Lawyers, other representatives, expert(s), tribunal’s secretary

Final Award

The Parties

1.
The Claimant is BU8 SDN. BHD. ("Claimant"), a company having its place of business at 1.03,06, Wisma BU8, 11 Lebuh Bandar Utama, 47800 Petaling Jaya, Selangor, Malaysia.
2.
The Respondent is CREAGRI, INC. ("Respondent"), a company having its place of business at 25565 Whitesell Avenue, Hayward, California 94545, USA.
3.
The Claimant and Respondent shall be collectively referred to hereinafter as the "Parties".

The Representatives

4.
The Claimant was previously self-represented by its in-house counsel, Mr CY Choy. On 4 July 2013, the Claimant has retained as solicitors and is now represented by:

Messrs Mohanadass Partnership
Mr Mohanadass KANAGASABAI
Ms Syarihah RAZMAN
Suite 5.3, 5th Floor
Wisma Chase Perdana
Off Jalan Semantan
Damansara Heights
50490 Kuala Lumpur
Tel: +60 3 2093 3022
Fax: +60 3 2092 2022
Email: mohan@mohanadass.com
syarihah@mohanadass.com

5.
The Respondent Is represented in these proceedings by:

Messrs Wee, Tay & Lim LLP
Mr George LJM, SC
Mr Sean LA’BROOY
Ms CHOO Jin Hua
133 New Bridge Road
19-09/10 Chinatown Point
Tel: +65 6533 2228
Fax: +65 6535 7813
Email: georgemediate@gmail.com
seanlabrooy@weetaylim.com
choo.jinhua@gmail.com

The Contract and Arbitration Agreement

6.
By a contract with the heading "Joint Venture Agreement" dated 6 October 2010 ["JVA"), the Claimant and the Respondent agreed to create a joint venture company, CreAgri International Sdn Bhd ["JVCo") under which the Claimant was to acquire 60% equity and the Respondent 40% equity of the JVCo. It is alleged that under the JVA, the Respondent undertook to grant proprietary rights and exclusive license to all existing worldwide patents applied for or used by the Respondent for its hydroxytyrosol-rich formulation under the name of ("HIDROX") for the manufacture and production of human dietary supplements [the "Products"). The Claimant on the other hand had the obligation inter alia to market and promote the products the JVCo will be producing.
7.
Clause 9.3 of the JVA contains the governing law and dispute resolution clauses reading as follows ("arbitration agreement"):

"…

9.3 Governing Law; Remedies; Venue and jurisdiction; Mediation :

The parties shall try in good faith to resolve any dispute or claim related to or arising out of this Agreement, or the interpretation, making, performance, breach or termination thereof, amicably by themselves, if the parties should resolve such dispute or claim, a memorandum setting forth their agreement will be prepared and signed by both parties if requested by either party. If the dispute or claim is not resolved by the parties themselves, then It shall be finally settled by arbitration in accordance with the then Arbitration Rules of the Singapore International Arbitration Centre ("SIAC Rules") for the time being In force, which rules are deemed to be incorporated by reference in this clause [the "Rules"). Unless the parties mutually agree on a single arbitrator, the dispute or claim shall he settled by three (3) arbitrators, one selected by each party and the third selected in accordance with the Rules. Such arbitration shall be held in Singapore and the proceedings and all pleadings, filings, written evidence, decisions and other relevant documents shall be in English. Any written evidence in a language other than English shall be submitted with an English translation. Any final decision issued in the arbitration shall be binding and conclusive upon the parties to this Agreement and may be entered as a final judgment by any court of competent jurisdiction. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for temporary or permanent injunctive relief without breach of this Section. Each party shall bear its own costs in connection with the foregoing arbitration. The governing law shall be Singapore law."

The Tribunal

8.
The Parties jointly nominated and on 12 October 2012, the Chairman of Singapore International Arbitration Centre ("SIAC") appointed:

professor Lawrence Geok Seng BOO
C/o The Arbitration Chambers Pte Ltd
32 Maxwell Road #02-03
Singapore 0569115
Tel: +65 6538 1277
Fax: +65 6538 1727
Email: lawboo@arbiter.com.sg

as the sole arbitrator in this arbitration (the "Tribunal").

Place and Language of Arbitration

9.
The arbitration agreement provides that the language of arbitration shall be English and the seat is Singapore.

Applicable Rules and Law

10.
Pursuant to the arbitration agreement, this arbitration is conducted and administered by SIAC under the Arbitration Rules of the SIAC [4th Edition, 1 July 2010) ("SIAC Rules").
11.
On the basis that the Parties have their places of business outside Singapore, this arbitration is an 'international commercial arbitration’ within the definition of International Arbitration Act Cap 143A (2002 Rev Ed, Singapore) ("IAA").
12.
In accordance with the arbitration agreement, the governing law of the dispute is the law of Singapore.

Procedural History

13.
This arbitration was commented by the Claimant's Notice of Arbitration ("Notice") dated 25 July 2012, received by SIAG on 27 July 2012 and which was forwarded by SIAC to the Tribunal on 15 October 2012.
14.
The Respondent filed its "Response to the Notice of Arbitration" dated 10 August 2012 ("Response").
15.
The Tribunal sent a letter to the parties dated 15 October 2012 and proposed to hold a preliminary meeting by telephone conference on 23 October 2012.
16.
The preliminary meeting was held on 23 October 2012 and the Tribunal issued Directions (1) dated 25 October 2012 ("Directions (1)") setting out the procedural timetable for the conduct of these proceedings.
17.
In accordance with Directions (1), the following pleadings have been submitted:

a. the Claimant’s Statement of Claim on 20 November 2012 ("SOC"),

b. the Respondent's Statement of Defence and Counterclaim on 18 December 2012 ("Defence"), and

c. the Claimant's Statement of Reply and Defence to Counterclaim on 4 January 2013 ("Reply").

18.
In its Reply, the Claimant pleaded chat the Defence did not comply with Rule 17,3 of the SIAC Rules.
19.
On 15 January 2013, the Claimant applied to the Tribunal for a direction to compel the Respondent to furnish further and better particulars of its Defence.
20.
The Respondent opposed the said application for further and better particulars.
21.
On 23 January 2013, the Tribunal proposed a second preliminary meeting by telephone conference on 25 January 2013 to consider the Claimant's request for further and better particulars. The Tribunal requested the Parties to submit their List of Issues by 24 January 2013 so that they may be considered by the Tribunal during the second preliminary meeting.
22.
The Parties submitted their respective list of issues on 24 January 2013.
23.
The Tribunal issued Directions (2), Notes of Proceedings and an updated Procedural Timetable, all dated 25 January 2013. In Directions (2), the Respondent was to answer the Claimant's request for further and better particulars in relation to paragraphs 50, 53, 71 and 73 in an amended Defence.
24.
The Tribunal settled the Parties’ List of Issues and Issued a Memorandum of Issues dated 8 February 2013.
25.
The Respondent filed its Amended Defence and Counterclaim on 20 February 2013 ("Defence-Amendment No, 1").
26.
The Claimant noted however on 21 February 2013 that the Defence-Amendment No. 1 failed to comply with Directions (2) which directed the Respondent, inter alia, to "state the heads of claim and (if possible) quantify the same" in relation to paragraph 73 of the Defence.
27.
By email of 6 March 2013, the Respondent referring to paragraph 73 of Defence-Amendment No. 1, stated that "these are the best particulars" it was able to plead pending discovery of documents and the investigation referred at paragraph 74 thereof.
28.
The Claimant filed its Amended Statement of Reply and Defence to Counterclaim on 14 March 2013 ("Reply-Amendment No. 1").
29.
By agreement of the parties, the Tribunal issued Directions (3) dated 1 April 2013 ("Directions (3)") amending the timelines relating to discovery, witness statements and expert reports.
30.
The Claimant submitted a list of documents not annexed to or disclosed in its earlier pleadings on 5 April 2013. The Respondent submitted its list on 8 April 2013 ("Respondent's 1st List") together with copies of documents in said list.
31.
On 12 April 2013, the Claimant served its Request to Produce Documents ("Claimant's Request") and served copies of its disclosed documents on 9 April 2013, The Respondent served its Request for Documents on 16 April 2013 ("Respondent’s Request").
32.
On 26 April 2013, the Claimant served its Response to the Respondent’s Request together with its First Supplemental List of Documents. The Respondent also served its further list of documents ("Respondent's 2nd List") with copies of documents referred to in the said, list, together with its objections to the Claimant's Request
33.
On 3 May 2013, the Respondent requested the Tribunal to order discovery of documents pursuant to its power under Section 12(1) (b) of the IAA and averred that the Claimant's refusal to provide documents set out in the Respondent's Request under paragraph nos. (1), (3), and (12) prejudiced the Respondent.
34.
After considering the email exchanges of the Parties relating to their respective Requests and objections, the Tribunal issued Directions (4) on production of documents dated 3 May 2013 ("Directions (4)").
35.
On 17 May 2013, the Claimant served its Second Supplemental List of Documents together with copies of the documents referred to therein.
36.
By email of 20 May 2013, the Claimant served the following documents:

a. Application for Injunction and Other Orders ("Injunction Application"),

b. Affidavit of Mr Chong Yun Yee ("Mr Chong"), and

c. Affidavit of Mr Shiew Man Hon ("Mr Shiew"),

and requested for a telephone conference on 21 May 2013.

37.
The Respondent opposed the Injunction Application on 20 May 2013 and intimated that it would be filing an affidavit in relation thereto.
38.
The Tribunal set a preliminary meeting by telephone conference on 22 May 2013 to consider appropriate directions in relation to the Injunction Application.
39.
By email of 21 May 2013, the Claimant requested the Tribunal that the Respondent's non-compliance with Directions (4) be included in the agenda for the telephone conference of 22 May 2013.
40.
A preliminary meeting by telephone conference was held on 22 May 2013 and the Tribunal Issued Directions (5) dated 22 May 2013 ("'Directions (5)") setting out inter alia that the Respondent shall submit its affidavit in reply to the Injunction Application on 29 May 2013; the Claimant shall file its affidavit in reply on 5 June 2013 and the hearing on the Injunction Application will be on 14 June 2013 in Singapore.
41.
The Claimant requested the Tribunal on 27 May 2013 to grant interim orders on terms prayed for in its Injunction Application.
42.
The Respondent stated on the same day that it intended to raise an issue on the Tribunal's jurisdiction to make the orders sought in the Injunction Application. The Respondent requested inter alia for a telephone conference after 29 May 2013.
43.
The Tribunal, on 29 May 2013, referred to the Claimant’s request for holding interim orders, and stated that it would await the affidavit in reply to be filed by the Respondent on 29 May 2013 and would hear the Respondent by telephone conference on 30 May 2013.
44.
On 29 May 2013, the Respondent served its Third List of Documents ("Respondent's 3rd List") enclosing copies of the documents so listed therein.
45.
On 30 May 2013, the Respondent served case law submissions it would be relying on in relation to the Injunction Application. In the same manner, the Claimant served documents it would be relying on during the telephone conference.
46.
Following the telephone conference on 30 May 2013, the Tribunal issued Interim Order dated 31 May 2013 with the following orders:

"...

I. The Respondent shall whether directly or indirectly through its CEO, directors, employees, agents, distributors or contractors, refrain and be restrained from any involvement in the activities relating to the launch promotion and marketing of Truveno products in Malaysia. Such involvement shall include any planned talks, seminars, press conferences, statements, answering media queries and Interviews.

II. The Respondent shall immediately cause all those who had purchased HIDROX products from it for eventual sale in Malaysia, to stop the further distribution of marketing materials In any media form, which contain the photograph of Dr Roberto Crea, or his credentials, or endorsements (or any statements attributed to Dr Crea), or making any references to him in any marketing or promotional events or activities which may give rise to a perception that the Respondent or Dr Crea is supportive of or endorsing the Truveno products. Materials which shall be stopped from further distribution include those referred to in pages 1, 2, 5, 8, 9, 11, 13, 15, 16, 17 and 21 of Schedule A of the Application.

III. This Order is a temporary order intended to preserve status quo of the matter until the Application is heard on 14 June 2013 and a determination made thereon.

IV. The Tribunal may revoke or vary this Order on the application of any party or on its own motion.

..."

47.
By email of 4 June 2013, the Respondent filed an urgent application in relation to a letter from Mr Shiew dated 3 June 2013 addressed "To All Retail Partners" ("SMH letter of 3 June 2013"), for the Tribunal to order the Claimant not to communicate to any third party in relation to the Truveno product until the hearing on 14 June 2013 [the "Urgent Application").
48.
The Claimant responded on 5 June 2013 and took the view that the SMH letter of 3 June 2013 did not breach the confidentiality obligations under Rule 35 of the SIAC Rules.
49.
On 11 June 2013, the Claimant served Second Affidavits of Mr Chong and Mr Shiew and on 13 June 2013, the Respondent served a Second Affidavit of Dr Roberto Crea ("Dr. Crea").
50.
On 13 June 2013, the Claimant filed a Third Affidavit of Mr Chong on the basis that the Claimant discovered new facts relevant to its Injunction Application.
51.
The Respondent served on 13 June 2013 a Skeletal Submission with Bundle of Authorities in relation to the hearing on the Injunction Application.
52.
The hearing on the injunction Application was held in Singapore on 14 June 2013. The Claimant's Written Submissions were served during the hearing.
53.
Upon consideration of the Injunction Application and relevant submissions and affidavits, the Tribunal issued an Order dated 19 June 2013 with the following orders:

"...

I. The Claimant shall take all steps necessary to prevent the further circulation of its letter of 3 June 2013 including its immediate removal from its website or such other sites or media where the same has been published or where the letter may be accessible.

II. Within 5 days from date hereof, the Claimant shall -

a. Cause to be sent to all its "Retail Partners" who were named as addressees in its letter of 3 June 2D13, to clarify that the letter did contain inaccuracies, and that in particular, insofar as it had been suggested that the human dietary products marketed under the brand of TRUVENO did not contain HIDROX, the same was incorrect.

b. By its responsible officer, swear/affirm an affidavit undertaking to abide by any order the Tribunal may make as to damages should the Tribunal later find that this Order has caused loss to the Respondent and decides that the Respondent should be compensated for that loss;

c. Deposit a sum S$100,000,00 in cash with the SIAC or furnish a banker's guarantee issued by a bank in Singapore or Malaysia for the said amount in respect of any order the Tribunal may make as to damages pursuant to sub-paragraph (b) above; and

d. Serve on the Tribunal the affidavit and the original banker’s guarantee or evidence from the SIAC that a cash deposit has been so made.

III. Paragraphs IV to VI hereinafter shall take effect upon the Claimant's having satisfied the conditions precedent set out in paragraphs (I) and (II).

IV. The Respondent shall whether directly or indirectly through its CEO, directors, employees, agents, distributors or contractors, refrain and be restrained from any involvement in the activities relating to the launch, promotion and marketing of Truveno products in Malaysia. Such involvement shall include any planned talks, seminars, press conferences, statements, answering media queries and interviews.

V. The Respondent shall take steps to promptly deliver to the Claimant (or its order) such amount of the HIDROX as corresponding to the amount the Claimant had paid under its Purchase Orders Nos.: PO-000005 dated 23 February 2012, PO-000007 dated 2 March 2012, and PO-000009 dated 16 March 2012 as appearing in Attachment 19 to the Statement of Claim. The delivery of HIDROX pursuant to this Order shall be without prejudice to the Respondent's position that the JVA had been terminated and that the Respondent had no further obligation to make such delivery,

VI. Unless earlier varied or revoked by the Tribunal, this Order shall supersede the Interim Order dated 31, May 2013, and shall remain in effect until the final disposal of the issues in these proceedings.

..."

54.
The Tribunal thereafter issued Directions (6) and a revised Procedural Timetable both dated 14 June 2013 setting out fresh timelines in the remaining steps in these proceedings.
55.
By email of 19 June 2013, the Claimant sought clarification of the Order of 19 June 2013.
56.
On 20 June 2013, the Tribunal clarified the Order of 19 June 2013 stating that"

"...

a. the 5 days referred to in the Order is meant to be "working days", with weekends (Sat and Sunday) excluded.

b. Interim Order dated 31 May 2013 remains in effect until paragraph II of the Order has been complied with or time for compliance thereof has expired."

57.
The Claimant confirmed on 21 June 2013 that on 20 June 2013 it had made a security deposit in the sum of S$100,000 to SIAC's account and that it had satisfied the Tribunal's orders set out in paragraphs I and ll of the Order of 19 June 2013.
58.
The Respondent served its Fourth List of Documents ("Respondent's 4th List") with copies of the documents listed therein on 26 June 2013.
59.
By email of 1 July 2013, the Claimant referred to the Respondent's 4th List and averred that the Respondent had not complied with Directions (4) and sought directions from the Tribunal for the Respondent to disclose documents it was ordered to disclose or affirm an affidavit pursuant to Directions (4), paragraph 3 (the "Disclosure Application").
60.
Further on 2 July 2013, the Claimant referred to a website promoting Truveno products and applied for directions from the Tribunal to:

"...

a. immediately direct for the Respondent to comply with the terms of the Order on or before 3 July 2013 by removing those pages of the Truveno website which show the Respondent’s and/or Dr Crea's involvement in the activities relating to the launch, promotion and marketing of Truveno products in Malaysia; and

b. falling such compliance of the above order or the Order, bar the Respondent from further participation in these proceedings.

..." [the "Truveno Application")

61.
On 3 July 2013, the Claimant applied to the Tribunal that it be allowed to serve an Amended Statement of Claim in light of the facts discovered after Respondent's disclosure of documents of 26 June 2013 (the "SOC Amendment Application").
62.
The Claimant's applications at paragraphs 59, 60 and 61 shall be collectively referred to as the Claimant's applications of 1, 2 and 3 July 2013.
63.
On 4 July 2013, the law firm of M/s Mohanadass Partnership entered its appearance as having been retained by the Claimant as its legal representative in this arbitration, and requested the Respondent to confirm whether it would agree for the hearing in August 2013 to be rescheduled to another date.
64.
The Respondent served its application for further discovery and other orders including an application to discharge the mandatory injunction together with an affidavit to support its application on 8 July 2013 (the "Discovery and Discharge Application").
65.
The Tribunal, on 15 July 2013, referred to the Claimant's applications of 1, 2, and 3 July 2013 and to Respondent's Discovery and Discharge Application and invited the Parties to serve their respective responses to the said applications urgently.
66.
The Respondent confirmed on 17 July 2013 that it was agreeable to vacating the August 2013 hearing dates. The Tribunal directed that by agreement of the parties, the hearing dates of 12 to 16 August 2013 ("August hearing dates") had been vacated. But after email exchanges between the Parties, it appeared that there had been no agreement to vacate the August hearing dates and the Tribunal reinstated the same on 18 July 2013.
67.
To further support the Truveno Application against the Respondent, the Claimant submitted on 17 July 2013, a newsletter published by a chain of pharmacies in Malaysia containing an article and advertisement which featured Dr. Crea endorsing Truveno.
68.
By email of 18 July 2013, the Tribunal referred to the Claimants applications of 1 July, 2 July and 3 July 2013 and reiterated that it was awaiting the Respondent’s affidavit in response to said applications and the Respondent was to submit the same by 19 July 2013.
69.
The Claimant served its Affidavit in Reply to Respondent’s Discovery and Discharge Application on 19 July 2013.
70.
On 19 July 2013, the Claimant proposed to utilize the August 2013 hearing dates on a documents-only basis to determine the following issues;

a. Whether the Claimant breached any duty or obligation in relation to the management of the JVCo.

b. (if the answer to (a) is YES) Whether such breach entitled the Respondent to terminate to the JVA and if so, on which date was the JVA validly terminated by the Respondent.

..."

71.
The Tribunal on 21 July 2013 stated it would like to confer with counsel by telephone conference on 22 July 2013 to discuss the status of the hearing scheduled to commence on 12 August 2013.
72.
The Respondent requested the Tribunal on 22 July 2013 to, inter alia, confirm that its order of 17 July 2013 (i.e. to vacate the August hearing dates) still stood, and set a half-day oral hearing in relation to its Discovery and Discharge Application. The Respondent also served its application to amend the Defence-Amendment No. 1 (the "Defence Amendment Application").
73.
A preliminary hearing by telephone conference was held on. 22 July 2013 and the Tribunal issued Directions (7) and a revised procedural timetable dated 22 July 2013. As agreed by the Parties, an oral hearing to hear the pending applications was set for 12 August 2013 at Maxwell Chambers, Singapore and the oral evidential hearing of witnesses was re-scheduled to 7, 8, 9(afternoon only), 14 and 15 October 2013 also at Maxwell Chambers, Singapore.
74.
Pursuant to Directions (7), the Respondent served what was supposed to be its Statement of Defence and Counterclaim (Amendment No. 2) and the Claimant served its Amended Statement of Claim on 22 July 2013 ("SOC-Amendment No. 1").
75.
On 26 July 2013, the Respondent served its:

a. Affidavit in reply in relation to its Discovery and Discharge Application which had also incorporated its reply to the Claimant's Disclosure Application at paragraphs 19 to 22 thereof, and

b. Fifth List of Documents ("Respondent's 5th List") with copies of the documents listed therein.

