is not to exercise an independent discretion of its own It must defer to the judge s exercise of his discretion and must not interfere with it merely upon the ground that the members of the appellate court would have exercised the discretion differently The function of the appellate court is initially one of review only It may set aside the judge s exercise of his discretion on the ground that it was based upon a misunderstanding of the law or of the evidence before him or upon an inference that particular facts existed or did not exist which although it was one that might legitimately have been drawn upon the evidence that was before the judge can be demonstrated to be wrong by further evidence that has become available by the time of the appeal or upon the ground that there has been a change of circumstances after the judge made his order that would have justified his acceding to an application to vary it General legal principles relating to anti suit injunctions 24 The fundamental principles relating to anti suit injunctions in Singapore is well settled Regalindo Resources Pte Ltd v Seatrek Trans Pte Ltd 2008 3 SLR 930 at 12 and VH v VI 2008 1 SLR 742 at 37 They may be found in the dicta of Lord Goff of Chieveley Lord Goff in the decision of the Privy Council in Société Nationale Industrielle Aerospatiale v Lee Kui Jak 1987 AC 871 Société Nationale Industrielle Aerospatiale 25 In Société Nationale Industrielle Aerospatiale Lord Goff restated the applicable principles on this question to be as follows at 892 The law relating to injunctions restraining a party from commencing or pursuing legal proceedings in a foreign jurisdiction has a long history stretching back at least as far as the early 19th century From an early stage certain basic principles emerged which are now beyond dispute First the jurisdiction is to be exercised when the ends of justice require it see Bushby v Munday 1821 5 Madd 297 307 per Sir John Leach V C Carron Iron Co v Maclaren 1855 5 H L Cas 416 453 per Lord St Leonards in a dissenting speech the force of which was however recognised by Lord Brougham at p 459 This fundamental principle has been reasserted in recent years notably by Lord Scarman in Castanho v Brown Root U K Ltd 1981 A C 557 and by Lord Diplock in British Airways Board v Laker Airways Ltd 1985 A C 58 81 Second where the court decides to grant an injunction restraining proceedings in a foreign court its order is directed not against the foreign court but against the parties so proceeding or threatening to proceed As Sir John Leach V C said in Bushby v Munday 5 Madd 297 307 If a defendant who is ordered by this court to discontinue a proceeding which he has commenced against the plaintiff in some other Court of Justice either in this country or abroad thinks fit to disobey that order and to prosecute such proceeding this court does not pretend to any interference with the other court it acts upon the defendant by punishment for his contempt in his disobedience to the order of the court There are of course many other statements in the cases to the same effect Third it follows that an injunction will only be issued restraining a party who is amenable to the jurisdiction of the court against whom an injunction will be an effective remedy see e g In re North Carolina Estate Co Ltd 1889 5 T L R 328 per Chitty J Fourth it has been emphasised on many occasions that since such an order indirectly affects the foreign court the jurisdiction is one which must be exercised with caution see e g Cohen v Rothfield 1919 1 K B 410 413 per Scrutton L J and in more recent times Castanho v Brown Root U K Ltd 1981 A C 557 573 per Lord Scarman emphasis added in bold italics 26 These principles have been referred to and adopted by several local cases including those of this court In Bank of America National Trust Savings Association v Djoni Widjaja 1994 2 SLR 816 this court applied those principles to restrain a plaintiff an Indonesian who having commenced an action in Singapore and which action had reached the stage of being set down for trial from discontinuing the Singapore proceedings and starting fresh proceedings in Indonesia This court again applied those principles in the later case of Koh Kay Yew 17 supra 27 In determining where the balance of the justice of the case lies the Privy Council in Société Nationale Industrielle Aerospatiale held that where a remedy is available in both England and the foreign court the English court would in general only restrain the plaintiff from pursuing proceedings in the foreign court if the pursuit would be vexatious or oppressive see Dicey Morris Collins on The Conflict of Laws vol 1 Sir Lawrence Collins gen ed Sweet Maxwell 14th Ed 2006 Dicey on The Conflict of Laws at para 12 072 The English court must also take into account the injustice to the defendant if the plaintiff is allowed to pursue the foreign proceedings and also the injustice to the plaintiff if he or she is not allowed to do so at para 12 072 28 In Evergreen International SA v Volkswagen Group Singapore Pte Ltd 2004 2 SLR 457 Evergreen International SA Belinda Ang Saw Ean J Ang J stated that she had to consider the following elements in determining whether an anti suit injunction ought to be granted in the case at 16 a whether the defendants are amenable to the jurisdiction of the Singapore court b the natural forum for resolution of the dispute between the parties c the alleged vexation or oppression to the plaintiffs if the foreign proceedings are to continue and d the alleged injustice to the defendants as an injunction would deprive the defendants of the advantages sought in the foreign proceedings 29 In our view this is as good a list as any with only one qualification which would constitute a fifth element whether the institution of the foreign proceedings is in breach of any agreement between the parties see South Carolina Insurance Co v Assurantie Maatschappij De Zeven Provincien NV 1987 AC 24 Where there is such an agreement the court may not feel diffident about granting an anti suit injunction as it would only be enforcing a contractual promise and the question of international comity is not as relevant see The Angelic Grace 1995 1 Lloyd s Rep 87 at 96 and WSG Nimbus Pte Ltd v Board of Control for Cricket in Sri Lanka 2002 3 SLR 603 at 91 However as far as the present case was concerned this element did not come into play as there was no such agreement between the parties That said we will now examined each of these elements in relation to the facts and circumstances of the present case although one could say that the third and fourth elements are really quite closely related being two sides of the same coin Amenability to the jurisdiction of the Singapore court 30 In Koh Kay Yew 17 supra this court considered inter alia the issue of the circumstances under which a party would be considered to be amenable to the jurisdiction of the Singapore court There Yong Pung How CJ Yong CJ who delivered the grounds of decision of the court said at 17 LP Thean JA stated in Djoni Widjaja that as long as a party submitted to the jurisdiction of the courts by seeking relief in the local High Court or otherwise this would answer the question whether the party was amenable to the jurisdiction of the court In our opinion the same would apply if the party was validly served with the required court documents as required by the present Rules of Court finding jurisdiction in Singapore see s 16 of the Supreme Court of Judicature Act Cap 322 Being amenable to the jurisdiction of the local courts simply means being liable or accountable to this jurisdiction As such so long as any local courts have in personam jurisdiction over a party either through the proper service of documents or through submission to the jurisdiction this first criteria sic would be satisfied 31 In contrast to the situation in Koh Kay Yew in People s Insurance Co Ltd v Akai Pty Ltd 1998 1 SLR 206 the defendant who had had taken no steps in the Singapore proceedings except to defend the application for an anti suit injunction was held not to be amenable to the jurisdiction of the Singapore court at 9 32 In the present case the fact that the Singapore court has in personam jurisdiction over the parties is not disputed Indeed it would appear that the following observations of Yong CJ on the amenability of the appellant in Koh Kay Yew to the jurisdiction of the Singapore court would aptly describe to a large extent the position of the Appellants in the present case at 30 In the present case the appellant did not appear to have challenged the jurisdiction of the Singapore courts at any time or at all until the hearing of the appeal It was not disputed that service of the originating process with his consent was effected on his solicitors on his behalf This clearly indicated that the appellant had no objections to be subjected to the jurisdiction of the Singapore court Furthermore the appellant defended his action in the court below without taking any further steps to set aside the action for lack of jurisdiction It is trite law that in order to challenge the jurisdiction of the courts one had to do so before any fresh steps were taken before the court hearing commenced This