“I had to sell [my shares in REC]”
“Through the board and then through resignations, we have removed Nick i.e. Mr Suppipat from all boards, executive roles, committee memberships, etc…. However, given ‘reputational risks’ as [REC] owns 60.9% of WEH and Nick owns the majority of REC, no bank will let us draw down any money, and no domestic firm will start a relationship with us. The only solutions are (i) Nick situation gets resolved — not going to happen; or (ii) Nick is no longer a shareholder.”
“because it was an earn out structure, the company was too speculative on their investment and … not exactly well managed. [It] went bankrupt not long after”
“I think what I recall is that on the nominee deal, the first Skype meeting with Mr Suppipat, and he suggest that he offered the deal of nominee deal, and I remember that he mentioned I have to pay him$175 million , and if we can IPO the company, he offer me$200 million . I asked him that I not understand, so is that 200 minus 175. He say yes, and I asked him whether that is a good deal. He said no, and he just laugh. That is how I recall the first meeting.”
“First … if [Mr Suppipat] get clear from all the criminal charges, including the 112; secondly, … I am not going to do anything illegal; thirdly, it has to be commercially viable to me”
“Q: [D]id you mean your evidence to be that from day one, you had decided not to entertain any call option agreement or buy-back agreement proposal regardless of whether it was commercially viable? A: No. If it fit with the three criteria, I am willing to listen … no issue with the 112 charge or the criminal charges; I am not going to do anything illegal; and is commercially viable, I am willing to consider then.”
“each indicated to me that they understood the Global Transaction and accepted that the intention behind it was that, in accordance with Part B, I would be able to reacquire my interest in REC”
“It is admitted that on or around17 May 2015 NS prepared or caused to be prepared a presentation setting out a proposed deal structure for discussion with NN, that NS, NN and Mr Phowborom discussed a proposed deal structure via Skype, and that NS sent the proposed deal structure to Mr Lakhaney the following day.”
“I can recall NP mentioning a call option before the signing of the REC SPAs …. I recall that before signing the REC SPAs, NP mentioned to me that there was no call option in the REC SPAs … This was good as the complicated call option that NS had been continually changing had gone away…”
“Agree that all of your points need to be addressed”
“The reason that I entered into the deal with Nop was because the deal included a call option. If I had not sold the shares to Nop in 2015 with the understanding that the call options would be entered into, I would have made a different deal with another person willing to agree to a sale structured with a buy back option. I would only have reluctantly agreed to a straight sale if I had no other option.”
“Generally, a call option is not regarded as an acquisition of the shares (or voting rights over shares) underlying it, assuming that the option grantee does not have any rights to such shares (whether voting rights, rights to dividends, returns or any other interest). If the call option comes with the right of the option grantee to direct how the option shares are voted, the call option itself could be regarded as an acting in concert behaviour which results in a mandatory tender offer obligations of the parties involved.”
“To clarify my response, a call option (which does not give the option grantee any rights to the shares before the option is exercised) does not trigger any reporting requirement until it is exercised. However, if the option in place before the IPO, … [it would] need to be disclosed in the IPO documents”
“it is not the end of the story. We explore with Linklaters one or two days after that. So we know the solution, even if there is a room of interpretation, but we have chance to implement, right”
“I think I did, my Lord…But I also believe that there is a way around this that can still allow me to pursue this option without breaking the law, and that was all along the thesis of the approach.”
“the balance of the price under the SPAs (the US$525 million ‘Remaining Amounts’) was only due upon projects reaching commercial operation dates (“COD”) and over two years post COD – this meant that the regulatory/construction risk was borne by the seller (i.e. me) in the deal and that Nop was not taking any risk”
“I remember that there was no pushback from Nop or Nutt, but I would not have expected there to be any, because at US$700 million , Nop would get more money because the call option would be more expensive. Increasing the price to US$700 million meant that Nop would receive 20% of US$700 million as the minimum he would be paid.”
“This negotiation, it’s done by Khun Nuttawut, and that is what he informed to me, and the price increase that, you know, he told me from 450 to 700 […]. So I am okay with that, and one of the reasons that he told me that, you know, there should be no call option, which is okay to me. Not – he not using the terminology “call option”, but he just give Mr Suppipat more upside.”
“A…to me at that time, it doesn’t strike me anything, because as a nominee structure, it doesn’t matter, if it is 450 or 700, or 500, Nop will get, you know, his guaranteed payment, which linked to 0% of whatever, you know, money that is paid.”
“simplified a lot of the insanity but ultimately the story of exit will need to be sorted out between Nop and [Mr Suppipat]. I will send out an updated structure diagram tomorrow”
“A. Well, if Mr Narongdej is buying the company what is the story around him having agreed a call option and selling his shares back to Mr Suppipat. It’s not a normal transaction. It’s not a normally heard about transaction.”
“can you draft the current document relating to the call option and buy back so we can present a draft internally?”
“The Purchaser agrees that it shall procure that the current Senior Management Personnel of the Group be retained at least 5 years after Closing to develop and maintain the Projects”. c. Clause 10.3.1: “The Purchaser agrees that it shall not sell any shares without the prior written consent of the Seller prior to full payment of the Purchase Price”. d. Clause 12.2 is an entire agreement clause, according to which the parties agreed that their only right and remedy in relation to any representation, warranty or undertaking made or given in connection with the Transaction Documents would be for breach of contract and waived all other rights and remedies. e. Clause 12.2.4 provides: “Nothing in this Clause 12.2 excludes or limits any liability for fraud.”
“It is correct that the REC SPAs did not prevent Nop from pledging or selling the shares. Emma states at paragraph 147 of her witness statement that this was because Nop needed the ability to “sell, pledge or otherwise encumber REC’s WEH shares” in order to raise the money needed to pay me. That is not entirely correct; under the KPN EH SHA and REC SHA, the WEH Managers were empowered to protect my interests as there could only be a sale of the KPN EH or REC shares with Emma and Thun’s approval. In practice, the only situation where Nop would pledge the shares would be to borrow money to pay me or refinance borrowings taken out to pay me, and the WEH Managers could police that under the KPN EH SHA and the REC SHA.”
“Support on Project Financing for Watabak Project…We need to close Watabak by Mid-August 2015 latest”
“I’m sorry, that was never discussed with Nick or Mr Suppipat, that was never discussed”
“Q. … It is a very different summary, isn't it, from your summary in the arbitrations? A. Yes, they can have their opinion, but they have not say no, that they will not do it; they just don't understand the transaction and they just questioning. Q. They didn't understand the transaction and they asked questions about it? A. Which is normal, right, for them to have questions, and it's normal for Stéphane to explain. That is the whole point of the meeting.”
“That is not my recollection. My recollection is that I met with all three gentlemen [Mr Suppipat, Khun Op and Khun Nuttawut], whom I had not met before, and all of them were trying to brainstorm a legal way to achieve an intended economic result which had been agreed between them. So the complication was the legal structure; it was not the business deal.”
“the meeting attendees are unable to consider the spending of the credit facilities until the following issues are addressed or rectified: 1. KPN purchases all the Wind Energy Holding Company Limited (WEH) shares currently held by [REC], the price of the aforementioned shares is paid in full and the transfer of the aforementioned shares is legally valid, whereby KPN would become WEH’s new majority shareholder. 2. Ensure that Wind Energy Holding Company Limited (WEH) shall resume the shareholding of approximately 9% in [Khao Kor] as before the shareholders restructuring.”
“Please make sure we understand the terms of WEH sale to KPN. I understand that the settlement of the shares includes some deferred payments to K.Nopporn. Is there any risk that the shares will revert to K.Nopporn if KPN defaults on the deferred payments?”
“We will definitely check this as condition. Understand from KPN that the 100% share transfer will be completed since Day1. The structure is not “Deferred payment” of 100% value but only additional value is only upside from IPO with gentleman agreement outside but we will definitely review this with legal team.”