76.
The Claimant served its Re Amended Statement of Reply and Defence to Counterclaim ("Reply-Amendment No. 2") and the Respondent re-served its Defence and Counterclaim (Amendment No. 2) on 29 July 2013 ("Defence-Amendment No. 2") containing further amendments in response to the SOC-Amendment No. 1.
77.
By email of 30 July 2013, the Respondent served Dr Crea's Affidavit Verifying List of Documents in relation to Respondent's 5th List.
78.
On the same day, the Claimant filed an application for Security for Costs ("Claimant's Security Application") with a supporting affidavit from Mr Shiew and requested that said application be heard on 12 August 2013 together with the other applications set for hearing.
79.
The Claimant stated on 2 August 2013 that after reviewing Respondent’s 5th List, there were still documents ordered to be produced by Directions (4) and (7) that had not been disclosed und if the Respondent was unable to disclose such documents, it ought to file an affidavit pursuant to Directions (4) and (7).
80.
The Respondent served an affidavit in reply to the Claimant’s Security Application on 5 August 2013.
81.
By email of 6 August 2013, the Tribunal confirmed that on the hearing of 12 August 2013, the following applications will be heard:

1. Claimant's Application on Breach of Injunctive Order [i.e. the "Truveno Application"];

2. Claimant's Application on Breach of Order to Produce [i.e. the "Disclosure Application"];

3. Respondent's Application for Further Discovery and Other Orders [i.e. the "Discovery and Discharge Application]; and

4. Claimant's Application on Security for Costs [i.e. the "Claimant's Security Application"]."

82.
The Respondent served an application on 7 August 2013 to further amend its Defence-Amendment No. 2.
83.
By a letter dated 7 August 2013, the Respondent responded to the Claimant's letter of 2 August 2013 stating that if the Claimant was of the view that there are still documents which had not been disclosed, the Claimant should have filed an affidavit identifying said documents failing which the Respondent would not respond to the Claimant's assertions of 2 August 2013.
84.
On 9 August 2013, the Respondent served am affidavit to inform the Tribunal that a complaint had been lodged to the Ministry of Health and Department of Pharmaceutical Services ["Ministry of Health") in Malaysia that questioned whether the Olivenol products sold by the JVCo (which is controlled by the Claimant), contains authentic HIDROX. A copy of said complaint was enclosed. The Respondent stated that it would also refer to this affidavit at the hearing on 12 August 2013.
85.
The Claimant requested the Respondent to furnish it a complete copy of the letter to the Ministry of Health with all attachments.
86.
Oral hearing on the pending applications was held on 12 August 2013 at Maxwell Chambers, Singapore. At the hearing, the Respondent served its submissions for its Application for Security for Costs ("Respondent's Security Application").
87.
Following the oral hearing and upon considering the written and oral submissions of the Parties, the Tribunal Issued an Order dated 13 August 2013 which directed as follows:

"Claimant's Application on Breach of Injunctive Order by the Respondent

I. No order is made on the Claimant's application.

II. The Respondent shall immediately notify Connell Bros Co Ltd in writing that those dealing with the sale or distribution of HIDROX for the production of Truveno products for sale in Malaysia shall not make any reference to HIDROX or Dr Roberto Crea or use bis photograph or attribute any statements to him until further notice from the Respondent

Claimant's Application on Breach of Order to Produce

III. No order is made on the Claimant's application.

IV. The Respondent on or before 26 August 2013 shall complete disclosure of the following documents, production of which had earlier been ordered pursuant to Directions (4) (On Production of Documents) viz. Items identified as 4(a), (b), (e), (f), (s), (t), (u), (v) and (w) therein.

V, If the Respondent is unable to produce a document so ordered, it shall affirm an affidavit in accordance with paragraph 3 of the said Directions (4).

Respondent’s Application for Further Discovery

(With consent of the Claimant but without prejudice to the Claimant's position that the request fell outside the scope of the reference)

VI. The Claimant shall on or before 26 August 2013 disclose to tire Respondent:

a. The HIDROX batch numbers used by the Claimant to produce Olivenol Products, including but not limited to Olivenol Plus 2X Essence (Chlorophyll capsules) and Oliva Porte in Malaysia.

b. Copies of documents evidencing the authenticity of the formula [200 mgs of HIDROX per capsule) used in the production of the Olivenol Products from around 25 March 2012 to date hereof.

c. Copies of documents evidencing the date of encapsulation of the Olivenol Products from around 25 March 2012 to date hereof.

Respondent's Application to Amend the Statement of Defence.

(With consent of the Claimant but without prejudice to the Claimant's position that the request fell outside the scope of the reference)

VII. The Respondent shall be granted leave to amend its Statement of Defence and Counterclaim, and if it does so, shall serve the same on the Claimant by 19 August 2013.

VIII. The Claimant may serve its Amended Reply and Defence to Counterclaim within and if it does so, shall serve the same on the Respondent by 26 August 2013

Respondents' Application for Breach of Injunctive Order by the Claimant -letter to Retail Partners

IX. No order is made on the Respondent's application.

X. The Claimant shall forthwith disclose to the Respondent the list of the Retail Partners to whom its letter of 3 June 2013 was sent and the list of addressees to whom the clarification letter dated 21 June 2013 was sent.

Respondent's Application to Discharge Interim Injunction - order to deliver HIDROX to the Claimant

XI. No order is made on the Respondent’s application.

XII. The Tribunal's Order of 19 June 2013 is amended such that Paragraph V thereof shall read as follows:

" V. The Respondent shall take steps to promptly deliver to the Statment (or its order) Creagri International Sdn Bhd ("the JVCo") such amount of HIDROX as corresponding to the amount the Claimant the JVCo had paid under its Purchase Orders Nos.: PO-000005 dated 23 February 2012, PO-000007 dated 2 March 2012, and PO-000009 dated 16 March 2012 as appearing in Attachment 19 to the Statement of Claim. The delivery of HIDROX pursuant to this Order shall be without prejudice to the Respondent's position that the JVA had been terminated and that the Respondent had no further obligation to make such delivery."

Claimant's Ap plicatio n on Security for Costs

XIII. No order is made on the Claimant's application.

Respondent's Application on Security for Costs

XIV. The Claimant shall within 10 days from date hereof furnish security for the Respondent's costs in the sum of S$80,000 by way of a cash deposit with the SIAC or furnish a banker’s guarantee issued by a bank in Singapore or Malaysia for the said amount, to abide by any award or order for costs which may be made against the Claimant in this arbitration.

4. The costs leading to rulings made herein shall be deferred for later consideration or determined together with the award to be made in this arbitration."

88.
The Respondent served its Statement of Defence and Counterclaim (Amendment No, 3) on 19 August 2013 ("Defence-Amendment No. 3") of which the Claimant requested further and better particulars on 22 August 2013.
89.
On 26 August 2013, the Claimant submitted a list of retail partners pursuant to paragraph X of the Order dated 13 August 2013.
90.
On 3 September 2013, the Respondent served particulars pursuant to the Claimant’s request of 22 August 2013.
91.
The Claimant served its Third Supplemental List of Documents on 3 September 2013 in compliance with paragraph VI of the Order dated 13 August 2013.
92.
On 4 September 2013, the Respondent submitted an affidavit of Dr Crea in compliance with paragraphs IV and V of the Order dated 13 August 2013.
93.
By letter dated 4 September 2013, the Respondent informed the Claimant that it has sent a letter of clarification to Connell Brothers on 29 August 2013 in compliance with paragraph II of the Order dated 13 August 2013.
94.
On 4 September 2013, the Respondent referred to the Claimant's Third Supplemental List of Documents and took the view that the Claimant had not complied with paragraph VI of the Order dated 13 August 2013. The Respondent requested the Claimant to identity which documents in said list were disclosed in relation to the subparagraphs of paragraph VI of tee Order dated 13 August 2013.
95.
On 6 September 2013, the Claimant sought the intervention of the Tribunal in relation to the Respondent's failure to comply with paragraphs IV and V of tee Order dated 19 June 2013, and paragraph XII of the Order dated 13 August 2013 ("Claimant's Application-6 Sept 2013"). The Claimant requested a telephone conference to address these issues. The Claimant stated it had compiled with paragraph VI of the Order dated 13 August 2013.
96.
By letter dated 6 September 2013, the Respondent made an application for orders relating to alleged breaches by the Claimant of:

a. Directions (4) (i.e. for complete full disclosure of items 4(3), (4) and (8) and if unable to do so, to affirm an affidavit pursuant to paragraph 3 of said Directions), and

b. Paragraph VI of the Order dated 13 August 2013 (i.e. complete full disclosure of the documents ordered to be disclosed therein].

The Respondent also made an application to the Tribunal that;

a. paragraph XII of the Order dated 13 August 2013 be stayed pending compliance by the Claimant with paragraph VI thereof,

b. the Claimant be ordered to pay the costs of the application, and

c. a hearing by telephone conference be scheduled for the oral submissions on the above applications. ("Respondent's Application 6 Sept 2013"]

97.
The SIAC received a deposit of SG$ 80,000.00 from "Triniaire Sdn Bhd" ("Triniaire") on 6 September 2013 as payment made by the Claimant pursuant to paragraph XIV of the Order dated 13 August 2013. The Claimant thereafter confirmed that said amount is on account of security for costs pursuant to the Order dated 13 August 2013.
98.
By letter dated 10 September 2013, the Claimant informed the Tribunal that the Respondent had refused to deliver HIDROX to the JVCo pursuant to the Order dated 19 June 2013. The Respondent replied that the allegations made in the Claimant's letter were misleading and set out its basis as follows:

a. The Respondent had applied to set aside the Order dated 19 June 2013 and the Tribunal varied the same on 13 August 2013.

b. At the bearing on 12 August 2013, the Respondent expressed its fears that the Claimant, through the JVCo, had misrepresented to the public by selling Olivenol products which did not contain genuine HIDROX.

c. The Tribunal had thereafter issued an order directing the Claimant to produce documents to prove the authenticity of the Olivenol products sold by the JVCo.

d. The Claimant produced documents listed in its Third Supplemental List of Documents but these were not the documents that the Tribunal had ordered the Claimant to produce,

e. In view of the Claimant's non-compliance, the Respondent had applied for a stay of the Order dated 13 August 2013.

99.
In view of the Claimant's and Respondent's applications dated 6 September 2013, the Tribunal arranged a hearing by telephone conference on 19 September 2013.
100.
On 13 September 2013, the Claimant served the Witness Statement of Mr Shiew dated 13 September 2013. The Respondent also served the following documents:

a. Witness Statement of Dr Crea dated 10 September 2013,

b. Affidavit of Ms Ann M. Dalsin ("Ms Dalsin") dated 29 August 2013, and

c. Statement of Crowe Horwath by Ung Voon Huay ("Mr Ung") dated 4 September 2013, Special Audit Report.

101.
By email of 18 September 2013, the Respondent enclosed a copy of the CreAgri Europe S.r.l agreement which replaces item 49 of the Respondent's 4th List.
102.
On 19 September 2013, the Respondent served its submissions for the hearing by telephone conference.
103.
The hearing by telephone conference was held on 19 September 2013 and the Tribunal issued an Order dated 20 September 2013 setting out its orders as follows:

"...

Claimant's Application on breach by the Respondent of Paragraph IV of the Order dated 19 June 2013

I. No order is made on the Claimant’s application.

Claimant's Application on breach by the Respondent of Paragraph V of the Order dated 19 June 2013 (as amended by Paragraph Xll of the Order dated 13 August 2013) to deliver HID r O x

II. The Respondent’s failure to deliver is a breach of Paragraph V of the Order dated 13 August 2013 (as amended by Paragraph XII of the Order dated 13 August2013).

III. The Respondent shall make immediate delivery of the HIDROX described to the Claimant and ensure that the same is received by the Claimant within the next 7 days.

Claimant's Application on breach by the Respondent of Paragraph IV and V of the Order dated 13 August 2013

IV. No order is made on the Claimant's application.

Respondent’s Application for further disclosure of documents ordered under Items 4(3), (4) and (8) of Directions (4)

(With consent of the Claimant)

V. The Claimant shall affirm an affidavit in accordance with paragraph 3 of the said Directions (4).

Respondent's Application for fuller disclosure of documents ordered unde r Paragraph VI of the Order dated 13 August 2013.

VI. No order is made on the Respondents application.

Respondent’s Application to stay Paragraph XII (to deliver HIDROX to theClaimant of the Order dated 13 August 2013, pending the compliance by the Claimant with Paragraph VI thereof

VII. This application is dismissed.

VIII. The costs arising out of and in relation to the ruling on this application and the rulings in Paragraphs II and III above shall be borne by the Respondent in any event, the quantum whereof, if not so agreed, shall be fixed by the Tribunal.

IX. All costs leading to all other rulings made herein shall be deferred for later consideration or determined together with the award to be made in this arbitration.

..."

104.
Upon clarifications made by the Claimant by emails of 21 and 23 September 2013, the Tribunal amended its Order dated 20 September 2013 on 23 September 2013. Paragraph 2 and III of said Order now reads as follows:

"...

2. On 19 September 2013, Claimant Respondent filed its submissions in relation to its application and Respondent Claimant sent in by email a website link of Truveno's website.

III. The Respondent shall make immediate delivery of the HIDROX described to the Claimant Creagri International Sdn Bhd ("the JVCo") and ensure that the same is received by the Claimant JVCo within the next 7 days.

105.
By letter dated 24 September 2013, the Respondent informed the Tribunal that it would be delivering the HIDROX pursuant to the Order dated 20 September 2013 and stated that this delivery was made without prejudice to the Respondent’s position as pleaded in the Defence and the right to challenge the basis for the supply to a non-party to the arbitration (i.e. the JVCo), in this arbitration and/or in court, if necessary.
106.
The Respondent referred to the Affidavit of Ms Dalsin dated 29 August 2013 and sought from the Claimant on 27 September 2013 the disclosure of "copies of all emails, correspondence, memos, attendance notes and/or materials which contain the said instructions..." which Ms Dalsin referred to in paragraph 4 of said affidavit.
107.
On 30 September 2013, the Respondent served the Responsive Statement of Dr Crea dated 27 September 2013 and Affidavit of Ms Dalsin dated 24 September 2013. The Claimant also served the Response Witness Statement of Mr Shiew dated 27 September 2013.
108.
On 1 October 2013, the Claimant referred to Dr Crea's Witness Statement dated 10 September 2013 and sought disclosure of certain documents relating to Maypro industries ("Maypro"), Mantrose-Haeuser Company Inc., and Pharmastandard.
109.
The Respondent filed its Opening Statement on 2 October 2013 and on 3 October 2013, it applied to the Tribunal to amend the Memorandum of issues to reflect the issues raised by way of amendments to the Defence.
110.
By letter dated 4 October 2013, the Claimant stated its objections to the new issues sought by the Respondent to be included in the Memorandum of Issues and requested that said application be dismissed with costs.
111.
The Respondent served its amended Opening Statement on 4 October 2013.
112.
On 4 October 2013, the Claimant set out its grounds for objection to Respondent's application to amend the Memorandum of Issues.
113.
The Claimant served its Opening Submission on 5 October 2013.
114.
By email of 5 October 2013, the Respondent referred to the Claimant's letter dated 1 October 2013 relating to Maypro, and replied that it was not directly or indirectly supplying HIDROX to Maypro.
115.
In anticipation of the oral hearing to commence on 7 October 2013, the Respondent served Outline Submissions.
116.
On 7 October 2013, the Claimant served an affidavit affirmed by. Mr Shiew dated 2 October 2013 pursuant to paragraph V of the Order dated 20 September 2013.
117.
Oral evidentiary hearing was held on 7, 8, 9 (afternoon only), 14 and 15 October 2013 at Maxwell Chambers, Singapore.
118.
The following witnesses appeared at the oral hearing:

For the Claimant
a. Mr Shiew

For the Respondent
a. Ms Dalsin
b. Mr Ung
c. Dr Crea

119.
In the course of the hearing:

a. Mr Shiew by email of 8 October 2013 furnished a copy of the License and Supply Agreement ("LSA") or the Supply and License Agreement ("SLA") as enclosed In Dr Crea's email to him dated 21 January 2011.

b. Ms Dalsin by email on 9 October 2013 furnished a copy of the Supply Agreement (CreAgriIntl) and Supply Agreement (AMD Redline 24Jan11).

c. the Claimant tendered documents marked as C1 and C11 and the Respondent, marked as R1 to R15.

120.
By letter dated 9 October 2013, the Respondent referred to the Claimant's letter of 27 September 2013 and stated that upon checking with Ms Dalsin, the instructions she had received from the Respondent were verbal and she might have written notes on said instructions on her journal but she no longer had the journal as some time had passed and she had since stopped acting for the Respondent in February 2011.
121.
With reference to the Claimant’s letter dated 1 October 2013 relating to Pharmastandard, the Respondent furnished a copy of the Respondent’s contract with Pharmastandard on 11 October 2013.
122.
By letter dated 11 October 2013, the Claimant referred to the chart tendered by the Respondent and marked as R4 requested copies of the Respondent's financial records and accounts for the period from January 2010 to January 2011 so R4 could be put into evidence, reviewed and tested by all the Parties in these proceedings.
123.
On 11 October 2013, the Claimant applied to further amend its Reply-Amendment No. 2.
124.
The Respondent served another Affidavit of Dr Crea dated 11 October 2013 to clarify the nature of the Respondent’s business and the email correspondence in relation to the draft LSA.
125.
On 14 October 2013, the Parties submitted their respective proposals to amend the Memorandum of issues and the Tribunal issued an amended Memorándum of issues dated 15 October 2013.
126.
By letter dated 6 November 2013, the Parties agreed on an extension of the timeline for filing of closing and responsive closing submissions and that the issue of costs in respect of these proceedings be reserved to be dealt with after publication of the Tribunal's award.
127.
The Tribunal stated on 6 November 2013 that while it had no objection to the extension of timeline, it was not agreeable to dealing with the question of costs after the making of the final award. The Parties had been required to include in their submissions all issues on liability for costs together with their quantification of costs claimed. If costs were not quantified, the Tribunal would leave the same to be taxed by the Registrar of SIAC.
128.
The Parties served their respective Closing Submissions on 15 November 2013. The Claimant served its Responsive Closing Submissions and Tabulation of Costs on 3 December 2013, while the Respondent served its Responsive Closing Submissions dated 29 November 2013.
129.
By letter dated 10 December 2013, the Respondent set out its comments on the Claimant’s Tabulation of Costs.
130.
On 11 December 2013, the Claimant set out its comments inter alia relating to the Respondent’s Responsive Closing Submissions.
131.
The Respondent submitted in its letter dated 18 December 2013 that paragraph 68 of its Responsive Closing Submissions was a valid response to paragraph 267 of the Claimant's Closing Submissions, and maintained its position on costs as set out in its letter of 10 December 2013.
132.
Ry email dated 8 July 2014, the Tribunal wrote to the parties requesting comments on the stipulation as to costs referred to in Clause 9.3 of the JVA. The Parties responded to this query on 11 July 2014 taking the common position chat the stipulation on cost in Clause 9.3 had been waived and/or overridden by the Parties' respective submissions that costs should be awarded as the Tribunal may determine.
133.
The proceedings were accordingly declared closed following the receipt of the final comments on Clause 9.3 from the Parties on 11 July 2014.

The Claimant’s Case

134.
The Claimant's claims against the Respondent are based on alleged breaches of the JVA dated 6 October 2010 by the Respondent.
135.
The Claimant was incorporated in Malaysia as a special purpose vehicle for a Joint venture with the Respondent. It is affiliated with Triniaire.
136.
By an arrangement with Triniaire, the Claimant has access to marketing and sales channels to pharmacies, clinics, hospitals, organic shops and traditional medicine retailers and partnership links with a network of 900 pharmacies including major chains and about 80% of active independent pharmacies in Malaysia and over 1,000 traditional medicine retailers.
137.
The Parties concluded a Letter of intent on 9 April 2010 ("LOI"), the relevant terms of which are as follows:

"...