was not the case here In such a case we had no doubt that the appellant had made himself liable to the jurisdiction of our courts He had contested through his solicitors the present proceedings in the court below and he was now bound by its jurisdiction He could not turn around and say that he was not amenable to the jurisdiction of the Singapore court We would hasten to add that the Appellants are a fortiori amenable to the jurisdiction of the Singapore court as unlike the appellant in Koh Kay Yew the Appellants here not only did not challenge the jurisdiction of the Singapore court at the hearing below they did not even challenge it at the hearing of this appeal The natural forum of the dispute General principles 33 In Koh Kay Yew 17 supra this court stated at 18 that the principles to be applied with regard to determining the natural and proper forum when considering an application for an anti suit injunction would be the principles as stated in the seminal judgment of Lord Goff in Spiliada Maritime Corporation v Cansulex Ltd 1987 AC 460 Spiliada In Spiliada Lord Goff framed the test for determining the natural forum as the forum with which the dispute has the most real and substantial connection In the context of the present case it must not only be shown that Singapore is an appropriate forum but that Singapore is clearly the more appropriate forum The onus of showing that Singapore is clearly the more appropriate forum should logically fall on the applicant for the anti suit injunction In this regard although there appears to be a lack of case law on point first principles dictate that the applicant should bear the burden of proof as it is axiomatic that he who asserts should prove Moreover this is consistent with firstly the fact that the antithesis of an application for an anti suit injunction an application for a stay on the basis of forum non conveniens requires the applicant to establish that another available forum is clearly more appropriate than Singapore and secondly the fact that the burden of showing that Singapore is clearly the appropriate forum falls on the applicant for leave to serve out of jurisdiction 34 In determining the issue as to whether Singapore is clearly the more appropriate forum the court will take into consideration all relevant factors including factors relating to convenience or expense such as the availability of witnesses and factors such as the law governing the transaction and the places where the parties respectively reside or carry on business see Adrian Briggs The Conflict of Laws Oxford University Press 2002 at p 95 and David McClean Kisch Beevers Morris on the Conflict of Laws Sweet Maxwell 6th Ed 2005 at para 5 014 However the process of taking into consideration all the relevant factors is not mechanical As had been stated in CIMB Bank Bhd v Dresdner Kleinwort Ltd 2008 4 SLR 543 CIMB Bank Bhd by this court weighing the various connecting factors is not a numbers game at 85 In a similar vein V K Rajah J Rajah J as he then was in Peters Roger May v Pinder Lillian Gek Lian 2006 2 SLR 381 Peters Roger May stated at 20 A court has to take into account an entire multitude of factors in balancing the competing interests The weightage accorded to a particular factor varies in different cases and the ultimate appraisal ought to reflect the exigencies dictated by the factual matrix Copious citations of precedents and dicta are usually of little assistance and may in reality serve to cloud rather than elucidate the applicable principles Likewise in Andre Ravindran S Arul v Tunku Ibrahim Ismail bin Sultan Iskandar Al Haj 2001 SGHC 209 Choo Han Teck JC as he then was held at 8 The determination of the appropriate forum is not an exercise carried out merely by adding the sum total of all the relevant connecting factors The court has to apportion a value to each factor and consider its place in the overall picture 35 In relation to an appellate court s review of a lower court s decision that a particular jurisdiction is the natural forum for determining a dispute it is trite law that the appellate court will be slow to interfere with such a decision As was stated in CIMB Bank Bhd by this court in relation to an application to stay proceedings on the basis of forum non conveniens which necessarily requires a determination of the natural forum at 84 It is clear that in determining whether or not to grant a stay of proceedings the judge will be exercising a discretion Such an exercise of discretion should not be interfered with by an appellate court unless the judge had misdirected himself on a matter of principle or he had taken into account matters which he ought not to have taken into account or had failed to take into account matters which he ought to have taken into account or his decision is plainly wrong see The Abidin Daver 1984 AC 398 at 420 per Lord Brandon of Oakbrook 36 Turning to the factors raised in the present case four main factors can be distilled from the submissions of the parties The first factor would be the location residence of the parties The second factor would be the location of the witnesses The third factor would be the location of the evidence viz relevant documents The fourth main factor would be the location of the tort and choice of law issues These factors will be considered in turn The location residence of the parties 37 The Respondents are foreign companies not incorporated in Singapore the other defendants in the Indonesian Action are not located in Singapore and the Third Appellant is an Indonesian company However the Respondents have a presence in Singapore as demonstrated by the fact that TAC which is wholly owned by the First Respondent distributes and sells the Products in Singapore the other defendants in the Indonesian Action are related to the Respondents and the Second Appellant is a Singapore company Thus the circumstances concerning this factor do not all point in one direction and may conceivably be construed as being neutral This case can usefully be contrasted with the case of Ang Ming Chuang v Singapore Airlines Ltd 2005 1 SLR 409 where the location of the parties was clearly a factor pointing towards a finding that Taiwan was the natural forum as the applicant operated only in Taiwan while the respondent operated worldwide including in Taiwan see 17 The location of the witnesses 38 The Appellants submitted that the majority of the witnesses reside in Indonesia However it is readily observable that the likely key witnesses for the Appellants viz the First Appellant and his son in law one Justin Michael Taylor Taylor are both Singapore citizens and reside in Singapore From the First Appellant s affidavits it can be inferred that he is a key witness for the Appellants in the dispute He had for example played key roles in most of the material events see first affidavit of the First Appellant dated 8 January 2008 Similarly Taylor a director of the Second Appellant and a commissioner of the Third Appellant is also likely to be a key witness for the Appellants in the dispute That having been said according to this court in CIMB Bank Bhd 34 supra and Rickshaw Investments Ltd v Nicolai Baron von Uexkull 2007 1 SLR 377 Rickshaw Investments the location of witnesses is only really significant in relation to third party witnesses who are not in the employ of the parties as it could give rise to issues of compellability CIMB Bank Bhd at 69 and Rickshaw Investments at 19 In the present dispute the only third party witnesses that might be called would be on the Appellants evidence customers of the Third Appellant see second affidavit of Taylor dated 8 January 2008 at para 27 The reason for their being called as witnesses however is not apparent on the evidence It is not denied that the other witnesses would be employees and executives of the parties themselves On the whole therefore the location of the witnesses would also appear to be a neutral factor 39 It might be added that video linked evidence as Rajah J observed in Peters Roger May 34 supra of unprecedented clarity and life like verisimilitude is now readily available at relatively affordable costs even cross examination can be carried out readily by video link as long as the court is satisfied that the witness is not being prompted at 26 Rajah J s observations which were cited with approval by this court in Good Earth Agricultural Co Ltd v Novus International Pte Ltd 2008 2 SLR 711 Good Earth Agricultural at 21 in full are as follows Peters Roger May at 26 The easy and ready availability of video link nowadays warrants an altogether different more measured and pragmatic re assessment of the need for the physical presence of foreign witnesses in stay proceedings Geographical proximity and physical convenience are no longer compelling factors nudging a decision on forum non conveniens towards the most witness convenient jurisdiction from the viewpoint of physical access Historically the availability and convenience of witnesses was a relevant factor as it had a bearing on the costs of preparing and or presenting a case and most crucially in ensuring that all the relevant evidence was adduced before the adjudicating court The advent of technology however has fortunately