PT Garuda Indonesia v Birgen Air: Setting Aside Order for Service Out of Jurisdiction in Arbitration Dispute
In PT Garuda Indonesia v Birgen Air, the Singapore High Court, presided over by Judicial Commissioner Woo Bih Li, addressed an application by Birgen Air to set aside an order that granted PT Garuda Indonesia leave to serve a Notice of Originating Motion out of jurisdiction. The dispute arose from an Aircraft Lease Agreement and subsequent arbitration proceedings. The court set aside the order, finding that Garuda had failed to make full and frank disclosure regarding the place of arbitration and that Singapore was not the most appropriate forum for the challenge. The court determined that the place of arbitration remained Jakarta, despite hearings being held in Singapore, and therefore Singapore lacked a jurisdictional basis for the originating motion.
1. Case Overview
1.1 Court
High Court1.2 Outcome
Order granting leave to serve out of jurisdiction and all subsequent proceedings set aside.
1.3 Case Type
Civil
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
The High Court set aside an order for service out of jurisdiction, holding that Singapore was not the proper forum for challenging an arbitration award.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| P.T. Garuda Indonesia | Plaintiff | Corporation | Application dismissed | Lost | |
| Birgen Air | Defendant | Corporation | Application allowed | Won |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Woo Bih Li | Judicial Commissioner | Yes |
4. Counsels
4. Facts
- PT Garuda Indonesia and Birgen Air entered into an Aircraft Lease Agreement dated 20 January 1996.
- A dispute arose regarding Birgen Air's intention to substitute the aircraft to be leased.
- The dispute was referred to arbitration, with the hearing held in Singapore.
- The arbitration award was rendered on 15 February 2000, with an addendum on 18 May 2000 and a decision on 21 November 2000.
- Garuda filed a Notice of Originating Motion in Singapore to set aside the award.
- The Lease Agreement stipulated that the governing law was that of Indonesia and the place of arbitration was Jakarta.
- The Terms of Reference also stated that the place of arbitration was Jakarta.
5. Formal Citations
- PT Garuda Indonesia v Birgen Air, OM 600001/2001, [2001] SGHC 262
6. Timeline
| Date | Event |
|---|---|
| Aircraft Lease Agreement signed | |
| Arbitration hearing held | |
| Arbitration Award rendered | |
| Addendum to Final Award rendered | |
| Decision With Respect to Final Award rendered | |
| Notice of Originating Motion filed | |
| Garuda applied ex-parte for leave to serve the Notice of Originating Motion | |
| Order of Court made | |
| Birgen Air applied to set aside the Order | |
| Order set aside | |
| Decision Date |
7. Legal Issues
- Jurisdiction
- Outcome: The court held that Singapore was not the proper forum to challenge the arbitration award because the place of arbitration was Jakarta.
- Category: Jurisdictional
- Sub-Issues:
- Forum non conveniens
- Place of arbitration
- Related Cases:
- [1996] 1 SLR 580
- [1997] 2 SLR 682
- [1988] 1 Lloyd's Rep 116
- Material Non-Disclosure
- Outcome: The court found that Garuda had materially failed to disclose relevant information in its application for leave to serve out of jurisdiction.
- Category: Procedural
- Related Cases:
- [1996] 1 SLR 580
- [1988] 3 All ER 188
- Substituted Service
- Outcome: The court held that the leave to serve by substituted service in Singapore was wrongly granted.
- Category: Procedural
- Related Cases:
- [1889] 23 QBD 395
- [1902-3] VII SSLR 1
- [1991] 2 MLJ 499
8. Remedies Sought
- Setting aside the Award
- Setting aside the Addendum
- Setting aside the Decision
9. Cause of Actions
- Setting aside of arbitration award
10. Practice Areas
- Arbitration
- Commercial Litigation
11. Industries
- Aviation
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Transniko Pte Ltd v Communication Technology Sdn Bhd | High Court | Yes | [1996] 1 SLR 580 | Singapore | Cited for the principle that an applicant has a duty to make full and frank disclosure in an application for leave to serve out of jurisdiction. |
| Brink's-MAT Ltd v Elcombe & others | N/A | Yes | [1988] 3 All ER 188 | N/A | Cited for the principle that the court has discretion not to set aside leave granted if there was material, but innocent, non-disclosure. |
| Overseas Union Insurance Ltd v Incorporated General Insurance Ltd | N/A | No | [1992] 1 Lloyd's Law Report 439 | N/A | Cited regarding the requirements for a proper case for service out of jurisdiction, but ultimately distinguished. |
| Kishinchand Tiloomal Bhojwani v Sumil Kishninchand Bhojwani | High Court | Yes | [1997] 2 SLR 682 | Singapore | Cited for the principle that Order 11 r 2(2) embodies the forum non conveniens rule. |
| Naviera Amazonica Peruana S.A. v Compania Internacional De Seguros Del Peru | N/A | Yes | [1988] 1 Lloyd's Rep 116 | N/A | Cited for the distinction between the legal 'seat' of an arbitration and the geographically convenient place for holding hearings. |
| Fry v Moore | N/A | Yes | [1889] 23 QBD 395 | N/A | Cited for the principle that if a writ could not be served personally at the time when it is issued, there cannot be substituted service. |
| Lyon v. Syed Mahomed | N/A | Yes | [1902-3] VII SSLR 1 | Singapore | Cited regarding the requirements for substituted service. |
| Ng Swee Hong v Singmarine Shipyard Pte Ltd | N/A | No | [1991] 2 MLJ 499 | Malaysia | Cited regarding the purpose of ordering substituted service, but distinguished on its facts. |
13. Applicable Rules
| Rule Name |
|---|
| O 69A r 4 of the Rules of Court |
| O 11 r 2(1) and (2) |
| Order 62 r 5(1) |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| International Arbitration Act (Cap 143A) | Singapore |
| Companies Act (Cap 50) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Place of arbitration
- Service out of jurisdiction
- Material non-disclosure
- Substituted service
- Forum non conveniens
- Lex arbitri
- Curial law
15.2 Keywords
- arbitration
- service out of jurisdiction
- Singapore
- Indonesia
- Birgen Air
- Garuda Indonesia
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| International Arbitration | 90 |
| Arbitration | 90 |
| Jurisdiction | 70 |
| Service of document out of jurisdiction | 60 |
| Material non-disclosure | 50 |
| Contract Law | 40 |
| Administrative Law | 30 |
16. Subjects
- Arbitration
- Civil Procedure
- Jurisdiction