2. Non-binding Nature of Letter of Intent. Each of Triniaire and CreAgri acknowledge that this Letter of Intent is not intended to be binding on Triniaire or CreAgri, except as set out in Section 9. Except as set out in Section 9, all rights and obligations of the parties remain subject to each of the parties' senior management approval and to the negotiation, completion and execution of definitive agreements referenced herein (the "Definitive Agreements"). No statement contained herein is Intended as a representation, or may be relied upon for contractual purposes.

3. Purpose and Initial Application. The purpose of the joint venture will be to commercialize the use of HIDROX® for human health and wellness applications (the "Purpose"). Triniaire and CreAgri intend to incorporate a new corporation ("Newco") in a mutually agreeable jurisdiction, with each party having a 50% ownership interest in NewCo. The initial focus of Newco will be applications related to the commercialization of dietary supplement products containing HIDROX® (the "Initial Application") within the designated Territory.

4. Territory. Newco shall have exclusive rights to pursue the Initial Application within the 10 countries comprising the ASEAN countries, Macau, and Hong Kong. Newco shall also have non-exclusive rights to pursue the initial Application within the rest of the People's Republic of China (other than Hong Kong and Macau) on a non-exclusive basis.

5.4 Capitalization. The authorized capital of Newco will consist of a single class of shares, which will be issued in equal amounts to CreAgri and Triniaire. In respect of their initial shares in NewCo, the parties will contribute the following to NewCo.

7. Pre-purchase of Product by Triniaire. Triniaire acknowledges that CreAgri requires an infusion of capital to satisfy certain short-term operational requirements. Upon execution of this Letter of intent, Triniaire shall transfer to CreAgri the amount of US$300,000 ("Advance Payment") in exchange for CreAgri's supply of any combination of the HIDROX® and OLIVENOL livin' BEGIN (capsules and/or liquid) for future delivery, the first of which is expected to be on or about July 1, 2010. The supply of the products sold under this section shall be subject to substantially the same preferential pricing as products that are sold by CreAgri directly to NewCo.

To the extent that, for reasons beyond CreAgri’s control, it cannot deliver the above-referenced product to Triniaire, CreAgri shall refund the payment to Triniaire plus interest at the rate of 6% per annum.

9. Binding Terms. It is agreed between Triniaire and CreAgri that:

9.1 Upon execution of this Letter of Intent, Triniaire will transfer to CreAgri the sum of US$300,000 pursuant to Section 7, above.

9.4 This Letter of Intent constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all previous correspondence, memoranda or agreements, whether verbal or written, between the parties with respect to the subject matter hereof.

9.5 This Letter of Intent shall be exclusively governed by, and construed in accordance with, the laws of the United Kingdom without giving effect to its conflicts of law principles. Each party hereby submits and attorns to the exclusive jurisdiction of the United Kingdom.

..."

138.
It is the Claimant’s case that pursuant to Section 9.4, the LOI shall constitute a binding agreement between CreAgri and Triniaire. Triniaire thereafter incorporated the JVCo and the Parties signed the JVA dated 6 October 2010.
139.
The relevant clauses of the JVA are as follows:

Whereas, CreAgri possesses proprietary rights in hydroxytyrosol-rich formulations derived from the pulp of olives ("Hidrox®"), as well as proprietary technology and know-how to produce Hidrox® (such intellectual properly in existence as of the effective date of this Agreement shall be referred to herein as the "CreAgri IP"), which is useful in formulation for various applications, specifically including human dietary supplements (the "IV Application"). CreAgri is active in developing, manufacturing, marketing and selling proprietary dietary supplement products containing HIDROX ® branded under CreAgri's trademarks Olivenol", and Olivenol Plus" (collectively, the "Olivenol Trademarks").

Whereas, HoldingCo [BU8] is a company focused on marketing and distribution of high quality products that are backed by clinical data within the health and wellness segment;

Whereas, the Parties desire to establish a joint venture (the "Joint Venture") to develop a coordinated brand and marketing platform to commercialize human dietary supplements containing Hidrox to be sold specifically under the Olivenol Trademarks (collectively, the "Olivenol Products") on a world-wide basis, including without limitation the promotion of Olivenol Products, the active pursuit of regional distributors and managing regulatory aspects as related to the global sale of Olivenol Products (the "Purpose");

2.3 Supply and License Agreement

(ii) License Agreement. CreAgri will grant an exclusive license to the JVCompany of CreAgri IP for the JV Application, under commercially reasonable terms, including the right to sublicense, for (a) use HIDROX for incorporation into the Olivenol Products, (b) use of the Olivenol Trademarks, to promote, market, sell and/or distribute the Olivenol Products. To the extent the CreAgri IP is sublicensed by the JVCompany to third parties, the JVCompany shall pay to CreAgri an amount equal to ten percent (10%) of the annual revenue derived from such sub-license, whether by way of sales of products and/or sub-licensing fees by such third parties. For the avoidance of doubt, the said payment of 10% shall only be applicable to revenue derived from such sub-license only and shall not be payable in respect of all other revenue generated by the JVCompany.

2.7 Fulfillment of Olivenol Product Demand. CreAgri shall direct all inquiries for purchase to Olivenol Products to the JVCompany. In the event the JVCompany is unwilling to satisfy the demand for Olivenol Products from a party making such an inquiry or any other interested third party, CreAgri shall be permitted to sell Olivenol Product directly to such party on terms no more favorable than those offered by the JVCompany. To the extent CreAgri desires to avail itself of this right to sell directly to third parties, CreAgri must first provide written notice to the JVCompany of its intent to do so (which notice must include the identity of the third party, quantity of Olivenol Products, and terms of proposed sale) and if the JVCompany does not within 10 days of receipt of such notice unequivocally indicate in writing that it is willing to satisfy the third party demand, then CreAgri may proceed to sell direct to enquiring party.

3.0 Contributions, Ownership and Responsibilities.

3.1 HoldingCo. As of the Effective Date, HoldingCo. shall own 60% of the ownership interests in the Joint Venture and shall contribute its proportionate share (60%) of the One Hundred Thousand Ringgit Malaysia (MYR100,000) of initial cash contribution required for the startup costs of the Joint Venture.

3.2 CreAg ri: As of the Effective Date, CreAgri shall own 40% of the ownership interests in the Joint Venture and shall contribute its proportionate share (40%) of the One Hundred Thousand Ringgit Malaysia (MYR100,000) of initial cash contribution required for the startup costs of the Joint Venture. Notwithstanding the foregoing, the maximum cash contribution to be funded by CreAgri is United States Dollars Twenty Five Thousands ($25,000). Any initial contribution beyond such amount may be made by CreAgri in kind through contribution of HIDROX ingredient at the initial value set forth above.

3.3 Non-Cash Contributions : In addition to the initial cash contributions set forth above, the parties shall contribute the following:

(a) CreAgri shall grant the JV an exclusive license to all existing worldwide patents applied for or used by CreAgri related to HIDROX for the Purpose, subject to the license payments above; and shall be responsible for supplying HIDROX in sufficient quantities to meet the demands of the Joint Venture Company, all in accordance with the terms of the HIDROX Supply Agreement.

(b) CreAgri shall assign to the JVCompany its right title and interest in the Olivenol Trademarks.

140.
The Claimant further pleads at paragraph 29 of its SOC the following implied terms of the JVA:

"...

a. that CreAgri and BU8 (and each of them, their officers, employees and/or agents) would take all reasonable and legal steps to enable and/or facilitate the accomplishment of the Purpose and to assist, facilitate and support the tasks and responsibilities assigned to CreAgri (sic) and BU8 (and each of them, their officers, employees and/or agents) towards the accomplishment of the Purpose in such a manner which will generate profits while ensuring preservation of the capital in the JVCo (cl 2.1); and

b. that CreAgri and BU8 (and each of them, their officers, employees and/or agents) would not, and would not take any steps which would hinder, delay, prevent, frustrate or obstruct the accomplishment of the Purpose nor any steps which would hinder, delay, prevent, frustrate or obstruct the tasks and responsibilities assigned to Creagri and BU8 (and each of them, their officers, employees and/or agents) towards the accomplishment of the Purpose in such a manner which will generate profits while ensuring preservation of the capital in the JVCo (cl 2.1)."

141.
The Purpose has been referred and set out in the Claimant's SOC, paragraph 27 as follows:

"...

a. CreAgri acquires 40% equity in the JV Co and a corresponding entitlement to 40% of all profits generated by the JV Co (Clause 3.2 of JVA);

b. As consideration for its share of the equity and profits, CreAgri grants to the JV Co an exclusive license to the proprietary rights in hydroxytyrosol-rich formulations derived from the pulp of Olives (HIDROX) and the proprietary technology and know-how to produce HIDROX for various applications including human dietary supplements (Clause 2.3 (ii)JVA);

c. CreAgri also grants to the JV Co an exclusive license to all existing worldwide patents applied for or used by CreAgri related to HIDROX for the Purpose [Clause 3.3(a) of JVA);

d. CreAgri vests the JV Co with the exclusive right to sell these products to all and any interested third parties (see Cl 2.7 JVA);

e. CreAgri undertakes to supply HIDR0X in sufficient quantities and at a preferential price as set out in the JVA Co meet the demands of the JV Co (Clause 3.3(a) of JVA);

f. CreAgri assigns to the JV Company its right title and interest in the CreAgri trademarks "Olivenol" and "Olivenol Plus" (Clause 3.3(b) of JVA);

g. BU8 acquires 60% equity in the JV Co and a corresponding entitlement to 60% of all profits generated by the JV Co (Clause 3.1 of JVA);

h. As const deration, BU8 contributes its best efforts to market and promote the Products (as defined below) and satisfy customers and distributor’s demands for the Products (Clause 3.3(b) of JVA); and

i. Each party contributes its share (60-40) split of the initial start-up capital of MYR100,000 (Clauses 3.1 and 3.2 of JVA)"

142.
The Claimant also pleads that:

a. at the time of the signing of the JVA the Parties had the understanding that the operations of the JVCo were to be funded solely by the Claimant, beyond its initial working capital of MYR 100,000; and

b. that the Parties had agreed to the execution of a LSA between the JVCo and Respondent.

143.
The Respondent had not signed the forma) LSA with the JVCo but it is the Claimant's case that pursuant to the LO1 and in consideration of CreAgri receiving US$ 300,000, the JVCo acquired exclusive rights to market human dietary supplement products with the essential ingredient being HIDROX (the "Products"), regardless of how they are named or branded, in 10 countries.
144.
It is also the Claimant's case that the JVCo had the exclusive license to exploit and utilize the proprietary rights, technology and know-how in the production of human dietary supplements containing HIDROX in all markets worldwide in accordance with Clauses 2.3(ii), 2.7, 3.3 (a), and 3.3(b) of the JVA (the "License"). The profits generated from the sale of such brands will also be treated pursuant to the terms of the JVA and/or the License.
145.
The Claimant alleges that the Respondent together with Cosway (M) Sdn Bhd ("Cosway") had marketed products which used HIDROX thereby competing with the Products of the JVCo.
146.
Sometime in November 2010, TENB International Ltd and 10B International (Malaysia) Sdn Bhd (collectively, "10B") commenced legal proceedings’ In the High Court of Malaya against Triniaire, the JVCo, the Respondent and Dr. Crea on the basis that said defendants had infringed 10B's rights in selling the Products (the "10B litigation"). The Respondent produced evidence that "Olivenol livin" and "Olivenol plus" are the same product containing the same active ingredient, HIDROX, but with 10B using a different bulking agent for "Olivenol livin".
147.
The Claimant proffers that the 10B litigation established 3 key facts important to these arbitral proceedings:

a. a supplement is a product subject to the rights accruing to the Respondent, whatever the name or the bulking agent included in the capsule is, so long as the key active ingredient is HIDROX;

b. no third party can get around the Respondent’s rights by naming its product by a different name or changing the bulking agent; and

c. no third party can manufacture and sell human dietary supplements containing HIDROX unless it has the right acquired from the Respondent to use HIDROX for those purposes.

The 10B litigation was eventually dismissed and Dr. Crea thereafter demanded for the JVA to be terminated by agreement.

148.
It is the Claimant's case that there was a strict requirement for all deals concerning the Products to be entered into through the JVCo. The Respondent, without the knowledge and consent of the Claimant and the JVCo had concluded a contract with Cosway to distribute the Products through the sales channels of Cosway, bypassing the JVCo.
149.
In the course of discussions for the dissolution of the joint venture, the Claimant discovered that the Respondent had been supplying Cosway with products which competed directly and were priced lower than the Products and with Cosway selling the same in Malaysia and in other jurisdictions.
150.
The Claimant believes that with this development, pharmacies then removed the "Olivenol" products considering that its purchase price was higher than Cosway’s retail price.
151.
It is the Claimant's case that the Respondent and Dr. Crea had been made aware of this development but instead of responding thereto, Dr. Crea sent a Letter of Default dated 24 February 2012 (the "Letter of Default’) to the Claimant's Mr Lee and Mr Shiew.
152.
It was also announced publicly that HIDROX would be used by Cosway for a new line of dietary supplements and had started introducing this product In Malaysia and Hong Kong. The Respondent and Cosway had thus signed a contract to this effect before Dr. Crea had sent the Letter of Default.
153.
The Claimant denies that it was in default of its obligations under the JVA and argues that said "Letter of Default" is defective. It further argues that the threat to terminate the JVA if the Claimant failed to remedy non-existent defaults amounted to the Respondent's wrongful repudiation of the JVA, and that the JVA had not been terminated and thus remains valid and binding on the Respondent.
154.
The Respondent thereafter refused to supply HIDROX to the JVCo despite the Invoices being already paid by the JVCo, a breach of the JVA resulting in loss and damages to the Claimant's interest in the JVCo.
155.
The Respondent continued to support Cosway and had lured customers and distributors away from the JVCo, in blatant disregard of its obligations under the JVA.
156.
Further, Dr. Crea, a director of the JVCo, had engaged in disruptive behavior when he refused to sign circulars and resolutions of the JVCo's Board of Directors (the "Board"). The JVCo was thus unable to submit its audited annual accounts timeously in breach of Malaysian regulatory requirements.
157.
On 27 June 2013, the Claimant discovered further breaches by the Respondent The Respondent had entered into agreements with the following third parties, without the Claimant's knowledge and consent:

a. an Exclusive Distribution Agreement with CreaAgri Europe S.r.l dated 14 February 2011;

b. an Exclusive License Agreement with CreAgri Europe S.r.l dated 24 October 2011;

c. an Exclusive Agency Agreement with Fundacao Biominas dated 31 August 2012;

d. an Exclusive Distributor Agreement with Connell Brothers Company Ltd., dated 20 December 2012; and

e. an Exclusive Distribution Agreement with New Wave Biosciences, Inc. dated 6 February 2013;

resulting to loss and damages to the Claimant

158.
By reason of the aforesaid, the Claimant avers that the Respondent is in breach of its obligations under the JVA and/or the law when it had:

a. failed to comply with its obligations under the JVA relating to the exclusive rights it had granted the JVCo under the JVA and/or the License;

b. repudiated all of its obligations under the JVA by purporting to issue a defective notice of default under the JVA it had refused to perform its obligations under the JVA even though the JVA has not been terminated;

c. neglected to take all steps to enable and/or facilitate the accomplishment of the Purpose and to support the tasks and responsibilities assigned to the Claimant towards the accomplishment of the Purpose in order to generate profits while ensuring preservation of the capital in the JVCo;

d. taken steps that had delayed or prevented the accomplishment of the Purpose and have continued to do so; and

e. taken steps that had delayed or prevented the tasks and responsibilities assigned to the Claimant (and its officers, employees and/or agents) towards the accomplishment of the Purpose in order to generate profits while ensuring preservation of the capital in the JVCo.

159.
In its SOC Amendment No. 1, the Claimant seeks the following reliefs:

a. a declaration chat the Respondent is obliged under the JVA to confer the License (or any part thereof) on the JVCo;

b. a finding that the Respondent had and/or are estopped from denying that it had conferred the License on the JVCo on or after 6 October 2010 (or such other date to be determined by the Tribunal);

c. in the event the Tribunal finds that the Respondent had not, and/or is not estopped from denying that it had conferred the License on the JVCo as at the date of the making of the award in the proceedings herein, a finding that the Respondent was and is by its failure to so confer the License on the JVCo in breach of its obligations under the JVA;

d. an injunction to restrain the Respondent - whether directly or indirectly through third parties and whether in Malaysia or elsewhere in the world and save insofar as the acts below are undertaken with the knowledge and written consent of the Claimant and/or the JVCo from:

i. commercially exploiting and utilizing the proprietary rights in hydroxytyrosol-rich formulations derived from the pulp of Olives (HIDROX) and the proprietary technology and know-how to produce HIDROX to formulate human dietary supplements containing HIDROX (including a right to sub-license to a third party) and to promote, market, sell and/or distribute the Products;

ii. selling the Products to third parties;

iii. failing, neglecting and/or refusing (other than for reasons allowed under the JVA), to sell such quantities of HIDROX to the JVCo at the agreed price as would be required to meet the demands of the JVCo to manufacture the Products for the purpose of fulfilling the objective of the JVA;

iv. commercially exploiting, using, sub-licensing, transferring, assigning or otherwise howsoever dealing with the Respondent’s existing worldwide patents applied for or used by the Respondent which relate to HIDROX and the use of HIDROX for the Purpose; and/or

v. commercially exploiting, using, sub-licensing, transferring, assigning or otherwise howsoever dealing with the "Olivenol" and "Olivenol Plus" brands;

e. damages for breaches of the JVA to be assessed;

f. Interest on all sums awarded at such rate and for such period as the Tribunal deems fit;

g. costs; and

h. such further or other relief as the Tribunal deems fit.

The Respondent's Defence and Counterclaim

160.
In its Defence-Amendment No. 3, the Respondent avers that:

a. Dr. Crea is the inventor and owner of the US-patented proprietary formulation of HIDROX. He also founded the Respondent, the manufacturer of HIDROX.

b. The Respondent's first entry into the Malaysian market was with 10B, as the exclusive marketer and seller of "Olivenol Livin" in Asia and the Middle East Triniaire was one of 1OB’s distributors in Malaysia for the sale of products under the "Olivenol" brand.

c. The judgment in the 10B litigation is relevant for two main reasons, viz;

i. The High Court had declared that the Respondent was the "exclusive owner and proprietor" of the trademark "Olivenol".

ii. An injunction was granted to restrain 10B from passing off infringing products which were not endorsed by Dr. Crea with reference to Dr. Crea's patents for HIDROX.

161.
The Respondent was not aware of the relationship between the Claimant and Triniaire and had complained about possible conflict of interests as raised in the Letter of Default. Mr. Shiew was a director and shareholder of Triniaire and he was also the Chief Executive Officer of the JVCo.
162.
The Respondent also denies that the LOI constituted a binding agreement between the Claimant and the Respondent The cover letter dated 7 April 2010 expressly states that the LOI is "intended solely as a basis for further discussions and is not intended to be and does not constitute a legally binding obligation except for the advance payment and the confidentiality provisions...". Clause 2 of the LOI further states a heading, "Non-binding Nature of Letter of intent".
163.
The Parties engaged in negotiations for the JVA and the Respondent’s intention had been dear. Dr. Crea's business proposal of 24 June 2010 stated his intention for the JV to focus on the Olivenol brand, the ownership of HIDROX to he retained by the Respondent, being the manufacturing entity of the Olivenol products, at first instance.
164.
The Respondent avers that the Purpose of the JVA as sought to be defined by the Claimant is not correct. The Purpose of the JVA is defined in the Recitals of the JVA, viz:

"...

Whereas, the Parties desire to establish a joint venture...to develop a coordinated brand and marketing platform to commercialize human dietary supplements containing HIDROX to be sold specifically under the Olivenol Trademarks (collectively, the "Olivenol Products") on a worldwide basis, including without limitation the promotion of Olivenol Products, the active pursuit of regional distributors and managing regulatory aspects us related to the global sale of Olivenol Products (the "Purpose").

..."