engendered affordable costs of video linked evidence with unprecedented clarity and life like verisimilitude so that the importance of this last factor recedes very much into the background both in terms of relevance and importance In other words the availability and accessibility of video links coupled with its relative affordability have diminished the significance of the physical convenience of witnesses as a yardstick in assessing the appropriateness of a forum I myself have on several occasions experienced the use of video links to hear testimony and to assess witnesses As long as the court is satisfied that a witness is not being prompted cross examination can take place as readily and easily as in a courtroom see also my observations in Cheong Ghim Fah v Murugian s o Rangasamy 2004 1 SLR 628 at 39 I also find it heartening that my preferred approach in endorsing the convenience affordability and reliability of video linked evidence is amply supported by some observations made in the very recent House of Lords decision in Polanski v Condé Nast Publications Ltd 2005 1 WLR 637 Lord Nicholls of Birkenhead observed at 14 Improvements in technology enable Mr Polanski s evidence to be tested as adequately if given by VCF video conferencing as it could be if given in court Eady J an experienced judge said that cross examination takes place as naturally and freely as when a witness is present in the court room Thomas LJ said that in his recent experience as a trial judge giving evidence by VCF is a readily acceptable alternative to giving evidence in person and an entirely satisfactory means of giving evidence if there is sufficient reason for departing from the normal rule that witnesses give evidence in person before the court 2004 1 WLR 387 402 And per Lord Slynn of Hadley at 45 As between the parties if all other questions of policy are ignored it seems that the use of video link could be efficient and fair and contribute to the economic disposal of the litigation If indeed there is any disadvantage it may be to the person asking for video link evidence and it is not established that the defendants would be adversely affected by the use of video link evidence emphasis in original The location of the relevant documents 40 The Appellants submitted that a significant number of the relevant documents of both parties are likely to be located in Indonesia Properly viewed in its context however the fact that a significant number of the relevant documents are located in Indonesia would similarly not be a strong factor towards Indonesia being the natural forum as documentary evidence is in this modern age easily transportable between jurisdictions In this regard as was observed by this court in Good Earth Agricultural at 23 and the High Court in Novus International Pte Ltd v Good Earth Agricultural Co Ltd 2007 4 SLR 402 at 34 it might be said that this is a consideration that can be dealt with by an appropriate order for costs and disbursements In any event the location of documents should not be a weighty factor when even the location of witnesses overseas would not pose a problem Good Earth Agricultural at 23 The location of the tort and choice of law issues 41 The Appellants claims in the Indonesian Action are in tort and the general rule is that the place where the alleged tort occurred which in the present matter would be Indonesia is the natural forum In The Albaforth 1984 2 Lloyd s Rep 91 it was stated that the place where a tort occurred is prima facie the natural forum for determining the claim at 96 This principle was accepted by the House of Lords in Berezovsky v Michaels 2000 1 WLR 1004 as well as by the English High Court in Caltex Singapore Pte Ltd v BP Shipping Ltd 1996 1 Lloyd s Rep 286 and The Xin Yang and An Kang Jiang 1996 2 Lloyd

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  • Evergreen International SA v Volkswagen Group Singapore Pte Ltd and Others[2004] 2 SLR 457; [2003] SGHC 142
    held that the place where the tort was committed is prima facie the natural forum for the determination of the dispute 28 Counsel for the plaintiffs Mr Richard Kwek submits that Singapore is the natural forum for the litigation of the claims asserted by the defendants He points to strong connection factors in favour of Singapore The collision occurred in Singapore territorial waters After the collision both vessels discharged their respective cargoes in Singapore Damage repairs were also undertaken in Singapore Salvage services were provided by Semco Salvage Marine Pte Ltd a Singapore company 29 Both masters of the colliding vessels were prosecuted in Singapore They pleaded guilty in the criminal proceedings and were each fined 5 000 Both colliding vessels litigated their respective claims in Singapore Surveyors involved in the collision damage survey and cargo surveys were from Singapore The bulk of the evidence is here in that the great majority of the witnesses and other evidential sources such as VTIS records are in Singapore The occurrence of the collision in Singapore in a sense was fortuitous but as the Privy Council said in Lee Kui Jak that carried with it the consequence that the applicable law governing the defendants claim in tort against the plaintiffs is the law of Singapore 30 The defendants downplayed the Singapore connection with the argument that the only disputed issue is quantum and on that issue Singapore is not the natural forum Mr Chong argues that there is no genuine dispute between the parties on liability as the defendants are willing to accept the same apportionment of blame namely 50 as recorded in the order of court in the collision suit between the colliding vessels It is said that quantum is a matter for the lex fori namely the Belgium courts and furthermore evidence on quantum is not located in Singapore In any case as the defendants claims exceed the limit of the Ever Glory under either Convention there is really no dispute on the issue of quantum Mr Kwek in response said amongst other things that damages have to be determined in accordance with Singapore law The value of the vehicles have to be assessed in accordance to the market value of the vehicles destroyed at the time and place of destruction ie Singapore the place where the tort was committed He cited para 1362 of McGregor on Damages 16th Ed 1997 in support 31 The defendants did not in my view point to any factor of sufficient weight to displace what is an overwhelming case of natural forum in favour of Singapore I am satisfied that the plaintiffs have on the facts shown Singapore to be the natural forum for the determination of liability and quantum between the parties The defendants claims against the plaintiffs are for damages in tort The tort was committed in Singapore and it is the law of Singapore that gave rise to a cause of action Even though the defendants total claims would exceed the limit of the Ever Glory under either Convention the fact remains that it is Singapore law that gave rise to the existence of an obligation and would determine the amount of damages that is recoverable under its general law The defendants would have to prove their claims so determined against the limitation fund The position under either Convention is the same See The Happy Fellow 1997 1 Lloyd s Rep 130 at 135 Vexatious or oppressive to the plaintiffs and injustice to the defendants 32 It is to be noted that an injunction will not be granted simply because Singapore is shown to be the natural forum It will be granted to prevent injustice and in the context of this case it means that the effect of litigating in Belgium is vexatious or oppressive I have in addition to consider whether an injunction will deprive the defendants of a legitimate juridical advantage to a greater extent than the oppression caused to the plaintiffs Whilst an injunction acts to restrain the defendants by doing so it indirectly impinges upon the ability of the Belgium courts to act Hence the principle of comity becomes one to which careful regard must be had 33 Both parties referred to various cases in the course of the hearing They provide useful guidance on the circumstances in which an anti suit injunction may be granted However everything depends on the circumstances of the particular case and new circumstances will emerge as was the case here 34 I set out in brief the plaintiffs reasons why the Belgium proceedings are oppressive a The Belgium courts have no connection with the dispute between the plaintiffs and the defendants and Belgium is not the proper forum as the collision occurred in Singapore and that is where the bulk of the evidence relevant for the dispute is located b The Belgium proceedings were commenced with the sole view of taking advantage of a higher limitation regime c Furthermore pursuit of the Belgium action will cause the plaintiffs substantive and procedural disadvantages which are unjust and oppressive The injustice and oppression result both from the features which render Singapore a natural forum and from the fact that the plaintiffs have already established a limitation fund in Singapore according to the 1957 Convention The defendants have ignored and continue to ignore the limitation proceedings as well as all orders