(i) an order for specific performance, requiring SAM to deliver the goods to CEIR in Singapore, as required by the Amended Purchase Contract;
(ii) consequential damages including lost profits;
(iii) directions for the immediate inspection and verification of the goods by a recognized independent third party assayer of CEIR's choosing;
(iv) in the alternative to specific performance, damages for breach of contract, consisting of the purchase price paid of $4,376,561.74, plus the loss of profit that would have been made on the resale, in the amount of at least $3,678,438.26;
(v) pre-award interest on any award of damages;
(vi) post-award interest;
(vii) costs of arbitration, including arbitrator fees and counsel fees.
(i) damages in the amount of at least $8,055,000.00, or alternatively damages in the sum of $4,376,561.74, plus consequential damages including lost profits;
(ii) pre-award interest;
(iii) post-award interest;
(iv) costs of arbitration, including arbitrator fees and counsel fees.
(i) permit and facilitate immediate inspection and verification of the goods purchased by CEIR from SAM;
(ii) certify in writing to the Emergency Arbitrator and to CEIR, among other matters, that the goods were held in a Thailand warehouse for the account of CEIR.
(i) the Respondents were to state in writing to CEIR, by 18:00 ICT on August 13, 2012, whether or not they had custody of, or power over, the goods sold pursuant to the Amended Purchase Contract;
(ii) the Respondents were to state in writing to CEIR, by the same deadline, the current location of the goods;
(iii) if the Respondents did not have custody of, or power over, the goods, the Respondents were to state in writing to CEIR, by the same deadline, to whom, when, and on what basis they passed custody of, or power over, the same;
(iv) if the Respondents had custody of, or power over, the goods, they were to facilitate immediate inspection and testing of the goods;
(v) if the Respondents had custody of, or power over, the goods, they were to state in writing to CEIR, by the same deadline, whether any person other than CEIR held any interest in the goods;
(vi) the Respondents were to pay the costs of the emergency proceedings.
"I can now confirm that Shearman & Sterling will represent Respondent S.S. Yeap in this arbitration.... Dr. Kittayapong, who I have discussed these issues with and copy here, will continue to represent Respondents S.A. Yeap and TTI, with Shearman & Sterling acting as lead counsel".
"Having been denied the right to have his Thai counsel present at the hearing, Mr. Yeap has determined that he cannot participate in those proceedings. As such, we will not be attending the hearings on Mr. Yeap's behalf, which in turn, means that Mr. Yeap will not be calling or cross-examining witnesses as contemplated in paragraph 9 of Order No. 5.
Mr. Yeap expressly reserves all objections to any award issued as a result of the arbitration hearings scheduled for January 14-16th. Mr. Yeap continues to maintain his overall objections to the jurisdiction and authority of the arbitrator".
"In the event that any dispute arises between Purchaser and Seller from, out of or in connection with this Contract which they are unable to resolve by agreement, Purchaser and Seller agree to submit such controversy for arbitration before the American Arbitration Association in New York, NY USA. The arbitration proceedings shall be conducted before a panel of three arbitrators and shall be governed by the rules and procedures of the American Arbitration Association for commercial arbitration. The language to be used in the arbitration proceedings shall be English and the award shall be in writing and shall state the reasons upon which it is based. Each of Seller and Purchaser agrees that such arbitration before the American Arbitration Association in New York, NY USA shall be the sole forum for settlement of disputes between them and that the final award or decision arising out of such arbitration proceeding shall be binding upon both Purchaser and Seller and that judgment upon such an award may be entered in any court having jurisdiction".
"However, please note that any withdrawal, transfer or pledge either in whole or in part or the creation of any security interest whatsoever in or over the assets or funds in the above account or the entering into of any loan agreements or the drawdown of loans or signing of verification statements in respect of [TTI's] assets must be approved by the Directors of [TTI]".
This document, by its terms, appoints YSS only as investment advisor. While it authorizes him to make investment decisions, it is clear from the terms of the document that such decisions must be executed by giving instructions to Deutsche Bank. There is no evidence that any execution instructions in relation to the 2011 TTI Sale Contract were ever given by YSS to Deutsche Bank. And, if the 2011 TTI Sale Contract could be considered to constitute a "withdrawal" or "transfer" of assets or funds of TTI, there is no evidence that the director(s) of TTI approved the same. Therefore, even if it could be alleged that the Investment Letter authorized YSS to enter into the 2011 TTI Sale Contract on behalf of TTI (and 1 have serious doubts as to whether the language of the Investment Letter is broad enough to encompass a contract for the purchase and sale of tantalum for $8 million), the proper procedure for execution of, or authorization of, such an investment, was not followed. Therefore, CEIR's argument that YSS had actual authority, based on the Investment Letter, fails.