“I believe I got the answer” to the question of whether default would lead to reversal of the share sale and that “In my understanding it was dealt with”
“Q: So is it fair to say that because it was the role of others to check this and they didn’t raise it with you, you assumed it was complied with? A: Yes.”
“Q: Did you ask any more questions about the gentlemen’s agreement or were you told anything more about it at this stage? A: No.”
“Q: Did you know anything more about the gentleman’s agreement or is it just what is written here? A: Just what is written here. Q: No conversation, no nothing.”
“if there had been any reviews or any work done, it would be with the relevant teams, so it’s not for me to go and ask or investigate whether they have done their work”
“If it is not documented, and the bank is not one of the parties, we don’t pay attention to it”
“I confirm that we pay attention to the final target that the shares have been legally transferred and what the gentlemen’s agree amongst themselves, we are not part of it, we are not one of the parties.”
“A. On that particular meeting if I would recall, still it was silent from Nuttawut, from the KPN team, I would say it was silence. They said okay; they said okay, okay, yes, let me take a look at this. He always said: let me take a look at this and get back to you; all the time. Q. But what was your view, what was your opinion, give me your opinion? A. My opinion, okay, you ask me, my opinion, I said okay, they are still in this, the deal is progressing, they need time to look into the details, that was – Q. That was your view? A. That's my view. Q. That was your view, and you conveyed that to Mr Suppipat? A. I think so.”
“[Khun Nop] agree on the formula. Provided that he would not take loss upon the exercise of the call option. If it is true as he believe, as we explained to him, then he has no objection at all on the concept”
“I was kept out, yes from the negotiation about the call option”
“He already been in default on 4 July, and on 7 July, Mr Suppipat was stupid enough to allow him to enter amendment and restatement agreement by backdating it to 3 July in order to make him clean and transfer the shares to him”
“I believe the circumstances of the deferral of payment dates…were linked to funding arrangements involving Mr Narongdej and the KPN Group.”
“I assume financing. The Equis loan sheet was financing Watabak, which was the priority. So I think this was in relation to that. Q: To the financing of Watabak? A: Yes.”
“The major problem with the proposed call option agreement was that it required us to sell back the REC shares at 65% of the value of the underlying WEH shares. Once you took into account the cost of the finance of the deal and the opportunity cost of the capital which was deployed, there was a significant risk that Khun Nop would lose money on the transaction. In addition, the transaction was open ended and could be exercised at any time after1 January 2020 . There was a further concern, in that the draft said nothing about Mr Suppipat’s criminal charges. In principle, Mr Suppipat could exercise the call option whilst still a fugitive from Thai justice. This would have been completely unacceptable to the banks.”
“Q: […] What was it in here that you were shocked by? A: First of all, my Lord, this is very complicated, very hard to understand. We did calculate following what Mr — I did calculate it following Mr Héliot’s table here. He put it like the company would be valued US$7.5 billion . When we purchased this company, the company price is$1.2 billion , and he come up with a calculation that started with 7.5 billion, and with 7.5 billion we will make a profit. I did some calculation, and first of all, I don’t believe the company will be worth 7.5 billion. I don’t know if it will be worth that much. We did some calculation based on this table which I don’t know whether it is right or wrong, but if with a lower valuation, we are at risk at being zero or even losing money in this case, that is why I feel like I was shocked with this, my Lord.”
“A: […] we have had agreed that the floor price is [USD] 140 [million], provided they pay the purchase price, and anything beyond that, they have to make the company perform beyond the IPO valuation. […] Even if you don’t look at what has been agreed, my Lord, people who comes in with nothing manage the company, manage to pay me one half of 700 million out of my own asset, and get 140 million. That is attractive in any case. Now, if the company performs well post IPO and assuming the IPO price is 2 billion plus, and the value has been increased because they perform, the incentive, in case of the valuation of, say, 4 or 5 billion, which is not unreasonable, because it would have been four, five years post IPO and if IPO price is close to 3 billion, a 50% uplift to the shareholder, 60% uplift or even 100 or 200, it is more than reasonable expectation.”
“So the basic structure of the deal was always the same. Nop being the nominee, he will get paid, the first portion when he take the company IPO, he will get a certain amount of money, and then there is going to be following tranche once the company, you know, after the company is listed…what Nick always highlight is the beginning of the meeting, of the structure, is that as a nominee, you cannot lose money”
“Like I said in my witness statement, [Mr Suppipat] from time to time took a call or made a call to counterparties in Thailand, including Khun Nop, based on his – based on what he told me from the persons he was on the phone with, and so – and then gave me back the structural changes that were required in the documents, based on those discussions.”
“I remember this moment vividly because it was so disgusting, and I said: okay, maybe 25% is not enough for you, 25% of my future net worth, what do you want, do you want 30? And then he paused for a few second and then he said, he shook his head and said no. Oh, you want 35? No. 40? No. Okay, you know what, how about this, how about this. I give you half. But it needs to be half after the 700 million has been fulfilled. And he said okay. Okay. So that was the new agreement that I can have a bit of a question mark, you know, because I think 30% of my total net worth is likely to be more than 50% after 700, but again, my math was quicker than his, and maybe he doesn’t fully understand, but I keep on repeating though that, are you sure, it is 50/50 after 700, though. And he said yes, yes, yes. Okay, then we had a deal, we shook hand, and that is what I mean by we had a new deal.”
“Yes, I didn’t remember it [when preparing his witness statement]. But when Khun Nuttawut mentioned the name I did”
“A. When you know they have no money and they renege on call option, hence there is no equity that I am going to assist them with any longer, you know that you are going to get nothing or you are likely to get nothing. So you think of how to unwind this so you can find the next buyer, you go back to someone like Equis and say: I am so sorry, let’s do the deal, even if this is a little bit late; but it is not too late.”
“[Mr Suppipat] and [Khun] Nop agreed to set aside the second leg (which [Mr Suppiapt] and [Khun] Nop referred to as “part B” of the deal), so that the Sellers will not fund the initial USD75 million of equity and the Purchaser will not enter into the call option with the Seller, on condition that: The first Purchase Price instalments under the SPA’s (USD 175 million plus interest) are made in full no later than26 November 2015 … interest will be calculated at the 15% per annum rate… Nop (i) acquire 3.25% of WEH (directly or through an affiliate) from Pradej and (ii) transfer half of those WEH shares to your designee (for no consideration);”
“Btw. I think I might be able to waive you the interest on the 175 m for period between the closing dates to nov 26 given that 75m is paid before nov 26 and 14m is paid by dec 15th and the rest by jan 31. Will send you an email on the details to confirm this in a day or two na krub.”
“So interesting day. Our friend sent Nuttawut an email on payment terms, not a nice email, so I don’t think he has a deal with Nuttawut”
“You are now telling me that you can come up with only around 75M USD by Nov 26 but the 100M USD won’t be ready before New Year 2016.”
“I’d like to inform you that I’ve transferred the principal amount of$75M to your instructed account today.”
“Fullerton remains determined to make the required payment for the shares. To demonstrate its good faith, Fullerton will use its best efforts to pay the requested sum in the amount of US$ 85,750,000 , together with interest at the rate prescribed under the SPA, calculated from9 December 2015 (the date Fullerton was first provided with revised payment dates) by31 January 2016 .”
“Khun Thun and Khun Nuttawut advised that the KPN payments did not need Board approval but instead approval of the Executive Committee to which authority had been delegated by the board. They advised that KPN payments were approved by Executive Committee members Khun Thun, Khun Nuttawut and Khun Nop. We understand that this approval was not documented”
“Q. So it is clear, it is your evidence to my Lord that without your knowledge or consent, Khun Nuttawut and Khun Thun had the entries in WEH's accounts falsified to conceal the fact that loans were made to enable you to make payments to Mr Suppipat. Is that right? A. (Interpreted) Yes, I was aware of that, and I had no intention to cause any damage but my intention -- but our intention is to raise the fund to pay Nopporn, and if there were -- if mistakes occurred, yes, I apologise. Q. I want to be very clear about your evidence. You say "I was aware"; does that mean that you accept that you were aware at the time of the false entries, or are you still saying that you only discovered it later? A. (Interpreted) At the time of the -- this was recorded, I wasn't aware. I became aware later on.”