made therein and continue to act in breach of all orders made in the limitation proceedings In the circumstances the defendants decision to proceed and continue with Belgium proceedings in itself creates injustice to the plaintiffs d The defendants attempted to force the plaintiffs after the Ever Reach was arrested in Belgium to agree to include in the security wording an exclusive Belgian jurisdiction clause for the defendants claims It demonstrates the defendants continued efforts to vex and oppress the plaintiffs 35 Briefly Mr Chong s submissions are that none of the reasons sought to be relied upon by Mr Kwek constitute oppressive conduct on the part of the defendants either singly or collectively But even if they did they have to be considered against the injustice to the defendants if they were prevented from litigating in Belgium The plaintiffs application should be dismissed because it would not be right to grant an anti suit injunction as it would have the effect of preventing the defendants from litigating their claims in Belgium where they enjoy a higher limit of liability compared to Singapore He argues that the defendants founded jurisdiction in Belgium as of right through the arrest of the Ever Reach and consequently obtained a juridical advantage that will result in their being able to recover under the 1976 Convention a higher percentage of their losses He acknowledges that the plaintiffs commenced limitation action in Singapore as they were rightly entitled to do so But as between the plaintiffs and defendants who are victims of the plaintiffs wrongdoing viewed objectively justice must lie with the defendants It is for the Belgium courts to decide what effect if any it would give to the limitation decree granted in Singapore 36 Mr Chong points out that it is not unusual to see limitation action and liability issues dealt with in separate jurisdictions There is nothing vexatious or oppressive for liability proceedings to continue in a jurisdiction different from that of the limitation action 37 It has been submitted that the English courts in identical situations faced by this court have not taken the view that to allow liability proceedings to continue in a foreign country which applies a different limitation regime would be disregarding the limitation decree previously granted by its own court Likewise this court should not take the view that in refusing to grant the anti suit injunction it would be disregarding an order of court previously pronounced by this court The reason why the English courts have not adopted such an attitude is that a they are conscious of the limited nature of a declaratory order ie it is not coercive and b although a limitation decree is good against the world it is only good in so far as it concerns the claimants who wish to participate in the proceedings in the country in which the limitation decree is obtained The reasoning does not stand up to scrutiny The rationale put forward for the so called attitude of the English courts is unfounded My attention was not drawn to the specific cases where counsel said the English courts were faced with identical situations 38 There are English cases where a stay of the liability action was sought on forum non conveniens basis that it should more appropriately have been brought in another jurisdiction The availability of a higher limit was a factor raised in the stay application as a juridical advantage available in the English proceedings Not featured in the decisions is the shipowner s prerogative to choose the forum for the limitation action In Caspian Basin Specialised Emergency Salvage Administration v Bouygues Offshore SA No 4 1997 2 Lloyd s Rep 507 Rix J was concerned with whether the limitation action commenced in England should be stayed on the basis that it should be brought in South Africa as an adjunct of the liability action The barge owned by Bouygues was lost in South African waters whilst under tow by the tug belonging to Azerbaijani interests Caspian Bouygues had chartered the tug from Ultisol Transport Contractors Ltd who had time chartered the tug from Caspian No case was cited to Rix J in which a limitation action validly commenced in England has been stayed on the forum non conveniens basis that it should more appropriately have been brought in another jurisdiction A stay of the limitation action was declined principally on the ground that it is not for the liability claimant to choose the forum for limitation but for the shipowner who seeks to limit His decision was upheld by the Court of Appeal in Bouygues Offshore SA v Caspian Shipping Co Nos 1 3 4 5 1998 2 Lloyd s Rep 461 39 The situation I am confronted with is different The question I am supposed to be concerned with is whether the liability action is better fought in Belgium or in Singapore But the question is not as simple as it is made out to seem Either Convention envisages a single limitation fund against which all possible claims arising out of the collision would be brought Mr Chong accepts that the limitation decree binds the defendants in that it is good against the world but it does not mandate the defendants to prove their claim against the limitation fund Mr Chong said that the defendants have elected not to participate in the limitation fund and are taking a risk by going to Belgium In other words the defendants have decided to stand or fall by their decision to sue and continue with proceedings in Belgium It is said that the Belgium courts would apply the 1976 Convention and not recognise the Singapore decree and limitation fund constituted on 4 November 1999 That is the plaintiff s dilemma in the present case 40 The conduct complained of is not just the continuation of proceedings in an inappropriate forum namely Belgium Mr Wang Horng Chuen Deputy Junior Vice President Marine Department Shipping Division in Evergreen International Corporation alleged that the defendants Belgium proceedings are in blatant contravention of the limitation decree and orders of the Singapore court It is said that the defendants commenced action in Belgium to force the plaintiffs to defend the cargo claim in a 1976 Convention country when the plaintiffs had already obtained a limitation decree and constituted a limitation fund in Singapore based on 1957 Convention Mr Kwek points out that no authority was put forward in support of the defendants interpretation of the phrase good against the world The meaning assigned by the defendants goes against the substratum of the 1957 Convention The whole purpose of the 1957 and 1976 Convention is to enable a shipowner to set up one fund against which all claimants would be required to make their claim Mr Kwek said and I agree with him that the defendants are still claimants against the limitation fund even though they choose not to make a claim against the fund 41 The question for consideration is whether the conduct of the defendants in continuing with the Belgium proceedings is vexatious or oppressive and is hence unconscionable Lord Hobhouse in Turner v Grovit 2002 1 WLR 107 at 117 explained that the power to make the restraining order is dependent upon there being wrongful unconscionable conduct of the party to be restrained of which the applicant is entitled to complain and has a legitimate interest in seeking to prevent He said that the word unconscionable is derived from English equity law Injunctive relief is based on equity The words vexatious or oppressive have been used in relation to the conduct of the party to be restrained They are derived from the basic principle of justice As the complaint is that unconscionable vexatious or oppressive conduct lies in the pursuit of proceedings in Belgium an assessment or evaluation of the conduct complained of and the nature of the plaintiffs rights or interests that are being infringed or threatened is needed 42 It cannot be argued and was not and rightly so that the limitation decree and thereafter the limitation fund was not properly obtained and constituted in Singapore The limitation decree is that of a competent court having jurisdiction as the natural forum over the dispute on liability and quantum The decree has not been set aside or varied Singapore was also the plaintiffs choice of forum for commencing limitation action There is also the defendants election not to prove their claims against the limitation fund These are all objective factors which weigh heavily in the balancing exercise whether or not injustice would be caused to the plaintiffs by not granting the injunction and whether a grant would deprive the defendants of a legitimate juridical advantage to a greater extent than the oppression caused to the plaintiffs The constitution of a limitation fund in Singapore provides the necessary focal point for consideration of the issues at hand 43 Section 136 of the Merchant Shipping Act confers a right to limit liability in respect of relevant maritime claims arising from a particular occurrence if the incident arose without the fault or privity of the shipowner The plaintiffs commenced limitation action in Singapore as it was envisaged that there would be several claims Thus the question of limitation cannot be dealt with as between the Ever Glory