165.
It is thus clear that the Purpose is the development and marketing of human dietary supplements containing HIDROX to be sold under the "Olivenol" trademarks owned by the Respondent. The Recitals of the JVA are clear that the proprietary rights continue to be possessed by the Respondent.
166.
Pursuant to Clause 2.3(ii) of the JVA, the Respondent would grant an exclusive license to the JVCo "under commercially reasonable terms". It was thus executory in nature. The terms in Clause 2.3 referring to a proposed collateral contract between the Respondent and the JVCo are uncertain at law and are therefore unenforceable.
167.
It is also averred that the JVCo is not a party to the arbitration agreement between the Parties and any issue arising from the license granted to the JVCo, to the Respondent’s view, is outside the scope of the arbitration agreement.
168.
It is Respondent's case that Clause 1.2 of the draft SLA attached in Dr. Crea's email of 21 January 2011 had made it clear that the Respondent could sell HIDROX to third parties for human dietary supplements so long as they did not use the Olivenol trademarks.
169.
The Respondent further disputes the terms the Claimant is seeking to imply into the JVA. There is no basis, in law or in fact, for the implication of the terms proposed by the Claimant.
170.
It is Respondent's case that it has been manufacturing and selling HIDROX even before the JVA. It had invested money into developing HIDROX. It could not have been the intention of the Respondent to restrict themselves under the JVA from dealing with HIDROX as provided in the Parties' agreement in Clause 1.6 of the JVA.
171.
It is also Respondent's case that the Parties had never agreed to the terms of the LSA. It was supposed to cover the supply of HIDROX by the Respondent.
172.
The Respondent also takes the position that it is entitled to reject any order for HIDROX after it had issued the Letter of Default pursuant to Clause 6.2(ii) and (iii) of the JVA.
173.
Pursuant to Clauses 6.2(iii)(b) and 6.3 of the JVA the Respondent argues it had properly and validly given notice to terminate the JVA by its letter dated 19 March 2012, the Claimant having breached its obligations under the JVA. The Joint venture was terminated upon the expiry of 30 days after receipt by the Claimant of the Letter of Default, i.e. on 26 March 2012.
174.
It is thus Respondent's case that the Claimant wrongfully refused to accept the termination of the JVA and have caused the JVCo to continue operations. The Respondent having ceased supply of HIDROX to the Claimant, it has reason to believe that the JVCo had marketed Olivenol supplements which may not contain authentic HIDROX.
175.
The Claimant had also caused the JVCo to proceed with a rights issue exercise, which had diluted the Respondent's shareholding from 40% to less than 1% in breach of the provision of Clause 1.2 of the JVA.
176.
The Respondent also intended for for Mr. Shiew to lead the JVCo, which he failed to do, into the Taiwan market: The Respondent did not agree to the proposal from Maypro for the sale of Olivenol products in Taiwan.
177.
The Claimant and Mr. Shiew also knew about the dealings with Cosway. Mr. Shiew even agreed that a collaboration with Cosway could expand the market potential for Olivenol products and benefit the JVCo as well. It was Mr. Shiew who failed to follow up the dealings with Cosway.
178.
It is denied by the Respondent that Dr. Crea refused to sign documents in relation to the JVCo. Dr. Crea had raised queries and concerns which had not been addressed by the JVCo. The Respondent reserved the right to review the accounts and challenge the financial statements of the JVCo.
179.
In the main, the Respondent denies that it had breached any of its obligations under the JVA.
180.
In breach of Clause 6.2(iv)(c) of the JVA, the Claimant failed to provide sufficient levels of qualified staffing and resources to the JVCo to promote and market the Olivenol Products.
181.
In breach of Clauses 1.3, 1.4, 1.5 of the JVA, the Claimant:

a. failed to properly appoint directors;

b. failed to schedule any formal board meetings;

c. failed to prepare or have approved any business plan and/or operating budget; and

d. failed to have any proper evaluation of new Olivenol product development opportunities.

Further, the Respondent did not receive any money/profits in relation to the joint venture from the date the JVA was executed to the date of the Letter of Default, i.e, from 6 October 2010 to February 2012, a period of more than 15 months.

182.
The Claimant having breached the JVA and the Respondent having issued a Letter of Default, the non-defaulting party pursuant to Clause 6.2(iii) shall have the right to either;

a, purchase the defaulting party’s interest in the JVCo at net book value; or

b, terminate the JVA by giving the defaulting party notice, whereupon such default maybe treated as a dissolution of the JVCo.

183.
The Respondent thus states that it had properly and validly terminated the JVA by exercising its contractual right pursuant to Clause 6.2 of the JVA. The Respondent sent a notice to terminate the JVA on 19 March 2012 before the expiry of the period of 30 days (which should have expired on 26 March 2012) within which the defaulting party is given the opportunity to rectify or cure such defect. It is argued that the notice is valid as the Claimant refused to acknowledge and rectify its breaches. Alternatively, the Respondent proffers the argument that tire Claimant's breaches referred to at paragraphs 180-181 are conditions of the JVA which at law would entitle the Respondent to validly terminate the JVA.
184.
Further or in the alternative, the Claimant repudiated the JVA by failing to cause the JVCo to execute the SLA under Clause 2.3 of the JVA.
185.
By the Letter of Default, the Respondent accepted the Claimant’s repudiatory breach.
186.
Further or in the alternative, it was an implied term of the JVA that if the JVCo failed to execute the SLA as contemplated under Clause 2.3 of the JVA, the JVA would be discharged as it would be not be workable anymore, viz:

a. clause 2.3 of the JVA states that the joint venture required the execution of an SLA which will be executed within 30 days after the execution of the JVA; and

b. the JVA did not provide for the consequences in the event that the SLA was not executed within 30 days.

187.
In the alternative, the Respondent proffers that the Claimant's act of diluting the Respondent’s shareholding was a breach that deprived the Respondent of the benefit of the JVA. The Respondent had, by its conduct, accepted the Claimant's wrongful repudiation of the JVA.
188.
In the alternative, it was an implied term of the JVA that if there was a dilution in the shareholding, the original provisions of the JVA would no longer apply and the JVA would be discharged. The JVA failed to provide for the consequences in the event that one party substantially diluted the shareholding interest of the other party. The joint venture was thus discharged in or around June 2013 when the Respondent's shareholding interest was substantially diluted to less than 1%.
189.
By reason of the Claimant’s breaches of the JVA the Respondent had suffered loss and damage. The Respondent states that the Claimant had breached Clauses 1.2, 1.3, 1.4 and/or 1.5, 2.1, 2.3, 6.2(iv)(c), 6.4 of the JVA and its obligations under the JVA as set out in paragraph 50(4)(1) of the Defence-Amendment No. 3.
190.
The Respondent counterclaims:

a. A declaration that the JVA has been terminated,

b. Damages to be assessed,

c. Interest at such rate and for such period, as the Tribunal deems fit, pursuant to Section 20 of the IAA,

d. Costs, and

e. Further or other relief as the Tribunal deems fit.

The Claimant’s Reply

191.
In the Reply-Amendment No. 2, the Claimant further averred, inter alia, that:

a. The Respondent owns the US patent for the formulation of HIDROX, and not Dr, Crea.

b. The Collaborative, Distribution and License Agreement was entered into between the Respondent and 10B International Ltd and not with 10B International (Malaysia) Sdn Bhd.

c. Mr Shiew was not and is not the Chief Executive Officer of Triniaire.

d. The purpose behind the JVA was for the Parties to commit to certain obligations which when fulfilled will lead to a desired commercial result. The Purpose as defined in the JVA cannot be achieved unless the Respondent grants to the JVCo an exclusive license for the JV Application.

e. The financial support by Triniaire to the Respondent and Dr. Crea during the 10B litigation was treated as a supply agreement to Memorandum of Deposit in favour of Triniaire. Given its financial difficulties, the Respondent could only repay the loan by way of supply of its products.

f. The Parties negotiated and signed a Supply and Delivery Agreement ("SDA"), and Memorandum of Deposit in favour of Triniaire.

g. Pursuant to an exclusive license granted to the JVCo to produce HIDROX for use by the JVCo for purposes of the JVA (which includes a right to sub-license), the JVCo's decision to allow the Respondent to manufacture HIDROX and sell to Triniaire was within its rights.

h. To the extent that the Respondent intends to mount a jurisdictional challenge pursuant to Clause 2.3 of the JVA, the Claimant asserts that the Respondent is barred from setting out a jurisdictional challenge (i.e. that the JVCo is not a party to the arbitration agreement, under the applicable law and arbitration rules). The draft SLA remained a draft and it was never signed; the JVCo had not agreed in its terms.

i. In the event that the Tribunal finds that no license had been granted to the JVCo, the Claimant seeks an award of damages, inter alia, arising from Respondent's breach of its obligation to grant a license under the JVA.

j. It was not the Claimant’s case that the proprietary rights of HIDROX belonged to the JVCo. It was also not the Claimant’s case that it had exclusive rights over the production and use of HIDROX.

k. The Respondent's letter of 19 March 2012 did not give notice that the JVA has been terminated. It should not be deemed a valid "Notice of Default" under Clause 6.2(iii). The 30 day period for the Claimant to cure the alleged defaults had not lapsed as at 19 March 2012.

l. Issues arising from the rights issue fall outside the scope of the arbitration agreement. The Claimant denies it was in breach of the JVA.

m. It is also denied that the Respondent had any legal and contractual basis for its conduct in dealing with Cosway.

n. As to the alleged termination of the JVA, the Respondent’s unilateral decision to submit a draft SLA with unreasonable terms and which is not reflective of the JVCo's agreement does not give basis for the JVA to be terminated.

o. Clauses 1.3, 1.4, 1.5, and 2.1 of the JVA do not oblige;

i. the Claimant to schedule formal board meetings.

ii. the Claimant to prepare or approve business plans or operating budgets.

iii. the Claimant to evaluate new Olivenol product development opportunities.

iv. the Claimant to ensure that the Respondent will receive money or profits in relation to the joint venture.

p. If the Tribunal finds that the License had in fact not been granted to the JVCo, then it follows that:

i. the JVCo ought not to have conducted business at all and all transactions made by the JVCo would not be transactions under the terms of the JVA; and

ii. the obligations under the JVA and which are relied upon would not have been needed to be carried out.

q. If the Tribunal finds that the Respondent is entitled to any monetary relief, the Claimant seeks to set-off so much of its claims as would be sufficient to extinguish the Respondent's counterclaims.

Now, I, Lawrence G S Boo, having carefully considered and accorded appropriate weight to all the statements, documents and written submissions placed before me do hereby MAKE AND PUBLISH THIS FINAL AWARD which shall be final in respect of all matters in dispute in this arbitration.

Issues for determination

192.
In the amended Memorandum of issues dated 15 October 2013, the issues for determination are set out as follows:

(1) Whether, on a proper construction of the Joint Venture Agreement dated 6 October 2010 (the "JVA"), the Purpose of the JVA includes all or any of the obligations and rights set out in paragraph 27 of the Statement of Claim.

(2) Whether the Respondent is obliged under the JVA to grant or confer on the Claimant -

a. an exclusive license across all markets world-wide to commercially exploit and utilize the proprietary rights in hydroxytyrosol-rich formulations derived from the pulp of olives (HIDROX) and the proprietary technology and know-how to produce HIDROX to formulate human dietary supplements containing HIDROX (including a right to sub-license to a third party) and to promote, market, sell and/or distribute the HIDROX products.(see 2.3(ii) JVA);

b. the exclusive right to sell the HIDROX products to all and any interested third parties (see2.7 JVA);

c. an entitlement to purchase from the Respondent (and the Respondent having a corresponding obligation to supply) such quantities of HIDROX at the agreed price as would be required to meet the demands of the JVCO to manufacture the HIDROX products (see cl 3.3 (a) of the JVA);

d. an exclusive license to all existing worldwide patents applied for or used by the Respondent which relate to HIDROX and the use of HIDROX for the Purpose (see cl 3.3(a) of the JVA); and/or

e. title and interest in the "Olivenol" and "Olivenol Plus" brands (see cl 3.3(b) of the JVA).

(3) Whether the "Products" referred to in the JVA are limited only to "Olivenol" Products.

(4) (If the answer to (3) is YES), Whether the Respondent is free to deal with HIDROX without consent or knowledge of the Claimant.

(5) (On the basis of the findings on issue 2 above)

a. Whether the Respondent had failed and/or neglected to confer such licenses, rights and/or benefits on the Claimant.

b. Whether the Respondent's arrangement with Cosway to market products containing "HIDROX" was a breach of the JVA.

c. Whether the Respondent had acted in any manner which could hinder, prevent, delay, frustrate and/or obstruct the proper functioning of the JVCo and/or any of the objects of the JVA.

(6) If the Respondent be in breach of any of its obligation(s), to ascertain the proper relief which the Claimant is entitled to.

(7) Whether the Claimant breached any duty or obligation in relation to the management of the JVCo, in particular:

a. Whether the Claimant had failed to hold board meetings, furnish accounts or otherwise properly manage the JVCo; and/or

b. Whether the Claimant caused the JVCo, to market Olivenol products that did not contain authentic HIDROX®.

(8) (If any of the answers to (7) is YES) Whether such breach(es) entitled the Respondent to terminate the JVA and if so, on which date was the JVA validly terminated by the Respondent.

(9) If the Respondent had validly terminated the JVA to ascertain any further and proper relief to which the Respondent is entitled to.

(10) If the Respondent had not validly terminated the JVA, whether the Respondent was in breach of the JVA and jf so, whether the Claimant is entitled to such corresponding reliefs as set out in the Statement of Claim.

(11) Whether the Tribunal has the power to direct the Respondent to grant a license to the JVCo in accordance with the terms of the JVA.

(12) Whether the non-execution of the Supply and License Agreement envisaged under Clause 2.3 results in a termination of the JVA.

(13) Whether the Claimant had acted to dilute the Respondent's shareholding from 40% to about 0.6%.

a. [If the answer to (13) is YES] Whether that act constituted a wrongful repudiation of the JVA by the Claimant

b. [If the answer to (13) a) is YES] Whether the Respondent had accepted the Claimant's repudiation of the JVA.

(14) [If the answer to (13) is NO] Whether the Respondent's current shareholding of 0.6% in the JVCo constitutes a basis for termination of the JVA under Clause 6.1.

(15) [If the answer to (12) or (14) is YES] To ascertain such further and proper relief to which each party is entitled to.

Findings and Reasons

(1) Whether, on a proper construction of the Joint Venture Agreement dated 6 October 2010 (the "JVA"), the Purpose of the JVA includes all or any of the obligations and rights set out in paragraph 27 of the Statement of Claim.

193.
The determination of this issue has a direct impact on many of the issues to be decided in this arbitration. The Claimant has in Paragraph 27 of the SOC-Amendment No. 1 construed the Purpose of the JVA to include the following obligations of the parties:

" a. CreAgri acquires 40% equity in the JV Co and a corresponding entitlement to 40% of all profits generated by the JV Co (Clause 3.2 of JVA);

b. As consideration for its share of the equity and profits, CreAgri grants to the JV Co an exclusive license to the proprietary rights in hydroxytyrosol-rich formulations derived from the pulp of Olives (HIDROX) and the proprietary technology and know-how to produce HIDROX for various applications including human dietary supplements (Clause 2.3 (ii) JVA);

c. CreAgri also grants to the JV Co an exclusive license to all existing worldwide patents applied for or used by CreAgri related to HIDROX for the Purpose [Clause 3.3(a) of JVA);

d, CreAgri vests the JV Co with the exclusive right to sell these products to all and any interested third parties (see Cl 2.7 JVA);

c. CreAgri undertakes to supply HIDROX in sufficient quantities and at a preferential price as set out in the JVA to meet the demands of the JV Co (Clause 3.3(a) of JVA);

f. CreAgri assigns to the JV Company its right title and interest in the CreAgri trademarks "Olivenol" and "Olivenol Plus" (Clause 3.3(b) of JVA);

g. BU8 acquires 60% equity in the JV Co and a corresponding entitlement to 60% of all profits generated by the JV Co (Clause 3.1 of JVA);

h. As consideration, BU8 contributes its best efforts to market and promote the Products (as defined below) and satisfy customers and distributor's demands for the Products (Clause 3.3 (b) of JVA); and

i. Each party contributes its share (60-40 split) of the initial start-up capital of MYR 100,000 (Clauses 3.1 and 3.2 of JVA)"

194.
Insofar as the obligations described in sub-paragraphs 27(a), (f), (g), (h) and (i), there is in fact no controversy and the Parties have not joined issue. The crucial differences between the Parties appear to arise from the divergent understanding of the extent and nature of the "exclusive rights" to be granted by the Respondent to the JVCo and thus the corresponding obligations of the Respondent to grant such rights to the JVCo and the constraints laid upon the Respondent to grant similar rights to other persons.
195.
Paragraphs 2 and 3 of the Recitals in the JVA express the Parties' intention for the setting up of the JVCo in the following terms;

"Whereas, CreAgri possesses proprietary rights in hydroxytyrosol-rich formulations derived from the pulp of olives ("Hidrox ®"), as well as, proprietary technology and know-how to produce Hidrox ® (such intellectual property in existence as of the effective date of this Agreement shall be referred to herein as the "CreAgri IP"), which is useful in formulation for various applications, specifically including human dietary supplements (the "JV Application"). CreAgri is active in developing, manufacturing, marketing and selling proprietary dietary supplement products containing HIDROX® branded under CreAgri's trademarks Olivenol™, and Olivenol Plus™ (collectively, the "Olivenol Trademarks");

Whereas, HoldingCo [BU8] is a company focused on marketing and distribution of high quality products that are backed by clinical data within the health and wellness segment;

Whereas, the Parties desire to establish a joint venture (the "Joint Venture") to develop a coordinated brand and marketing platform to commercialize human dietary supplements containing Hidrox to be sold specifically under the Olivenol Trademarks (collectively, the "Olivenol Products") on a world-wide basis, including without limitation the promotion of Olivenol Products, the active pursuit of regional distributors and managing regulatory aspects as related to the global sale of Olivenol Products (the " Purpose");

..."

196.
The Claimant takes the position that the JVA is primarily concerned with the use of HIDROX in the production of human dietary applications, it reasons that the JVCo was to be the platform "to develop a coordinated brand and marketing platform to commercialize human dietary supplements containing Hidrox...". The reference to "Olivenol Trademarks" in Paragraph 3 of the Recitals is no more than a stipulation as to the name under which the HIDROX-infused human dietary supplements were to be sold and not to be mistaken as specifying the sub-category of the human dietary supplements which the JVCo was to be limited to, it therefore argues that the term "Olivenol Products" in the JVA is a collective term for all "human dietary supplements" containing HIDROX which the JVCo was to sell under the Olivenol Trademarks and that the term "Olivenol Products" is not intended to restrict its meaning but has to be interpreted as a short form encompassing the entire range of human dietary supplements containing HIDROX.
197.
Read in this manner, the Claimant submits that the Respondent has to grant to the JVCo under Clause 2.3(ii)(a) JVA, "an exclusive license to the proprietary rights in hydroxytyrosol-rich formulations derived from the pulp of Olives (HIDROX) and the proprietary technology and know-how to produce HIDROX for various applications including human dietary supplements". [SOC, paragraph 27] It asserts that the Respondent is therefore not permitted to sell HIDROX to any other persons, who could use it to produce human dietary supplements to compete with the JVCo.
198.
The Respondent refutes this submission, taking the position that the Purpose of the JVA relates only to the commercialization of the Olivenol Products and any right or licence, if at all, must necessarily be limited to Olivenol Products. In its view, the specific mention of "Olivenol Trademarks" and "Olivenol Products" effectively limits any right the Claimant may claim to have under the JVA. It submits that it is at liberty to sell HlDROX to any person for any use including human dietary supplements so long as the product is not sold or marketed under the brand name of "Oilvenol". As such the Respondent could not be constrained in any manner including the sale of HlDROX and promoting their sale in Malaysia under different brands.
199.
Both Parties have attempted to rely on the LOI and the pre-JVA negotiations to show their respective subjective intentions when the JVA was eventually entered into, Viz. the Claimant had always believed that they entered into the JVA thinking that the JVCo would be the sole and only entity selling human dietary supplements containing HIDROX under any branding world-wide; and the Respondent believed that it had always intended to have the JVCo selling human dietary products specifically under the Olivenol branding only and that it could produce and sell human dietary supplements formulations with HIDROX under any brand other than Olivenol.
200.
The Tribunal is conscious that the contextual approach to interpretation has recently been accepted by the Court of Appeal in Zurich Insurance (Singapore) Pte. Ltd. v B. Gold Interior Design & Construction Pte Ltd [2008] 3 SLR (R) 1029 but notes that in doing so the Court of Appeal also made, inter alia, the following qualifications:

"One qualification to our endorsement of the contextual approach, must, however, be made. In the light of the continued robustness of the parol evidence rule in our law, the courts must remain ever vigilant to ensure that, in interpreting a contract, extrinsic evidence is only employed to illuminate the contractual language and not as a pretext, to contradict orvary it."(emphasis added) [at (122)]

If the court is satisfied that the parties intended to embody their entire agreement in a written contract, no extrinsic evidence is admissible to contradict, vary, add to, or subtract from its terms (see ss 93-94 of the Evidence Act). In determining whether the parties so intended, our courts may look at extrinsic evidence and apply the normal objective test, subject to a rebuttable presumption that a contract which is complete on its face was intended to contain all the terms of the parties' agreement (see [40] above). In other words, where a contract is complete on its face, the language of the contract constitutes prime facie proof of the parties' intentions." (emphasis added) [at (132)(b)]

201.
Counsel for both Parties could also not dispute that any prior agreements or understanding (other than providing the factual matrix under which the JVA was entered into) could not be used to override the clear terms of the JVA. In this regard, Clause 9.2 of the JVA, provides that -

"...This Agreement sets forth the entire agreement between the Parties and supersedes in its entirety any and all prior agreements, understandings or representations relating to the subject matter hereof and may not be changed or terminated orally. The Parties represent that in entering this Agreement they do not rely on any statement or fact not set forth herein."

