Holdrich Investment Ltd v Siemens AG

Lee Seiu Kin J:

[1] On 23 September 2008, the plaintiff filed the writ of summons in this action. The plaintiff then obtained leave on 11 November 2008 to serve the writ of summons on the defendant outside the jurisdiction pursuant to O 11 r 1(d)(iii) of the Rules of Court (Cap 322, R5, 2007 Rev Ed) (“Leave Order”). However on 4 May 2009, in summons no 1100 of 2009, the defendant obtained an order discharging the Leave Order. The plaintiff appealed before me against the decision of 4 May 2009.

[3] The plaintiff is a Hong Kong company and the defendant a German company. They entered into a contract entitled “Service Agreement” under which the plaintiff undertook to render what is best described as “consultancy services” in respect of a project known as the “UMTS Project”. This Service Agreement was subsequently amended by common consent. I shall refer to the amended agreement as “the Contract”. Under the Contract, the plaintiff was to receive a commission fee equivalent to 2% of the value of the supply contract for the UMTS Project upon its award to Siemens Information and Communication Networks S.p.A., an Italian company related to the defendant. The Contract provides that it shall be governed by Singapore law. Apart from that provision, there appears to be no other connection to Singapore.

[4] The plaintiff’s claim is for the sum of US$2.33m, being the sum payable under the Contract in respect of the “consultancy services” provided to procure UMTS projects in India and Indonesia. The defendant denied liability and took the position that Germany is the more appropriate forum to hear the dispute, essentially because the persons who negotiated and executed the Contract on its behalf, and who will be called as its witnesses, are no longer in its employ and are located in Germany. These witnesses are important for a possible defence based on implied terms of the Contract. Another defence is that of lack of authority and the witnesses for this are also ex-employees located in Germany. Finally, the defendant stated that it is the subject of an investigation by the German prosecution authorities which had seized documents relating to the matter.

[5] The plaintiff’s position is that the Contract is in writing and oral evidence pertaining to the negotiation is not an important factor. Also the evidence supporting the plaintiff’s claim is based on letters and other written communication. The investigation in Germany against the defendant is its own doing and even if it is true that the defendant has problem with access to its documents, this should not be a factor in its favour.