and Hual Trinita but must be dealt with as between the plaintiffs and all the claimants and also as amongst the different claimants themselves As explained by Longmore J in The Happy Fellow a limitation action is a special proceeding to which all potential claimants are made parties 44 Sheen J in The Falstria 1988 1 Lloyd s Rep 495 at 497 explained that t he essence of a limitation action is that the plaintiffs in that action seek a decree which is valid against all possible claimants that a limit is set upon the eventual liability of the plaintiffs to all those claimants A limitation decree not set aside as was the case here is good against the world See The Volvox Hollandia 1988 2 Lloyd s Rep 361 The Happy Fellow 45 The defendants here have renounced their right to prove against the limitation fund in Singapore by pursuing their claims against the plaintiffs in Belgium which applies the 1976 Convention The defendants underlying cause of action to sue the plaintiffs in tort for loss and damage arising from the collision is unaffected by the plaintiffs right to limit liability under s 136 Merchant Shipping Act in the absence of fault or privity The Happy Fellow Jurisdiction was established as the defendants were able to assert their maritime claim in a country where the Arrest Convention is in force and jurisdiction was obtained by arresting the Ever Reach in Belgium Undoubtedly the defendants have a strong commercial interest in seeking higher limit and it would be unrealistic to expect them not to do so given the size of their claims Mr Chong said the defendants had elected not to claim against the limitation fund as was their right But that is not to say in the circumstances of the present case the continuation of proceedings in Belgium and even though jurisdiction was properly founded should be sanctioned 46 In my judgment the vexatious or oppressive conduct of the defendants lies in their unlawful challenge to the plaintiffs right to choose the limitation forum and the invasion or attack on the plaintiffs legal rights conferred by the limitation decree and limitation fund The limitation decree which is a declaratory order is binding and conclusive whether or not any consequential relief is given O 15 r 16 See also Halsbury s Laws of Singapore Vol 10 para 120 216 47 The right to claim limitation in any particular forum is a right that belongs to the shipowner alone and that choice is not to be pre empted by a claimant In other words a claimant cannot dictate where the limitation fund is to be constituted See The Volvox Hollandia Rix J in Caspian Basin Specialised Emergency Salvage Administration v Bouygues Offshore SA No 4 with whom the Court of Appeal agreed with relied on The Volvox Hollandia for the proposition that it would be wrong for a claimant to seek to usurp a shipowner s choice of forum for his limitation action by seeking a negative declaration in the liability action to the effect that the shipowner is not entitled to limit In the same way the effect and consequence of litigating in Belgium like the device of the negative declaration of non entitlement to limit is another means

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  • WSG Nimbus Pte Ltd v Board of Control for Cricket in Sri Lanka[2002] 3 SLR 603; [2002] SGHC 104
    the decision of the court on that occasion had been in his favour he would have taken advantage of it as the decision was against him he was bound by it and it became his duty to appear in the action and as he chose not to appear and to defend the action he must abide by the consequences which follow from his not having done so The course adopted by the defendant s advocate on March 17 was either a qualified appearance or an unqualified appearance If it can be regarded as a qualified appearance it was an appearance for the purpose of getting a decision of the court on the question whether the defendant was bound by the jurisdiction of the court The decision was against him and thereafter it was not open to the defendant to say that he was not bound The doctrine applicable to these cases is that if the defendant has placed himself in such a position that it has become his duty to obey the judgment of the foreign court then the judgment is enforceable against him in this country see Schibsby v Westenholz LR 6 QB 155 I think that in this case the defendant did submit himself to the jurisdiction of the court of the Isle of Man and therefore it was his duty to obey the judgment 41 Bankes LJ was of the view that as the defendant had appealed to the Manx court to relieve him from a liability which the plaintiff sought to place upon him this imposed an obligation on him to comply with the decision of that court even if it should go against him He said this at p 591 the principle underlying the case of a person resident in the foreign country or of a person who has agreed to submit to the jurisdiction of its courts applies equally to the case of a person who appeals at a preliminary stage to the foreign court to relieve him from an obligation which the plaintiff by means of the action seeks to put upon him In Carrick v Hancock 1895 12 Times LR 59 it was held that the fact that the residence of the defendant in the foreign country was merely temporary was not sufficient to oust the jurisdiction of the courts of that country over him Mr Arthur Cohen in arguing that case said that as a man would be protected from being robbed while passing through a foreign country so also he was liable to the jurisdiction of its courts and Lord Russell of Killowen CJ in giving judgment said that in his opinion the duty of allegiance was correlative to the protection given by a State to any person within its territory This relationship and its inherent rights depended upon the fact of the person being within its territory It seemed to him that the question of the time the person was actually on the territory was wholly immaterial It seems to me that if the duty of allegiance exists in a case like that where a mere temporary protection of the law of the foreign court is enjoyed the case is far stronger when a defendant actually appeals to a foreign court to relieve him from a liability which the plaintiff by his action seeks to place upon him The fact that the defendant has sought the protection of the court imposes upon him an obligation to obey the judgment of the court if it should happen that it is given against him It is in my opinion an entire misconception of the principle applicable to these cases to say that there is a voluntary submission to the jurisdiction of a foreign court only when the defendant by appearing in the action in the technical sense has consented to the jurisdiction 42 Bankes LJ said that t he precise point in this case does not seem to have arisen for decision previously at p 590 And Pickford LJ commented on the difficulty of the issue before them saying at p 589 I do not think the case is an easy one to decide 43 Harris v Taylor supra was considered by a later Court of Appeal in Henry v Geoprosco which involved a Canadian plaintiff resident in Alberta The defendant company was incorporated in Jersey and had its head office in London but had no branch or assets in Canada The plaintiff entered into a service agreement with the defendants in Canada that was governed by English law and had an arbitration clause When the defendant dismissed the plaintiff summarily the latter commenced an action in the Supreme Court of Alberta for wrongful dismissal The plaintiff obtained leave to serve the statement of claim on the defendants outside the jurisdiction and this was effected in Jersey The defendants applied by motion to the Alberta court to 1 set aside the service of the statement of claim and 2 alternatively stay the action by reason of the existence of the arbitration clause The defendants forwarded three grounds for setting aside the statement of claim a the first ground was one that eventually became irrelevant b the second ground was that the plaintiff s affidavit seeking leave of court to serve out of the jurisdiction was defective and c the third was that the Alberta court was not the forum conveniens The defendants motion was refused and their subsequent appeal dismissed Thereafter the defendants took no further part in the Alberta proceedings Roskill LJ who delivered the judgment of the court noted the following features of the case at p 732 It is to be observed that at no time was it argued for the defendants that the Supreme Court of Alberta had no jurisdiction to entertain the action It seems plain that such an argument would have failed having regard to the clear terms of r 30 of the Rules of the Supreme Court of Alberta to which we have referred This was no doubt the reason why no such argument was advanced Grounds 2 and 3 above referred to in effect invited the Supreme Court to exercise its discretion not to allow service to stand The application for a stay because of the arbitration clause was expanded in the notice of appeal to the Court of Appeal of Alberta to allege that the clause was a Scott v Avery clause As a matter of English law this last submission was plainly untenable upon the true construction of that clause 44 Roskill LJ observed