(i) TTI had no officers, other than a Secretary44. Its affairs were therefore conducted by its sole Director, Regula Ltd. ("Regula"), a British Virgin Islands corporation45. Regula acted through certain authorized signatories, a list of which constitutes Claimant's exhibit 12. The Directors of Regula, acting through its authorized signatories, determined the corporate policy of Regula, and exercised discretionary power with respect to TTI46. Therefore, the authorized signatories of Regula and its Directors, acting in such capacity, constituted the corporate mind of TTI, and their actions in that capacity bound TTI;
(ii) Regula also acted as the sole shareholder of TTI. Until September 15, 2009, its shareholding of TTI was held as a nominee for YSS. Thereafter, the shareholding was held as a nominee for the YSS Trust, of which YSS is the settlor and a beneficiary, with power to appoint and remove the Trustees of the same47. The Trustee of the YSS Trust is Deutsche Bank International Trust Co. (Cayman) Ltd.48. The authorized signatory list of Deutsche Bank International Trust Co. (Cayman) Ltd. is similar to that of Regula49;
(iii) On at least 22 occasions between 2008 and 2012, funds, totaling approximately $2,750,000.00 (not including any transfer to Starplex International Corporation, referred to below) were transferred by TTI, from TTI's accounts, to accounts of YSS or his family, or to specific entities at the request of YSS50. It is an inevitable inference, and I so find, that all of these transfers were made at the request of YSS51;
(iv) TTI's bank accounts with Deutsche Bank Singapore (nos. 8027328 and 6018006) also acted, for all practical purposes, as the account of the YSS Trust52;
(v) In December 2011/January 2012, Deutsche Bank granted TTI a credit facility of $3,500,000.00, secured against an insurance policy on the life of YSS53;
(vi) On January 19, 2011, there was a credit to TTI's account for $1,350,000.00, from Recapture Metals Inc., with respect to "inv. 2228OA/2011 45RS201101190121", which strongly suggests a commercial transaction54. That is the same amount, from the same source, as was transferred to SAM on December 17, 2010, and immediately retransferred to YSS' personal account no. 300568355. SAM, one of the Respondents herein, was a trading entity of which YSS was a managing partner and also a general or unlimited partner at the relevant time56. It is an inevitable inference, and I so find, that the Recapture Metals Inc. transaction was a trading transaction; and that the $1,350,000.00 was routed to TTI at YSS' request. Thus, YSS made use of TTI as a conduit in connection with a trading transaction with a third party;
(vii) On October 7, 2011, there was a credit to TTI's account for $426,000.00, from "Piyama Charindhorn/Arsa Sarasin"57. I have no evidence as to whether this credit involved a commercial transaction, but it clearly suggests a transaction between a third party and TTI. This credit was later recorded as an addition to the trust fund of the YSS Trust, as being transferred from YSS58;
(viii) There is no evidence that Regula questioned in any way the transactions or inflow of funds with or from Recapture Metals Inc. or Piyama Charindhorn/Arsa Sarasin, mentioned above;
(ix) On September 14, 2012, the very day of the freezing order of the Supreme Court of British Columbia referred to in paragraph 13 hereof, it was resolved to transfer the entire balance of TTI's account 6018006, for the benefit of YSS, to an entity named Starplex International Corporation59. The coincidence of timing is striking; however, I cannot find, without further evidence, that the purpose of any such transfer was to frustrate the freezing order of the British Columbia Court, which order was made without notice to YSS;
(x) There is no evidence of any director's meetings having been held by TTI for the purpose of determining whether the above transfers or transactions were in the best interests of TTI or were otherwise proper60. If such minutes existed, one would have expected them to have been produced by TTI as evidence of the alleged following of "corporate formalities" by TTI61. There is no evidence of any request by YSS or the YSS Trust for a transfer of funds from TTI, or any transaction, having been rejected or even questioned by Regula in its capacity as sole director of TTI. On the contrary, the evidence shows, and I so find, that the requests of YSS for transfers of funds from TTI's accounts were honored routinely and with minimal consideration and, indeed, without regard for the corporate formalities (such as a director's meeting reviewing the requests and making an active determination with respect to the same) which one would expect when a request is made for access to corporate funds, even from a beneficial owner or the settlor of the beneficial owner. There is no evidence of any question being raised, or any real discretion being exercised, with respect to any other transaction. I find that, to use my own words at the evidentiary hearing, YSS used, and was permitted to use, TTI, as his personal bank account62; and that, far from the corporate formalities being observed, as alleged by the representatives of TTI, they were routinely disregarded, even to the extent of accepting orders addressed to an entity which was not a director of TTI63;
(xi) I therefore find that the sole Director of TTI, Regula, at all relevant times, and certainly as of August 2011, granted YSS unfettered and unlimited discretion to use TTI for his own financial purposes, including for business transactions, and exercised no active discretion in this regard. The wording of the requests to the Trustee and of the Trust Resolutions64 may have been such as to imply some discretion as to whether the requests should be granted; but the evidence I have seen overwhelmingly demonstrates that such requests were honored automatically and without consideration. It may well be that Regula and its authorized signatories, as well as those representing the Trustee of the YSS Trust, felt duty bound to honor such requests, coming as they did from the beneficial owner of TTI (until September 2009) and from the settlor and a beneficiary of the beneficial owner of TTI, with power to remove the Trustee of the beneficial owner (after September 2009). For whatever reason, free rein was granted to YSS, with its attendant legal consequences.
