Orchard Capital I Ltd v Ravindra Kumar Jhunjhunwala: Forum Non Conveniens & Non-Exclusive Jurisdiction Clause

The Singapore Court of Appeal heard an appeal by Orchard Capital I Ltd against Ravindra Kumar Jhunjhunwala regarding a stay of action. The High Court had granted a stay sine die based on a non-exclusive jurisdiction clause in a settlement agreement, which pointed to Hong Kong. The Court of Appeal, delivered by Andrew Phang Boon Leong JA, allowed the appeal, finding that the Respondent had not discharged the burden of proving that Hong Kong was a clearly more appropriate forum than Singapore. The claim was for breach of contract.

1. Case Overview

1.1 Court

Court of Appeal

1.2 Outcome

Appeal Allowed

1.3 Case Type

Civil

1.4 Judgment Type

Written Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Singapore Court of Appeal case regarding a stay of action based on forum non conveniens, considering a non-exclusive jurisdiction clause pointing to Hong Kong.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Orchard Capital I LtdAppellantCorporationAppeal AllowedWon
Ravindra Kumar JhunjhunwalaRespondentIndividualStay of Action OverturnedLost

3. Judges

Judge NameTitleDelivered Judgment
Chao Hick TinJustice of the Court of AppealNo
Andrew Phang Boon LeongJustice of the Court of AppealYes

4. Counsels

Counsel NameOrganization
Lai Yew FeiRajah & Tann LLP
Khelvin Xu CunhanRajah & Tann LLP
Patrick Chin Meng LiongChin Patrick & Co
R S WijayaR. S. Wijaya & Co

4. Facts

  1. Orchard Capital I Ltd, an exempt limited liability company, sued Ravindra Kumar Jhunjhunwala for failing to meet obligations under three contracts.
  2. The parties entered into a Settlement Agreement in May 2010, requiring the Respondent to pay US$6,500,000 to the Appellant.
  3. The Settlement Agreement contained a non-exclusive jurisdiction clause pointing to the courts of Hong Kong.
  4. The Respondent failed to make a payment of US$2,500,000 by 28 November 2010.
  5. The Respondent applied to stay the Singapore action based on forum non conveniens, arguing Hong Kong was the more appropriate forum.
  6. The Respondent is a Singaporean Permanent Resident.
  7. The original agreements contained an exclusive jurisdiction clause relating to Hong Kong.

5. Formal Citations

  1. Orchard Capital I Ltd v Ravindra Kumar Jhunjhunwala, Civil Appeal No 106 of 2011, [2012] SGCA 16
  2. Orchard Capital I Limited v Ravindra Kumar Jhunjhunwala, , [2011] SGHC 185

6. Timeline

DateEvent
Appellant and Respondent entered into three contracts
Appellant and Respondent entered into a Settlement Agreement
Respondent allegedly failed to pay US$2,500,000 to the Appellant
Appellant commenced Suit No 8 of 2011
Respondent applied to stay S 8/2011 on the ground of forum non conveniens
Assistant Registrar refused to grant a stay of proceedings
Judge allowed the appeal and stayed the action sine die with liberty to restore
Judgment reserved

7. Legal Issues

  1. Forum Non Conveniens
    • Outcome: The Court of Appeal held that the Respondent had not discharged the burden of proving that Hong Kong was a clearly or distinctly more appropriate forum than Singapore.
    • Category: Procedural
    • Sub-Issues:
      • Burden of proof
      • Appropriate forum
      • Connecting factors
    • Related Cases:
      • [1987] AC 460
      • [2011] 1 SLR 391
      • [2008] 4 SLR(R) 543
      • [2010] 3 SLR 1007
  2. Interpretation of Non-Exclusive Jurisdiction Clause
    • Outcome: The Court of Appeal held that the non-exclusive jurisdiction clause was merely a factor to be considered and did not have the effect of an exclusive jurisdiction clause.
    • Category: Substantive
    • Sub-Issues:
      • Effect of clause
      • Parties' intention
      • Contractual interpretation
    • Related Cases:
      • [2010] 4 SLR 904
      • [2008] 5 HKLRD 632

8. Remedies Sought

  1. Enforcement of claim under clause 8(iv) of the Agreement

9. Cause of Actions

  • Breach of Contract

10. Practice Areas

  • Commercial Litigation

11. Industries

  • Finance

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Spiliada Maritime Corporation v Cansulex LtdHouse of LordsYes[1987] AC 460England and WalesCited for the established test for stay of proceedings on the ground of forum non conveniens.
JIO Minerals FZC and others v Mineral Enterprises LtdCourt of AppealYes[2011] 1 SLR 391SingaporeCited for affirming and applying the principles laid down in Spiliada.
CIMB Bank Bhd v Dresdner Kleinwort LtdCourt of AppealYes[2008] 4 SLR(R) 543SingaporeCited for summarizing the principles in Spiliada, particularly the burden on the defendant to establish a clearly more appropriate forum.
OCBC Capital Investment Asia Ltd v Wong Hua ChoonHigh CourtNo[2010] 4 SLR 904SingaporeCited for the interpretation of a non-exclusive jurisdiction clause and its effect on forum non conveniens applications; distinguished on facts.
Noble Power Investments Ltd v Nissei Stomach Tokyo Co LtdHong Kong Court of AppealNo[2008] 5 HKLRD 632Hong KongCited for explaining the general effect of non-exclusive jurisdiction clauses.
Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte LtdCourt of AppealYes[2008] 3 SLR(R) 1029SingaporeCited for the contextual approach to contract interpretation under Singapore law.
Siemens AG v Holdrich Investment LtdCourt of AppealYes[2010] 3 SLR 1007SingaporeCited for the principle that connecting factors pointing away from Singapore must point to a more appropriate forum, not merely be dispersed among several jurisdictions.
Good Earth Agricultural Co Ltd v Novus International Pte LtdCourt of AppealYes[2008] 2 SLR(R) 711SingaporeCited for the similarity of general principles in Singapore and Hong Kong.
Orchard Capital I Limited v Ravindra Kumar JhunjhunwalaHigh CourtNo[2011] SGHC 185SingaporeThis is the decision being appealed.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
No applicable statutes

15. Key Terms and Keywords

15.1 Key Terms

  • Forum non conveniens
  • Non-exclusive jurisdiction clause
  • Settlement Agreement
  • Spiliada test
  • Connecting factors
  • Burden of proof
  • Clearly or distinctly more appropriate forum

15.2 Keywords

  • forum non conveniens
  • jurisdiction clause
  • Singapore
  • Hong Kong
  • contract
  • stay of proceedings

17. Areas of Law

Area NameRelevance Score
Jurisdiction90
Contract Law80
Breach of Contract75
Private International Law65
Commercial Disputes60
Civil Procedure50
Asset Recovery30
Arbitration20

16. Subjects

  • Conflict of Laws
  • Civil Procedure
  • Contract Law