that the decision in Harris v Taylor supra had been much criticised in particular by the editors of Dicey Morris The Conflict of Laws 9th Ed 1973 and embarked on a detailed consideration of that judgment in order to ascertain precisely what that case decided at p 736 After setting out the facts of that action including an examination of the first instance decision of Bray J and the judgments of the members of the Court of Appeal Roskill LJ pointed out five salient points of the case It seems to us of crucial importance when considering the ratio decidendi of Harris v Taylor to observe first that the Isle of Man High Court had by its own local law jurisdiction over the defendant secondly that that court had a discretion whether or not to exercise that jurisdiction over the defendant thirdly that that court having heard a plea by the defendant that it could not and should not do so decided both that it could and should exercise that jurisdiction fourthly that it was not argued in the English action that that decision was in any way wrong by the local law and fifthly that the defendant having voluntarily invited the Isle of Man High Court by the appearance which he made to adjudicate upon his submission that that jurisdiction of that court could not and should not be exercised over him and having lost had voluntarily submitted to the jurisdiction of that court so that thereafter the defendant could not be heard to say that that court did not have jurisdiction to adjudicate upon the entirety of the dispute between him and the plaintiff 45 Roskill LJ then examined the line of authorities leading up to Harris v Taylor supra and concluded that they justify three propositions at p 746 emphasis added 1 The English courts will not enforce the judgment of a foreign court against a defendant who does not reside within the jurisdiction of that court has no assets within that jurisdiction and does not appear before that court even though that court by its own local law has jurisdiction over him 2 English courts will not enforce the judgment of a foreign court against a defendant who although he does not reside within the jurisdiction of that court has assets within that jurisdiction and appears before that court solely to preserve those assets which have been seized by that court 3 The English courts will enforce the judgment of a foreign court against a defendant over whom that court has jurisdiction by its own local law even though it does not possess such jurisdiction according to the English rules of conflict of laws if that defendant voluntarily appears before that foreign court to invite that court in its discretion not to exercise the jurisdiction which it has under its own local law 46 Roskill LJ pointed out that there was no decision that specifically held that an appearance in a foreign court solely to protest against its jurisdiction was a voluntary submission He pointed out at p 747 that in Harris v Taylor the defendant went much further than protesting against the jurisdiction It is plain that he was also inviting the Isle of Man High Court not to exercise the discretionary jurisdiction which it undoubtedly possessed under its own local law to allow the order for service out of the jurisdiction to stand a submission which by implication accepted that there was jurisdiction in that court which it was entitled to exercise if it thought fit to do so 47 Roskill LJ concluded that Harris v Taylor supra did not stand for the proposition that an appearance solely to protest against the jurisdiction of a foreign court is a voluntary submission to that court He pointed out that there was authority that an appearance before an arbitrator solely to protest his jurisdiction was not a submission to it The judge said that the cases in fact go further than that and a party can participate in the entire arbitration subject to the protest as to jurisdiction However the distinction could lie in the fact that arbitration was consensual compared to the compulsory jurisdiction of a court Roskill LJ said as follows at p 748 Harris v Taylor must we think therefore be taken as deciding that whatever the position may be in relation to submission to the jurisdiction in arbitrations that position has no direct application to the question of voluntary submission to the jurisdiction of a foreign court It is not open to this court now to hold otherwise The distinction may lie in the fact that whereas an arbitrator s jurisdiction is always wholly consensual in the foreign judgment cases such as Harris v Taylor the foreign court had compulsory jurisdiction by its own local law and it was within the discretion of that court whether or not to exercise that jurisdiction If therefore a defendant enters a conditional appearance or takes some other comparable step he is thereby conditionally agreeing to submit to that jurisdiction If his application to set aside service then fails that condition is fulfilled But in the arbitration cases there is no such conditional submission 48 As the case before the court in Henry v Geoprosco was not one where the defendants had appeared in the Alberta courts solely to protest the jurisdiction Roskill LJ said that the Court of Appeal was not deciding that an appearance solely to protest against the jurisdiction is without more a voluntary submission But at p 748 we do think that the authorities compel this court to say that if such a protest takes the form of or is coupled with what in England would be a conditional appearance and an application to set aside an order for service out of the jurisdiction and that application then fails the entry of that conditional appearance which then becomes unconditional is a voluntary submission to the jurisdiction of the foreign court 49 As alluded to by Roskill LJ the decisions in Harris v Taylor and Henry v Geoprosco have been severely criticised by academic writers Denning LJ had commented as follows in Re Dulles Settlement No 2 1951 Ch 842 at 850 I cannot see how anyone can fairly say that a man has voluntarily submitted to the jurisdiction of a court when he has all the time been vigorously protesting that it has no jurisdiction If he does nothing and lets judgment go against him in default of appearance he clearly does not submit to the jurisdiction What difference in principle does it make if he does not merely do nothing but actually goes to the court and protests that it has no jurisdiction I can see no distinction at all I quite agree of course that if he fights the case not only on the jurisdiction but also on the merits he must then be taken to have submitted to the jurisdiction because he is then inviting the court to decide in his favour on the merits and he cannot be allowed at one and the same time to say that he will accept the decision on the merits if it is favourable to him and will not submit to it if it is unfavourable But when he only appears with the sole object of protesting against the jurisdiction I do not think that he can be said to submit to the jurisdiction 50 Indeed the English position has since been changed by legislation But there is no similar legislation in Singapore and the parties agree that the common law position applies The plaintiffs submit that the rule in Henry v Geoprosco has not been adopted in any decision of the Singapore courts and that I should not adopt it because it is based on an application of the rule in Harris v Taylor supra a decision that the English courts themselves have refused to apply in two subsequent decisions ie Re Dulles Settlement No 2 and NV Daarnhouwer Co v Boulos 1968 2 Lloyd s Rep 259 However the plaintiffs submit that even if this rule is adopted on the facts of the present case the plaintiffs had not asked the Colombo High Court to exercise any jurisdiction but had only raised the issue of its lack of jurisdiction in view of the existence of the arbitration clause On the view that I take in relation to this question I find that it is not necessary for me to enter into a consideration as to whether the rule in Henry v Geoprosco should or should not be adopted in Singapore I will proceed on the basis that it is the law 51 In Henry v Geoprosco Roskill LJ said that in determining whether a defendant had voluntarily submitted to the jurisdiction at p 748 it must depend in each case upon what it was that the defendant did or refrained from doing in relation to the jurisdiction of the foreign court On that note I note that what the plaintiffs did in the proceedings in the Colombo High Court was to take out a motion to raise the plaintiffs objection to it exercising jurisdiction in the second action The motion is on the following terms the defendant wishes to bring to the notice of Your Honour s court that the defendant objects to Your Honour s court exercising jurisdiction over this matter in terms of s 5 of the Arbitration Act No 11 of 1995 This is in accordance with the scheme under s 5 of the Sri Lankan Arbitration Act which provides as follows Where a party to an arbitration agreement institutes legal proceedings in a court against another party to such agreement in respect of a matter agreed to be submitted for arbitration under such agreement the court shall have no jurisdiction to hear and