202.
In the course of the oral hearing, evidence from Dr Crea and Mr Shiew relating to the course of negotiations leading to the signing of the LOJ and eventually the JVA, were al) but attempts by each of them to show their subjective intentions and desired outcomes in this entire transaction. Ms Ann Dalsin, who was involved in the drafting of the JVA, too was but attempting to put into text the perceived intention of Dr Crea. While rules of evidence encapsulated in the Evidence Act (Cap 97) are not binding on an arbitral tribunal, Clause 9.2 of the JVA prohibits the Tribunal from taking into account prior agreements and understanding when interpreting the terms of the JVA. In any event, the Tribunal finds that even if such evidence could be considered admissible, none of the testimonies of these witnesses made in this regard could assist in divining the objective intention of the parties in interpreting the contractual clauses in the JVA, in particular the purpose and scope of the JVA.
203.
The approach adopted by the Parties in interpreting the "Purpose" of the JVA have glaringly been subjective; the Claimant choosing to ignore the reference to "Olivenol Trademark" and "Olivenol Products" and focusing on the words "human dietary supplements containing Hidrox" while the Respondent choosing to rely only on the qualification, "Olivenol". Each of them had been attempting to impose their subjective intentions to the text of the JVA.
204.
The JVA was drafted following extended negotiations and legal advice. The Parties had dealt with each other under the LOI which served as a prelude to the arrangement under the JVA. Dr Crea was more than a scientist, this was not his first commercial transaction dealing with the sale and distribution of his HIDROX or its formulated products. The Respondent's products were said to have a world-wide reach with sales grossing over US$ 17 million. The Claimant too has been involved in international product distribution. Both Parties should therefore be considered seasoned businessmen. It must therefore be assumed that they both knew what they had entered into under the JVA. As such, if the terms of the JVA could, on a plain reading, be unambiguous and commercially workable, the Tribunal ought to give it its plain and ordinary meaning.
205.
In the Tribunal's view, the text of the JVA is unambiguous and is capable of a plain and simple meaning. Taking this approach, the plain and ordinary meaning of "to develop a coordinated brand and marketing platform to commercialize human dietary supplements containing Hidrox to be sold specifically under the Olivenol Trademarks" must necessarily entail:

• both Parties agreeing to work together as joint venture partners to "develop a coordinated brand and marketing platform to commercialize human dietary supplements containing Hidrox"; and

• selling and marketing them "specifically under the Olivenol Trademarks".

206.
In other words, both limbs of the sentence form a composite whole; ignoring one or down-playing the other would distort its plain and ordinary meaning.
207.
The words "to commercialize human dietary supplements containing Hidrox" carry with them an express intention by the Parties to use the JVCo to develop various human dietary supplements on a commercial basis using HIDROX as the active ingredient in the formulation of said supplements. This would mean that the Parties agree to use the patents and know-how of the Respondent which are to be exclusively licensed to the JVCo, and for the JVCo to develop various formulations of human dietary supplements for commercial sale. It follows that the JVCo (and no other) would be the vehicle where such products are to be developed and through which the commercial sale of these products are to be made.
208.
Consistent with these intentions as set out in the Purpose, the JVA provided in Clause 2.3(ii) that;-

"CreAgri will grant an exclusive license to the JV Company of CreAgri IP for the JV Application, under commercially reasonable terms, including the right to sublicense, for (a) use Hidrox for incorporation into the Olivenol Products (b) use of the Olivenol Trademarks, to promote, market, sell and/ or distribute the Olivenol Products."

209.
The term "CreAgri IP" has been assigned the meaning in paragraph 1 of the Recitals as-

"...proprietary rights in hydroxytyrosol-rich formulations derived from the pulp of olives ("Hidrox ®"), as well as, proprietary technology and know-how to produce Hidrox ®"

210.
Read together, the Respondent is obliged under the JVA to grant an exclusive license to the JVCo to use the CreAgri IP viz, the proprietary rights in HIDROX formulations, as well as proprietary technology and know-how to produce HIDROX for the purpose of producing human dietary supplements on a commercial basis. To be clear, this licence is not an unqualified one. Its exclusivity is limited to the use of the know-how to produce HIDROX for the production of human dietary supplements. Neither the Claimant nor the JVCo could use the formulations and the HIDROX production know-how for any other purposes, The Claimant could have no basis to complain should the Respondent sell HIDROX (or license its production) to any other person so long as the Respondent's formulations for human dietary supplements using HIDROX are not so used for or by these other purchasers. The Tribunal accepts the Respondent's submission that the JVA does not contemplate conferring upon the JVCo all of the Respondent's proprietary interest in HIDROX. This is consistent with Clause 1,6 of the JVA;

"1.6 Outside Business : Nothing set forth herein shall in any way prevent CreAgri or HoldingCo from engaging in business related to Hidrox® outside of the Purpose."

211.
The JVCo is intended to be the "brand and marketing platform" for human dietary supplements using HIDROX under the "Olivenol" brand. It follows that the Parties are not to market or assist to market any other human dietary supplements using HIDROX other than through the JVCo. To do so would be inconsistent with the intention to make the JVCo its sole marketing platform. The specific licensing of the "Olivenol Trademark" and the covenant to use that branding oblige both Parties not to promote and market any human dietary supplements under any other brand but "Olivenol" and to do so through the JVCo.
212.
Understood simply, the JVA creates both positive and negative obligations, namely:

a. The Parties are obliged to enable the JVCo to exclusively:

i. Undertake commercial development of human dietary supplements containing HIDROX;

ii. Market such products under the "Olivenol Trademarks" only;

b. Both Parties are not to develop human dietary supplements containing HIDROX under any brand or trademarks other than Olivenol;

c. Both Parties are not to market or assist in marketing human dietary supplements containing HIDROX under any brand or trademarks other than Olivenol;

d. The Respondent is obliged to grant the exclusive license to the JVCo to enable the JVCo to develop human dietary supplements containing HIDROX.

e. The obligation to grant the exclusive license to the JVCo prohibits the Respondent from allowing the use of its HIDROX formulations as well as proprietary technology and know-how to produce HIDROX to any other persons other than to the JVCo.

f. The Claimant cannot of itself produce HIDROX for sale.

213.
The rights granted by the Respondent are for the benefit of the JVCo and not the Claimant. The Respondent thus argued that as the JVCo is not a party to this arbitration, the Tribunal lacks jurisdiction to decide on the rights of the JVCo. This argument is manifestly misconceived.
214.
The Parties are free to contract in such terms as they deem fit including the conferment of rights on third parties. In certain situations, the privity of contract doctrine notwithstanding, the third party beneficiary named may be able to assert such rights and participate in the arbitration [see Contracts (Rights of Third Parties) Act Cap 53B, Rev Ed 2002, s 9]. Such however is not even the situation. The JVCo is not the person asserting the right. It is the Claimant in this case, who is seeking to enforce the contractual obligations inter se against the Respondent for the latter to perform what it had covenanted to do. In considering this issue, the Tribunal is doing nothing more than determining the contractual obligations between the Parties and, if thought fit, ordering its compliance. The fact that the rights or benefits agreed under the JVA are to be conferred by the Respondent on the JVCo cannot mean that the Claimant as a party to the JVA cannot seek to enforce such a right against the Respondent in favour of the JVCo. The privity of contract doctrine knows of no such impediment. Accordingly the Respondent’s argument that the Tribunal lacks jurisdiction to make the order sought by the Claimant which benefits the JVCo fails.

(2) Whether the Respondent is obliged under the JVA to grant or confer on the Claimant -

a. an exclusive license across all markets world-wide to commercially exploit and utilize the proprietary rights in hydroxytyrosol-rich formulations derived from the pulp of olives (HIDROX) and the proprietary technology and know-how to produce HIDROX to formulate human dietary supplements containing HIDROX (including a right to sub-license to a third party) and to promote, market, sell and/or distribute the HIDROX products (see 2.3(h) JVA);

b. the exclusive right to sell the HIDROX products to all and any interested third parties (see 2.7 JVA);

c. an entitlement to purchase from the Respondent (and the Respondent having a corresponding obligation to supply) such quantities of HIDROX at the agreed price as would be required to meet the demands of the JVCO to manufacture the HIDROX products (see cl 3.3(a) of the JVA);

d. an exclusive license to all existing worldwide patents applied for or used by the Respondent which relate to HIDROX and the use of HJDROX for the Purpose (see cl 3.3(a) of the JVA); and/or

e. title and interest in the "Olivenol" and "Olivenol Plus" brands (see cl 3.3(b) of the JVA).

215.
Given the Tribunal’s findings in paragraphs 193 to 214 above, the Tribunal finds that the exclusive licence to exploit HIDROX under Clause 2.3 (ii), the right to sell HIDROX products under Clause 2.7, the entitlement to purchase HIDROX at the agreed price, the exclusive licence to the patents relating to HIDROX under Clause 3.3(a) and the title and interest in the "Olivenol" and the "Olivenol Plus" brands under Clause 3.3(b) of the JVA are wholly for the benefit of the JVCo and not the Claimant, the answer to these issues must therefore be answered in the negative.

(3) Whether the "Products" referred to in the JVA are limited only to "Olivenol" Products?

(4) (If the answer to (3) is YES), Whether the Respondent is free to deal with HIDROX without consent or knowledge of the Claimant?

216.
Given the Tribunal's findings in paragraphs 193-215 above, the Products referred to in the JVA are indeed a reference to the human dietary supplements which are to be specifically marketed under the "Olivenol Trademarks" only. It does not however follow that the Respondent has the fullest of liberties to "deal with Hidrox without the consent or knowledge of the Claimant" as it so asserts. Implicit in this assertion is the suggestion that the Respondent could enter into any arrangements with any other party to develop human dietary supplements using HIDROX and market them under any other brands in competition With the JVCo.
217.
By entering into the JVA, the Respondent had covenanted with the Claimant to establish the JVCo to develop a coordinated brand and marketing platform to "commercialize....("Olivenol Products")... on a world-wide basis, including without limitation the promotion of Olivenol Products." This coordinated commercialization plan includes "the active pursuit of regional distributors and managing regulatory aspects as related to the global sale of Olivenol Products". The Parties to the JVA had therefore mutually pledged that they would work together, to use the JVCo and no other thence the exclusive licenses to the patents) to the extent that HIDROX is being used for development of human dietary supplements.
218.
To suggest that the Respondent could deal with HIDROX freely without any limitation directly contradicts its obligation to grant the exclusive licenses of the CreAgri IP as contemplated in Clause 3.3(a) of the JVA. While the Respondent has been granted the liberty under Clause 1.6 of the JVA, to engage in "business related to Hidrox® outside of the Purpose", this must necessarily mean that it could only do so without violating the covenants and undertakings it has given in the JVA to the Claimant. Such activities would include selling HIDROX to persons who use them to make human dietary products in direct or indirect competition with the Olivenol Products or promoting or assisting in the promotion of human dietary supplements developed by others using HIDROX. If such activities are to be undertaken, the consent (not mere knowledge) of the Claimant ought to have been sought as to why the JVCo was not given that exclusive right to undertake such business and its related activities.

(5) (On the basis of the findings on issue 2 above)

a. Whether the Respondent had failed and/or neglected to confer such licenses, rights and/or benefits on the Claimant.

219.
Given the Tribunal’s findings in paragraph 215 above that the licenses, rights and benefits created under the JVA are intended for the JVCo, the simple answer to this issue must necessarily be in the negative. The proper question is therefore whether the Respondent had complied with its obligations under the JVA to confer such licenses, rights and benefits on the JVCo.
220.
It is not disputed that the SLA contemplated under Clause 2.3 of the JVA was never executed. The Respondent's defence is that Clause 2.3 of the JVA was executory in nature and thus it could not be compelled to do so. It reasoned that as Clause 2.3 of the JVA contemplates a future agreement to be executed between the Parties, it was nothing more than an agreement to agree. In any event, it maintained that the Parties could not agree on the essential terms and thus a valid and complete contract relating to the supply and grant of the licence as contemplated thereunder did not occur.
221.
The law that an agreement to agree gives rise to no contractual obligation and therefore there is no contract to enforce, is uncontroversial. The question is whether the SLA contemplated under Clause 2.3 was in fact an agreement to agree; that Clause 2.3 of the JVA merely contemplates that the Parties would negotiate the terms with the view to entering into such an agreement The Respondent cited 2 Singapore decisions and an Australian decision to support its case viz. United Artists Singapore Theatres Pte Ltd & Anor v. Parkway Properties Pte Ltd & A nor [2003] 1 SLR 791 ("United Artists") [RBA-5]; Popular Book Co Pte Ltd V Sea Sun Furnishing Pte Ltd [1991] SGHC 39 ("Popular Book Co") [RBA-6] and Summergreene v Parker [1950] HCA 13 ("Summergreene") [RBA-7]. In the Tribunal's view, the facts of these cases bear no similarity to the facts in this arbitration. In all the 3 cases cited, the agreements contemplated were all future agreements, the essential terms of which were then left to be negotiated and to be agreed.
222.
In Popular Book Co, the court was dealing with the renewal of a lease upon the expiry of the initial term. Chan J (as be Chen was) pointed out that he was dealing with a lease renewal clause and not a rent review clause. In that case the essential term of the contract was the agreement on the rent before the lease could be considered renewed. In United Artists, the parties were in negotiations for the lease of a cineplex and draft contracts marked "subject to contract" were exchanged. No contract was ever executed. The court ruled that the term "subject to contract" made it clear that neither party would be bound until and unless a formal contract was signed. The case of Summergreene was concerned with the sale of a business. The purchaser's solicitors had in its letter of offer to purchase set out some terms including a stipulation that "The usual Agreement for Sale and Purchase to be entered into by you and the [company to be formed] containing the usual terms of sale and these terms in a form satisfactory to you and to the [company to be formed]." The full court of the Australian High Court held that the stipulation that the sale be subject to the "usual terms...in a form satisfactory to you and to the [company to be formed]" rendered the agreement to be uncertain and unenforceable in that it required the execution of a formal agreement between the Parties including a company that had yet to be formed.
223.
Clause 2.3 of the JVA does not, in the Tribunal's view, fall within the class of agreements to agree. It reads:

The Parties acknowledge and agree that achievement of the basic objective of the Joint Venture requires the execution of a Supply and License Agreement between the JV Company and CreAgri. Within 30 days after the execution of this Agreement, the JV and CreAgri shall enter into a Su pply and License Agreement, which shall contain terms substantially similar to those set forth below, along with such other terms as are customary in agreements of such type.

(i) Hidrox Supply. Subject to an annual minimum purchase requirement of Hidrox by the JV Company, CreAgri shall supply the Hidrox ingredient to the JV Company at the initial price of $300 per kilogram for HIDROX 6% and $500 per kilogram for Hidrox 12% which price shall remain fixed for the first two years following the Effective Date. The minimum required purchase for the first two contract years shall be One [1] ton of Hidrox 6% or its equivalent value in mix of Hidrox 6% and Hidrox 12%, which shall be adjusted annually by munial agreement of the Parties ("Minimum HIdrox Requirement"). Following the second anniversary of the Effective Date, the purchase price of Hidrox may be adjusted to reflect the then current fair market price.

(ii) License Agreement. CreAgri will grant an exclusive license to the JV Company of CreAgri IP for the JV Application under commercially reasonable terms, including the right to sublicense, for (a) use Hidrox for incorporation into the Olivenol Products, (b) use of the Olivenol Trademarks, to promote, market, sell and/or distribute the Olivenol Products. To the extent the CreAgri IP is su b-licensed by the JV Company to third parties, the JV Company shall pay to CreAgri an amount equal to ten percent (10%) of the annual revenue derived from such sub-license, whether by way of sales of products and/or sub-licensing fees by such third parties. For the avoidance of doubt, the said payment of 10% shall only be applicable co revenue derived from such sub-license only and shall not be payable in respect of all other revenue generated by the JV Company."

(Emphasis added)

224.
In relation to the HIDROX supply, the annual quantity, specifications and price for the first 2 years have been clearly agreed to by the Parties. In anticipation, beyond the initial 2 years the price may be adjusted to reflect "current fair market price". The Parties have therefore agreed on all the essential terms of the sale and supply of HIDROX for the first 2 years and a formula for price adjustment following said 2 years. This is more akin to a rent review clause which the court in Popular Book Co had mentioned in contrast to the lease renewal, which the court was then concerned with.
225.
Similarly with regard to the grant of license, the essential term is that it was to be exclusive, to cover all the patents and trademarks (CreAgri IP) for human dietary supplements (JV Application) together with the right to sub-license. There is also a clear provision that the JVCo would have to pay 10% of revenue generated by the sub-licensing to the Respondent.
226.
The Respondent's only substantive complaint appears to be the use of the term "commercially reasonable terms" which it submits creates uncertainty. In this regard, the Tribunal notes that this phrase was not used in isolation but was part of the sentence "commercially reasonable terms, including the right to sublicense" followed by a setting out of the payment of 10% of sub-licensing revenue.
227.
In the Tribunal's view, the Parties had in Clause 2.3 sufficiently set out the essential terms of the SLA to be entered into between the Respondent and the JVCo. They did so by prefacing the essential terms of the supply of HIDROX and the grant of license by the words "substantially similar to those set forth below along with such other terms as are customary in agreements of such type". The Respondent is thus under an obligation to offer to the JVCo a SLA on the essential terms as set Forth in Clause 2.3. The question then is whether it had done so, in that regard, the Respondent's position is that the SLA was not entered into as a result of the JVCo’s refusal to sign the agreement it is therefore necessary to ascertain why the SLA was not eventually signed.
228.
It is the Respondent's case that it was the JVCo who had refused to sign the SLA. The Respondent in its Closing Submissions seeks to rely on:

a. Paragraph 15A (b)(ii) of the Claimant's Reply-Amendment No. 2 to suggest that the JVCo could not agree to the draft SLA.

b. Paragraph 75 of Mr Shiew's affidavit of 27 September 2013 to suggest that he had admitted that it was his fault that the SLA was not signed by the JVCo.

