In yet another setback for former promoters of Ranbaxy – Malvinder and Shivinder Singh -- the Singapore High Court has upheld the Rs. 3,500 Crores (720 Million Dollars) ICC Arbitral Award in favour of a Japanese Pharmaceutical major Daiichi Sankyo Company Limited which was represented by senior advocate Gopal Subramanium who assisted the court on Indian law.
This is also the first of its kind case where two senior counsel from India –Gopal Subramanium for Daiichi Sankyo Company Ltd and Harish Salve for Singh brothers– were granted leave to appear and argue before the Singapore High Court.
Subramanium and Salve had been granted leave by the High Court of Singapore to appear and argue on certain aspects of Indian Law which were essential for the adjudication of the case.
The single judge bench of Justice Belinda Ang upheld the majority award which was passed by the tribunal comprising Professor Lawrence GS Boo, Karyll Nairn and Justice (Retd.) AM Ahmadi on April 29, 2016.
The court, however, set aside the award as against the minors.
The Tribunal had held that the Sellers are jointly and severally liable to pay damages for the harm suffered by the Buyer (Daiichi, in the instant case) as a result of the fraudulent concealment of a Self-Assessment Report (SAR) concerning a pending investigations by the US Food and Drug Administration (FDA) and Department of Justice (DOJ).
Daiichi Sankyo is presently in execution of the Award in the High Court of Delhi and the order of the Singapore High Court clears the way for the company to continue execution in the High Court of Delhi.
Justice Ang dismissed the plea of Singh brothers against except the minors.
The order of the Singapore court follows the setback Singh brothers had suffered in Delhi High Court and the Supreme Court early this year.
In January, Justice Jayant Nath had held the award to be enforceable, except against the five minors including Singhs’ children, after hearing a petition filed by Daiichi seeking enforcement and execution of the Foreign Award dated April 29, 2016, passed by the tribunal in Singapore after it found the former promoters had intentionally withheld a self-assessment report of fraudulent practices at Ranbaxy concerning a pending investigations by the US Food and Drug Administration (FDA) and Department of Justice (DOJ).
This was followed by the Supreme Court of India’s Bench of Justice Ranjan Gogoi and Justice R Banumathi upholding the decision of the Delhi High Court by dismissing the Special Leave Petitions in limine on February 16, 2018.
Daiichi had said Singh brothers had kept the SAR a secret and misrepresented the ongoing investigation by the US Regulatory authorities as routine regulatory exercise and a meritless fishing expedition launched at the behest of a competitor while also submitting that but for the fraud, it would not have acquired Ranbaxy shares at all.
Before the Singapore high court, Daiichi Sankyo was represented by senior advocate Gopal Subramanium briefed by Pavan Bhushan and Jayavardhan Singh from GS Chambers, P&A Law Offices; Anand S Pathak, Amit K Mishra, Abhijeet Sinha, and Samridhi Hota along with Singapore-based law firm, Oon & Bazul LLP.
The Sellers/Defendants, Malvinder Singh, and others were represented by senior advocate Harish Salve, Alvin Yeo, SC briefed by WongP LLP. The Minors were represented by Lee Eng Beng, SC briefed by Rajah and Tann LLP and DMD Advocates.
The hearing before the High Court of Singapore commenced on April 9, 2018, and continued for four days until April 13, 2018.
During the hearing, Subramanium, on behalf of Daiichi Sankyo had conceded to the liability accorded to the minors under the Award. In his view, even under Indian Law, the minors could not be held liable as that was against public policy. This argument was accepted by Justice Ang and the decision sets aside the award as held against the minors but has imposed a joint and several liability of Rs. 3,500 Crores plus interest on the Singh brothers and other members.
Justice Ang placed extensive reliance on the observations made by Justice Nath in his judgment dated January 31, 2018.
“..The present case concerns a de novo review of the award in the face of jurisdictional challenges to the powers of the Tribunal. Given the essence of the challenges, I am of the view that issue estoppel should not feature. Nevertheless, the decision of the Indian enforcement court may have persuasive effect, especially because the proper law of the Arbitration Agreement is Indian law…”
Justice Ang, while dealing with the issue of extended res judicata in arbitration held, “..More importantly, in my view, the concept of the extended doctrine of res judicata is wholly inapplicable to a court’s review of an arbitral award. Strictly speaking, the doctrine applies to preclude points in a second set of litigation proceedings on the merits of the dispute between the same parties where the points could have been brought in the earlier proceedings on the same dispute. In contrast, an enforcement proceeding or a setting aside proceeding of an arbitral award involves the review of the outcome of the arbitration proceedings. The court would not be concerned with the merits of the substantive claims between the parties. The points brought before the court would address the grounds for refusal to enforce or grounds for setting aside, instead of the merits of the dispute. Thus, the concept of the extended doctrine of res judicata, which encourages parties to settle all their claims on their merits in one single litigation to prevent a party from being vexed by subsequent litigation, is extraneous to the role of the court in reviewing arbitral awards…”
On the aspect of damages, which was central to the matter, the high court said“..I conclude that the Majority, in awarding the damages, was simply compensating for the difference between the purchase price paid and the actual value of the Shares, and taking into account the dividends received by the Buyer. This is not an award for loss of opportunity, and not an award for consequential damages. The Sellers acknowledged that they would not take issue if the Majority awarded for the difference in value between the purchase price and the actual value of the Shares..”
Additionally, the aspect of limitation which was raised by the sellers as a jurisdictional arguments was also dealt with, wherein the court said, “…the Sellers’ characterisation of the limitation of action as a jurisdictional question is misplaced. The Majority’s decision on time limitation does not fall under any ground in s 24 of the IAA or Art 34 of the Model Law…”
On the issue of fraud, Justice Ang observed that the High Court of Singapore was precluded from reviewing the finding of fact by the Award.
“The decision of the Majority in holding the Non-Management Sellers liable on the ground that the fraudulent misrepresentations made were within the apparent authority of their agents is in line with the position under Singapore law, and cannot be contrary to the public policy of Singapore. What the Non- Management Sellers are seeking to accomplish in fact is to reopen the Majority’s finding that the fraudulent misrepresentations made by BBA and the other agents were within their apparent authority. The court is precluded from reviewing the finding of fact by the Majority…”
Further, Justice Ang reiterated the scope of setting aside or refusal of recognition/enforcement on the ground of public policy by observing that, “Ultimately, the fact that the Non-Management Sellers were made jointly and severally liable despite the size of their shareholding smacks of an error made by the Majority that this court cannot review, rather than a public policy objection. The scope of setting aside or refusal of recognition/enforcement on the ground of public policy is very narrow, and courts have to be cautious of a back-door appeal on the merits through this ground.”