Hua Xin Innovation Incubator Pte Ltd v IPCO International Ltd

Keith Han AR:

[1] This was an application by IPCO International Limited (“the defendant”) to stay the proceedings commenced by Hua Xin Innovation Incubator Pte Ltd (“the plaintiff”) in Suit No 729 of 2012 in favour of arbitration.

[2] The plaintiff is a limited exempt private company involved in incubator marketing and consultant services, as well as investment and business consultancy. The defendant is a public company limited by shares and listed on the Singapore Stock Exchange.

[3] On 12 March 2012, the plaintiff and the defendant (collectively referred to as “the parties”) entered into an agreement to record their principles of agreement and certain commitments (“the Agreement”), which would form the basis for the negotiation of the Joint Development Agreement in relation to the Falling Water Land project (“the project”). The project relates to the development of certain parcels of land in Washington, United States of America. It was envisaged under the Agreement that the parties would subsequently enter into the Joint Development Agreement with certain other relevant parties for the purposes of implementing the project.

[4] Under Clause 3.1 of the Agreement, the plaintiff made an advance payment of S$1,350,000.00 (“the advance amount”) to the defendant in exchange for the defendant granting the plaintiff the right to participate in the joint development of the project. Clause 3.2 of the Agreement further provided that if the Agreement were to lapse or terminate, the advance amount would be repaid by the defendant to the plaintiff immediately without interests. Specifically, Clause 6.1 stipulated that if the Joint Development Agreement was not executed within 2 months from the date of the Agreement, the Agreement would lapse and cease to have further effect. As a result of that, the defendant would come under an obligation to return the advance amount to the plaintiff within five (5) working days (see Clause 6.2 of the Agreement).

[5] Clause 7, the dispute resolution clause, read as follows:

[6] As it turned out, on or about 12 May 2012, the Agreement lapsed and ceased to have further effect as the Joint Development Agreement was not executed. On 31 August 2012, the plaintiff filed Suit 729 of 2012 (“the proceedings”) against the defendant to claim the advance amount. The defendant has not filed any defence or taken any step in the proceedings, save that it has filed the present application for a stay in favour of arbitration.

[7] Earlier, on 29 July 2012, several plaintiffs commenced proceedings against a company, Sunmax Global Capital Fund 1 Pte Ltd (“Sunmax”) and one Li Hua in Suit 630. The plaintiff and the defendant were not parties to Suit 630. However, Ms Quah Su-Ling (“Ms Quah”), a director and CEO of the defendant who filed the affidavits in support of the present stay application, is one of the plaintiffs in Suit 630. At the same time, the 2 defendant in Suit 630, Li Hua, is the deponent of the only affidavit made on behalf of the plaintiff in the present stay application. It is the defendant’s case that Li Hua is a shadow or de facto director of the plaintiff, as he is the husband of one of the plaintiff’s director, with the other director being his relative.

[8] Central to the dispute in Suit 630 is a purported global settlement agreement (“the global settlement agreement”) reached by the parties at a meeting held on 24 July 2012. Under the global settlement agreement, the plaintiffs in Suit 630 were to repay various debts owed to Sunmax. In exchange, Sunmax would return certain shares which it held as security for the debts.

[9] What is material for present purposes is that the defendant claims that the advance amount was included as part of the global settlement agreement. The plaintiff, however, disputes this.

[10] In support of its application for a stay of the proceedings in favour of arbitration, the defendant relied on the following grounds:

[11] On the other hand, the plaintiff argued that the stay application should be dismissed for the following reasons. First, there was no dispute referable to arbitration as the defendant had admitted unequivocally that it owes the plaintiff the advance amount. The only dispute relied upon by the defendant vis-a-vis the advance amount relates to the global settlement agreement, which according to the plaintiff, is separate and unrelated to the Agreement. Accordingly, there is no dispute within the scope of the arbitration agreement between the parties.

[12] Second, the plaintiff submitted that a stay of the present proceedings in favour of arbitration would result in a multiplicity of proceedings as the existence of the global settlement agreement is the subject matter of Suit 630. Furthermore, the court has discretion to refuse to grant a stay of proceedings under s 6(2) of the AA, which the plaintiff argued applied instead of the IAA.