229.
In paragraph 15A (b) of the Claimant's Reply-Amendment No. 2, the Claimant in responding to paragraphs 35A to 35C of the Respondent's Amended Defence and Counterclaim (No 3) stated that-

"(b) for now, BU8 would observe that; i) far from supporting CreAgri's case, the quoted provision in the draft Supply and License Agreement is in fact consistent with BU8's case when read against the context of clause 1 of the said draft and the provision of the JVA; ii) the draft Supply and License Agreement was and remains a draft as it was never signed because the JV Co could not agree to its terms..." [A1/94] (Emphasis added)

230.
The Respondent therefore argues that it was the Claimant and/or the JVCo that had refused to sign the SLA and not the Respondent. A quick reference back to paragraphs 35A to 35C of the Respondent’s Defence-Amendment No. 3 would however indicate that the Claimant was in fact responding to the Respondent’s assertion in paragraph 35B that relied on the 21 January 2011 draft of the SLA in which the Respondent had added a term that qualified the grant of license as follows:-

"For the avoidance of any doubt, nothing herein shall prohibit CreAgri USA from (a) licensing its ingredient to a third party in connection with products within the Application that are branded under names other than the Trademarks, or (b) licensing its Trademarks for use in connection with products outside of the Application." [A1/6S-66]

231.
It was this statement and the draft SLA of 21 January 2011 that paragraph 15A (b)[ii) of the Claimant's Reply-Amendment No. 2 was addressing viz. that the Claimant had not as yet signed the draft of 21 January 2011 and as such the provision could not be used in support of the Respondent's case by mere lack of comment thereon. This, in the Tribunal's view, cannot be taken to mean that the Claimant or the JVCo had refused to sign the SLA, the revised text of which was subsequently found acceptable Dr Crea had also in his email of 22 January 2011 assured Mr Shiew that that version was but only the first draft [C1/243], thus suggesting that it cannot be taken to have been so agreed or used against the other.
232.
The Respondent was also quick to suggest that Mr Shiew had in paragraph 75 of his affidavit of 27 September 2013 accepted entire responsibility for the JVCo’s not signing the SLA when he said -

"75. First, I would clarify that the a delay in the signing of the Supply and License Agreement was entirely my fault in that I had in my busyness failed to follow up on the correspondence concerning the draft. Most of my attention then was focused on fending off the claims by 10B in its law suit." [C1/108]

233.
Again, reading the sentence in the context in which it was made, the Tribunal notes that Mr Shiew was not in fact admitting that he had refused to sign the SLA but that he was too busy attending to the law suit brought by 10B and had neglected to attend to it earlier. He further explained in his affidavit at paragraph 85 that the JVCo had no objections to the revised draft submitted by Ms Ann Dalsin of 25 January 2011 (timed at 8.56 am) [D2/103-116].
234.
In his email of 21 March 2011, Dr Crea did mention several matters that required decision including the election of board members, appointment of officers, approval of business plan, and that the SLA ought to be signed. The Claimant replied to this email on 25 March 2011 [D2/177J with farther comments on the draft, essentially accepting Ms Ann Dalsin's draft of 25 January 2011 (timed at 8.56 am) [D2/103-116]. The need for the SLA seemed to have faded in importance thereafter. Notwithstanding that however, the Parties then proceeded on the basis that the JVCo was the licensee. This appears to be borne out by the following:

a. "Letter of authorisation" issued by the JVCo to Creagri Europe Sri ("CreAgri Europe") on 14 February 2011 for the registration of the trademarks of "Olivenol" and 'Olivenol Plus+" in Italy [D2/143]

b. CreAgri Europe's email of 2 March 2011 seeking authorization letters from the JVCo to notify the ministry of health on Olivenol Products and to authorize it to register the trade marks in Spain, Austria, France, Germany and England. [D2/161]

c. Press Release of 11 Match 2011 in which Dr Crea acknowledged that JVCo was worldwide licence holders of the "Olivenol" and "Olivenol" trademarks [D2/163]

d. Dr Crea's email proposal of 31 March 2011 (timed 7:11 am) to sell HIDROX or HIDROX-based products to Cosway for products falling outside the category of human dietary supplements. In that same email, Dr Crea also acknowledged that in relation to human dietary supplements, it would not pursue any direct relationship with Cosway as that would be incompatible with the Parties' relationship under the JVA. [D2/228];

e. Dr Crea's email of 31 March 2011 (timed 11.38 AM), in which he proposed that CreAgri Europe be licensed by the JVCO to manufacture and sell the Olivenol products in Europe.[D2/231];

f. Dr Crea's email of 7 April 2011 proposing that CreAgri Inc (USA) manage the production, marketing and sale of Olivenol Plus in the USA with the JVCo licensing back Olivenol Plus to CreAgri Inc. USA. (D2/260).

235.
The question of the signing of the SLA was never raised again until December 2011, when tensions between the Parties arose and when Mr Shiew in an email of 10 December 2011 [Crea-1/p 179-180] responding to Dr Crea's email [Crea-1/p 180-181] proposing dissolution of the joint venture, indicated the JVCo’s preparedness to sign the SLA.
236.
In the course of the hearing, the Respondent’s Dr. Crea sought to suggest in his affidavit of 10 September 2013 [C1/51-52] that the Parties could not agree on a material term of the SLA, namely the minimum quantities of HIDROX to be purchased. He alleged that Mr Shiew had marked down the amount of quantities below that which has been agreed in the JVA. He exhibited a document purportedly showing that. As it turned out, the schedule exhibited was wrongly paired with the draft and had come from an agreement between the Claimant and Maypro, a Taiwan company, a document that was earlier disclosed In the Respondent’s list as item 121. While Dr Crea admitted said error in his reply affidavit of 27 September 2013 [C1/133], he maintained that the quantity remained not agreed.
237.
In a further attempt to support this position, the Respondent had in the course of cross-examining Mr Shiew [Transcript 8 Oct 2013/19-24], suggested that he had inserted a question mark "?" next to the minimum quantities in Schedule C of the draft SLA when he sent the same back to the Respondent, thus suggesting that Mr Shiew, on behalf of the JVCo, was seeking a revision of the minimum quantities, or at least setting the question of quantities at large, In his re-examination [Transcript 8 October 2013/89-93], Mr Shiew was able to track the emails that he received from the Respondent on 21 January 2011 and demonstrated before the Tribunal that the attachment sent to him through that email contained the "?" added to the minimum quantities in Schedule C. This document was subsequently printed and tendered as "R-15". At the direction of the Tribunal, the Respondent made a further search of the computer from which the document was sent. At the hearing on 14 October 2013, the Respondent submitted an affidavit by Dr Crea sworn on 11 October 2013 to which he deposed that be had since located the email and the attachment which he sent from his computer in Protelica Inc, and confirmed that his attachment contained a "?" in the minimum quantity requirement column for the second contract year. He accepted responsibility for the insertion.
238.
The evidence adduced by the Parties seems to clearly attest to the fact that both Parties and the JVCo were not rather ad idem on the terms of the draft SLA but had merely not taken the step to sign it. The Parties had also not in the course of their dealings with each other, considered the lack of forma) execution of the SLA as so crucial such as to dislodge their relationship. Each Party had dealt with the other on the basis that the JVCo was the licensee of all the CreAgri IP rights. In fact, even in the course of the negotiation of the dissolution of the joint venture, the Parties had considered a re-assignment of these rights back to the Respondent as evidenced by the Heads of Agreement [D3/326]
239.
As such although no formal SLA was signed between them, the Respondent had consistently acknowledged that the CreAgri IP now rightly belonged to the JVCo and that consent for their use must first be obtained from tire JVCo insofar as they relate to the sale and marketing of human dietary supplements. While the Respondent could not be said to have failed to confer the license on the JVCo, it ought nevertheless to perfect the arrangement in compliance with its obligation under Clause 2.3 of the JVA by executing the SLA on its part (in the terms as agreed per the draft in Ms Ann Dalsin's email of 25 January 2011 (timed at 8.56 am) [D2/104]) leaving it then to the JVCo to do so on its part.

b. Whether the Respondent's arrangement with Cosway to market products containing "HIDROX" was a breach of the JVA.

240.
The possible involvement of Cosway was first disclosed by Dr Crea in his email of 31 March 2011 [C1/356]. It is appropriate to reproduce this email in full:

"During the past week or so, we have discussed independently the opportunity of interacting with Cosway for a number of product opportunities including Hidrox ® and CreAgri, Inc. I have had several discussions with all of you individually and I wish to reiterate hereby CreAgri Inc.'s position with respect to interacting with the Trustant Group (CS and Tat Seng) to facilitate and manage the promotion of Hidrox ® and Hidrox-based branded products with Cosway.

CreAgri Inc. will sell either Hidrox ® and/or Hidrox ® -based products to Cosway directly in the extent that the use of Hidrox ® and the Hidrox ® -based products (branded or not) fall outside the category of dietary supplements, such as cosmetic/skin care, beverages and foods.

In the case of Dietary Supplement products and/or applications, as you all know, CreAgri has established a JV, CreAgri International, Sdn Bhd, to pursue the business of Olivenol/Olivenol Plus worldwide. In that respect, it is NOT compatible nor desirable that CreAgri, Inc. would pursue any other direct relationship with a potential competitor with the possibility of either eroding or compromising the market potential for Olivenol Plus.

We can, however, constructively interact with Cosway in the field of Dietary Supplement with the following two options. I have discussed the nature of these options with Man Hon and we agree that if the relationship with Cosway is targeted to expand the market potential for both CreAgri Inc. and CreAgri International's products, this would be an ideal solution with large "win-win" potential. The two options are as follows:

1. An agreement between CreAgri International with Cosway to promote Olivenol/ Olivenol Plus- branded products, manufactured by CreAgri International In the USA, i.e the current Olivenol Plus (5 Skus) sold in South Asia, in the extent that we do not overlap/compete with respect to channels of distribution and customers, and/or

2. A potential creation of a newly branded line of dietary supplement products, exclusively manufactured for Cosway and for their pyramid channel of distribution, to be produced by CreAgri International in the (ISA and with the full support by CreAgri Inc., to be sold exclusively by Cosway worldwide.

These are the ONLY two realistic scenarios under which CreAgri, Inc. would fully and enthusiastically cooperate with Trustant and Cosway to accomplish the goal of building an independent business with Hidrox ®-based products in the dietary supplement field.

I hope we can all see the benefits of working in concert and not in competition in order to build additional value around what has been accomplished so far by ManHon and his Partners with Olivenol/ Olivenol Plus in Asia and by CreAgri, Inc. in the past eleven years of discovery and development of olive polyphenols based applications.

I am looking forward to receiving a positive reply. In the meantime, let me know if I can be of further assistance."

[D2/228] (Emphases added)

241.
The Claimant could have no basis to object to this arrangement for the Respondent expressly acknowledged that it would;

a. not deal with Cosway unless the products are outside the category of human dietary supplements, such as cosmetic/skin care, beverages and foods;

b. not be compatible nor desirable for the Respondent to pursue any other direct relationship with a potential competitor with the possibility of either eroding or compromising the market potential for Olivenol Plus; and

c. either have the Claimant work with Cosway to promote Olivenol/Olivenol Plus-branded products or develop a newly branded line of dietary supplement products to be produced by the Claimant for Cosway to market.

242.
The Claimant received this news with much enthusiasm as it, if it worked out, would mean a new line of products and an expanded marketing network [D2/229]
243.
According to the Claimant however, apart from this email, no further information of the eventual arrangement between the Respondent and Cosway was given until 22 February 2012 when the Claimant received an email inquiry as to the products being sold by Cosway [Amended SOC/77, Attachment 11].
244.
The Respondent’s response to this complaint is that the Claimant was well aware of the on-going discussions, strategizing and negotiations with Cosway to pursue the business in human dietary supplements. Dr Crea in his witness statement, however, did not disclose any further correspondence from the Respondent to Cosway beyond 31 March 2011. It is therefore necessary to examine if the eventual arrangement with Cosway accords with what was represented to the Claimant in Dr Crea's email of 31 March 2011 [D2/228].
245.
From the documents disclosed, the Respondent had in fact entered into a Product SuppJy Agreement with Cosway on 2 November 2011 ("PSA") [D3/340], shortly following the favourable judgment obtained by the Parties hereto in the 10B litigation.
246.
Under the PSA, the Respondent agreed to supply "any product that could be developed" by it which Cosway could sell under its own trademark. Appendix 1 to the PSA gave a product name to be "No Olive Essence Concentrate" and the "product specifications" described it as "Organic Olive juice 95% [Hidrox 1%)", Dr Crea in his oral testimony confirmed that "Olivenol" was the only finished product of the Respondent using HIDROX [Transcript 15 October 2014/41-42]. He also confirmed that the Claimant was not told of the PSA as he saw no such necessity [Transcript 15 October 2014/43] even though the product to be sold by Cosway was to be human dietary supplements [Transcript 15 October 2014/47-48]. The arrangement under the PSA was for the Respondent to manufacture the produces as per the specifications "in capsules, blisters or liquid" and they are then to be labeled and packaged by and under the trademarks of Cosway. In Dr Crea's words, it was a "semi-OEM" arrangement [Transcript 15 October 2014/48].
247.
The PSA provides in Clause 6.3 that:

"6,3 Cosway shall Identity each Product as containing Hidrox®, a registered trademark of CreAgri. Supplier grants to Cosway the limited, non transferable right and license to use the name Hidrox® for the limited purpose of promoting, marketing and selling the Products. Supplier shall be entitled to review the marketing materials used by Cosway, which shall be subject to Supplier's approval. Cosway shall not register any trademarks similar to or confusing with the name Hidrox®. Cosway assures and undertakes that it will not misrepresent or falsely advertise the Supplier's Product in terms of accompanying packaging, labels, containers, cartons and all associated publication, advertising and sale materials."

248.
By this provision, the Respondent authorizes Cosway to use the Hidrox® trademark for the promotion of Cosway’s No Olive Essence Concentrate without the knowledge or consent of the Claimant or the JVCo. This was the very situation Dr Crea in his email of 31 March 2011 [D2/228] said he would not want to see as that would be "not [be] compatible nor desirable for the Respondent to pursue any other direct relationship with a potential competitor with the possibility of either eroding or compromising the market potential for Olivenol Plus". The arrangement with Cosway departed from and was at complete variance with the commitments the Respondent had given in its 31 March 2011 email and was in breach of the terms of the JVA. Had the JVCo been involved as the supplier under the PSA vis-à-vis Cosway, there could be no basis for any such complaint. Unfortunately, that was not to be the case.

c. Whether the Respondent had acted in any manner which could hinder, prevent, delay, frustrate and/or obstruct the proper functioning of the JVCo and/or any of the objects of the JVA.

249.
The Claimant had raised several other instances in which it believed the Respondent had breached its obligations to the JVCo. These will be considered in turn.

Mantrose Agreement

250.
Mantrose-Haeuser Company Inc., ("Mantrose") is a company based in Westport, United States. The first documentary mention of its involvement appears to be in Dr Crea's email to Mr Shiew of 23 October 2010 In which Dr Crea said:-

"I hope you are hving a great weekend I am back from Vegas and regrouping from the trip and the various meetings. We had two good days at the show with many contacts, old and new. Mantrose seems to be very much aboard and they had a great exposure featuring Hidrox as their new products. Great chemistry with their marketing people. The new opportunity for Hidrox seems to be the beverage field, but i need to talk to you about the cosmetics applications." [D2/15]

251.
Although the Mantrose Supply Agreement ("MSA") had already been signed (on 1 October 2010) [D1-249] Dr Crea made no mention or hint of it. The email undoubtedly gave the impression that the Respondent was still in the process of discussing or exploring the interest of Mantrose, suggesting that it would be in the "beverage" or "cosmetics" field. Under cross-examination Dr Crea denied that he had intended to give that impression and had instead maintained that Mr Shiew knew of the Mantrose interests much earlier.
252.
Under the MSA [D1/249], the Respondent committed itself to grant to Mantrose "Exclusive Markets" for "Nutraceuticals/Dietary Supplements Industry (for Human Consumption)" and exclusively in the United States and Canada [D1/272], The products to be supplied thereunder were those products manufactured by the "Supplier" therein, i.e, the Respondent, now or at any time in the future, including the products specified in Schedule 5 as:-
HIDROX® 12% Freeze Dried Powder Organic Olive Juice Extract
Product Identification
Product name: HIDROX® 12% Freeze Dried Powder
Botanical name:Olea europaea
Composition: HIDROX® 98-99%
Other components: Citric Acid
Chemical Form: Solid, Powder
Country of origin: USA
HIDROX® 2% Spray Dried Powder Organic Olive Juice Extract
product Identification
Product name: HIDROX® 2% Spray Dried Powder
Botanical name:Olea europaea
Composition: HIDROX® Dry Solids 32-33%
Other components: Maltodextrin - 66%
Chemical Form: Solid, Powder
Country of origin: USA
HIDROX® 6% Freeze Dried Powder
Product Identification
Produce name: HIDROX® 6% Freeze Dried Powder
Botanical name:Olea europaea
Composition: HIDROX® 90-99%
Other components: Citric Acid
Chemical Form: Solid, Powder
Country of origin: USA
HIDROX® Liquid Organic Olive Juice
Components:
HIDROX® Organic Olive Juice 98% -99%
Citric Acid 1% -1.5%
Polyphenols 0.5% (minimum; w/v)
Polyphenols:
HPLC Analysis(OD280):
Hydroxytyrosol: 50%
Oleuropein 20%
Other Polyphenols 30%
Description
Appearance Golden brown color
Flavor Evaluation Sour/Olives
Odor Evaluation Processed Olives
Physical properties
pH (range] 3 to 4
Lead<1.0 ppm
Heavy metals as lead<1.0 mg/kg
253.
The financial arrangement in the MSA was also not a simple sale-purchase but a profit-sharing formula. Under ft, the Respondent bad committed to supply HIDROX for human dietary supplements, a matter that fell within the scope contemplated under the JVA. Further, the Respondent had also purportedly granted to Mantrose "the exclusive right to use the intellectual Property of the Supplier including but not limited to the intellectual Property listed in Schedule 8 in the promotion, packaging, distribution, advertisement and sale of the Products in the Markets within the Territory in accordance with the terms of and for the duration of this Agreement." [D1/256]. Again, this purported grant of "exclusive licence" although limited to the United States and Canada, clearly conflicts with the grant of CreAgri IP under the JVA to the JVCo.
254.
By not disclosing the MSA prior to the signing of the JVA, the Respondent had misled the Claimant as to the true relations between the Respondent and Mantrose.

CreAgri Europe

255.
The involvement of CreAgri Europe was first documented on 14 February 2011 when at the request of Dr Crea, the JVCo authorized CreAgri Europe to deal with the registration of the trademarks of "Olivenol" and "Olivenol Plus" in Italy [D2/143] and when CreAgri. Europe sought for authorization letters from the JVCo to notify the ministry of health of the various Olivenol products and to authorize it to register Olivenol trademarks in Spain, Austria, France, Germany and England [D2/161]. The Respondent had on that same date entered into a Distribution Agreement with CreAgri Europe. [D2/144] under which CreAgri Europe was appointed the exclusive distributor of HIDROX and was also given the right to use HIDROX, CreAgri and Creagri International trademarks [D2/151, l59]. This, in the Tribunal’s view was not merely a sale of HIDROX as an ingredient. Dr Crea confirmed that the Claimant was not so informed of this arrangement [Transcript 15 October 2013/8].
256.
In his email to Mr Shiew dated 31 March 2011(timed 11:38 AM) Dr Crea then proposed that.-

"After talking to you and Umberto, we are all in agreement to separate the European market for Olivenol Plus and to license the rights to manufacture and sell it to CreAgri Europe, In order to move quickly and to keep the planned launch of the product in Europe for October 1, 2011, we need to execute an Agreement between CreAgri International and CreAgri Europe at your earliest convenience. In the Agreement we must specify the terms under which CreAgri International will relinquish any title to Olivenol Plus. I am aware that you are very busy with zillion things, and I am writing this email to offer that I take upon the job of drafting the Agreement on behalf of CreAgri International and submit it to you in the month of April. I will leave all the financial aspects blank to your consideration and negotiation with Umberto, as I may have some conflict of interest." [D2/231] (Emphasis added)

257.
Mr Shiew replied to this on 1 April 2011 saying "Please go ahead" [D2/233].
258.
Based on Dr Crea's proposal, CreAgri Europe would be operating as a sub-licensee of the JVCo. This was however not followed up. Instead, by a License Agreement dated 24 October 2011, the Respondent purported to grant to CreAgri Europe an exclusive license for use in Italy, France, Spain and Germany in the following terms -

"1. License Grant: Subject to the terms and conditions in this Agreement, CreAgri hereby grants to Licensee an exclusive license (the "License") to (a) use CreAgri's proprietary ingredient, Hidrox® (the "Ingredient") specifically for incorporation in the Olivenol™ formulation of dietary supplement products (the "Products"). and (b) use CreAgri's proprietary brand name Olivenol® and Olivenol Plus™ (the "Trademarks"), to promote, market, sell and/ or distribute directly or indirectly through distribution contracts the Products to Customers located in some Countries of Europe (the "Territory"). As used herein, "Customer " shall mean an entity having a place of business in the Territory that purchases a Products for its own sale, or distribution to end-users in the Territory. All Products shall be promoted and sold under the brand names "Olivenol™ and Oivenol Plus™ in accordance with the Products labeling required by applicable law in the Territory." [D3/295-307] (Emphases added)

259.
Royalties were payable by CreAgri Europe to the Respondent based on net sale proceeds (see Clause 6(b) at [D3/298]). This Licence Agreement totally went against the proposed arrangement represented by Dr Crea to the Claimant in his email of 31 March 2011. In doing so, the Respondent had ignored the rights given under the JVA to the JVCo and dealt directly with CreAgri Europe without the consent or knowledge of, or any accounting back to, the JVCo.

