Asiana Airlines v Gate Gourmet: Anti-Suit Injunctions & Arbitration Agreements
Asiana Airlines appealed against the decision of the Singapore International Commercial Court to grant anti-suit injunctions restraining Asiana from continuing court proceedings in South Korea against Gate Gourmet Korea Co, Ltd, Gate Gourmet Switzerland GmbH, Christoph Schmitz, and Xavier Rossinyol Espel. The injunctions were granted on the basis that arbitration agreements between some of the parties would be breached. The Court of Appeal allowed the appeal in part, setting aside the anti-suit injunction against the directors in the Korean Compensation Proceedings, but upheld the injunctions for the Korean CA Proceedings and the claims against Gate Gourmet Switzerland GmbH in the Korean Compensation Proceedings.
1. Case Overview
1.1 Court
Court of Appeal of the republic of singapore1.2 Outcome
Appeal allowed in part. The anti-suit injunction granted in respect of the claims against the directors in the Korean Compensation Proceedings was set aside. The Judge’s decision regarding the anti-suit injunctions granted for the Korean CA Proceedings and for the claims against Gate Gourmet Switzerland GmbH in the Korean Compensation Proceedings was upheld.
1.3 Case Type
Civil
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Appeal on anti-suit injunctions restraining Asiana Airlines from Korean court proceedings against Gate Gourmet. The court considered breach of arbitration agreements.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Asiana Airlines, Inc | Appellant | Corporation | Appeal allowed in part | Partial | |
| Gate Gourmet Korea Co, Ltd | Respondent | Corporation | Anti-suit injunction granted | Won | |
| Gate Gourmet Switzerland GmbH | Respondent | Corporation | Anti-suit injunction granted | Won | |
| Christoph Schmitz | Respondent | Individual | Anti-suit injunction set aside | Lost | |
| Xavier Rossinyol Espel | Respondent | Individual | Anti-suit injunction set aside | Lost |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Sundaresh Menon | Chief Justice | Yes |
| Steven Chong | Justice of the Court of Appeal | No |
| Jonathan Hugh Mance | International Judge | No |
4. Counsels
4. Facts
- Asiana Airlines, Inc is a Korean company in the business of air travel.
- Gate Gourmet Korea Co, Ltd is a Korean company providing catering and other services to the airline industry.
- Gate Gourmet Switzerland GmbH is a Swiss company providing in-flight catering and other airline handling services.
- In 2016 and 2017, Asiana and Gate Gourmet entered into several contracts, including a Joint Venture Agreement and a Catering Agreement.
- Both the Catering Agreement and the Joint Venture Agreement contain arbitration agreements.
- Asiana commenced two civil suits against Gate Gourmet in Korea, which are the subject of the respondents’ application for the anti-suit injunctions.
- Chairman Park was indicted for offences including embezzlement, breach of trust, and violation of the Monopoly Regulation and Fair Trade Act.
5. Formal Citations
- Asiana Airlines, Inc v Gate Gourmet Korea Co, Ltd and others, Civil Appeal from the Singapore International Commercial Court No 12 of 2023, [2024] SGCA(I) 8
6. Timeline
| Date | Event |
|---|---|
| Joint Venture Agreement to create Gate Gourmet Korea Co, Ltd signed | |
| Catering Agreement between Gate Gourmet Korea Co, Ltd and Asiana Airlines, Inc signed | |
| Gate Gourmet Korea Co, Ltd commenced ICC Arbitration No 24544/HTG against Asiana Airlines, Inc | |
| Arbitral tribunal issued its final award | |
| Addendum to final award issued | |
| Gate Gourmet Korea Co, Ltd commenced Case No 2021 Kagi 1285 before the Seoul Southern District Court | |
| Chairman Park indicted by the Korean Prosecution Office | |
| Asiana Airlines, Inc commenced SIC/OS 11/2021 in the SICC to set aside the Award | |
| Asiana Airlines, Inc commenced Case No 2022 Gahap 51122 in the Incheon District Court | |
| Court dismissed SIC/OS 11/2021 | |
| Asiana Airlines, Inc appealed against the decision by way of CA/CAS 5/2022 | |
| Chairman Park convicted by the Seoul Central District Court in Case No 2021 Gohap 482 | |
| Asiana Airlines, Inc commenced Case No 2022 Gahap 109880 in the Seoul Southern District Court | |
| CA/CAS 5/2022 was dismissed | |
| Gate Gourmet commenced proceedings in SIC/OA 14/2023 before the Judge | |
| Court issued its judgment in the Korean Enforcement Proceedings | |
| Judgment reserved | |
| Judgment delivered |
7. Legal Issues
- Breach of Arbitration Agreement
- Outcome: The court held that Asiana was in breach of the CA Arbitration Agreement when it brought the Korean CA Proceedings and that the Korean Compensation Proceedings fell within the scope of the JVA Arbitration Agreement.