determine such matter if the other party objects to the court exercising jurisdiction in respect of such matter 52 This provision does not operate by giving the court a power to stay proceedings in favour of arbitration Instead it provides that the court shall have no jurisdiction over the proceedings if the other party objects to the court exercising jurisdiction Hence once an objection is made by operation of s 5 the Colombo High Court would have no jurisdiction over the matter It is essential to note that if the plaintiffs do not make this objection then it would appear that the Colombo High Court would have jurisdiction at the very least the plaintiffs could be taken to have waived their right to object Only by making an objection to the court exercising jurisdiction in respect of the proceedings can the plaintiffs deprive it of jurisdiction Furthermore although the plaintiffs have no presence or assets in Sri Lanka they were faced with a purported termination by the defendants of the MRA the subject matter of which were inter alia broadcasting rights to Test Matches played by the Sri Lankan cricket team In the circumstances they had an interest to ensure that the Colombo High Court did not assume jurisdiction which is in the nature of having assets within the jurisdiction 53 These circumstances are therefore quite removed from those in Harris v Taylor supra where by Manx law if the defendant there had done nothing the plaintiff could not have enforced the judgment against him in the Isle of Man because he had no assets there nor in England because the jurisdiction of the Manx court would not have been recognised The plaintiffs had not participated in the proceedings apart from making the objection and submitting that this objection was valid The defendants argue that by such participation the plaintiffs had submitted to the jurisdiction of the Colombo High Court to determine its jurisdiction The House of Lords had in the Williams Glyn s Bank case supra pronounced the existence of such jurisdiction However as explained above that case involved an application for a stay in which the court would have to exercise its discretion whereas the present case involves the making of an objection which would operate to deprive the Colombo High Court of its jurisdiction if an arbitration agreement existed 54 As I have said above the defendants argument based on the dual jurisdiction concept is attractive certainly from a conceptual point of view However it is possible to take an overly theoretical approach to this question and as a consequence lose sight of the woods for the trees In my view that is the danger with the defendants approach This court has to bear in mind that cases of this nature involve real people making business decisions in their endeavour to create wealth for themselves and their employers For my part I would prefer the common sense approach of Denning LJ in Re Dulles Settlement No 2 supra and hold that the true question is whether in raising the objection before the Colombo High Court that it had no jurisdiction over the matter by virtue of s 5 of the Sri Lankan Arbitration Act the plaintiffs had taken a step in the proceedings which necessarily involved waiving their objection to the jurisdiction When posed in that manner the answer is obviously in the negative and I so hold Issues not the same 55 The plaintiffs submit that the questions decided by the Colombo High Court are not similar to the issues that this court has to decide The Colombo High Court had decided that cl 19 of the MRA is not an arbitration agreement within the meaning of s 5 of the Sri Lankan Arbitration Act But before me they submit the question is whether cl 19 is an arbitration agreement within the meaning of s 2 of the Act which adopts the definition in art 7 of the Model Law 56 However I note that the definition of that term in s 50 1 of the Sri Lanka Arbitration Act is on similar terms as follows Arbitration Agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship whether contractual or not This is not surprising as the Sri Lankan Act was enacted in 1995 inter alia to give effect to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards the New York Convention as its long title states 57 The plaintiffs submit that the Colombo High Court would apply Sri Lankan law in deciding the issue whereas this court would apply Singapore law This is certainly an interesting argument However this submission was made virtually at the last minute of the last day of submissions and there was not only no opportunity for counsel for the defendants to respond to this the plaintiffs counsel did not have time to develop the argument Ordinarily I would have given the parties an opportunity to make full submissions However a decision is required rather urgently because the arbitrators have fixed the matter for hearing in late May 2002 In the circumstances and in view of the position I have taken on the remaining issues I need not make a finding on this point Public policy 58 The plaintiffs submit that even if they are deemed to have submitted to the jurisdiction the order of the Colombo High Court should not be recognised in Singapore on two grounds 1 the defendants had proceeded with the action in the Colombo High Court with notice and in breach of the anti suit injunction and 2 the order of the Colombo High Court was made without regard to the treaty obligations of Sri Lanka under the New York Convention 59 The plaintiffs point out that following the grant of the anti suit injunction on 29 October 2001 at the adjourned hearing of the plaintiffs objection motion in the Colombo High Court the plaintiffs drew the court s attention to those injunctions The learned judge there had stated that it was for the defendants to decide if they would continue with the second action in view of the injunction Notwithstanding this the defendants elected to proceed The plaintiffs submit that the defendants having proceeded with the second action in breach of an injunction of this Court which they had notice of it would be contrary to public policy to recognise any order made under the second action 60 The plaintiffs refer to these passages in the following texts 1 Cheshire North Private International Law 13th Ed at p 446 No action is sustainable on a foreign judgment which is contrary to the English principles of public policy 2 Volume 8 1 Halsbury s Laws of England 4th Ed Reissue para 1009 Judgment contrary to public policy A foreign judgment will not be recognised or enforced in England if its recognition or É enforcement would be contrary to public policy 3 Dicey Morris The Conflict of Laws 13th Ed Vol 1 at para 14 145 It will be contrary to public policy to recognise or enforce a judgment which has been obtained in disobedience of an injunction not to proceed with the action in a foreign court 61 The plaintiffs also cite Philip Alexander Securities and Futures v Bamberger CA Civil Division Transcript 12 July 1996 The respondents there had commenced proceedings in German courts against the appellants despite the existence of arbitration clauses in the contracts providing for arbitration in London In each case the appellants contested the proceedings on the basis that there was a binding arbitration agreement On the appellants application the English court granted interim anti suit injunctions against the respondents The respondents continued to prosecute their claims despite having notice of the injunctions and obtained judgments from the German courts The English Court of Appeal approved the following statement of the judge at first instance It would seem to me prima facie that if someone proceeds in breach of and with notice of an injunction granted by the English Court to obtain judgments abroad those judgments should not as a matter of public policy be recognised in the United Kingdom 62 In the present case the defendants submit that the plaintiffs themselves had commenced the present action in breach of the order of the Colombo High Court obtained by the defendants on 16 October 2001 enjoining the plaintiffs from preventing the defendants from or interfering with the defendants negotiating with or entering into contracts with any party in respect of matters covered by the MRA Therefore the injunctions obtained in these proceedings are similarly tainted On the plaintiffs own argument the Sri Lankan Court when it heard the plaintiffs own application seeking the Sri Lankan Court s determination of its own jurisdiction was bound not to recognise the injunctions issued by this court as the plaintiffs had obtained it in breach of an order of the Sri Lankan Court The defendants say that this distinction is in itself sufficient to take the present case out of the authority of Philip Alexander Securities and Futures v Bamberger They point out that the anti suit injunctions in Philip Alexander Securities and Futures v Bamberger were not obtained in breach of an injunction of the foreign court 63 The defendants also point out that Philip Alexander Securities and Futures v Bamberger is of limited authority because although the court had stated this principle it had refused to grant the declarations sought by the plaintiff that certain German judgments