“Q. Yes, let's look at {G6/232/19}. If we look at paragraph 4.2: "As a consequence ..." "4. Conclusions. "The above findings provide evidence which supports the following allegations: "... payments from WEH to KPN and receipts from KPN did occur ..." No supporting documentation; retrospective preparation of bills of exchange; bills of exchange issued to a third party instead of KPN; provision of the bills of exchange to the then WEH auditors KPMG. "As a consequence of the above, there is evidence that accounting documents were retroactively put in place for the purpose of deceiving a potential user of financial and to deceive the then auditors ..." Bills of exchange intentionally used to hide the fact that WEH funds had been loaned to KPN for the purpose of assisting KPN finance the purchase of shares. The draft financial accounts disclose the outstanding loan balance, as other receivables, instead of the required disclosure of shareholder loans. This was done without the consent of the board of WEH, was it not? A. I don't remember exactly. Q: So you knew about it? A: I knew when this incident happened. Q: Yes? A: Yes. Q: And you knew that monies were being taken from WEH in order to fund your purchase of the REC shares? A: Yes. Q: And you knew that false bills of exchange were being put into the books? A: I know that it’s not properly done, and the reason is because we are afraid of the attack on the social media.”
“I don’t remember exactly, my Lord, but I would guess that I spoke to the board member”
“MR JUSTICE CALVER: So this is the answer to the question that I put to you. A: Yes, I accept that, my Lord. MR JUSTICE CALVER: Had you forgotten this when I asked you my question just now, had you forgotten about this? A: Spoken about what, board member −− MR JUSTICE CALVER: When I asked you just now whether or not the board had approved these payments, you said that you didn’t remember. A: Now I remember clearly, my Lord, after I look at the document.”
“…as you are obviously super stretched from struggling to fund the payments due by KPN EH, it is clear that Fullerton has not raised any equity or debt and that is why it cannot pay the First Payment, plus interest, due to Symphony. Fullerton has no money… I see no solution now for the Fullerton / Symphony sale other than to reverse the sale, and for Fullerton to make Symphony whole for the damages suffered….”
“It doesn’t guarantee – it doesn’t mean that it is a real meeting.”
“…we would like to draw your attention to the fact that any sale by Fullerton of REC shares is (x) contrary to Clause 10.3 of the SPA and (y) subject to approval of KPN pursuant to the REC Shareholders Agreement and (z) a Reserved Matter subject to your control pursuant to the KPN Shareholders’ Agreement. We hereby formally notify you that any such sale of REC shares by Fullerton can therefore only be achieved in breach of your obligations pursuant to the [ASA]….”
“Guys, meeting w Nop and Nuttawutt this morning at KPN Energy 10.30am. Thanks. Thun (that’s all I know)”
“Mentioned arbitration that NS has started…Also stated that NS can’t win and is a sore seller, but KPN went out of their way to do the deal and put their reputation on the line….”
“[Mr Suppipat] had entered into a transaction with [Khun Nop], had together with [Khun Op] tried to push a call option deal that was not commercially reasonable, and then agreed to move forward with the SPAs without the call option, and now was trying to attempt to get his company back because he wasn’t happy with the terms at which he sold it.”
“Thun – need you to fill in some numbers here which I don’t have”
“Q…In early 2016, you discovered, did you not, that the 175 million had not in fact been paid…? A. Yes.”
“Q. Did you at some stage develop a friendship with Khun Nop? A. It is a customer and banker. Q. Did you at any stage develop a friendship with him? A. I didn't. Q. You didn't? A. No. Q. When you met him was it therefore, apart from the meeting with his father, was it on business only? A. It's on the business only. Q. So every time there was a meeting with him, you were discussing business, correct? A. Meeting with Khun Nop. Q. Khun Nop, yes? A. Yes.”
“I think … I fully aware of dispute before it went to arbitration, and I cannot recall and understand or remember why it did not go to the credit committee”
“Khun Nop didn’t tell me about this; it is just my common sense….our guess is, my guess is that he doesn’t have the money or enough money, and also my guess is he cannot be able to raise the money.”
“the problem is not about didn’t pay or pay. It’s about the way they calculate or they have the dispute on the interest or the account, which I couldn’t recall exactly…”
“Normally when the problem happened with the customer, we always wait and see how the customer fix the problem. We cannot just go tick, tick, tick and just -- if the customer cannot do this we have to jump and chew the deal right away. I think we wait and see how the customer try to solve the problem.”
“I couldn’t recall specific word, but the essence was that the bank got very concerned about the rescission claims, because of the whole basis of, the whole basis of the bank entering into loan agreements for Watabak was that there was no risk of Mr Suppipat coming back into the picture.”
“So in 2016 the first problem we had was SCB refusing to fund projects because of the rescission claim, and obviously the risk that Nick would come back would mean that we wouldn’t be able to raise financing.”
“I recall that others at SCB … were concerned that the arbitration presented a substantial risk that Khun Nopporn would return as shareholder of REC … I also recall that SCB’s legal department was investigating this issue. I recall being concerned that the arbitration would delay WEH’s attempts to do an IPO to raise new funds and therefore negatively impact the Bank’s own current and potential future lending to WEH and its subsidiaries; and that if Khun Nopporn did return this would generate the risk of damaging SCB’s reputation. For as long as such a risk was going to persist, I do not think that we (my team, CM and Risk Management) at SCB would have sought the Credit Committee’s approval to waive the outstanding conditions precedent to drawdown, and until that happened drawdown could not take place. Drawdown on the Watabak Facility was therefore effectively suspended until these issues could be resolved to SCB’s satisfaction.”
“We know that we have to pause, but we tried to understand what is the reason, what is the issue of the conflict, what ---- why, it cannot be resolved, and we believe that as long as it is in arbitration, we need to wait at least at the beginning when we heard. We don’t know what exactly, and so we decide to pause and try to wait and see and try to understand what is the real consequence before we take any other action”
“once the issue go to arbitration, nothing can happen”
“that it is a policy of the bank that bank cannot deal with anyone who get lèse-majesté charge…that is bank’s policy and there is nothing we can do. So we have to fix this issue...”
“I should say that he asked me to help or to find the person who has interest to buy the share or to give – provide him the funding, could be lending him the money. Yes, he asked me to do that.”
“Fullerton Bay Investment Limited is prohibited from disposing of the shares, representing 49% of the share capital, it holds in Renewable Energy Corporation Co., Ltd. (now known as KPN Energy (Thailand) Co., Ltd.) (including through sale) and/or transferring such shares and/or creating any charge…and any other action having an economic effect similar to the disposal and/or transfer and/or encumbrance of the shares, pending the resolution of the present dispute between the Parties by way of the final award in the arbitration between the Parties”
“as explained over the phone, such agreement is the sole allegation of Khun Nopporn and has never been signed.”
“As a matter of Thai law, such a transaction would need to be made for value (i.e. not for free) and in good faith (which I took to mean fair value in this case)”
“I do recall the Project Houdini document circulated by Mr Lakhaney on18 March 2016 which set out the steps…”
“If that is between Khun Nop and Khun Anutin, I couldn’t recall, because I only recall when there was a big party when Khun Anutin joined, the big party. I think that’s the only dinner I recall. And I couldn’t recall that on the night of March 18 we had dinner, and I didn’t, I couldn’t – I could not recall that I was told about this ring-fencing on March 18. The only date that I recall is when there was a team report this issue at the ExCom.”