[13] In light of the foregoing, the following issues arose for my determination:

(a) Whether the IAA or the AA governs;

(b) Whether a valid dispute existed between the parties;

(c) If the answer to (b) is in the affirmative, whether the present proceedings should be stayed in favour of arbitration;

[14] In Navigator Investment Services Ltd v Acclaim Insurance Brokers Pte Ltd [2010] 1 SLR 25 (“Navigator”), the arbitrator clause provided that any dispute was to be resolved “in accordance with the Arbitration Rules of the [SIAC] for the time being in force”. It was undisputed that this was a reference to the SIAC Rules 2007. Rule 32 of the SIAC Rules 2007 provided that:

[15] The Court of Appeal in Navigator was thus faced with the issue of whether the reference to, as well as the incorporation of, the SIAC Rules 2007 was sufficient to bring an arbitration commenced pursuant to the Arbitration Clause within the purview of the IAA (see [34] of Navigator). Drawing support from the cases of NCC International AB v Alliance Concrete Pte Ltd [2008] 2 SLR(R) 565 and Smebawang Engineers and Constructors Pte Ltd v Covec (Singapore) Pte Ltd [2008] SGHC 229, and in light of the fact that Rule 32 of the SIAC Rules 2007 provided for the lex arbitri to be the IAA, the court found at [35] that:

[16] In the present case, however, the reference to the “to the Arbitration rules of the Singapore International Arbitration Centre for the time being in force” is to the SIAC Rules 2010. Under the SIAC Rules 2010, the previous Rule 32 from the SIAC Rules 2007 has been deleted and under the new Rule 18, it is no longer provided that the IAA will automatically apply to the conduct of the arbitration proceedings where the seat of arbitration is Singapore (See Richard Tan, Daniel Lim & Mervyn Cheong, “The New Arbitration Rules of the Singapore International Arbitration Centre” (Sep 2010) 59 IPBA Journal 16). Absent the express choice of the parties, the governing legislation will depend on whether the arbitration is international or domestic. In other words, the default position is reinstated under the SIAC Rules 2010: the IAA will apply only if one of the requirements of s 5(2) is satisfied.

[17] S 5(1) and (2) of the IAA reads as follows:

[18] As it is undisputed that the parties both have their place of business in Singapore, and there is no express agreement that the subject-matter of the arbitration agreement relates to more than one country, the parties focused their arguments on whether s 5(2)(b)(ii) of the IAA was satisfied. In other words, the crucial question was whether “a substantial part of the obligations of the commercial relationship” or “the place with which the subject-matter of the dispute is most closely connected with”, can be said to be outside of Singapore.

[19] The defendant contended that as the essence of the Agreement is to record the understanding between the parties in relation to the project, which involves the development of land in Washington State in the United States, the subject matter of the dispute is foreign and thus, the IAA ought to apply. On the plaintiff’s part, it contended that the Agreement ought not to be confused with the Joint Development Agreement. Under the former, the main obligation is the payment of $1,350,000 from the plaintiff to the defendant. This obligation was performed in Singapore not elsewhere and thus, the IAA was not applicable.

[20] In Mitsui Engineering & Shipbuilding Co Ltd v PSA Corp Ltd and anor [2003] 1 SLR(R) 446 (“Mitsui”), the High Court made clear at [27] that:

[21] In the Hong Kong High Court case of Fung Sang Trading Ltd v Kai Sun Sea Products & Food Co Ltd [1992] 1 HKLR 40 (cited with approval in Mitsui), Kaplan J opined at 48 that in order to determine where a substantial part of the obligations of the commercial relationship is to be performed, “one has to take a much wider view and look at the position as at the date the contract is entered into and see what obligations each party has to perform under that contract” (emphasis added).

[22] Likewise, in Leslie Chew, Introduction to the Law and Practice of Arbitration in Singapore (Singapore: LexisNexis, 2010) at 17, the learned author opined that:

[23] In my view, the material question in the present case is: what are the obligations under the Agreement entered into by the parties on 12 March 2012. Framed in this light, the answer becomes evident once one considers Clause 2 of the Agreement (which shall be set out in full for the ease of reference):

[24] In contractual parlance, Clause 2 makes clear that in-so-far as the obligations of the parties in relation to the project are concerned, this is “subject to contract” and no binding legal obligations can be said to arise vis-a-vis the Project. I would further note, in light of the Court of Appeal decision in Norwest Holdings Pte Ltd (in liquidation) v Newport Mining Ltd [2011] 4 SLR 617, that there is nothing in the factual circumstances which suggests otherwise.