Ceasing supply of HIDROX

260.
The Respondent had an obligation under the JVA to supply HIDROX to the JVCo to enable the JVCo to manufacture the Products and market them under the Olivenol brand. Shortly following the service of the Notice of Termination of the JVA on 19 March 2012 [D4/190-194], the Respondent ceased supplying HIDROX to the JVCo. It is the Claimant's case that by reason of this act, the JVCo was unable to function properly with no or limited products for sale. It was not disputed that HIDROX was supplied only after the Tribunal’s order for interim measure of 19 June 2013 and the status quo was maintained.
261.
Whether the Respondent was right to withhold supply of HIDROX to the JVCo would depend on whether the JVA was properly and Justifiably terminated. For the reasons set out in paragraphs 264-282 below, the Tribunal holds that the Respondent had wrongfully terminated the JVA. As such, its supply of HIDROX to the JVCo was also wrongly ceased.
262.
Taking into consideration the various acts and omissions of the Respondent, in dealing with various parties namely Cosway, Mantrose and CreAgri Europe with scant regard to its obligations under the JVA, the Respondent had deprived the JVCo of the benefits conferred upon it under the JVA. Such acts and omissions had hindered the proper functioning of the JVCo and were not consonant with the objects of the JVA.

(6) If the Respondent be in breach of any of its obligation(s), to ascertain the proper relief which the Claimant is entitled to.

263.
This issue will be considered below under - "Relief and Remedies".

(7) Whether the Claimant breached any duty or obligation in relation to the management of the JVCo, in particular:

a. Whether the Claimant had failed to hold board meetings, furnish accounts or otherwise properly manage the JVCo; and/or

Board meetings

264.
According to the JVA (Clause 1.3), the JVCo was to have 7 directors with the Claimant nominating 4 and the Respondent, 3. Matters requiring unanimous approval of the Board (Clause 1.5) include the appointment of the CEO, annual approval of the business plan, merger or consolidation of the JVCo, issue of equity interest to third party, sale lease, transfer, exclusive license or other disposition, and dissolution of the JVCo and modifications of the JVA.
265.
It is the Respondent's case that it had raised the need for a Board meeting in March 2011 to discuss business plans but the Claimant had failed to hold any Dr Crea's email of 21 March 2011 reads:

"I appreciate the discussion we have bad yesterday as related to the capital contribution by CreAgri to the JV capitalization. It seems to me, however, that if we wish to bring our JV agreement up to speed with respect to our mutual obligations, this may well be an opportunity to address, together with the Capital contribution (3.2) the following:

1.3 Formal Election of the Board of Directors, 1.4 Majority Board Approval, including but not limited to (a) appointment of the officers, (b) approval the JV annual Business Plan and operating budget. Finally, we should complete the Supply and Licensing Agreement (2.3) ASAP.

In addition, CreAgri has not received any accounting information since we established the JV as related to expenses incurred by the JV in its first 6 months of operation, Sales report of Olivenol Plus and sales forecast for 2011, including Territories outside Malaysia and Singapore. I would appreciate it very much if you can provide the above information at your earliest convenience. I know that you are very busy but I am asking CreAgri international accountant/accounting firm to copy me with the above available information.

We, on the other side, have compiled the expenses relative to the JV incurred by CreAgri, Inc. including material cost, expenses relative to the Chinese registration of Olivenol Plus, etc., and I will forward to you before the end of the week. I hope we can bring everything up to date in order to plan for a successful rest of 2011 and more." [D2/175]

266.
The Claimant's Mr Shiew however said that this email response came ¿about because the day before (i.e. 20 March 2011) he had informed Dr Crea of the JVCo's financial difficulties and of the need for the Respondent to fund the JVCo to the extent of their equity commitment. To that, Dr Crea said in response that he would "try [his] best to come up with the money" [D2/165]. However he did not and instead sent the email quoted in the previous paragraph the next day, or on 21 March 2011.
267.
Under cross-examination, Dr Crea confirmed that he did not seek to nominate any other director apart from himself, citing the lack of opportunity to do so. He conceded that he did not at any time put names Forward For appointment but added that he expected the CEO to set up the Board meetings [Transcript 15 October 2013/14-16]. In his view, while members of the board did meet for business matters, there was never any formal Board of Directors' meetings. It is clear to the Tribunal that the Directors can meet whether in formal or informal meetings for any business of the JVCo. The lack of any 'formal' meeting does not invalidate the decisions made by the Board. It is not uncommon that board resolutions may also be passed by circular resolutions without need for a physical meeting of the directors. As a director, Dr Crea himself too could initiate a formal meeting had he thought one was necessary. He did not request for a formal Board meeting and did not make any nomination (for which he is entitled to 3) for appointment as director by the Board.
268.
Dr Crea also complained of the lack of business plan and operating budgets and that he had never seen the accounts of the JVCo. As a director of the JVCo, Dr Crea too had the responsibility to have such information and had indicated that he would be contacting the JVCo's auditors. He should and could have had this information and must not now be allowed to complain that there was lack of formal Board meetings or information on plans and accounts. He has simply not shown that the lack of this information was attributable to the Claimant. Apart from these mere assertions, there was really no evidence that the JVCo was in any way mismanaged by the Claimant or JVCo's principal officers.
269.
The Respondent's other allegations included the following;

a. that there was no proper evaluation of the new Olivenol product development opportunities; and

b. that the Claimant failed to provide sufficient and qualified staff.

270.
Again, no evidence was tendered to the Tribunal to prove these allegations. Much of what the Respondent had asserted were but complaints that the JVCo had done little to market the Olivenol Products. The best that the Respondent could offer in support was to repeat various emails exchanged between Dr Crea and Mr Shiew in March 2011 relating to the continuing expenses incurred by the Claimant for the JVCo and the Claimant's request for funding commitment by the Respondent to the JVCo, The Tribunal also notes that at about that time the Parties and the JVCo were subject to a court injunction taken out by 10B constraining the JVCo’s marketing activities and thereby incurring legal expenses. A reading of the exchange [D2/193-203] shows that Dr Crea was reacting to the pressure from the Claimant to put up the Respondent's share of the cash contribution to the JVCo as it was the Claimant who had been solely funding the JVCo. It even led Dr Crea to suggest a termination of the JVCo in his email of 26 March 2011 (just a matter of 3-4 months into the JVA) [D2/193]:-

"When I thought we had reached a great understanding how to cement our JV for Olivenol Plus, your letter has castes a huge doubt in my mind about the future. Rather than going in a useless response to your email, I wish to propose that we start thinking about a friendly termination of the JV...."

271.
The situation, however, seemed to immediately cool down after the Respondent received an order from the Russian buyer, Pharmastandard for 250 kilograms of HIDROX. In his email to Mr Shiew, Dr Crea apologized [D2/92] -

"I apologize for getting really mad at you last time, but I felt insulted as you referred to "integrity" and I took it personally... After 11 years of commitment to this business, tens of millions of dollars invested personally and personal struggles to stay alive, I did not need to hear from you a lesson on both integrity and on how to run my business.

Anyway, when things are moving in the right direction (I will soon have 566K more in CreAgri bank account), it is easy to forgive and forget...so lets us move on with our JVI"

272.
Dr Crea inasmuch had admitted that all that he complained of was no longer in issue and that the talk of terminating the JVA was no longer on the table. In his own words, "It is easy when you get money". [Transcript 15 October 2013/20]
273.
In relation to the Respondent's complaint of lack of staffing, the report of Crowe Horwath [C1-90-91] showed a list of some 21 employees viz. 2 directors, 3 administrative, 10 marketing and 6 sales staff working in the JVCo [D5/33]. The Respondent's complaint is there were no "sufficient qualified" staff without any evidence as to the number and qualifications the JVCo ought to have. The fact that the Olivenol Products did not go beyond Malaysia and Singapore cannot, without any evidence, be attributable to the lack of qualified staff. There are far too many factors that could have an impact on the marketability of the Products, some of which could well be attributable to the Respondent's own actions or inaction, Dr Crea's constant refrain was that he had not received any money from the JVCo since the Parties went into the JVA. He could not however dispute that neither he nor the Respondent contributed any funds towards the 40% equity share in the JVCo or towards the operating expenses and the legal costs incurred for the defence of the 10B suit. Given the limited financial resources, and without any contribution from the Respondent, any talk of expansion and marketing would, in any event, be difficult to execute. The Respondent's assertion that the Claimant failed to provide "sufficient qualified" staff for the JVCo is simply unsustainable.
274.
In its Closing Submissions, the Respondent raised several new bases. It pointed out several transactions which were not authorised by the Board namely (i) the remuneration package of Mr Shiew and Mr Chong Yun Yee; (ii) the JVCo's payment of interest to Triniaire at rates that were over and above what the Respondent and Triniaire had agreed to; and (iii) appointment of Lee Hui Leong (Bryan Lee) as a cheque signatory of the JVCo. Such matters fall clearly within the province of the board and management of the JVCo. Dr Crea and the Respondent could have and ought to have brought these matters for discussion if he or the Respondent had any query or reservation about the level of remuneration of Mr Shiew and Mr Chong or that Mr Lee ought not to be a cheque signatory.
275.
As for the higher rates of interest that the JVCo had accrued as payable to Triniaire for loans extended to the JVCo, the Respondent appeared to have conflated its own obligation to Triniaire for the advance payment of US$ 300,000 it received, and for which the Respondent was obliged to repay by way of supply of HIDROX or in default thereof, repayment together with interest at the rate of 6% per annum [B1/4] which Triniaire is charging the JVCo. The report of Crowe Horwath upon which the Respondent had relied on to support the complaint made no comparison between the interest rate in the LOI and the interest charged by Triniaire for the advances made to the JVCo. In fact, Crowe Horwath simply observed that:

"...Based on our review, notwithstanding that there was no agreement with respect to the computation on the interest charged, the amount charged appeared to be reasonable." [D5/35]

276.
The auditors had in fact made a more pointed observation that there was no decision of the Board that the loan advanced to the Respondent would be transferred into the books of the JVCo [D5/35]. If that was the case, the loan should remain the sole liability of the Respondent and not the JVCo, a position the Respondent is obviously not taking.
277.
The Tribunal finds that none of the complaints raised by the Respondent is of any gravity that entitles the Respondent to seek a termination of the JVA.

b. Whether the Claimant caused the JVCo. to market Olivenol products that did not contain authentic HIDROX®.

278.
Following the commencement of this arbitration, the Respondent raised the alarm that the JVCo may have been used by the Claimant to produce and sell Olivenol Plus 2X Essence Supplements using unauthentic HIDROX. Laboratory test reports were tendered by the Respondent from ChemiService, S.r.l. ("ChemiService") [D4/449-464] and Eurofins Scientific Inc. ("Eurofins") [D4/447-448] indicated that the Olivenol Plus sold by the JV Co contains double the arsenic content (0.04 mg/kg vs. 0.02 mg/kg) and half the copper content (3.1 mg/kg vs. 7.2 mg/kg) than that contained in the Olivenol Plus 2x Essence manufactured in the United States by GMP Laboratories of America, Inc. The Respondent therefore submitted that the Claimant had probably used HIDROX not originating from the Respondent.
279.
The suggestion that there was higher heavy metal content such as arsenic in the batch found to be manufactured in Malaysia did initially concern the Tribunal. This was however addressed by the report submitted by the Claimant from Dr Shariza Sahudin ("Dr. Sahudin") dated 17 July 2013 [E2/665]. In her report Dr Sahudin explained as follows:

"Both finished products tested contain total heavy metal content within the specified limits for HIDROX 6%, of less than 10 ppm.

Although there appears to be a difference in the amount of heavy metal produced from the heavy metal test, this is not unexpected. Natural products obtained from different sources, different time or season or different batches may vary in their heavy metal content. These all depends on the heavy metal content of the soil at that point of time. Contamination from fertilisers, pesticides or emissions from municipal wastes plays an important role in the level of heavy metals present in the soil. Accumulation of heavy metals by plants via processes such as phytoaccumulation, phytoextraction, phytovolatilization, phytodegradation, and phytostabilization can also contribute to the difference of heavy metal content in plants (1,2). The extent of these processes occurring varies from time to time. As a result, the amount of individual elements of heavy metals presence in a natural product might vary from one batch of product to another." [italics in the original]

280.
Dr Sahudin's report also questioned the conclusion reached by ChemiService "Statement for HPLC Analysis Performed on Test Reports No. 13222/2013 and No 13223/2013" which had concluded that the samples (of US manufacture and Malaysian manufacture) "are different for both the content of total polyphenols and the content of hydroxytyrosol" [C2/438]. She observed that while the Malaysian sample was subjected to HPLC test, the US sample was not. In her view, to obtain a correct comparison, both samples should be subjected to the same HPLC analysis. She explained:

"If two finished products were to be compared and to test whether they contain the pure compound which in this case, is Hidrox 6%, then both products Lot#21001 and Lot#21005 should be subjected to HPLC analysis using the pure Hidrox 6% as the standard. The chromatograms from both products could then be compared to the chromatogram obtained from the pure Hidrox 6% to see if the peaks obtained for the pure Hidrox 6% are also present in the chromatograms of both of the finished products." [E2/668]

281.
The Tribunal finds the observations of Dr Sahudin most appropriate and logical. The failure to undertake similar HPLC analyses of both the samples and compare them with the chromatograms of the Respondent's pure HIDROX 6% distorts the comparative observations. Apart from Dr Crea's assertion that Dr. Sahudin might have been trying "to get back at the Respondent" and him due to his declining to fund a proposed study of Dr. Sahudin (see Crea's affidavit of 25 July 2013 [E2/746]), the Respondent had not proferred any alternative view or submitted arguments in refutation. The Tribunal is therefore not satisfied that the tests carried out by Eurofins and ChemiService could support the Respondent's very serious allegation that the Claimant had caused the JVCo to use unauthentic HIDROX to manufacture the Olivenol Products sold in Malaysia.

(8) (If any of the answers to (7) is YES) Whether such breach(es) entitled the Respondent to terminate the JVA and if so, on which date was the JVA validly terminated by the Respondent.

(9) If the Respondent had validly terminated the JVA, to ascertain any further and proper relief to which the Respondent is entitled to.

282.
Based on the findings above (paragraphs 264 to 281), the Tribunal finds the Claimant not in breach of the JVA as alleged and the Respondent has no basis to terminate the JVA.

(10) If the Respondent bad not validly terminated the JVA, whether the Respondent was in breach of the JVA and jf so, whether the Claimant is entitled to such corresponding reliefs as set out in the Statement of Claim.

283.
Based on the findings above (paragraphs 264 to 281), the Tribunal finds that the Respondent had invalidly terminated the JVA and was itself in breach of its obligations under the JVA.
284.
The proper reliefs and remedies will be considered in paragraphs 298-306 below.

(11) Whether the Tribunal has the power to direct the Respondent to grant a license to the JVCo in accordance with the terms of the JVA.

285.
This issue has been addressed in paragraphs 193 to 214 above. The Tribunal has the power to direct the Respondent to comply with its obligations under the JVA to grant a license to the JVCo in accordance with the terms of the JVA.

(12) Whether the non-execution of the Supply and License Agreement envisaged under Clause 2.3 results in a termination of the JVA.

286.
Clause 6.2 of the JVA provides for termination If"... a Party fails to perform any of its material obligations or covenants" The term "material obligations" is not defined. The JVA does however provide for 3 instances constituting "events of default" which unless cured, would entitle the non-defaulting party to terminate the JVA. These are:

a. the Respondent unreasonably withholds supplying HIDROX to the JVCo;

b. the Respondent charges the JVCo for HIDROX in excess of the price set forth in Clause 2.3; and

c. the Claimant falls to provide levels of qualified staffing and resources to the JVCo sufficient to promote and market the Olivenol Products to the extent that the operations of the JVCo becomes seriously impaired.

287.
The non-execution of the SLA pursuant to Clause 2.3 is not one of the prescribed "events of default". The Respondent’s best argument is that this constitutes a material obligation, the breach thereof could be an event entitling termination of the JVA. The Tribunal is not satisfied that this is so. in any event, even if it is so, the obligation to grant the license under Clause 2.3 rests with the Respondent and not the Claimant or the JVCo.
288.
In relation to the supply, there is no question that the Claimant and/or the JVCo had actually purchased HIDROX from the Respondent at the price agreed in Clause 2.3. The fact that the SLA was never signed (not that the JVCo had refused to) could not without Straining the language of the JVA or ignoring the clear intention of the Parties, be considered a material obligation which the Respondent could Invoke to Justify a termination of the JVA. In the Tribunal's view, the proper remedy is for the Parties to perfect their performance by the formal execution of the SLA and not to unravel the entire JVA because of this lapse in formality.

(13) Whether the Claimant had acted to dilute the Respondent's shareholding from 48% to about 0.6%.

a. [If the answer to (13) is YES] Whether that act constituted a wrongful repudiation of the JVA by the Claimant.

b. [If the answer to (13) a) is YES] Whether the Respondent had accepted the Claimant’s repudiation of the JVA.

289.
The issue arose sometime after the commencement of the arbitration and was put in issue before the Tribunal Just prior to commencement of the oral hearing. The facts are not disputed that the Claimant had, sometime in June 2013, initiated a rights issue by the JVCo for each party to the JVA to be granted the right to take up additional shares in the JVCo. Mr Shiew explained that the JVCo had, for the 2 years of operation, only a share capital of RM 1000. With plans to work with companies like Watsons, Mr Shiew believed that "a stronger balance sheet, higher capitalisation, so that we can go to market and get proper finances from the bank instead of relying on one shareholder" appeared to be the proper option [Transcript 8 October 2013/177-178]. An extraordinary general meeting ("EGM") of shareholders was called and notified to the Parties. The Respondent through its solicitors objected to the calling of the EGM and the rights issue [C1/165-167] but did not attend nor was it represented at the EGM, The EGM approved the rights issue and the offer was notified to the Parties. The Claimant took up the shares offered and now holds 60,000 shares in the JVCo. The Respondent did not take up any. As a result the Respondent's holding of the 400 shares in the JVCo is now a mere 0.6% share of the JVCo's issued capital. The Respondent therefore argues that this action on the part of the Claimant is a breach that goes to the root of the JVA, entitling it to terminate the JVA. It reasons that;

a. Clause 1.2 of the JVA provided the ownership proportion to be "CreAgri [Respondent] shall own a 40% equity interest and Holding Co [Claimant] shall own a 60% equity interest in the JV Company".

b. The dilution of the Respondent's shareholding effectively stripped it off of its rights to dividends and share of profits,

c. The JVA ought to be considered discharged as it is no longer workable.

290.
The Respondent’s position as seen from its solicitors' letter of 4 June 2013 [C1/166] was that as the Parties are in arbitration, the EGM should not be held, viz,:

"... our client was not in agreement for the said meeting to be held in view of the existing dispute between parties in the High Court of Malaya involving CreAgri International Sdn Bbd and Arbitration Proceedings in Singapore involving you and our clients, such details and particulars which are well known to yourselves.

We had also on behalf of our clients written and put on notice that the said meeting should not be convened and that the proposal to convene such a meeting Is premised on bad faith and without our client’s consent whatsoever and any resolution passed thereof shall be deemed null and void. Additionally, all our clients' rights are therefore reserved accordingly."

291.
The Respondent's position is a curious one. It gave no basis for the allegation of bad faith or the grounds for asserting that the EGM shall be deemed null and void. A general meeting of a company is the highest decision-making body of the company and the mere declaration by a party's lawyer would not nullify the notice or the outcome of the EGM. The Respondent in its cross-examination of Mr Shiew, took a more nuanced position, that as the Respondent had considered the JVA terminated, the Claimant ought to have known that the Respondent would not take up its allotment of rights. Mr Shiew under cross-examination answered this most aptly:

(Mr Lim) Q. The claimant knew that the respondent's position was that the JVA had been terminated. You have confirmed that,

(Mr Shiew) A. The claimant knows that the respondent has conflicting position depending on the solution that suits his purpose.

Q. Mr Shiew, don't be difficult. You've confirmed this, You know their position, that's what I’m saying. Their position is that the JVA had been terminated.

A. But the position also changed subsequently, Mr Lim.

That's what I'm saying.