(i) that TTI acted as the alter ego of YSS, in relation to the 2011 TTI Sale Contract;
(ii) that YSS is estopped from denying that he is a party to the Amended Purchase Contract and the 2011 TTI Sale Contract.
See paragraphs 38-47, 49-51, and 53 of my Interim Award.
(i) My fees and expenses: $87,555.16;
(ii) The fees and expenses of the Emergency Arbitrator: $16,553.91;
(iii) The fees and expenses of the ICDR: $14,200.00;
(iv) Costs of legal representation of CEIR before me and the Emergency Arbitrator, which I find to be reasonable:
(a) Fees and disbursements of Marc Goldstein Esq.: $287,970.00;
(b) Fees and disbursements of Herbert Smith Freehills (Thailand) Limited: THB (thai currency) 1,374,037.81;
(c) Fees and disbursements of Maples & Calder (Cayman Islands): $105,297.80;
(d) Fees and disbursements of Borden Ladner Gervais LLP (Vancouver, British Columbia): Canadian $6,417.32.
(i) YSS failed to communicate with CEIR after these proceedings were initiated; refused service of documents; requested a lengthy extension of time and postponement of a hearing date; and made false, unsubstantiated allegations against CEIR94;
(ii) AS of the time of closing of the hearing, YSS had not complied with the Emergency Arbitrator's Award;
(iii) YSS has been found in contempt by the Supreme Court of British Columbia for failure to make sufficient disclosure of assets pursuant to the freezing order made on September 14, 2012; and failed to appear for a cross-examination scheduled for January 7, 201395;
(iv) YSS did not comply with my order to appear as a witness in these proceedings96;
(v) YSS has been held in contempt by the U.S. District Court for the Southern District of New York for his failure to comply with the Court's judgment confirming my Interim Award97;
(vi) YSS failed to appear for a court-ordered deposition in Vancouver on January 7, 2013, the same day as the scheduled cross-examination referred to in sub-paragraph (iii) above and, coincidentally, the same day that Shearman & Sterling announced YSS' complete withdrawal from these proceedings98.
Accordingly, I make the following
1. Within thirty (30) days from the date of transmittal of this Award to the parties, YSS and/or SAM shall deliver to CEIR the syncons the subject of the Amended Purchase Contract. Such delivery shall be made in such manner as to grant CEIR immediate title and access to the goods, with the right of immediate inspection of the same, including the delivery to CEIR of such documents of title, warehouse receipts or other documents as shall enable CEIR to have full and unrestricted access to said syncons, and undisputed title to the same under all relevant systems of law.
2. Should said syncons be delivered to CEIR as aforesaid, CEIR shall notify the same in writing to TTI, within three business days of such delivery. TTI shall thereupon notify in writing to CEIR, within forty-five (45) days from the date of transmittal of this Award to the parties, whether it elects to take delivery of the syncons pursuant to the 2011 TTI Sale Contract, against immediate and unconditional payment to CEIR, in immediately available funds, of the full amount of and unconditional payment to CEIR, in immediately available funds, of the full amount of $8,055,000.00; or to renounce all claim to the same. If TTI elects the latter, it shall, within five business days of notifying such election in writing to CEIR, execute such document(s) releasing its claim to the syncons, as CEIR shall reasonably request. If TTI makes no election within said forty-five (45) day period, it shall be deemed to have elected to renounce all claim to the syncons, and shall execute document(s) releasing its claim to the same, as aforesaid. If TTI elects to take delivery of the syncons, it shall take delivery of the same, and pay the sum of $8,055,000.00 to CEIR as described above, within sixty (60) days from the date of transmittal of this Award to the parties; if TTI does not take delivery of the syncons and pay the purchase price as aforesaid within said sixty (60) day period, it shall be deemed to have renounced all claim to the syncons, and within five business days of the expiry of said sixty (60) day period, shall execute such document(s) releasing its claim to the syncons, as CEIR shall reasonably request.