“Q. And you discussed the proposal at that dinner? A. No, I don't think we have any discussion about anything about the case at all. Q. So what did you discuss? A. We did not, my Lord. Q. How do you remember that? A. It is the party with the long table, and there was more on the casual talk about everything about -- I mean, it is a casual talk and I am a junior in that table. So I sit in the corner of the table. If I am not wrong, it is 24 seats or 28 seats of table, and I was very junior and I sit very far away.”
“Q. Why were you signing up an engagement letter for an IPO if you were seriously concerned that you might not be able to continue to lend to WEH because of the arbitration? A. My Lord, this is the normal practice that when you sign the FA or IPO, that the process for IPO will not take place right away. It will be a project that need to be prepared for a long time. It could be years, it could be two years. So for the bank to do our business, for the bank to prepare long−term work in order to do a fundraising, if it can happen, then we can −− we need to prepare prior to −− a long time prior to the process. So we know that the problem happened at arbitration. What −− we still believe that once the arbitration award, we should see the clear result of what is going to happen. If the arbitration award, the project can no longer go on, the commitment to be the FA or doing the IPO will just cannot go further. I think that’s the normal way of doing business. Q. You see, I suggest to you that you wanted −− the bank wanted the business with WEH and the very profitable lending and IPO to proceed, and you were trying to find a way of reducing your risk of Khun Nopporn coming back? A. You use “and”, right; can you read again? Q. Yes. A. Yes, we treat this transaction that it will be a good business for project finance for us, and if the deal can go on and because the project will be up and running, the company, WEH, should be in a position to be able to do IPO. So that is the normal business of the bank. And on the other hand, if Khun Nop can do fundraising to IPO, it will reduce the risks of Khun Nopporn. And I think that’s how to settle the dispute, and there should be no further issue between the buyer and seller.”
“Q. It is right, isn't it, that this time you personally and your legal department contemplated a possible Thai court case in relation to the sale of these shares not being in good faith? A. I cannot answer this; it depends on the fact. That is why we asked Khun Weerawong to come and explain whether it is in good faith. Q. Why did you write the words "potential Thai court case" if you did not have it in your contemplation? A. Because there's a Supreme Court ruling that if a transaction is found in ungood, unfair price or not in good faith, the transaction can be revoked. Q. Yes, and you were concerned about it? A. That is why I asked Khun Weerawong to come and explain. Q. What did you ask Khun Weerawong about at this meeting? I can't tell from here because someone has blanked it out, so ... A. I asked Khun Weerawong to explain the purchase price, and Khun Weerawong explained that the third party, an independent assessor, has assessed the share value. (Uninterpreted) And said this is fair price. (Interpreted) And said this is fair price.”
“if it is external legal opinion, it’s the ExCom to make the decision whether we needed it or not, but for WCP it was under my responsibility”
“Q. You understood, did you not, from that that the bank were relying on your firm to produce an independent opinion? A. Correct. Q. Right. A. In my role as the borrower's counsel. Q. Well, what do you mean by that? Is it meant to be objective and independent or not? A. When -- when -- when you issue legal opinion, then it's normal practice that you issue to your client. But when the transaction require you to say that the bank can rely on your legal opinion too, that's what I mean. Q. Then it has to be made objectively and in good faith? A. Everything, whether or not we issue legal opinion to anyone, it has to be made in good faith.”
“I have never seen this before. It’s not my handwriting…”
“I think first of all, first of all, I reiterate this, KPN EH is not my share. So I return the share – I will resign, I returned. Then I thought that should be enough. But then I think Aman or Mr Lakhaney suggested I need also to terminate it, because I signed it, or something like that”
“The legal opinion is Fullerton is still obliged to pay”
“First I couldn’t recall I have lunch with him, and I didn’t remember, even have – I had lunch with him, I didn’t remember.”
“Further to our email below and our discussion last week regarding comments to the legal opinion to SCB on KPN matter, may we please follow up on the current status of the revised legal opinion krub? We appreciate your help on this matter.”
“I believe meeting with Khun Arthid and Khun Weerawong, and Khun Arthid mentioned that Khun Weerawong would satisfy his legal team. If SCB legal team okay then we can discuss further. That’s what I remember. And then the involvement on the legal side Khun Weerawong handled.”
“Please consider our revised legal opinion as advised recently. If you have any further comment, please feel free to contact us.”
“Thank you very much for your revised legal opinion krub. Please kindly see the attached file for our initial comments in marked-up for your consideration. Please however, do not yet issue the execution version of the opinion based on such revised draft since it may subject to any further comments from our senior management. We will confirm later whether additional comments would be added.”
“[M]y advice has always been that my clients need to comply with my advice, meaning that it has to be a payment made based on fair value. But I did not object the share transfer to family members, and that’s what we have discussed …”
“Khun Pratumporn, I expect on the instructions of Khun Nop or Khun Thun, prepared the necessary notice and minutes of the REC board meetings that took place to replace the existing directors of the company and to transfer the shares in WEH to the new investor. I do not recall performing a detailed review of the documentation that was required to effect the change of directors but I am reminded by the documents shown to me (privilege in which is not waived) that I provided some input.”
“When you have conflict of interest or potential conflict of interest, you should not participate in the decision. In this case, I advise it because I am concerned with the fact that Khun Nop also – I don’t recall who were the directors at that point in time, but it seems that all of them have some kind of conflict…”
“I think I had been superfluous for a long time. I joined REC to make it an investment company and it was just an empty shell at this point that didn’t do anything”
“In my experience, it is not uncommon in Thailand for supporting documentation such as board minutes to be prepared after the meeting has taken place and I did not think it was unusual for board minutes to be finalised several months after the meeting had taken place. The lack of a formal board minute completed at the time does not negate the fact that the directors met on a particular day and voted on the matters in question.”
“58. Shortly before the sale of the WEH shares took place, Khun Nop told me that Khunying Boonyachinda was to be the purchaser. He said that she did not want to be named and asked if Dr Kasem could act as her nominee. From a legal perspective this was possible. Given that Khunying Boonyachinda wanted to ensure that the arrangement was kept confidential, Khun Nop asked and I agreed to draft the Kasem Agency Agreement informally myself as a personal favour to him. I did not charge for the work and did not consider it appropriate to do so in the circumstances and where WCP was not taking Khunying Boonyachinda on as a client at this time. 59. To minimise the risk of the undisclosed principal relationship being discovered, to the best of my recollection, I drafted the agency agreement by hand and then asked my secretary, Ms Sukanya Khongkerdlap, to type it up at home. Given that the arrangement was to be confidential, I did not want anyone else at WCP to find the agreement on the firm’s filing system. 60. Once the agreement was typed up by my secretary, a physical copy of the document was handed to Khun Nop by me. I have since checked with my secretary, who confirmed that the laptop on which the agreement was typed up which belonged to her sister has been replaced and the original file is therefore no longer available. 61. I was not involved in the execution of the Kasem Agency Agreement (or indeed the other documents recording the sale).”
“I didn’t keep it myself, but I have people who keep documentations for me. Because I’m old and my brains are not working well, people work for me would keep a copy for me.”
“(a) I shall maintain and preserve my present majority shareholding… (b) I have not authorized, approved or entered into any arrangement transferring any of my present majority shareholding in the Company to any other person or party. If the Company should receive any information or documentation that purports to effect a transfer of any part of my shareholding in the Company, the Company shall disregard and treat these as unlawful and contact me directly and immediately for clarification and confirmation.”
“Based on our review of the Agency Appointment Agreement, we hereby confirm that, in accordance with the relevant laws of Thailand, Khun Ying Kokeow Boonyachinda, the undisclosed principal, is the ultimate beneficiary owner of the 459,109,350 shares of the Golden Music Limited currently registered under the name of Mr Kasem Narongdej, the agent.”
