Maldives Airports v GMR Malé: Interim Injunction & Concession Agreement Dispute

The Court of Appeal heard an appeal by Maldives Airports Co Ltd (MACL) and the Republic of the Maldives against the High Court's decision to grant an interim injunction to GMR Malé International Airport Pte Ltd, restraining the appellants from interfering with GMR Malé's obligations under a concession agreement. The agreement granted GMR Malé a 25-year concession to rehabilitate, expand, modernize, and maintain the Malé International Airport. The Appellants sought a declaration that the Concession Agreement was void. The Court of Appeal allowed the appeal, setting aside the injunction, finding that the balance of convenience did not favor granting or upholding the injunction.

1. Case Overview

1.1 Court

Court of Appeal

1.2 Outcome

Appeal Allowed

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Appeal regarding an interim injunction restraining Maldives Airports from interfering with GMR Malé's obligations under a concession agreement. The appeal was allowed.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Maldives Airports Co LtdAppellantCorporationAppeal AllowedWon
Republic of the MaldivesAppellantGovernment AgencyAppeal AllowedWon
GMR Malé International Airport Pte LtdRespondentCorporationAppeal DismissedLost

3. Judges

Judge NameTitleDelivered Judgment
Sundaresh MenonChief JusticeYes
Andrew Phang Boon LeongJustice of the Court of AppealNo
Woo Bih LiJudgeNo

4. Counsels

Counsel NameOrganization
Kenneth PereiraAdvocatus Law LLP
Ganga d/o AvadiarAdvocatus Law LLP
Christopher Anand DanielAdvocatus Law LLP
Foo Li Chuan ArleneAdvocatus Law LLP
Mohan Reviendran PillayMPillay
Linda Esther Foo Hui LingMPillay
Tong Wai Yan JosephineMPillay

4. Facts

  1. Maldives Airports Company Limited (MACL) is wholly owned by the Maldives Government.
  2. A concession agreement was entered into between the Appellants and a consortium for the rehabilitation, expansion, modernization, and maintenance of the Malé International Airport.
  3. The consortium incorporated the Respondent, GMR Malé International Airport Private Limited, and assigned its rights and obligations under the Concession Agreement to the Respondent.
  4. The Maldives Court held that clauses in the Concession Agreement allowing the Respondent to impose a fee on departing passengers were inconsistent with Maldivian legislation.
  5. MACL and the Maldives Government issued letters consenting to a variation of the fees payable by the Respondent, but later withdrew their consent.
  6. The Respondent commenced arbitration proceedings against the Appellants seeking a declaration that it was entitled to adjust the fees payable to MACL.
  7. The Appellants informed the Respondent that the Concession Agreement was void ab initio or had been frustrated and gave the Respondent seven days’ notice to vacate the Airport.

5. Formal Citations

  1. Maldives Airports Co Ltd and another v GMR Malé International Airport Pte Ltd, Civil Appeal No 160 of 2012, [2013] SGCA 16

6. Timeline

DateEvent
Concession Agreement entered into
Maldives Court held cll 2(a) and 2(b) of Annex 10 of the Concession Agreement inconsistent with Act No 71/78
Appellants issued letters consenting to a variation of fees payable by the Respondent
Change of government in the Maldives
MACL issued a letter stating its earlier letter of 5 January 2012 had been issued without authority
Maldives Government purported to withdraw consent to arrangements given by its earlier letter of 5 January 2012
Respondent commenced arbitration proceedings against the Appellants
Appellants filed their response in the arbitration
Appellants informed the Respondent that the Concession Agreement was void ab initio or had been frustrated
Appellants commenced arbitration proceedings against the Respondent
Respondent commenced OS 1128 seeking an injunction from the Singapore High Court
Judge granted the Injunction
Matter came before the Court of Appeal
Appeal allowed and Injunction set aside

7. Legal Issues

  1. Interim Injunction
    • Outcome: The Court of Appeal set aside the interim injunction, finding that the balance of convenience did not favor granting or upholding the injunction.
    • Category: Procedural
    • Sub-Issues:
      • Balance of convenience
      • Adequacy of damages
      • Enforceability of injunction
  2. Act of State Doctrine
    • Outcome: The court held that the act of State doctrine did not apply because the dispute was essentially one of a private nature.
    • Category: Jurisdictional
  3. State Immunity
    • Outcome: The court held that the Maldives Government had waived any immunity from being subject to the Injunction through clause 23 of the Concession Agreement.
    • Category: Jurisdictional
  4. Interpretation of 'Assets' under Section 12A(4) of the IAA
    • Outcome: The court interpreted 'assets' under Section 12A(4) of the IAA as encompassing rights under a contract, confined to such contractual rights as lend themselves to being preserved.
    • Category: Procedural