3. Should the syncons not be delivered to CEIR within the thirty (30) day period indicated in paragraph 1 above, and in accordance with said paragraph 1, then, within sixty (60) days from the date of transmittal of this Award to the parties, each of YSS and TTI shall pay to CEIR the sum of $8,055,000.00 in respect of the 2011 TTI Sale Contract, and each of SAM and YSS shall pay to CEIR the sum of $7,583,161.74 in respect of the Amended Purchase Contract. The liability of YSS and TTI hereunder, with respect to the sum of $8,055,000.00, shall be joint and several; and the liability of YSS and SAM hereunder, with respect to the sum of $7,583,161.74, shall be joint and several. Without prejudice to paragraphs 4, 5 and 6 below: the liability of TTI hereunder shall not exceed $8,055,000.00; the liability of YSS hereunder shall not exceed $8,055,000.00; and the liability of SAM hereunder shall not exceed $7,583,161.74. Payment of any amount hereunder by any Respondent to CEIR shall reduce pro tanto the liability of the other Respondents to pay the amount due under this paragraph 3 to CEIR. Thus, for example, if YSS pays $1,000,000.00 pursuant to this paragraph 3 to CEIR, YSS' total liability pursuant to this paragraph 3 shall be reduced to $7,055,000.00; TTI's total liability pursuant to this paragraph 3 shall be reduced to $7,055,000.00; and SAM's total liability under this paragraph 3 shall be reduced to $6,583,161.74.
4. The administrative fees and expenses of the ICDR totaling $14,200.00, shall be borne by SAM, YSS and TTI, jointly and severally. The compensation and expenses of the Emergency Arbitrator, David Brynmor Thomas, totaling $16,553.91, shall be borne by SAM, YSS and TTI, jointly and severally. The compensation and expenses of the undersigned Arbitrator, Carlos J. Bianchi, totaling $87,555.16, shall be borne by SAM, YSS and TTI, jointly and severally. Therefore, SAM, YSS and TTI, jointly and severally, shall reimburse CEIR the sum of $118,309.07, representing said fees, expenses, and compensation previously incurred by CEIR, forthwith upon demonstration by CEIR that these incurred costs have been paid in full. This amount shall be payable to CEIR even if the syncons are delivered pursuant to paragraphs 1 and 2 above. The liability of the Respondents for this amount being joint and several, partial or total payment to CEIR of the same by one or more Respondents shall extinguish the liability of the other Respondent(s) to pay the same to CEIR, pro tanto.
5. Within thirty (30) days of the transmittal of this Award to the parties, the Respondents (SAM, TTI, and YSS) shall pay to CEIR the amount of $1,253,270.00, representing pre-Award interest. This amount shall be payable to CEIR even if the syncons are delivered pursuant to paragraphs 1 and 2 hereof, since it constitutes compensation for late delivery of the syncons, and/or late payment of the purchase price under the 2011 TTI Sale Contract. Should paragraph 3 hereof, ordering payment of damages, become effective (that is, if the syncons shall not be delivered pursuant to paragraphs 1 and 2 hereof), the Respondents shall pay to CEIR post-Award interest at the rate of 9% per annum, counted from the date of the transmittal of this Award to the parties, on any unpaid balance, until full payment to CEIR. The liability of the Respondents for pre- and post-Award interest being joint and several, partial or total payment to CEIR of the same by one or more of the Respondents shall extinguish the liability of the other Respondent(s) to pay the same to CEIR, pro tanto.
6. Within thirty (30) days of the transmittal of this Award to the parties, the Respondents (SAM, TTI, and YSS) shall pay to CEIR the amounts of $393,267.80, THB 1,374,037.81, and Canadian $6,417.32, representing attorney fees and disbursements. These amounts shall be paid to CEIR even if the syncons are delivered pursuant to paragraphs 1 and 2 hereof. The liability of the Respondents for these amounts being joint and several, partial or total payment to CEIR of the same by one or more Respondents shall extinguish the liability of the other Respondent(s) to pay the same to CEIR, pro tanto.
7. This Award is in full settlement of all claims and counterclaims submitted to this Arbitration.
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