“I, as beneficiary owner and legitimate shareholder in the Company, hereby notify you as a sole director nominated by me as follows: I hereby notify you that 459,109,350 shares…now registered under the name of Mr Kasem Narongdej in the books of the Company do not belong to him but to me and that he holds the Shares as my nominee according to the Agency Appointment Agreement I hereby notify you that the Agency Appointment Agreement was terminated and I would like to disclose myself as the legitimate owner of the Shares. I hereby request you to issue the director resolution approving the transfer of Shares from Mr Kasem Narongdej to me according to the Instrument of Transfer…”
“(a) Dr Narongdej shall maintain and preserve his majority shareholding… (b) Dr Narongdej has not and will not authorise, approve or enter into any arrangement transferring any of his present majority shareholding in the Company to any other person or party. If the Company should receive any information or documentation that purports to effect a transfer of any part of my [sic] shareholding in the Company, the Company shall disregard and treat these as unlawful and contact our Firm directly and immediately for clarification and confirmation…”
“We reiterate that our client takes issue with the authenticity and validity of the documents relied upon to effect the transfer of shares in his name to Ms Khunying Kokeow Boonyachinda. It is imperative that our client is given immediate access to the documents relied upon to effect the transfer.”
“With respect to the signing of the Kasem SPA and the Agency Agreement, I remember these events clearly because my father’s birthday is 24 April and I asked him to sign the documents the day after his birthday, on25 April 2016 . …. Ms Wongnan took the Kasem SPA to the house. The Kasem SPA was signed in the same area [as the Agency Agreement] after that was explained to Kasem. When both documents had been signed, I took the Agency Agreement to KKB to sign on the same day. I do not know what happened to the Kasem SPA. … Once the Kassem SPA was signed, I am not sure where it was taken, however, to the best of my recollection Khun Supaporn took that away. I did not take it with me”
“Q. Can you explain why there is no copy of the transfer to your father, which bears a date which is earlier than May 2016? A. Which document are you referring to, please? Q. The transfer to your father … Q. … if we look at {G4/379.15}, that is a signed version and that has a created date of 13 May. I suggest to you that these documents were all created after Mr Suppipat had made his application for a prohibition on sale of the WEH shares? A. I disagree with that. Q. Let's have a look at {G4/379.30}. This is the SPA said to have been entered into on25 April 2016 between KPN Energy and your father to purchase the shares. Now, this document has a created date of29 October 2016 , and we have not been able to find any version of it, signed or unsigned, before October. Can you explain that? A. For this SPA, my Lord, I witness my father sign when Ms Supaporn brought the document to the house, and I learn about this at a later stage, that we need to -- not to, I would say, rather amending the contract on the interests, but I think the lawyer just decide to keep the signing page, and redo the front part on the interest only, which I did explain to my father, that is what I remember on this. Q. When do you say that you witnessed your father sign? A. On 25 April. Q. Then you say the lawyer decided to keep the signing page and redo the front part? A. Yes. Q. What do you mean by that? A. There is an interest clause in this, that is what I explained, and I did explain to my father about that. But I don't know the details. This is what I got from the lawyer, the WCP lawyer, on the interest clause. … Q. Let's have a look at {G4/379.41}, which is the agency appointment agreement, and that is one which, if we look at page 6 {G4/379.41/6}, that's on the left-hand side, that is a signature of Madam Boonyachinda, your signature as witness, and the signature is said to be that of Khun Kasem? A. Yes. Q. And again, the metadata of this is, and the earliest one we have been able to find, is14 May 2018 ? A. That is impossible, because Mr Weerawong hand this document to me myself, and then I took the document for my father to sign. Q. So you stand by your evidence, do you, that none of these documents were backdated; it was a genuine transfer of directors in April of 2016, yes? A. Yes, on the 25th, because this is the document that I took for my father to sign. Q. You know that your father denies signing, don't you? A. Yes, and there is a court ruling in Thailand about this already, that we didn't force his signature. Q. There is a court ruling that your father did not turn up to give evidence that his signature was forged, and therefore despite the expert evidence suggesting that it was not a genuine signature, the application was dismissed; that is correct? A. Not only that, they also look into the intention of forgery, his signature, and they also look into the -- who really the investor for the company, and the conclusion is that it is not the family, it's me. …”
“Nuttawut tells me everything will be approved tonight, signed tomorrow by Dr Kasem…”
“As discussed just now, please print out 5 copies of the blank share transfer documents as attached, and arrange for K Tassapon to execute all copies”
“I don’t know, to tell you the truth. I don’t know why he sign. And I am not the one who took the document for him to sign.”
“I do not recall – I do not remember why there is a document regarding Tassapon. I do not – I cannot explain. There might be a preparation of something, a discussion about.”
“I do not involve in this. I only heard Tassapon is one of the person that Khun Nop would like to discuss with…. There is a conversation, if I am not wrong, during which the ring-fence, that either Khun Nop would like to have his father or have Tassapon as the buyer.”
“I do not remember I see this one back then, even though I have cc in there, there is several document my Lord, that I don’t pay attention to, especially the one which is not addressed to me.”
“Based on the foregoing, if you were to complete the Transaction: Having been duly informed of the above dispute, the Purchaser would not be deemed a good faith Purchaser.”
“Any sale of WEH shares by [ REC] will frustrate NGI’s, DLV’s and Symphony’s rights under the Share Purchase Agreements. We therefore respectfully request that you immediately take any appropriate actions to ensure that KPN ET, Mr Tassapon Bijleveld, and/or any of his companies which may be involved in the Transaction, cease and desist from selling/purchasing any Shares, pursuant to your undertakings under the Advisory Services Agreement.”
“wrongly assumes that if REC sells its shares in WEH, that in itself “would have an economic effect similar to the disposal and/or transfer of the REC Shares by Fullerton.”
“I don’t have the number. But I know the basis that it’s going to be fair value. That’s what I learned”
“I gave them information of Wind Energy of the two projects. And it was not a difficult thing to do, the valuation, from the two project, financial projection and discount –and cash flow projection. So that’s why it was done long time ago, just waiting for another 75% to make it more beautiful, take it this way, to worth the – to cover the expensive price that we pay for Ploenchit.”
“I don’t know he is getting from someone. I don’t know who. But I see that for sure.”
“this full report I agree yes is prepared in June, … my understanding was that the price that the board of KPNET considered was based on certain preliminary range that they, that there was some preliminary work done before.”
“I cannot comment on that”
“please find attached a financial model together with a valuation model for WEH. Please also find attached a valuation presentation which includes a summary of scope, WEH overview, financial statements, valuation and a list of documents reviewed.”
“Thank you for your files. I understand that Ploenchit Capital (PC) will verify your model and valuation presentation. After we agree, the company will use it with other parties. [Ploenchit] will study the model and the presentation within this week and discuss with you next week. Do you have free time on either Tue 14 or Wed 15?” c. On9 June 2016 there was an exchange between Ploenchit and Mr Lakhaney and Mr Lakhaney and Khun Thun demonstrating Ploenchit’s discomfort with what they were being asked to do; and that Mr Lakhaney expected those involved at Ploenchit to do nothing more than what they were told: “Ploenchit is not sure on the purpose of this valuation” – and Mr Lakhaney to Khun Thun “Hey – can you speak to these guys, not sure what’s going on. Cash flows are hardcoded because they came from the individual models, but I had a different understanding on what they would be doing from Nuttawut.” d. On10 June 2016 Ploenchit emailed Mr Lakhaney, copying Khun Thun and Khun Nuttawut with further questions, to which Khun Thun responded: “Instead of going back and forth on this. Can we sit down next Monday and talk through some of the ending points? So we can conclude this exercise please?”
“The Ploenchit report was done after the transaction. At the time I believed it was purely for tax purposes which made sense to me and later, especially around Orix, I understood it had other purposes”
“I don’t know what Thun said, but during around that time in April we have a meeting of REC directors, so he might want to have it to be consistent or around that time.”
“Slide 3: Show WEH valuation at US$ 2bn / THB 70 bn and the majority of it coming from the 5 projects.”