8. Remedies Sought

  1. Interim Injunction

9. Cause of Actions

  • Breach of Contract

10. Practice Areas

  • Commercial Litigation
  • Arbitration

11. Industries

  • Aviation

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
PT Pukuafu Indah and others v Newmont Indonesia Ltd and anotherHigh CourtYes[2012] 4 SLR 1157SingaporeCited to define an interlocutory order as an order that did not decide the substance of the dispute or an order under s 12 of the IAA during the pendency of arbitration proceedings.
Wellmix Organics (International) Pte Ltd v Lau Yu ManN/AYes[2006] 2 SLR(R) 525SingaporeCited to support the argument that where the nature of the application takes the form of an originating summons and the substantive merits are being determined in another forum, it would be wrong to characterise the application as interlocutory in nature.
CIMB Bank Bhd v Dresdner Kleinwort LtdCourt of AppealYes[2008] 4 SLR(R) 543SingaporeCited for the principle that a choice of law clause was enforceable even where the main contract containing the clause was declared to be void on the grounds of mistake, duress, or even fraud.
Blad v BamfieldN/AYes(1674) 3 Swans 604; 36 ER 992EnglandCited as a long-standing doctrine of Anglo-American jurisprudence.
Charles Frederick Augustus William, Duke of Brunswick v Ernest Augustus, King of Hanover, Duke of Cumberland and Teviotdale, in Great Britain and Earl of Armagh, in IrelandN/AYes(1848) 2 HL Cas 1; 9 ER 993EnglandCited as a long-standing doctrine of Anglo-American jurisprudence.
Underhill v HernandezUnited States Supreme CourtYes168 US 250 (1897)United StatesCited for the principle that courts of one country will not sit in judgment on the acts of the government of another done within its own territory.
Oetjen v Central Leather CompanyUnited States Supreme CourtYes246 US 297 (1918)United StatesCited for the principle that the conduct of one independent government cannot be successfully questioned in the courts of another.
Aksionairnoye Obschestvo Dlia Mechaniches-koyi Obrabotky Diereva (1) A M Luther (Company for Mechanical Woodworking A M Luther) v James Sagor and CompanyN/AYes[1921] 3 KB 532EnglandCited as a case where decisions of the United States Supreme Court have been applied by the English courts.
Princess Paley Olga v Weisz and OthersN/AYes[1929] 1 KB 718EnglandCited for the principle that the Court will not inquire into the legality of acts done by a foreign Government against its own subjects in respect of property situate in its own territory.
Attorney-General v NissanN/AYes[1970] AC 179EnglandCited for the proper approach for the court when deciding if it should assume or decline jurisdiction in proceedings involving an alleged act of State.
Salaman v Secretary of State in Council of IndiaN/AYes[1906] 1 KB 613EnglandCited for the principle that a given act may amount to an act of State if it was done in the exercise of the State’s supreme sovereign power.
Buttes Gas and Oil Co and Another v Hammer and AnotherN/AYes[1982] AC 888EnglandCited for the principle of judicial abstention or restraint where a possible future act of State might be the subject of an injunction.
Cetelem SA v Roust Holdings LtdEnglish Court of AppealYes[2005] 1 WLR 3555EnglandCited for the principle that 'assets' in s 44(3) included choses in action and contractual rights, and that the court had the power under s 44(3) to grant the interim mandatory injunction as long as it was persuaded that the injunction was necessary to preserve the plaintiff’s right to purchase the shares under the contract.
Telenor East Holding II AS v Altimo Holdings & Investments Ltd and other companiesEnglish High CourtYes[2011] EWHC 458 (Comm)EnglandCited as a case that followed Cetelem and interpreted s 44(3) as encompassing contractual rights.
Starlight Shipping Co and another v Tai Ping Insurance Co Ltd Hubei Branch and anotherEnglish High CourtYes[2008] 1 Lloyd’s Rep 230EnglandCited as a case that followed Cetelem and interpreted s 44(3) as encompassing contractual rights.
Photo Production Ltd v Securicor Transport LtdN/AYes[1980] 1 AC 827EnglandCited for the principle that the primary obligation to perform the contract gives way to a secondary obligation to pay damages.
