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- Significant cases & deals featuring our lawyers
Rajah & Tann Singapore LLP is representing the Republic of Indonesia in an ongoing annulment proceeding in the case of Rafat Ali Rizvi v The Republic of Indonesia. The team handling the matter comprises Francis Xavier SC, the Regional Head of Rajah & Tann's Dispute Resolution Practices, Sarah Hew and Tee Su Mien from the firm's Commercial Litigation Practice, Hamidul Haq, the Head of the Indonesian Desk of the firm, and Paul Tan from the International Arbitration Practice.
The Claimant/Applicant Mr Rafat Ali Rizvi had filed an application to annul the award on jurisdiction (issued in July 2013) in November 2013. After written submissions were exchanged, the ad hoc Committee hearing the application for annulment informed parties that they will decide the applicant's request for a stay of enforcement on the basis of written submissions solely.
The ad hoc Committee refused the Applicant's request for a stay of enforcement, on the basis that the dispositive part of the Award does not confer the prevailing party rights, and therefore, no stay of enforcement is warranted.
The hearing for the annulment application will be held in Hong Kong in April 2015.
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Leong Kah Wah, V Bala and Koh See Bin from the Shipping and International Trade Practice successfully acted for Transocean Oil Pte. Ltd. ("Transocean") before a 5-member Court of Appeal against the decision of the High Court striking out its claim for unpaid bunkers and setting aside the warrant of arrest against the STX MUMBAI (the "Vessel") in STX MUMBAI [2014] SGHC 122. This is the first time in Singapore's history that the Court of Appeal comprising five members has been constituted to hear an admiralty case.
Transocean had supplied bunkers to the Vessel. Before the expiry of the credit period to pay for the bunkers, Transocean issued a writ in rem and arrested the Vessel on the basis that the owners were in anticipatory breach of the bunker supply contract. The anticipatory breach was based on the fact that it was clear that the owners of the Vessel could not pay the price of the bunkers within the credit period because the STX group was insolvent.
In the setting aside and striking out application made by the owners, the High Court ruled that Transocean's action was pre-mature and legally unsustainable as it had arrested the Vessel before the expiry of the credit period, and that insolvency per se did not amount to repudiation. The High Court further observed that the doctrine of anticipatory breach may be unavailable under Singapore law in executed contracts – i.e. where the only outstanding obligation left in the contract was to pay the price.
The Court of Appeal overturned the High Court's decision, ruling that the doctrine of anticipatory breach applied in both executed and executory contracts. On the facts, it was arguable that Transocean had waited until after they were reasonably satisfied that payment could not be made before the arrest was executed, and that the insolvency of the STX group precluded the price from being paid. The Court of Appeal thus allowed Transocean's appeal, finding that it was pre-mature for the High Court to set aside the arrest and strike out the case.
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In Pacific Harbor Advisors Pte Ltd and Credit Suisse AG, Singapore Branch v Tiny Tantono (sued as representative of the estate of Susanto Lim, deceased), Gregory Vijayendran, Benjamin Smith and Ronald JJ Wong from the Commercial Litigation Practice successfully represented the Plaintiffs (Pacific Harbor Advisors Pte Ltd and Credit Suisse AG, Singapore Branch) in Registrar's Appeal No. 129 of 2014. The Honourable Justice Quentin Loh upheld the previous decision of the Assistant Registrar, summarily determining questions of law and granting summary judgment in favour of the Plaintiffs. The Plaintiffs were thus awarded final judgment of about US$50.5 million.
The Plaintiffs' claim against the Defendant was for the repayment of a loan guaranteed by her husband. The Defendant challenged the guarantee on the basis that, inter alia, her husband had no capacity to furnish the guarantee under Indonesian law because her consent as spouse was required. The Plaintiffs applied for the Court to summarily determine the novel question (on which there is no direct authority in Singapore or other Commonwealth jurisdictions) of what law governed the Defendant's husband's capacity to furnish his guarantee pursuant to conflicts of laws rules.
During the hearing of the appeal, the Plaintiffs argued that the objective proper law of the contract should be applied, meaning the law which has the closest and most real connection with the contract. The Plaintiff submitted that, on the facts, the objective proper law governing the contract of personal guarantee is Singapore law, and that under Singapore law, the Defendant's defence (that her husband's guarantee was invalid due to lack of capacity under Indonesian law) was not sustainable. The Plaintiffs further submitted that the Defendant’s other defences were not credible.
After hearing detailed submissions from the parties, Justice Loh dismissed the Defendant's appeal in its entirety in a judgment delivered on 19 September 2014, and upheld the final judgment granted in favour of the Plaintiffs.
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Gregory Vijayendran and Lester Chua from the Commercial Litigation Practice successfully represented Mr Goh Wai Mun Eric and Mrs Wee Phui Leong Penelope in resisting an appeal (CA No. 93 of 2014) by Ms Goh Mei Ling Yvonne and Ms Goh Meich'ang Yvette ("Appellants") against a Supplemental Judgment on Costs delivered by the Honourable Justice Quentin Loh in Suit No. 732 of 2012/E.