[25] Thus, in my view, in determining the obligations of the parties under the Agreement for the purposes of s 5(2)(b)(ii) of the IAA, it is not open to the court to, as the defendant contends, take into account the obligations under the Joint Development Agreement which will implement the project. Put starkly, the Agreement and the Joint Development Agreement are separate contracts, with separate obligations. Furthermore, as the recital and Definition and Interpretation clause of the Agreement reveals, it is envisaged that other parties, on top of the plaintiff and defendant, would enter into the Joint Development Agreement in order to facilitate the implementation of the project.

[26] What then were the obligations of the parties under the Agreement? As evinced by Clause 3.1 of the Agreement, it was simply that in consideration for the plaintiff paying the advance amount to the defendant, the defendant would grant the plaintiff the right to participate in the joint development of the project. Additionally, in the event the Agreement lapses, the advance amount was to be repaid within five (5) working days (Clause 3.2 of the Agreement). These were the only obligations of the parties under the Agreement.

[27] In light of the above, given that both parties had their places of business in Singapore, the advance amount was denominated in Singapore dollars and payment was made in Singapore, I find that the obligations of the parties under the Agreement were performed in Singapore alone. Accordingly, s 5(2)(b)(ii) of the IAA is not satisfied and the governing legislation in the present case ought to be the AA.

[28] S 6(2) of the AA states:

[29] In the case of Dalian Hualiang Enterprise Group Co Ltd v Louis Dreyfus Asia Pte Ltd [2005] 4 SLR(R) 646 (“Dalian”), the High Court held at [74] that under s 6(2) of the AA:

[30] This is in contrast to the position under the IAA where once there is a dispute, a stay must be ordered unless the arbitration agreement is null and void, inoperative or incapable of being performed, and the court is not to consider if there is in fact a dispute or whether there is a genuine dispute (see [75] of Dalian).

[31] In its submissions, the plaintiff contended that there is no dispute in the present case as there has been a clear and unequivocal admission by the defendant that it owed the advance amount and thus, the court ought to refuse to grant a stay as the subject matter of the present proceedings fell outside the terms of the arbitration agreement. In support of its contention that there has been a clear and unequivocal admission, the plaintiff pointed to Tan Rajah & Cheah’s (“TRC”) 2 letter of 31 July 2012. TRC are the defendant’s solicitors in the present proceedings and the contents of the letter evinced that a cashier’s order in the sum of S$1,350,000 was provided by the defendant to the plaintiff in an attempted repayment.

[32] What the plaintiff failed to point out, however, was that the cashier’s order was returned on 30 August 2012 under the cover of the Rodyk & Davidson’s (defendant’s solicitors) dated 30 August 2012.

[33] During oral arguments, when asked to define the dispute as he saw it in the present proceedings, counsel for the defendants, Mr Sithawalla, framed the dispute as thus:

[34] Indeed, during oral arguments, both parties did not dispute that the main issue in the present proceedings was whether the advance amount was part of the global settlement agreement (“the main issue”). The only question was whether the main issue constituted a dispute falling within the scope of the arbitration agreement.

[35] In Uni-Navigation Pte Ltd v Wei Loong Shipping Pte Ltd 1992] 3 SLR(R) 595 (“Uni-Navigation”), in finding that there was dispute within the ambit of an arbitration clause governed by the AA, the High Court held at [16] and [17] that:

[36] The approach taken by the High Court in Uni-Navigation was subsequently accepted by the Court of Appeal in Kwan Im Tong Chinese Temple and anor v Fong Choon Hung Construction Pte Ltd [1998] 1 SLR(R) 401 (“Kwan Im Tong”), where the court went on to clarify at [15] that it is the party resisting the stay of proceedings to show that there is no dispute.