NCC International AB v Alliance Concrete Singapore Pte LtdN/AYes[2008] 2 SLR(R) 565SingaporeCited for the principle that courts are slow to grant interim mandatory injunctions and to limit curial involvement in arbitration proceedings.
Dowty Boulton Paul Ltd v Wolverhampton CorporationN/AYes[1971] 1 WLR 204EnglandCited for the principle that a final mandatory injunction is akin to specific performance.
Lee Chee Wei v Tan Hor Peow Victor and others and another appealN/AYes[2007] 3 SLR(R) 537SingaporeCited for the principle that a contractual right to purchase shares, which are not available in the open market, is one that is likely to be specifically enforceable at the suit of either the purchaser or the vendor.
National Westminster Bank plc v Utrecht-America Finance CompanyN/AYes[2001] 3 All ER 733EnglandCited for the principle that the right to have disputes resolved before a contractually chosen court or pursuant to an arbitration agreement could also rightfully be protected by way of an anti-suit injunction, whether on a final or an interim basis.
Aggeliki Charis Compania Maritima SA v Pagnan SpA (The “Angelic Grace”)N/AYes[1995] 1 Lloyd’s Rep 87EnglandCited for the justification for the grant of an anti-suit injunction in cases where a party is restrained from proceeding in a foreign Court in breach of an arbitration agreement governed by English law.
American Cyanamid Co Ltd v Ethicon LtdN/AYes[1975] AC 396EnglandCited for the test applied to determine whether the Injunction should be granted or upheld, which involves a balance of convenience.
Regina v Secretary of State for Transport, Ex parte Factortame Ltd and Others (No 2)N/AYes[1991] 1 AC 603EnglandCited for the principle that the court should take whichever course appears to carry the lower risk of injustice if that course should ultimately turn out to have been the 'wrong' course.
SSL International plc and another v TTK LIG Ltd and othersEnglish Court of AppealYes[2012] 1 WLR 1842EnglandCited for the principle that the court would not ordinarily grant an injunction requiring parties to a complex contract to continue working together once it was shown that there had been a serious breakdown of mutual trust and confidence such that there was no longer any willingness to cooperate.
Electronic Applications (Commercial) Ltd v Toubkin and AnotherN/AYes[1962] RPC 225EnglandCited for the principle that an interim injunction must be certain and should not be granted in terms which leave it to be argued in contempt proceedings what it does and does not require of the party to whom it is directed.
Castanho v Brown & Root (UK) Ltd and AnotherN/AYes[1981] AC 557EnglandCited for the principle that the apprehension of the Appellants disobeying the Injunction does not justify its being denied.
Locabail International Finance Ltd v Agroexport and AnotherN/AYes[1986] 1 WLR 657EnglandCited for the principle that the court should generally be satisfied that any injunction which it grants can be practically obeyed and if the injunction is not obeyed, the court would be in a position to enforce the injunction.
SABMiller Africa BV and Tanzania Breweries Limited v East African Breweries LimitedEnglish High CourtYes[2009] EWHC 2140 (Comm)EnglandCited as a case where the court relied on a clause in the agreement that the parties would continue to perform their respective obligations under the agreement to the extent possible notwithstanding commencement of any proceedings in accordance with the rules.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
State Immunity ActSingapore
International Arbitration ActSingapore
Supreme Court of Judicature ActSingapore

15. Key Terms and Keywords

15.1 Key Terms

  • Concession Agreement
  • Interim Injunction
  • Arbitration
  • Act of State Doctrine
  • State Immunity
  • Balance of Convenience
  • Assets
  • Political Event
  • Expropriation
  • Malé International Airport

15.2 Keywords

  • Concession Agreement
  • Interim Injunction
  • Arbitration
  • Maldives
  • Airport

17. Areas of Law

Area NameRelevance Score
Injunctions90
Contract Law80
Arbitration75
Concession Agreements60
Private International Law40
International Law30
Administrative Law20
Foreign Law15

16. Subjects

  • Arbitration
  • Contract Law
  • Injunctions
  • International Law
  • State Immunity