We succeeded on the basis of a preliminary objection taken that the Appellants had failed to obtain the requisite leave to appeal under Section 34(2)(b) of the Supreme Court of Judicature Act prior to filing their appeal. The Court of Appeal (coram: the Honourable Chao Hick Tin JA, the Honourable Andrew Phang Boon Leong JA and the Honourable Justice Judith Prakash) agreed that the failure on the Appellants' part to obtain the requisite leave to appeal meant that the Court of Appeal had no jurisdiction to hear the appeal. The appeal was accordingly dismissed, with costs (including disbursements) fixed at S$6,000 (including disbursements) awarded to our clients.
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Shareholders or directors of a company often enter into informal or private financial arrangements with the company or its members, particularly when the threat of insolvency is looming. However, when it comes to proof of debt after the onset of liquidation, to what extent can claims for such arrangements be made? This was one of the issues considered in Ong Kian Hoy v Liquidator of HSS Engineering Pte Ltd [2014] SGHC 262, in which the liquidator was successfully represented by Patrick Ang and Ang Siok Hoon from the Business Finance & Insolvency Practice.
In this case, the Plaintiff director and shareholder of an insolvent company sought to challenge the liquidator's rejection of certain claims in his proof of debt. However, the liquidator's decision to reject the three major claims was upheld by the High Court.
The first major claim was for personal loans which the Plaintiff had advanced to the company, which the Court found to have been written off by the Plaintiff to allow the company to borrow further funds. The second major claim was for compensation pursuant to a settlement agreement, which was found to be binding on the shareholders and not the company itself. The third claim was for legal fees and costs incurred by the Plaintiff in appealing against the winding up order made against the company, which the Court held should be borne by the Plaintiff and not the company.
Informal financial agreements between directors or shareholders of a company and the company itself may be aimed at providing temporary relief or setting up private arrangements, with no actual intention of enforcement. However, when the company enters insolvency, these agreements will be strictly upheld against the parties. In addition, not all costs incurred in relation to a winding up order may be reclaimed from the company.
We featured this case in the February 2015 issue of our Client Update. To view this Update, click here.
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Commercial parties are generally free to contract on any terms they may agree on, but such proverbial freedom to contract is not without limitation, and the Court may find it necessary to step in where a contract term infringes on the court's equitable jurisdiction. In CKR Contract Services Pte Ltd v Asplenium Land Pte Ltd [2015] 1 SLR 987, the Singapore High Court considered the enforceability of a clause in a building contract, which purported to preclude a contractor from seeking injunctive relief on the ground of unconscionability, against a property developer's call on a performance bond. This case appears to be the first reported Singapore High Court decision on the issue.
The contractor in this matter was represented by Vikram Nair, Amy Seow and Tan Ruo Yu from the International Arbitration and Commercial Litigation Practices.
The Court accepted the contractor's argument that the clause was void and unenforceable, being an attempt to oust the Court's equitable jurisdiction and circumvent the Singapore Courts' deliberate development of unconscionability as a ground upon which an abusive call on a performance bond could be restrained, although the Court eventually found that unconscionability was not made out on the facts. This decision is now pending appeal before the Court of Appeal, so the final word is not yet out on this topic.
The Court's ability to restrain unconscionable calls on performance bonds is an important power which cannot be excluded by agreement of the parties. Beyond the context of the construction industry, this decision also highlights the need for commercial parties to be prudent when drafting agreements.
The decision is set to go on appeal before the Court of Appeal.
We featured this case in the February 2015 issue of our Client Update. To view this Update, click here.
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Under Singapore law, claims against a ship or shipowner relating to damage, loss or injury must be brought within 2 years of the incident. However, the Court has the power to grant an extension in certain situations. In The Orinoco Star [2014] SGHCR 19, the Court considered the scope of this power, and when it is appropriate to grant an extension.
Jainil Bhandari and Yip Li Ming from the Shipping & International Trade Practice successfully represented the Plaintiff in obtaining an extension of time.
The parties were shipowners whose vessels had been involved in a collision. The Plaintiff commenced proceedings and arrested the Defendant's vessel in Singapore on 6 December 2013, more than two years after the collision, and sought leave of the Court under section 8(3) of the Singapore Maritime Conventions Act ("s8(3)") to maintain the action despite the time bar.
The Court held that the Plaintiff was entitled to rely on s8(3) as it had not had a reasonable opportunity of arresting the Defendant's vessel in the relevant jurisdictions of Singapore, the Marshall Islands, or Greece, as the vessel had not called at those countries in the two years since the collision.
The Plaintiff was granted an extension to 7 December 2013, essentially allowing it to continue its claim. This was because it had arrested the Defendant's vessel at first reasonable opportunity after the expiry of talks to extend the limitation period in light of negotiations between the parties.