obtained against it in breach of English anti suit injunctions were not to be recognised or enforced as a matter of English law The Court of Appeal held that it was open to the judge at first instance to decline to make the matter res judicata but leave it open to the German plaintiffs to seek to enforce their judgment in England 64 However the plaintiffs point out that the present injunctions were obtained on 29 October and the defendants notified immediately but they had only taken out this summons on 22 January 2002 They point out that the proper course of action on the part of the defendants would have been to apply to adjourn the second action and take out this application to obtain a discharge before resuming it Instead they had chosen to ignore it taken out judgment and then come to this court almost three months later 65 In my view I cannot ignore the actions of the defendants They were aware of the anti suit injunction and chose to ignore it By virtue of the MRA they had agreed to submit disputes to arbitration in Singapore upon election by any party and the plaintiffs have so elected In the circumstances it would be manifestly against public policy to give recognition to the foreign judgment at the behest of the defendants who have procured it in breach of an order emanating from this court Urgency 66 The plaintiffs application was made pursuant to s 12 6 of the Act Such an application is governed by O 69A r 3 1 c of the Rules of Court which provides that it is to be made to a judge in chambers or the registrar The defendants initially challenge the procedure by which the plaintiffs took out this application but have since abandoned it However the application was made ex parte under O 69A r 3 3 which provides as follows Where the case is one of urgency such application may be made ex parte on such terms as the Court thinks fit The defendants submit that the plaintiffs have not shown that the application was urgent and therefore they were not entitled to make the application ex parte 67 The defendants submission is as follows The second action was commenced on 16 October 2001 and the plaintiffs were aware from 17 October that fresh tenders were invited which would close on 25 October The plaintiffs were also aware of the second action at the very latest on 19 October 2001 when they appointed solicitors and took objection to the exercise of jurisdiction by the Colombo High Court On that day the plaintiffs issued the Notice of Arbitration On and from 19 to 24 October the plaintiffs did nothing in Singapore to restrain the defendants 1 from continuing with the second action In fact the plaintiffs had actively participated in the second action by asking the Colombo High Court to decide on its own jurisdiction and participating fully in the hearings on that issue 2 from entering into a fresh contract covering the same subject matter as the MRA 68 On 24 October the deadline for the tenders was extended to 29 October Between 24 and 29 October the plaintiffs again did nothing in Singapore to restrain the defendants from proceeding with second action or to prevent the defendants from entering into a fresh contract It was only on 29 October that the plaintiffs finally took out this action However that resort was not had on the basis that the Colombo High Court was proceeding against the will of the plaintiffs to determine the question of its own jurisdiction The defendants submitted that from the first affidavit of David Mallinson filed in support of the plaintiffs action the plaintiffs had resorted to the Singapore Court on 29 October 2001 for the purpose of maintaining the status quo until the Colombo High Court had had an opportunity to rule on the issue of its own jurisdiction It was clear say the defendants that the urgency on 29 October 2001 arose from the fact that the plaintiffs realised that they would not be able to get a decision from the Colombo High Court on the issue of the court s own jurisdiction before noon on 29 October 2001 But this was entirely of the plaintiffs own making because they had ample time since 19 October to take the steps which they belatedly took as a matter of urgency before this court on 29 October 2001 The defendants argue that this urgency was entirely manufactured and insufficient to bring the plaintiffs application within O 69A r 3 3 69 Mallinson had stated the following as the reasons for the urgency at paras 34 36 of his first affidavit 34 Given that no ruling on WSG Nimbus Application can be obtained by 12 noon 29 October 2001 and prior to the closing of BCCSL s tender exercise WSG Nimbus wrote to BCCSL on 26 October 2001 on the following terms It has been and remains our position that the Sri Lankan court does not have jurisdiction to hear any dispute between the parties relating to the Master Rights Agreement and or the Terms of Settlement and further that you have brought the proceedings in HC Civil Case No 246 2001 in Sri Lanka in breach of cl 19 of the Master Rights Agreement Unless we receive confirmation from you by 12 noon 27 October 2001 that you will not enter into any contract s or commitment s with any third party parties in any way dealing with the rights forming the subject matter of the Master Rights Agreement we will have no other option but to institute such proceedings in Singapore as may be necessary so as to protect our rights in aid of the pending arbitration proceedings Please let us know within the next twenty four 24 hours hereof whether you wish to be heard in any such proceedings and if so the name s and contact details of your representative s in Singapore 35 By a letter dated 27 October 2001 to WSG Nimbus BCCSL responded thus We re iterate that the Master Rights Agreement has ceased to operate and that the courts in Singapore and the proposed Arbitral Tribunal not yet constituted has no jurisdiction to issue any order against us and we will not be bound by any such order We still have time to reply to your letter of reference to arbitration dated 19 October 2001 As you are no doubt aware we have no representative whatsoever in Singapore We will refer this matter on Monday to our lawyers for necessary action inclusive of whether you could be charged for contempt of court It bears mention that BCCSL failed and or refused to confirm as requested by WSG Nimbus that it would not enter into any contract s or commitment s with any third party parties in respect of the commercial rights 36 In light of the oppressive and vexatious manner with which BCCSL has conducted itself in instituting both the first action and the second action as well as in the procurement of both the first enjoining order and the second enjoining order there is a real risk that if the application herein was made inter partes or with notice to BCCSL BCCSL would procure an injunction from the Colombo High Court restraining WSG Nimbus from instituting any legal proceeding to enforce the arbitration agreement and or in aid of the arbitration This would frustrate the very purpose and intent behind the arbitration agreement that BCCSL had consensually entered into 70 It is clear from Mallinson s affidavit that the reason for the urgency was because the defendants had refused to confirm that they would not deal with the rights the subject of the MRA The extended deadline for submission of tenders was 29 October on which date there was the possibility of a new contract being awarded Further in his fourth affidavit Mallinson had explained that up until 26 October the parties were engaged in negotiations to resolve the dispute He was constrained not to disclose this fact as they were conducted without prejudice However since the defendants had made reference to it in the affidavits filed on their behalf he felt he had to set the record straight 71 From the matters disclosed in the affidavits I am satisfied that the plaintiffs application was sufficiently urgent and fell within the ambit of O 69A r 3 3 Anti suit injunction 72 As I have determined that cl 19 is an arbitration agreement the defendants become subject to the jurisdiction of this court The defendants submit that even so the anti suit injunction should not be granted on the ground that it does not fall within s 12 6 of the Act read with s 12 1 g These provisions state as follows 12 1 Without prejudice to the powers set out in any other provision of this Act and in the Model Law an arbitral tribunal shall have powers to make orders or give directions to any party for a security for costs b discovery of documents and interrogatories c giving of evidence by affidavit d the preservation interim custody or sale of any property which is or forms part of the subject matter of the dispute da samples to be taken from or any observation to be made of or experiment conducted upon any property which is or forms part of the subject matter of the dispute db the preservation and interim custody of any evidence for the purposes of the proceedings e securing the amount in dispute f ensuring that any award which may be made in the arbitral proceedings is not rendered ineffectual by the dissipation of assets by a party and g an interim injunction or any other interim measure 6 The High

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