- Category: Substantive
- Sub-Issues:
- Scope of arbitration agreement
- Validity of arbitration agreement
- Anti-Suit Injunctions
- Outcome: The court set aside the anti-suit injunction granted in respect of the claims against the directors in the Korean Compensation Proceedings, but upheld the injunctions for the Korean CA Proceedings and the claims against Gate Gourmet Switzerland GmbH in the Korean Compensation Proceedings.
- Category: Procedural
- Sub-Issues:
- Grant of anti-suit injunction against non-parties to arbitration agreement
- Vexatious or oppressive conduct
- Validity of Arbitration Agreements
- Outcome: The court held that Asiana could not argue that the arbitration agreements were null and void because it had multiple opportunities to challenge their validity and did not take any of these until the proceedings below and before us.
- Category: Substantive
- Sub-Issues:
- Nullity under Korean Civil Code
- Abuse of authority
8. Remedies Sought
- Anti-Suit Injunction
- Declaration that the Catering Agreement is null and void
- Damages
9. Cause of Actions
- Breach of Contract
- Tortious Acts
10. Practice Areas
- Arbitration
- Commercial Litigation
11. Industries
- Airline
- Catering
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Gate Gourmet Korea Co, Ltd and others v Asiana Airlines, Inc | Singapore International Commercial Court | Yes | [2024] 3 SLR 199 | Singapore | The judgment under appeal. The Judge granted two anti-suit injunctions restraining the appellant from continuing court proceedings in South Korea against the respondents. |
| Clearlake Shipping Pte Ltd and Gunvor Singapore Pte Ltd v Xiang Da Marine Pte Ltd | Not Available | Yes | [2020] 1 All ER (Comm) 61 | England and Wales | Cited for analogy regarding the objective interpretation of an exclusive forum clause to include a tort claim against a non-party to prevent forum fragmentation. |
| Henderson v Henderson | Not Available | Yes | (1843) 3 Hare 100 | England and Wales | Cited for the principle that a litigant may not litigate points that were not previously raised before and hence not determined by a court or tribunal, even though they could and ought properly to have been so raised and argued then. |
| The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate Advisory Pte Ltd and others, other parties) and another appeal | Court of Appeal | Yes | [2015] 5 SLR 1104 | Singapore | Cited for the principle that a litigant may not litigate points that were not previously raised before and hence not determined by a court or tribunal, even though they could and ought properly to have been so raised and argued then. |
| Asiana Airlines, Inc v Gate Gourmet Korea Co, Ltd | Singapore International Commercial Court | Yes | [2022] 4 SLR 158 | Singapore | Cited for context regarding Asiana's arguments in OS 11. |
| BCBC Singapore Pte Ltd and another v PT Bayan Resources TBK and another | Court of Appeal | Yes | [2024] 1 SLR 1 | Singapore | Cited regarding new arguments raised on appeal. |
| Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb | Not Available | Yes | [2020] 1 WLR 4117 | England and Wales | Cited for the principle that the applicable law for determining whether an arbitration agreement has been breached is the governing law of that agreement. |
| Anupam Mittal v Westbridge Ventures II Investment Holdings | Court of Appeal | Yes | [2023] 1 SLR 349 | Singapore | Cited for the principle that the governing law of the arbitration agreement is relevant in determining whether there was a breach of the arbitration agreement. |