Q. That position has not changed.

A. Okay, then I leave counsel to ask Dr Crea.

Q. All right. In June this year, we are embroiled in arbitration proceedings, You know that?

A. Correct.

Q. So the claimant knew that the respondent would not take up the rights issue.

A. The claimant cannot assume what the respondent will or will not do. The business has to go on. The capital call, I proposed the reason for why the company needs the capital injection. Directors considered it. They need to then decide whether they put it to the shareholders or not. Shareholders have a right to decide, to do it or to approve it or to object to it. So that's all, just due process. We can't assume and anticipate what action or non-action on another party. It's wrong to do that. It is — duty to present the options to all shareholders and to all directors. I can't therefore speak and agree with you that the claimant knew a lot of things we should know, but this is something we cannot say we know.

Q. The claimant calculated that the respondent would not take up the rights issue —

A. No.

Q. — as they had considered the JVA to be terminated. A. The claimant made no calculation. The claimant just played its part as a shareholder, in the EGM, to decide and approve or reject the rights issue. So that's all I can say.

Q. Mr Shiew, the truth is that the rights issue was a deliberate and devious attempt on the claimant's part to dilute the respondent’s shares in the JV Co.

A. I disagree, Mr Lim. All parties were given the option to participate. The result appears to be a dilution, only Dr Crea can answer why he chose not to protect his 40 per cent in the business.

By taking ownership and subscribing to the allocation, the claimant did not exercise the other rights, which is, if the rights were not subscribed by any patty, was to go ahead and take it up so that the business has its targeted capital,

The claimant only took its own portion. The portion that was allocated to CreAgri Inc was not exercised, and the claimant did not greedily go over to take the other portion, because it's supposed to be a right that belong to him, it extinguishes when he choose not to exercise it. That's -- so that’s all I can say (greedily).

[Transcript 8 October 2013/178-180]

292.
Indeed, a rights issue is a right given to all shareholders and may be exercised in proportion to the existing shareholding. The fact that the Respondent has a pending dispute and has regarded the JVA terminated could not affect its right to take up the rights issue and maintain its proportionate shareholding pending the outcome of this arbitration. The pending dispute between the Parties is no answer to the JVCo’s decision to seek a resolution for a rights issue as It remains entitled as a shareholder of the JVCo (whether the JVA has been terminated or not). In fact, the pendency of the dispute should have impelled the Respondent to take up the rights so allotted. In falling to do so, the Respondent has, by its own act of not participating, prejudiced its own position.
293.
The dilution of the Respondent’s shareholding is the direct result of its chosen course of action and ought not to be a basis for terminating the JVA. In any event, the Tribunal is not convinced that the dilution of the Respondent’s share has affected the substraturn of the JVA. The Respondent has not been deprived of its right to apply for allotment of shares in the JVCo up to 40% of its shareholding.
294.
The Tribunal is satisfied that there were genuine bases for the Claimant to initiate the rights issue by the JVCo, which was essentially to raise capital for its business. The fact that the Parties are in dispute qua shareholder, does not mean that the JVCo ought to be left to flounder. The Claimant had acted properly to safeguard the interest of the JVCo for the benefit of the shareholders. It took the risk of injecting capital into the JVCo while the Respondent opted out of the exercise. No bad faith has been shown on the part of the Claimant. The dilution of the Respondent's shareholding in the JVCo is a consequence of the Respondent’s own chosen action and no blame could be attributed to the Claimant.
295.
The Tribunal is nevertheless pleased to note that the Claimant in its Closing Submissions has indicated that it is prepared to extend the period for the Respondent to contribute towards the capital and subscribe to the JVCo's rights issue to enable the Respondent to preserve its share of the equity to 40% [Claimant’s Closing Submissions/132].

(14) [I f the answer to (13) is NO] Whether the Respondent’s current shareholding of 0,6% in the JVCo constitutes a basis for termination of the JVA under Clause 6.1.

296.
The Respondent also submits that a substantial dilution of its shareholding interest would entitle the Respondent to consider the JVA discharged as it renders the JVA unworkable.
297.
Again, this argument is unmeritorious. The JVA has expressly provided in Clause 6.1 for a situation Where a party ceases to have any equity interest in the JVCo. This is clearly understandable. If a party has no shares in the JVCo, there is no longer any need for the JVA to continue. This cannot, however, be extended to a situation where there is a reduction or dilution of shareholding. This is because as shareholder, however small its equity interest, the Respondent would remain entitled to the same rights vis-à-vis the other shareholder as agreed under the JVA e.g. the Respondent's right to appoint 3 directors to the JVCo remains unaffected.

Relief and Remedies

298.
The Claimant has in its SOC-Amendment No. 1 sought various declarations of rights, a world-wide injunction against the Respondent from selling HIDROX to third parties for use in human dietary supplements, from refusing to supply HIDROX to the JVCo, from licensing the CreAgri IP to other parties, and for damages, interest and costs. In its Closing Submissions, the Claimant altered its position, arguing that damages would not be an appropriate or adequate remedy. It submits that relief should be granted to preserve the contract and to ensure compliance including by equitable remedies such as declarations and/or injunctions. The Tribunal accepts that in certain cases it would indeed be unfair to limit the successful claimant to compensatory damages, especially where it could result to the effect of rewarding the contract breaker for its breach. Injunctions have been granted by courts to require performance of both positive as well as negative covenants (see Decro-wall International S.A v. Practitioners in Marketing Ltd ("Decro-wall") [1971) 1 WLR 361; Evans Marshall & Co Ltd v. Bertoia S.A. and Anor ("Evans Marshall") [19731 1 AER 992. In the New Zealand Court of Appeal decision in Thomas Borthwick & Sons (Australasia) Ltd v. South Otago Freezing Co Ltd ("Thomas Borthwick") [1978] 1 NZLR 538, the court quoting Fry J in Donnell v Bennett (1883) 22 Ch D 835 stated -

"...that the Court ought to look at what is the nature of the contract between the parties; that if the contract as a whole is the subject of equitable jurisdiction, then an injunction may be granted in support of the contract whether it contain or does not contain a negative stipulation; but that if, on the other hand, the breach of the contract is properly satisfied by damages, then that Court ought not to interfere whether there be or be not the negative stipulation." [at p 546]

299.
And thereafter the court added -

"...a party who deliberately sets out to destroy a long-term commercial contract should not lightly be allowed to escape an injunction on the joint venture ground..." (at p 550).

300.
It could also be argued that if the parties are networking together properly, they should not be compelled to do so. In this regard the Tribunal takes comfort from the words of Sachs LJ in Evans Marshall where he said-

"... in any event the fact that some degree of mutual co-operation or confidence is needed does not preclude the court from granting negative injunctions designed to encourage the party in breach to perform his part." (at p 379).

301.
The Tribunal’s power to grant injunctions which has the effect of directing specific performance is not unknown and is in fact not prohibited by Singapore law. in this regard, it should be noted that in enacting the International Arbitration Act Cap J43A and giving an arbitral tribunal powers to grant relief, the previous limitation regarding specific performance has been removed.
302.
Where third-party beneficiaries are involved, specific performance is particularly more appropriate than an award for damages (see " Law of Contract in Singapore" paragraph 23,125, Andrew Phang)
303.
The Respondent has been shown to have scant regard for its contractual obligations and committed various breaches that jeopardised the very JVCo it started with the Claimant. Dr Crea's actions following the formation of the JVCo could not, in the Tribunal's view, be described as honestly acting in the interest of the JVCo or consistent with JVA's purpose of "generating profits while ensuring the preservation of the capital employed in the JVCo". The Respondent’s direct relationship with Cosway to supply products that directly competed with the JVCo’s business in the Malaysian market and Respondent's supply of HIDROX to Mantrose for the production of human dietary supplements disregarded the contractual obligation to seek the JVCo’s involvement. The agreement with CreAgri Europe was also a clear by-passing of the JVCo and directing the business to the Respondent alone. The arrangements with Connell Brothers who in turn contracted with Hollista and eventually to Truveno, came around to compete with the JVCo within Malaysia.
304.
The Tribunal agrees that an injunction restraining the Respondent from further dealing with these companies or any other company in any manner Inconsistent with its obligations under the JVA, would be appropriate.
305.
As to Cosway, the Claimant and the JVCo seems to be keen to maintain a long term business relationship with it. To order a rolling back of the already established relationship would not be in the interest of the JVCo. In this regard, the Tribunal will only direct the Respondent to account for all revenue and profits it bad received arising out of the PSA with Cosway on 2 November 2011 and upon such accounts being taken to pay the same as to 60% of the net profits thereof to the Claimant. Any continuing sales by the Respondent to Cosway shall also be accounted for and paid to the Claimant.
306.
In relation to the companies with whom the Respondent had dealt with in any manner inconsistent with the terms of the JVA, the Respondent must also account to the JVCo for any revenue and profits received.

Costs

307.
By Clause 9.3 of the JVA, the Parties had agreed that "Each party shall bear its own costs in connection with the foregoing arbitration". The Parties had on 11 July 2014, in response to the Tribunal's email of 8 July 2014 confirmed that the stipulation on costs referred to in Clause 9.3 of the JVA has been superseded and/or waived. The Tribunal is therefore at liberty under Rule 33 to determine and award the recoverable costs incurred.
308.
The Claimant has succeeded in substantially all of its claims and should be entitled to its costs incurred. It had put forward a claim of S$25O,00O for legal Costs incurred and S$25,000 as disbursements.

Counsel's fees for all work up to responsive submissions including interlocutory applications, attendances are conference calls, interlocutory hearing on 12.8.2012, bearings on 7, 8, 9, 14 and 15th October 2013, all applications, getting up and closing arguments. S$ 250,000.00
Out of pocket expenses including hotel, air fare, copying charges. S$25,000.00

309.
No bills or better breakdown of how the amount of costs were incurred and the nature of work done were provided. The Tribunal is fully conscious that for the amount at stake, this arbitration bad been very time-consuming, document-intensive and had involved numerous applications, challenges and multiple oral hearings. As such although no detailed bills were presented in support, the Tribunal has no basis to doubt that the work and time spent by the Claimant well-justify the quantum of costs claimed. This figure also compares well with the Respondent’s claim for legal costs of some S$267,500 as having been incurred.
310.
The Claimant had sought S$25,000 as disbursements for airfares and copying charges incurred. Again no vouchers or breakdown of this amount were given. In the Tribunal’s view, considering the short distance required to travel from Kuala Lumpur, the accommodation costs and all other incidentals expended by the Claimant should not exceed S$15,000 and will allow the same to that extent.
311.
The Registrar of the SIAC has fixed the costs of the arbitration at S$ 121,612.93 the breakdown of which is as follows:
SGD
Tribunal‘s Fees & Expenses
Tribunal's Fees 85,701.40
Tribunal's Expenses 897.97
Sub-total86,599.37
TOTAL ARBITRATOR'S FEES & EXPENSES 86,599.37
SIAC Fees & Expenses
Administration Fee 17,482.82
SIAC Expenses (Incidentals + Room rental + Transcription etc) 16,383.86
GST on SIAC Expenses (7%) 1,146.88
TOTAL SIAC ADMINISTRATION FEES & EXPENSES35,013.56
TOTAL COSTS OF ARBITRATION 121,612.93
312.
The cost of the arbitration shall be borne by the Respondent wholly.

Summary of Decisions

No, Issues Tribunal's Findings/Decisions
1. Whether, on a proper construction of the Joint Venture Agreement dated 6 October 2010 (the "JVA"), the Purpose of the JVA Includes all or any of the obligations and rights set out in paragraph 27 of the Statement of Claim. JVA creates both positive and negative obligations, namely:

a. Parties are obliged to enable the JVCo to exclusively:

i. Undertake Commercial development of human dietary supplements containing HIDROX; ii. Market such products under the "Olivenol Trademarks" only;

b. Both parties are not to develop human dietary supplements containing HIDROX under any brand or trademarks other than Olivenol;

c. Both parties are not to market or assist in marketing human dietary supplements containing HIDROX under any brand or trademarks other than Olivenol;

d. Respondent is obliged to grant the exclusive license to JVCo to enable JVCo to develop human

dietary supplements containing HIDROX; e. The obligation to grant the exclusive licence to the JVCo prohibits the Respondent from allowing the use of its HIDROX formulations as well as proprietary technology and know-how to produce HIDROX to any other persons other than to the JVCo; f. The Claimant cannot of itself produce HIDROX for sale.
2. Whether the Respondent is obliged under the JVA to grant or confer on the Claimant -
a. an exclusive license across all markets world-wide to commercially exploit and utilize the proprietary rights in hydroxytyrosol-rich formulations derived from the pulp of olives (HIDROX) and the proprietary technology and know-how to produce HIDROX to formulate human dietary supplements containing HIDROX (including a right to sub-license to a third party) and to promote, market, sell) and/or distribute the HIDROX products (see 2.3(ii) JVA); No. The rights are wholly for the benefit of the JVCo and not the Claimant. The Respondent is thus not obliged to grant or confer these to the Claimant.
b. the exclusive right to sell the HIDROX products to all and any interested, third parties (see 2.7 JVA);

c. an entitlement to purchase from the Respondent (and the Respondent having a corresponding obligation to supply) such quantities of HIDROX at the agreed price as would be required to meet the demands of the JVCO to manufacture the HIDROX products (see cl 3.3(a) of the JVA);
d. an exclusive license to all existing worldwide patents applied for or used by the Respondent which relate to HJDROX and the use of HIDROX for the Purpose (see cl 3.3(a) of the JVA); and/or
e. title and interest in the "Olivenol" and "Olivenol Plus" brands (see cl 3.3(b) of the JVA).
3. Whether the "Products" referred to in the JVA are limited only to "Olivenol" Products. The "Products" referred to in the JVA is a reference to the human dietary supplements which are to be specifically marketed under the "Olivenol Trademarks"
4.(If the answer to (3) is YES), Whether the Respondent is free to deal with HIDROX without consent or knowledge of the Claimant. No. The Respondent may do so subject to the covenants and undertakings it has given in the JVA to the Claimant.
5.(On the basis of the findings on Issue 2 above) a. Whether the Respondent had felled and/or neglected to confer such licenses, rights and/or benefits on the Claimant. No. However, the Respondent ought to perfect the arrangement in compliance with its obligation under Clause 2.3 of the IVA

by executing the SLA in favour of the JVCo.
b. Whether the Respondent's arrangement with Cosway to market products containing "HIDROX" was a breach of the JVA. Yes.
c. Whether the Respondent had acted in any manner which could hinder, prevent, delay, frustrate and/or obstruct the proper functioning of the JVCo and/or any of the objects of the JVA. Yes.
6. If the Respondent be in breach of any of its obligation(s), to ascertain the proper relief which the Claimant is entitled to. As per section "Relief and remedies" in this Award.
7. Whether the Claimant breached any duty or obligation in relation to the management of the JVCo, in particular:
a. Whether the Claimant had failed to hold board meetings, furnish accounts or otherwise properly manage the JVCo; and/or No
b. Whether the Claimant caused the JVCo. to market Olivenol products that did not contain authentic HIDROX®. No.
8.(If any of the answers to (7) is YES] Whether such breach(es) entitled the Respondent to terminate the JVA and (if so, on which date was the JVA validly terminated by the Respondent.(Does not arise for determination)
9. If the Respondent had validly terminated the JVA, to ascertain any further and proper relief to which the Respondent is entitled to.(Does not arise for determination)
10. If the Respondent had not validly terminated the JVA, whether the The Respondent had

Respondent was in breach of the JVA and if so, whether the Claimant is entitled to such corresponding reliefs as set out in the Statement of Claim. not validly terminated the JVA and the Claimant is thus entitled to the reliefs and remedies set out at paragraphs 298-306 above.
11. Whether the Tribunal has the power to direct the Respondent to grant a license to the JVCo in accordance with the terms of the JVA. Yes.
12. Whether the non-execution of the Supply and License Agreement envisaged under Clause 2.3 results in a termination of the JVA. No.
13. Whether the Claimant had acted to dilute the Respondent’s shareholding from 40% to about 0.6%. No.
a. [If the answer to (13) is YES] Whether that act constituted a wrongful repudiation of the JVA by the Claimant.(Does not arise for determination)
b. [If the answer to (13) a) is YES] Whether the Respondent had accepted the Claimant's repudiation of the JVA.(Does not arise for determination)
14.[If the answer to (13) is NO] Whether the Respondent's current shareholding of 0.6% in the JVCo constitutes a basis for termination of the JVA under Clause 6.1 No.
15.[If the answer to (12) or (14) is YES] To ascertain such further and proper relief to which each party is entitled to.(Does not arise for determination)

I. The JVA has not been terminated and remains valid and binding on the Respondent,

II. The Respondent was in breach of its obligations under the JVA when it:

a. entered into the contract with Cosway Sdn Bhd on or about 2 November 2011;

b. continued with the contract entered into with Mantrose-Haeuser Company Inc., after 6 October 2010;

c. entered Into Distribution Agreement dated 14 February 2011 and the License Agreement dated 24 October 2011 with CreAgri Europe S.r.l.;

d. ceased to supply HIDROX to the JVCo.

III. The Respondent’s counterclaim falls wholly.

And AWARDS, ORDERS and DIRECTS that:

IV. During the term of the JVA and for so Long as the Parties remain as shareholders of the JVCo, the Respondent shall, whether directly or indirectly, through its CEO, directors, employees, agents, distributors or contractors, refrain and be restrained from:

a. engaging in the distribution and/or sale of human dietary supplements containing HIDROX to third parties;

b. engaging in the distribution and/or sale of HIDROX to third parties with knowledge of its use in the production and sale of human dietary supplements containing HIDROX;

c. licensing, utilizing, assigning, selling or howsoever dealing with CreAgri IP in a manner inconsistent with the JVA; and

d. having any involvement in the activities relating to the launch, promotion and marketing of human dietary supplementary products containing HIDROX other than human dietary supplementary products branded "Olivenol" or "Olivenol Plus" or "Oliva Forte";

with any other company other than the Claimant, JVCo and Cosway.

V. The Respondent shall immediately notify in writing those dealing with the sale or distribution of HIDROX for the production of HIDROX-infused human dietary supplementary products for sale anywhere that they shall not make any reference to HIDROX or Dr Roberto Crea or use his photograph or attribute any statements to him without the written consent of the JVCo.

VI. The Respondent shall within 14 days from date hereof enter into the Supply and License Agreement with the JVCo in the terms of the revised draft submitted by Ms Ann Dalsin on 25 January 2011 (timed at 0.56 am) [D2/104].

VII. The Respondent shall supply such amounts of HIDROX to the JVCo as would be necessary to meet the demands of the JVCo in accordance with Clause 3.3(a) of the JVA.

VIII. The Respondent shall within 30 days from date hereof, account to the Claimant; all revenue and profits it had received arising out of the Cosway Product Supply Agreement dated 2 November 2011, and upon such account being taken, shall within 14 days thereafter pay 60% of the net profits thereof to the Claimant.

IX. The Respondent shall within 60 days from date hereof disclose and account (with all supporting documents, invoices, accounts, receipts in support of such information) to the Claimant all revenue and profits it had received arising out of contracts with parties other than the Claimant, the JVCo and Cosway for sale of HIDROX or HIDROX-infused human dietary supplements. Upon the taking of such account, the Respondent shall pay to the JVCo all the profits so gained by the Respondent arising from such contracts.

X. Subject to the modifications made in this Award, the Order for Interim Injunction granted on 19 June 2013 shall remain in force and shall continue during the term of the JVA and for so long as the Parties remain as shareholders of the JVCo.

XI. The security furnished by the Claimant pursuant to the Order for Interim Injunction granted on 19 June 2013 is hereby discharged and shall be returned to the Claimant.

XII. The security furnished by the Claimant pursuant to the Order dated 12 August 2013 as security for costs is hereby discharged and shall be returned to the Claimant.

XIII. The Claimant shall cause the JVCo to extend the time to the Respondent to enable the Respondent to exercise its right to subscribe to further shares in the JVCo by a period of 3 months (or such longer period the JVCo may agree) from date of this Award.

XIV. The Respondent shall bear and pay the legal costs incurred by the Claimant which the Tribunal hereby fixes at S$250,000 and S$15,000 for disbursements.

XV. The Respondent shall bear and pay fully the costs of the arbitration (being the fees and expenses of the Tribunal and the SIAC) amounting to S$ 121,612.93. The Claimant shell by reason whereof be entitled to full reimbursement for any amount it has paid towards the costs of the arbitration.

Whole document
para.
Click on the text to select an element Click elsewhere to unselect an element
Select a key word :
1 /

Instantly access the most relevant case law, treaties and doctrine.

Start your Free Trial

Already registered ?