“I can’t remember. Because of an IPO, and we would be issuing new shares”
“I was not aware of the renumbering until after the board meeting … At previous board meetings it was agreed they were going to renumber for the IPO. At the board meeting that I wasn’t at, it was approved to renumber and I was not aware of that.”
“I do not recall the draft First WCP Opinion being discussed at this meeting.”
“I recall attending this meeting, but nothing further about it beyond what I read in the resolution.”
“As discussed last night, please consider the revised draft as per attached, also the clean version as well.”
“We are fine with your further comment. Please arrange for the issuance of the opinion, and send us a scanned copy krub. Thank you.”
“Please consider our opinion as per the attached. The original one will send to you soon.”
“The disposal, transfer or sale of assets will create no impact on the issue of the payment of the shares purchase price under the Share Purchase Agreement between Fullerton and Symphony, in which Fullerton retains the ability to make payment for Symphony in accordance with the agreement”
“Risks that the Bank requested to be analysed”
“I was not consulted about the share transfer before it occurred and certainly did not make any suggestions to Khun Nop… about who the shares should be transferred to” and “I became aware of the shares being transferred to Khun Kasem after it happened”
“The fact that the new investors have acknowledged the dispute in the arbitration between Symphony and Fullerton does not cause the sale and purchase of shares in WEH to be the abuse of their rights.”
“Therefore, the dispute between Fullerton and Symphony which is under the arbitration proceedings and/or the case where Symphony may claim against REC and the new investors before Thai courts in the future to revoke the transfer of shares in WEH shall not affect the legality of the transfer of all assets and debts of REC (including shares in WEH) to the new investors and the initial public offering of WEH shares. There is no other legal actions which shall cause the group of former shareholders to become the shareholders in WEH.”
“I remember that I was called to confirm my legal position. And I did confirm it.”
“I want to make sure that if the structure of the share that sell to Khun Kasem, according to the logic that WEH is the one that owned the asset, so we want to make sure that by both spirit and by structure, by legal enforcement that the bank has, we should try to impose something to control and make sure that it will happen and address our concern”
“Drawdown could not be made because ECA has [not] yet been signed / targeted SCOD on1 MAY 2016 ; Targeted COD:31 October 2016 ”. b. The second page contains what appears to be a summary of the Credit Committee meeting of17 May 2016 which sets out the waivers being requested by Watabak, the concerns expressed by the Credit Committee at that meeting and the resolution it passed approving those waivers subject to confirmation from the Lender’s Technical Adviser (“LTA (Technical)”) that the project could still achieve COD by31 October 2016 . c. On the same (second) page, there is also a summary of three further points of discussion and concerns raised in response to them. The first appears to record the news that the WEH shares had already been transferred to Dr Kasem and the recipient(s) expressing surprise and concern that SCB had not been informed in advance of this transfer, along with a question as to whether the transfer could have been made in good faith if Dr Kasem had been aware that Khun Nop was in dispute with Mr Suppipat: “1. REC (Khun Nop) sold 61% of the shares held in WEH to Khun Nop’s father (in order to not impact the Project). The Legal Advisor said that it was in Good Faith. (The son did not have money; the father stepped in to help.) Concern : 1. The father did not know that the son was being sued? Is that Good Faith? 2. Why did the Bank not know of the change in shareholders? Does approval not need to be requested?”
“2. Take money from late payment (84 MUSD) + penalties/ interest to be deposited at the arbitrator. Legal Advisor promised to allow late payment, but there are penalties/ interest (15% annually). Concern : 1. How to control Khun Nop from taking the money to deposit? + not take it out later + SCB not Finance? 2. Will it be set as a condition in the loan contract or precondition for withdrawal?” (Emphasis added).
“REC (Khun Nop) sold WEH shares to REC totally to Khun Nop’s faither so that Khun Nop would not be involved with WEH any further Legal advisor said that this is done with good faith since the son does not have the money and the father offers to help There are some concerns about the change of WEH shareholders that the bank is not aware of. Would not this require approval from the bank? Legal department [REDACTED]” b. Notwithstanding the proposed sale, SCB had serious concerns about Khun Nop’s ability to pay the outstanding sums under the REC SPAs: “Legal advisor says that according to the purchase contract, late payment is allowed but with interest. … 3. Even with the payment by Khun Nop (84 MUSD + default fee), there is still another payment of 500M USD to be gradually paid for WEH projects’ COD (6 projects) / WEH IPO. Concern: How do we know Khun Nop has the money to pay. The next payment would be during COD of Watabak Project (loan withdrawal from the bank has been performed for the total amount of 4,765M THB), if Khun Nop cannot make payment same problem will return. This issue has not been reported to the president officially that if Watabak applied for COD, Khun Nop would have to pay again. Khun Wallaya confirmed that the reference to “legal adviser” in that document was not a reference to her. Day 29/42:24-43:15 c. The matter was sufficiently serious so as to require an explanation to the Board (the reference to “Dr” in this extract being a reference to Dr Vichit and this extract demonstrates that he had been involved in discussions about the proposed strategy before it was escalated to ExCom): “Remark *Dr. Said we need to explain this to BOD. *Best Way of this instalment payment is that Khun Nopporn takes 84 MUSD + default fee, withdraw the lawsuit and sign a paper affirming not be involved. This choice is not preferred because it is possible the Khun Nopporn will be pressuring again.”
“…the reason it is put 26 April because we were trying to be – sort of conform with the loan agreement. You need to, it is information covenants, my Lord, that you need to inform the bank immediately if there is any changes.”
“This one – this one is not good”
“Please find the change of WEH shareholder letter which we have to include it in Excom, Presentation tomorrow”
“It is usual for us to update ExCom when major shareholders in our clients have been changed. I infer from this email that I had become aware, shortly before this email, that the shareholders in WEH had been changed and that I (or someone else) had asked Khun Kanyarat to send confirmation so that we would have the details available for the ExCom meeting on the following day.”
“It is common for letters from clients making formal notifications to be addressed to me as the head of the bank. In practice I do not read them. Correspondence addressed to me at the Bank is assigned to the appropriate team at the Bank and dealt with accordingly.”
“we don't know if it is Khun Kasem who is the investor. But early sequence -- I mean, before this, we have been informed by the WEH legal counsel that they informed the bank that one alternative is to find a new investor to buy the shares.”
“So your belief at all times in 2016 and 2017 was that although the shares had been transferred to Khun Kasem, Khun Nop would have available to him the value of those shares in order to pay Khun Nopporn if he was required to do so, is that right? Yes, I think so.”
“I got the feedback from Khun Nop that he will keep honour and will pay according to the milestone payment”
“It had been identified that New Shareholder is Khun Nop Narongdej’s father.”
“To mitigate risk of Former Shareholder’s return as indirect shareholder in WEH, it is suggested that: • REC transfers WEH Shares (59%) in good faith/ at fair price to New Investor (SCB not to involve in funding). • Fullerton’s (Buyer) placement of apprx. USD 85 Million + 15% interest to ICC Arbitration. • Fullerton’s default in future milestone payments under SPA will trigger cross default at Project Company’s level.”
“Failure by Fullerton and/or KPN Energy Holding to make any payment of the Remaining Amount due under the respective REC Share Purchase Agreements shall constitute an EOD under CFA of Watabak (and CFA of other project companies to whom SCB will provide financing).”
“… to make the customer to go with the idea we need to put that into the condition of the loan. And to make – and to make that condition in the loan there is a process to negotiate, to propose to the client, make the client accept”
“Again, I explained that it took some time to execute it, and from the bank point of view we believe that the interests of the seller will be protected by the interest that when there’s been delay or whether the time go by when there’s a verdict from the arbitration, it will be included in the interest that the seller need to have or to receive from the buyer. / So that’s what we are focusing on – we may not focusing on make it happening right away, but our principle has been executed accordingly and go by the step of the bank”
“Q. If you wanted to ensure that the money was paid, why did you not ensure or require the$85 million to be paid into escrow or a Thai bank immediately, or was it because you knew there was no money? A. I think not so sure that there is no money. Of course we know all along that Khun Nop trying to mobilise, trying to do the fundraising, but what I explained to my Lord is that there are a period of the negotiation when we launch, when we request for this condition, the customer did not accept it right away, but we want -- we put it in condition to make sure that if they cannot accept, then we will not go on with them.”