| Hai Jiang 1401 Pte Ltd v Singapore Technologies Marine Ltd | High Court | Yes | [2020] 4 SLR 1014 | Singapore | Cited for principles regarding anti-suit injunctions sought by or in favor of a non-party to an arbitration agreement and the applicable standard of review. |
| Aggeliki Charis Compania Maritima SA v Pagnan SpA | Not Available | Yes | [1995] 1 Lloyd’s Rep 87 | England and Wales | Cited for the principle that an anti-suit injunction would be granted to enforce exclusive forum clauses unless there are strong reasons to the contrary. |
| Sea Premium Shipping Ltd v Sea Consortium Pte Ltd | Not Available | Yes | [2001] EWHC 540 (Admlty) | England and Wales | Cited for the principle that a party that wishes to take the benefit of the contract will be treated as bound by the burden of an exclusive forum clause. |
| Dell Emerging Markets (EMEA) Ltd and another v IB Maroc.com SA (a body corporate) | Not Available | Yes | [2017] EWHC 2397 (Comm) | England and Wales | Cited for the principle that it would be inequitable or oppressive and vexatious for a party to a contract to seek to enforce a contractual claim arising out of that contract without respecting the jurisdiction clause within that contract. |
| Times Trading Corporation v National Bank of Fujairah (Dubai Branch) (The Archagelos Gabriel) | Not Available | Yes | [2020] EWHC 1078 (Comm) | England and Wales | Mentioned as a case that has more recently considered some of the points raised in Hai Jiang 1401 Pte Ltd v Singapore Technologies Marine Ltd. |
| QBE Europe SA/NV anor v Generali España de Seguros y Reaseguros | Not Available | Yes | [2022] EWHC 2062 (Comm) | England and Wales | Mentioned as a case that has more recently considered some of the points raised in Hai Jiang 1401 Pte Ltd v Singapore Technologies Marine Ltd. |
| Tomolugen Holdings Ltd and another v Silica Investors Ltd and other appeals | Court of Appeal | Yes | [2016] 1 SLR 373 | Singapore | Cited for the principle that the court does not have the power to compel parties to participate in arbitral proceedings to prevent forum fragmentation. |
| Donohue v Armco Inc and others | House of Lords | Yes | [2002] 1 All ER 749 | England and Wales | Discusses the grant of an anti-suit injunction against New York proceedings on the basis that it violated exclusive jurisdiction clauses in favor of the English courts. |
| Team Y&R Holdings Hong Kong and others v Ghossoub; Cavendish Square Holding BV and another v Ghossoub | Not Available | Yes | [2017] All ER (D) 81 (Nov) | England and Wales | Cited for principles regarding whether an exclusive jurisdiction clause should be understood to oblige a contractual party to bring claims relating to the contract in the chosen forum even if the claim is one against a non-contracting party. |
| Rals International Pte Ltd v Cassa di Risparmio di Parma e Piacenza SpA | Court of Appeal | Yes | [2016] 5 SLR 455 | Singapore | Cited for the principle that allowing a non-party to an arbitration agreement to avail itself of the right to arbitration under that agreement would, on its face, conflict with the doctrine of privity. |
| Giorgio Armani SpA and others v Elan Clothes Co Ltd f/k/a Dalian Les Copious Clothes Co Ltd | Not Available | Yes | [2020] 1 HKLRD 354 | Hong Kong | Cited for the principle that an anti-suit injunction may be granted where the court finds that the foreign action has been brought against the non-party for ulterior reasons, namely to bypass or avoid the constraints of the exclusive forum clause. |
| Hilton International Manage (Maldives) Pvt Ltd v Sun Travels & Tours Pvt Ltd | High Court | Yes | [2018] SGHC 56 | Singapore | Cited for the principle that one of the implied negative obligations arising from an arbitration agreement is the obligation not to pursue claims in relation to disputes falling within the arbitration agreement in any other forum. |
| AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC | Not Available | Yes | [2013] 1 WLR 1889 | England and Wales | Cited for the principle that one of the implied negative obligations arising from an arbitration agreement is the obligation not to pursue claims in relation to disputes falling within the arbitration agreement in any other forum. |
| Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd | Court of Appeal | Yes | [2018] 2 SLR 1271 | Singapore | Cited for the principle that anti-suit injunctions are granted to restrain proceedings commenced in breach of exclusive jurisdiction clauses, just as they are granted to prevent a party from proceeding with a claim in breach of an arbitration agreement. |
| Cupreus Sarl v Whiteshell Group Ltd | High Court | Yes | [2023] All ER (D) 125 (Dec) | England and Wales | Cited for the principle that the principles appear to apply with equal force where an anti-suit injunction is sought by reference to either an exclusive jurisdiction clause or an arbitration agreement. |
| BBA and others v BAZ and another appeal | Court of Appeal | Yes | [2020] 2 SLR 453 | Singapore | Cited for the principle that an arbitral tribunal derives its jurisdiction on party consent. |
| Larsen Oil and Gas Pte Ltd v Petroprod Ltd (in official liquidation in the Cayman Islands and in compulsory liquidation in Singapore) | Court of Appeal | Yes | [2011] 3 SLR 414 | Singapore | Cited for the principle that the court will take a generous approach towards the construction of arbitration agreements. |
| VEW v VEV | Court of Appeal | Yes | [2022] 2 SLR 380 | Singapore | Cited for examples of when vexation or oppression had been found. |
| John Reginald Stott Kirkham and others v Trane US Inc and others | High Court | Yes | [2009] 4 SLR(R) 428 | Singapore | Cited for examples of when vexation or oppression had been found. |
| Evergreen International SA v Volkswagen Group Singapore Pte Ltd and others | High Court | Yes | [2004] 2 SLR(R) 457 | Singapore | Cited for examples of when vexation or oppression had been found. |
| PT Sandipala Arthaputra v STMicroelectronics Asia Pacific Pte Ltd and others | Court of Appeal | Yes | [2015] 5 SLR 873 | Singapore | Cited for examples of when vexation or oppression had been found. |
| BC Andaman Co Ltd and others v Xie Ning Yun and another | Court of Appeal | Yes | [2017] 4 SLR 1232 | Singapore | Cited for the principle that a permanent anti-suit injunction has a palpable effect on foreign proceedings. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Korean Civil Code 2013 (Act No 11728 of 2013) | Korea |
| Act on the Aggravated Punishment of Specific Economic Crimes 2017 (Act No 15256 of 2017) (Korea) | Korea |
| Korean Commercial Act 2010 (Act No 10366 of 2010) | Korea |
| Korean Arbitration Act 2016 (Act No 14176 of 2016) | Korea |
15. Key Terms and Keywords
15.1 Key Terms
- Anti-suit injunction
- Arbitration agreement
- Exclusive forum clause
- Forum fragmentation
- Joint Venture Agreement
- Catering Agreement
- Package Deal
- Korean Civil Code
- Korean Arbitration Act
- Vexatious or oppressive conduct
15.2 Keywords
- Arbitration
- Anti-suit injunction
- Contract
- Korea
- Singapore
- International
- Commercial
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Arbitration | 95 |
| Anti-suit injunction | 90 |
| Jurisdiction | 60 |
| Comity | 40 |
| Breach of Contract | 30 |
| Commercial Litigation | 25 |
| Corporate Law | 15 |
16. Subjects
- Arbitration
- Contract Law
- Civil Procedure
- Injunctions