[37] In Dalian, the defendant (“LD”) applying for a stay of the proceedings in favour of arbitration argued that even if there was an admission that it owed the claimed sum to the plaintiffs, it could nevertheless claim a set-off from a running account vis-a-vis a different company by the name of Guangdong Fuhong Edible Oil Co Ltd (“Fuhong”). According to LD, Fuhong was a close trading partner of the plaintiffs and was treated as part of the plaintiffs’ group of companies at all material times in so far as the running account was concerned.

[38] The court in Dalian found at [30] that on the facts, there was an admission by LD that it owed the claimed sum to the plaintiffs but for the set-off claim against Fuhong. However, it went on to find that the set-off issue was not a dispute falling within the arbitration agreement for the following reasons:

(a) The dispute under the contract with Fuhong (“the Fuhong contract”) was separate and distinct from the dispute under the contract between the plaintiffs and LD;

[39] In coming to its conclusion, the court in Dalian was influenced greatly by its view (evinced at [29]) that the dispute under the two contracts (the main contract and the Fuhong contract) were entirely unrelated.

[40] In my view, however, the case of Dalian may be distinguished from the case before me. Unlike in Dalian, the terms of the purported global settlement agreement encompass inter alia, the settlement of the advance amount, albeit this is disputed. In that sense, there is at least a nexus between the dispute in Suit 630 involving the global settlement agreement and the subject matter of the present proceedings, i.e. the advance amount. That there is such a nexus is not based on the bald assertions of the defendant but is borne out to some extent by the evidence that was before me. For instance, the defendant referred me to Quah’s 2 affidavit, which contained at exhibit QSL- 6 a table prepared by Li Hua, setting out the salient terms and parties involved in the global settlement agreement. The defendant is listed in the table alongside the sum of $1,350,000.00.

[41] Additionally, while the parties are not party to the global settlement agreement, the defendant pointed me to the relevant ACRA searches which revealed that Li Hua, the 2 defendant in Suit 630 and one of the main protagonists in both proceedings, is the husband of one of the two directors of the plaintiff and a relative of the other director. Indeed, as pointed out by the defendant, it is interesting to note that Li Hua has filed an affidavit on behalf of the plaintiff when he is neither a director nor shareholder of the plaintiff.

[42] In light of the foregoing, adopting a “holistic and commonsense approach”, I am of the view that at the very least, it can be said that the disputes and the parties in Suit 630 involving the global settlement agreement, and the present proceedings, are closely intertwined. Bearing in mind that the cases have consistently held that the phrase “any dispute” should be given a wide interpretation (see for example Dalian at [29]), I therefore find that there exists a dispute in the present proceedings falling within the ambit of the arbitration agreement.

[43] The inquiry, however, does not end here. S 6(2)(a) of the AA empowers the court to examine whether there are any “sufficient reason” why the matter should not be referred in accordance with the arbitration agreement.

[44] In Cars & Cars Pte Ltd v Volkswagen AG and anor [2010] 1 SLR 625 (“Cars & Cars”) at [48], the High Court noted that while multiplicity of proceedings is not wholly decisive, it is a strong factor for refusing a stay. The court went on to make the following observations at [48]:

[45] In Cars & Cars, the appellant and the 1 respondent had entered into an Importer Agreement granting the appellant the right to import and distribute Volkswagen cars in Singapore. As the respondents later become desirous of importing the Volkswagen cars directly on their own, the parties entered into four written agreement to facilitate their parting of ways. All four agreements had significantly different dispute resolution clauses (see [44] and [50] of Cars & Cars).

[46] In rejecting the appellant’s argument that the refusal to grant a stay would lead to a risk of multiplicity of proceedings, the court had regard to the following material grounds:

(a) The parties had expressly chosen to enter into four separate agreements with significantly different dispute resolution clauses, each worded differently. The court found that the parties could have foreseen that there would be a risk of multiplicity and inconsistent decisions should disputes arise out of these agreements and thus, ought to be held to their respective contractual bargains under the different agreements (see Cars & Cars at [50]);

(b) It would be unjust if the appellant was released from the arbitration agreement that it freely entered into with the second respondent as the risk of multiplicity can be said to be induced by the way the appellant had chosen to bring its claims (see Cars & Cars at [52] and [53].

