Bimbimbap vs Chilli Crab

Disputed in Korea, decided in Singapore. Asiana's dispute with Gate Gourmet Korea reaches Singapore's highest courts.

Can arbitration agreements be avoided?

https://www.elitigation.sg/gd/s/2024_SGCAI_8 - full decision of the SGCA here

(1) Facts:

• Asiana Airlines, Inc ("Asiana") entered into a joint venture agreement (JVA) and a catering agreement (CA) with Gate Gourmet Korea Co, Ltd ("GGK") and Gate Gourmet Switzerland GmbH ("GGS").

• Disputes arose regarding the pricing mechanism in the CA, leading to ICC Arbitration No 24544/HTG, which ruled in favor of GGK. ​

• Asiana sought to set aside the arbitral award in the Singapore International Commercial Court (SICC) but was unsuccessful.

• Asiana then commenced civil suits in Korea against GGK, GGS, and two directors, Mr. Christoph Schmitz and Mr. Xavier Rossinyol, alleging the CA was null and void due to a concealed "Package Deal" by Chairman Park of Asiana. ​

• Gate Gourmet sought anti-suit injunctions (ASIs) in the SICC to restrain Asiana from continuing the Korean proceedings, arguing they breached the arbitration agreements in the CA and JVA.

(2) Decision of the Lower Court: ​

• The SICC granted ASIs restraining Asiana from continuing the Korean proceedings against GGK, GGS, and the directors. ​

• The court found the Korean proceedings were prima facie in breach of the CA and JVA arbitration agreements. ​

• The court rejected Asiana's arguments regarding non-arbitrability, invalidity of the arbitration agreements, and public policy considerations. ​

(3) English Law Principles: ​

• The court considered principles from English law, including the enforcement of exclusive forum clauses and the grant of ASIs to prevent vexatious or oppressive foreign proceedings. ​

• The court referenced cases like Donohue v Armco Inc and others, which discussed the grant of ASIs in the context of exclusive jurisdiction clauses and the potential for forum fragmentation. ​

• The court also considered the principle that an ASI may be granted to prevent a party from bypassing an exclusive forum clause by suing non-parties. ​

(4) Holding of the Court of Appeal and Whether English Law Principles Were Followed:

• The Court of Appeal upheld the ASIs for the Korean CA Proceedings and the claims against GGS in the Korean Compensation Proceedings, finding these were in breach of the CA and JVA arbitration agreements. ​

• The court set aside the ASI for the claims against the directors in the Korean Compensation Proceedings, as there was no evidence of bad faith or that the JVA Arbitration Agreement was intended to cover the directors. ​

• The court generally followed English law principles, particularly in assessing the validity and scope of arbitration agreements and the conditions under which ASIs may be granted to prevent vexatious or oppressive conduct.