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Assegaf Hamzah & Partners advocates notched up another significant win in the Administrative Court of First Instance ("Court") in Indonesia in December in 2014, when the judicial panel threw out a challenge to a forested land utilisation permit issued by the Ministry of Forestry to PT Supreme Energy Rajabasa. The permit allowed PT Supreme Energy Rajabasa to conduct geothermal exploration operations in a state forest. Local indigenous people had challenged the ministry's decision on the grounds that such operations would interfere with their rights as traditional owners of the land and would damage the environment. In its decision, the Court rejected the Applicants' petition on the grounds that: (i) the land in question was state-owned; (ii) no potential environmental damage could be shown in the conduct of geothermal exploration; and (iii) the harnessing of geothermal energy was essential for national economic development.
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Assegaf Hamzah & Partners Disputes Partners Eri Hertiawan and Alan Maulana appeared before the Court of Arbitration for Sport ("CAS") in Geneva, Switzerland on behalf of our client, the Indonesian Sporthorse Society, the body responsible for equestrian sports in Indonesia, in its ongoing dispute with the Indonesian Olympic Committee (KONI). The CAS has yet to enter a decision in the matter.
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Advocates of Assegaf Hamzah & Partners represented the winners of the 2014 Presidential Election, President Joko Widodo and Vice President Jusuf Kalla, in an action in the Central Jakarta District Court challenging the results of the Presidential Election. The challenge was based on arguments to the effect that the General Elections Commission had prematurely opened the ballot boxes. We argued that the District Court had no jurisdiction to hear the case, as under the electoral legislation, all electoral disputes should be heard by the Constitutional Court. The judicial panel accepted our arguments and dismissed the case.
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Kala Anandarajah, Dominique Lombardi and Kimberly Tan from the Competition Practice jointly acted for Daifuku Co., Ltd. and BCS Group Limited in relation to Daifuku's proposed acquisition of 80% of BCS' shares. The Daifuku Group is one of the top 3 suppliers of automated handling systems in the world, while the BCS Group is a multi-million dollar manufacturer of baggage handling systems for airports and courier sortation systems for logistics companies.
The parties were able to successfully establish that the structure and nature of the market was such as to prevent the merger from resulting in a substantial lessening of competition in Singapore. The Competition Commission of Singapore cleared the merger on 26 January 2015.
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On 11 December 2014, the Competition Commission of Singapore ("CCS") issued an infringement decision against 11 freight forwarders and their Singapore subsidiaries for violating Section 34 of the Competition Act through the collective fixing of certain fees and surcharges, and for exchanging price and customer information in the provision of air freight forwarding services from Japan to Singapore. This is the CCS' second international cartel case involving foreign parent companies and their local subsidiaries and affiliates, with the total financial penalty for the cartel amounting to over S$7 million.
Kala Anandarajah, Tanya Tang and Marcus Teo from the Competition Practice acted for Yusen Logistics Co., Ltd. and Yusen Logistics (Singapore) Pte. Ltd.
Separately, Dominique Lombardi, Benjamin Cheong, Shuhei Otsuka, Kimberly Tan and Lee Jen Hee from the Competition Practice represented Nippon Express Co., Ltd. and Nippon Express (Singapore) Pte. Ltd.
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Assegaf Hamzah & Partners advised and represented TBG Global Pte Ltd ("TBG Global") in its issuance of US$350 million 5-year notes due 2020 with a coupon of 5.25%. The notes, which were listed on the Singapore Exchange on 10 February 2015, were offered to non-U.S. persons in offshore transactions outside the United States pursuant to Regulation S of the U.S. Securities Act.
TBG Global is a wholly-owned subsidiary of PT Tower Bersama Infrastructure Tbk, one of Indonesia's largest telecommunications tower operators.
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Assegaf Hamzah & Partners advised Quadria Capital ("Quadria"), a leading Asian healthcare investment firm, in its purchase of a stake in rapidly growing Indonesian pharmaceutical company, PT. SOHO Global Health ("SOHO"). Quadria’s investment in SOHO represents its second announced investment from Quadria Capital Fund LP, and its first private equity investment in Indonesia. The deal was announced on 26 January 2015.
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Christopher & Lee Ong Partners Christopher Lee and Yon See Ting are acting for Arenga Pinnata Sdn Bhd, a subsidiary of Creador II, LLC ("Creador") in the takeover of Masterskill Education Group Berhad ("Masterskill").
Creador is a private equity fund which focuses on making investments in growth-oriented businesses in Southeast Asian countries, primarily India, Indonesia, Singapore and Malaysia. Its objective is to identify and tap into opportunities for long-term value creation through partnerships with entrepreneurs to grow world-class businesses. Masterskill is a public company listed on the Main Market of Bursa Malaysia Securities Berhad. It is principally engaged in the provision of education services, support services, physiotherapy and rehabilitation services.
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Christopher & Lee Ong Partner Yon See Ting and her team have acted for a Japan-based property investment corporation in its acquisition of shares in a property development company with land interests in Iskandar Development Region.
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