“The bank had no power to force the parties of contract to act….It was the bank’s decision how they fix the timing. I wasn’t aware of that. I wasn’t involved.”
“Q. So did you tell the bank how much Dr Kasem or Madam Boonyachinda had agreed to pay? A. No, I believe not. Q. But you told Khun Arthid, didn't you? A. I believe not. Q. And he never asked you? A. No.”
“Latest BOJ5 of WEH house registration and ID card of all directors and/or work permit and passport of foreign director house registration and ID card of K Kasem” house registration and ID card of K Kasem”
“there’s different ways of inspection, and for share transfer in the Kasem… we asked for documents from the government… we did not need to go for the – physically to go for the inspection.”
“The articles of association of [KPNET] KPNET’s certificate as of10 May 2016 Minutes of KPNET Board Meeting No.4/2559, held on25th April 2016 The opinion of [Ploenchit], dated21st April 2016 , regarding the appropriate price of WEH shares Share transfer document between KPNET and [Dr Kasem], dated25th April 2016 ”
“they are well aware that I am the true owner of the shares, and they are aware that I am going through the court proceeding[s]”
“There is agreement that Khun Nop come to me, asking about his father’s transaction with Thongtang family because his father is away. So he asked whether I can sign a document to acknowledge on his father, yes. But it don’t know the details then, how – what is the agree term between them….I believe it is a genuine sale. With Dr Kasem.”
“Just got a very excited call from Nuttawut: Meeting with the CEO of our favourite bank went very well They want KPN to just sell US$ 200 – 250 mn of shares straight If that happens, SCB will give us whatever equity bridging we need at WEH to go to financial close, etc. …”
“Dr. Kasem Narongdej and / or an special purpose vehicle set-up for the purposes of this transaction, holding valid title to 61,118,885 of WEH Shares”
“No, I couldn’t – as I put that in my witness statement, I couldn’t recall. I recall that there was a report about, but it could not be the formal report because it’s a kind of discussion going on, but I couldn’t recall the details and what exactly happening. But the name of Orix did happen during the time that the buyer trying to mobilise the fundings.”
“As this whole arbitration, sale of shares from Seller to Buyer and on to Dr. K and the Seller’s background is such a large issue for us and any firm attempting the transaction, we would appreciate very much if you could provide documents, expedite the analysis and get thru an initial draft of a report as quickly as possible … as you can imagine its not about arguments on winning or losing the arbitration itself, its more about maintenance of the shares in ORIX and KPN’s hands.”
“…If you run across some correspondence that it was in the contemplation of Nick and Nop that REC was going to sell shares (maybe not via IPO), that would be helpful. Chris, our GC, is going to ask you guys and WCP to patch up holes in the legal opinions, just FYI, and I think that should not be a problem.”
“…let me chase everyone on the below, will come back shortly. I think there is a more updated version of the presentation from Ploenchit Capital which talks about fairness of a valuation range which I will get and also send across.”
“we got request from WCP and Khun Weerawong who said: we need to have a cover letter to make, to formalise the opinion of the –of Ploenchit, right. Then so okay, with certain wording, and then I pass it on to Ploenchit. And I asked Khun Weerawong: why do we need a cover letter? He said: this is to formalise the documentation for Orix.”
“For this one I admitted that I didn’t tell Ploenchit that it was for Orix. So I sort of used another reason to explain to them why I need that, because I couldn’t tell them that it was the Orix transaction going on….I didn’t tell Ploenchit the truth that it was required in October, because of KPNET board; it was required there because there was a due diligence from Orix going on, my Lord. But I couldn’t tell Ploenchit because of confidentiality. So I tried to find other explanations for them.”
“We have issue with wording due to timing of report krub. 1. The Board of KPNET didn’t approved / hasn’t approved the transaction on or before April 21st 2016 [the date of the Ploenchit Cover Letter]. So, we cannot say it is approved in both your letter and presentation.”
“Okay, I think this email is based on my conversation with Khun Weerawong, he commented that he need to, sort of, I can’t remember the exact words, but sort of tidy up the wording in the report, so it is completed.”
“I don’t recall, but it it’s so, I don’t see any ill intention in doing that.”
“Just spoke to Nop / Nuttawut / WCP on urgency – this all seems to be bureaucracy (which I don’t get) – Weerawong has been out of town and they haven’t been sending things out until he comes back – he is back tonight and everything will be sent out tomorrow.”
“I was talking to Khun Nuttawut”
“hadn’t realized Kasem payment was structured and not fully paid till Thursday evening after last batch from WCP with SPA. … Freaked out legal and Inoue-san, one more indicia for a fraudulent conveyance claim, which is really the only way Nop loses his shares (and us!). … Takahashi-san and I will come across mid-week after we assess internal debris and figure out what we can do.”
“I was more worried that they would respond and reveal that there were discussions with Dr Kasem that have been terminated but they are going to stay silent.”
“I know that they were not wanting to leak information….”
“We agreed to these terms with SCB with no Watabak board approval or WEH board approval…We as managers honestly cannot afford to get caught up lawsuits related to our fiduciary duties to WEH and Watabak…Civil / criminal lawsuits related to being on these boards would come up in every background check and make us unemployable – we literally cannot afford for that to happen”
“K. Nop is speaking to the senior level of SCB to seek their help. If my understanding is right, they will meet next Wednesday.”
“I have a lot of meeting with Khun Arthid.”
“… I want to remind you that in our process the business team always work with the clients, and many times the business team will bring legal team who will bring business team to work to meet with the customer. But it’s just a conversation of how we think about the problem. But at the end, the body who approved whatever condition it has to go to the credit committee and then go to the ExCom. None of the management or the person has the authority to help or to approve this type of condition by themselves.”
“The waiver has been approved at the SCB Credit Committee to remove default and extend the due date for the WEH shareholder obligations around the US$87.5m until 28 February, 2018. The SCB ExCom is on7 June 2017 following which the waiver letter will be issued. The shareholders are entering into a separate commitment regarding the escrow of their shares. The future obligations have not been removed. The discussion on ‘cleaning’ documentation is ongoing and SCB will try and help. …”
“[Golden Music] hereby agrees that upon Mr Pradej depositing the Payment sum to the account referred to above [Khun Nop’s SCB account], the payment obligation of Mr Pradej with regard to the second payment under Clause 2.3 of the Share Purchase Agreement would be fully and finally discharged and settled.”
“Q. Well, the SPA I’ve shown you requires a condition precedent that SCB enters into the five project facility agreements... …I suggest that you were closely involved in that arrangement and in organizing the share sale as the only way in which Khun Nop could provide the money to go into escrow long after it was required. A. First of all, the bank got involved and the bank go after that money because, as I said, there was a process that the bank work with the client to make sure that the money that came from the sale of the share will need to be in the escrow account. I think I can confirm that, that’s the spirit of the bank. But the process of how to get it done by the bank working team and the customer, I think I could not recall of how it’s happening.”
“Oh what a tangled web we weave/When first we practice to deceive.”
“We – in September 2017…Mr Narongdej had placed the money in escrow for the arbitration. He had done that through the sale to Pradej. SCB had lent 100% for the pipeline projects, so over a billion of financing, 1.5 billion of financing for the pipeline projects, funding the equity portion of$250 million that was due to be repaid at IPO, and the plan now, after the failed Orix attempt at sale and the Gunkul sale had collapsed, the plan now was to IPO.”