[47] In my view, however, the considerations in Cars & Cars are not applicable to the present proceedings. First, unlike in Cars & Cars where the parties had contemporaneously entered into four separate written agreements providing for four different dispute resolution mechanisms, the parties in the present proceedings had first entered into the Agreement, only for relations to subsequently unravel as a result of an unforeseen turn of events. A global settlement agreement was thus entered into, which purported to address a whole host of issues including, inter alia, the dispute over the advance amount under the Agreement. It certainly cannot be said that the parties could have foreseen what has transpired and thus, ought to be straitjacketed to their contractual bargain.

[48] Second, and as pointed out at [34] above, in the present proceedings, the parties are in agreement that the main issue in the present proceedings was whether the advance amount was part of the global settlement agreement. The situation thus differs from that in Cars & Cars in that it cannot be said that the risk of multiplicity was self-servingly brought about by the party seeking to resist arbitration. Indeed, as pointed out by the plaintiff at [75] of its written submissions, it is the defendant itself, the stay applicant, which has on its own case attempted to tie the issues arising out of Suit 630 with the present proceedings.

[49] Furthermore, as pointed out by the plaintiff at [76] of its written submissions, Quah, the defendant’s CEO, is one of the plaintiffs who commenced Suit 630. Interestingly, the defendant’s affidavits in the present proceedings were also deposed to by Quah. Thus it may at least be suggested that the risk of multiplicity was, in the present proceedings, brought about by the actions of the stay applicant itself. In light of the above, it certainly cannot be said that injustice would be caused to the defendant if the court refuses to grant a stay.

[51] Instead, I am minded to order that the present proceedings be consolidated with Suit 630. O 4 r 1(1) of the Rules of Court (Cap 332, R5, 2006 Rev Ed) (“the Rules of Court”) provides:

[52] The purpose of consolidation is to save time and expense which would otherwise be unnecessarily expended by the maintenance of separate suits. There are also practical considerations such as the possibility of inconsistent judgments if two differently constituted courts hear the actions separately. (See Singapore Court Practice 2009 (Jeffrey Pinsler gen ed) (LexisNexis, 2009) at para 4/1/1).

[53] As I pointed out at [42] above, at the very least, it may be said that the present proceedings and the proceedings in Suit 630 are closely intertwined. It can also be readily appreciated from the foregoing discussion that it can be said that either common questions of law or fact arise in both suits, or that the reliefs claimed in both suits arise out of the same transaction or series of transactions. There also appears to me to be no barriers to an order for consolidation as the plaintiffs and defendants in both suits are different (see Singapore Civil Procedure 2007 (Sweet & Maxwell Asia, 2007) (“the White Book”) at 4/1/1). Furthermore, I note that the solicitors for the plaintiff in the present proceedings are in fact the solicitors for the defendants in Suit 630, while the solicitors for the defendant are the solicitors of the plaintiffs in Suit 630. I am thus minded to make a full consolidation order.

[54] I am further reassured in my decision to order full consolidation by the fact that during oral arguments, I had asked counsel for the defendant, Mr Sithawalla, whether in light of the circumstances, consolidation of the present proceedings with Suit 630 might be preferable to a stay in favour of arbitration. Picking up on this, in his oral submissions, counsel for the plaintiff, Mr Low, after highlighting that a stay in favour of arbitration could lead to a multiplicity of proceedings, indicated that he was willing to undertake to apply to consolidate both disputes. Accordingly, I asked Mr Sithawalla during his reply for his response to Mr Low’s willingness to consolidate. He indicated that he was amenable to consolidation, albeit he had to seek his client’s instructions.

[55] Finally, for completeness, I should also note that after the oral hearing, I had directed the defendant to write to the plaintiff’s solicitors to update the plaintiff on the defendant’s position apropos consolidation. I had further directed that the parties were to update the court on the progress of the matter by 12 November 2012 4pm. After reviewing the correspondence filed by the parties, it would appear that the defendant is now taking the position that there ought to be no consolidation but that the present proceedings should merely be stayed pending the determination of Suit 630. The plaintiff continues to take the position that the proceedings ought to be consolidated. In light of this, I shall proceed with my orders.