“Grant Thornton realised that the incentive shares would potentially have to go through the balance sheet, which would create a negative balance sheet, and effectively halt [the] ambitions to do the IPO”
“Drafted in 2016 when we got shares so Noel will know when she looks at the meta data this isn’t something we came up with recently. Ideally 1 copy of each we keep ourselves but will need Dr Kasem to sign both.”
“Can we have someone as accountant (and not GT) look into this and structure this around?” b. Mr Lakhaney: “I don’t know anyone who would do and keep quiet unless anyone else does / Presumably if we purchased shares this should be straightforward with GT” c. Khun Thun: “A bit worried about the fair value thing” d. Mr Lakhaney (copying in Ms Collins): “We have the Ploenchit capital report which came out at the same time, should cover us?”
“As discussed – please find the final 3 SPAs and payment receipts to be signed by Dr. Kasem. I understand from Thun, K. Nop will arrange for this tomorrow.”
“For the purpose of evaluating the impact of any share based payment we have to determine the fair value. I have the Ploenchit report you provided me from April 2016, however from looking at the PPT you send to Ko yesterday and also the business plan provided to us yesterday by Emma it would seem that the price fair value is higher.”
“Given that transactions before and after the Ploenchit Valuation are at a higher value, it is difficult to justify that that the acquisition by Dr Kasem meets this definition [of fair value/orderly transaction]. This will be raised by the SEC.”
“…just talked to Emma…GT talked to SCB and the issue is the “orderly transaction” definition…SCB took our side so GT needed to back down and proposed to park this issue for now and conclude when they go for SEC consultation. We need to kill it (with SCB and WCP support) before then.”
“Talked to SCB again as informed Emma 1) GT want to qualify the account if they have to sign [2) Privileged] 3) Solution is we continue w Audit Comm / GT to present to Audit Comm BUT saying that all good except the pending issue of “share based compensation” which will need further study and consultation w SEC.”
“…it was a very challenging time, we needed to raise money, and, you know, we were under a lot of pressure to create a way of having these shares reclassified.”
“MR JUSTICE CALVER: I’m just asking – all I’m asking is that you said that that was a trail that was created, and I just wanted to understand who it was intended to mislead by that trail because what’s stated there is misleading, is it not? A. It is misleading, yes. MR JUSTICE CALVER: So I’m trying to understand who – A. Mazars would be able to write a report saying that it was share-based payment – that it was not share-based payments, that it was shareholders. MR JUSTICE CALVER: So it was intended to mislead Mazars, was it? A. It was intended to – I think – yes, it was intended to mislead Mazars.”
“So same issue – asking for evidence of fund transfer from us to Dr Kasem? How do you think we should handle – nothing or loan agreement?”
“Given the restructuring and our friend’s potential reaction I think we need to make sure that we have everything documented properly and the shares we have documented properly and funded properly through a loan. I’ve drafted a loan agreement and we can fill in the details at the appropriate time. …”
“So we reacted badly and just tried to put stuff in to create a paper trail”
“41. The WEH Shares were acquired by the Respondents as follows: 41.1 Dr Kasem approached myself, Ms Collins and Mr Aman Lakhaney (the Kasem Advisors) in April / May 2016 and proposed that we provide advisory services to him, which would be additional and separate to our management role in WEH. 41.2 In exchange for these advisory services, Dr Kasem afforded the Kasem Advisors the opportunity to acquire 1.25% shares in WEH in consideration for (i) the advisory services to be provided; and (ii) entry into Share Purchase Agreements providing for additional consideration (the “Kasem Advisory Proposal”) 41.3 It was determined that the Kasem Advisory proposal did not pose any conflict with their duties to act in WEH’s best interests. The Kasem Advisors accepted the terms. This was not documented in a formal agreement but the terms were agreed orally between the parties.… 42 This acquisition by the Respondents was an arm’s length transaction for fair value and therefore there can be no suggestion that the Substantive Defendants have any interest in these shares.”
“I knew later, not on the date.”
“in March 2018 no person in their right mind would sell shares in WEH at 10 baht per share to a third party”
“I never have the professional arrangement. I never talked and deal with him on this kind of thing”
“I did, I did. I think I call him and asked him what happened … I said you need to provide the information and explanation about this one, because I need to provide this information to my bank and to – I think that’s I’m not referring to my bank, but I’m referring to the bank regulator, because Wallaya also came to me with the request that the person, the person in charge of SCB account request for the explanation from the bank and from myself. So that’s what I did.”
“Since Khun Ying Kokeow Boonyachinda did not wish to disclose to others that she is the shares owner or the true beneficial owner of Cornwallis Limited, I, therefore, recommended Mr Arj Seriniyom who has good connection with me and is a person whom I trust to be the beneficial owner of Cornwallis Limited on behalf of Khun Ying Kokeow Boonyachinda. Mr Arj Seriniyom and Khun Ying Kokeow Boonyachinda entered into the agency agreement dated19 February 2018 , details as attached. Nevertheless, Mr Arj Seriniyom has no benefit and interest in Cornwallis Limited and Wind Energy Holding Limited in any way.”
“No, I refute. I never involved, I never aware of all this thing.”
“I think I get the advice from someone, from some lawyer, that don’t put all egg in one basket, and I suggest that to Madam Boonyachinda….I don’t remember exactly why. It’s in Belize. It is just a concept that –it is just suggest by lawyer.”
“it was recommended by lawyers that it should be the overseas company to avoid tax”
“I believe Khun Thun knows about that; Aman knows about that; Khun Supaporn knows about that; and Khun Nuttawut also knows about that.”
“(i) the circumstances surrounding the purchase of the WEH Shares and the persons or entities currently exercising control over the WEH shares; and (ii) any information relating to any dividends paid to the Defendant by WEH or any other person or entity or any proceeds of sale paid by the Defendant to any other person or entity in respect of the purchase of the WEH shares.”
“shares under k Junyaluck still safe so we should transfer out now … to May be few people … need the persons krub”
“Q. That was you telling Khun Nuttawut that the shares held by this nominee should be moved to a number of people in order to make sure they weren’t caught by the injunction. That is what you were doing, isn’t it? A. That was my thinking, but it’s not the nominee I focused at, because if you recall that email, I group Khun Janyaluck, which I learned from I think Khun Nop or someone, that I group them as sort of related parties, and when the injunctions came out, I said: okay, this one is not included, so just to be safe, maybe there is a risk to her shares. So I asked Khun Nuttawut to consider it, but I’m not sure what happened afterwards. Q. Why was it going to be transferred out “to May be few people” and “need the persons”
“I understand from Nop that Opus had contacted him directly expressing interest in buying the shares. Nop then asked me if I wanted to sell the shares and if I was happy with the proposed sale price. I confirmed that I was content for the shares to be sold. The sale price for the shares was subsequently loaned to Nop.”
“Q. ….What were you doing helping on24 June 2018 to amend an agreement which had allegedly been made on11 September 2017 ? A. If I recall correctly it is the same transaction. Q. I don’t understand. A. It is on sort of, it is amendment of this agreement. Q. So it is backdating an amendment? A. No, no, it’s not backdating. This loan, I can’t remember the date itself, but there was a borrowing from Khun Nop from Pitaksit family and then there was some sort of amendment afterwards. Q. Which you prepared? A. Not prepared, I facilitate . I am not the lawyer. Q. You sent it, so did you prepare it or did somebody else prepare it ? I don’t know what facilitated means. A. I didn’t like amend it myself, I couldn’t recall who did it , but because I dealt with Khun Sakoona, so I send, receive and send documents. Day 24/75-76 …. Q. …..What were you doing on 24 June sending a notice to be repaid dated26 February 2018 , Khun Thun? A. Sorry, I didn’t read it when I sent. Q. I beg your pardon? A. I didn’t read, I didn’t see this when I sent. I didn’t go through all of the documents. Q. We don’t have the email where you are sent it? A. Did I send it? Q. Who drafted it? A. I have no idea.”
“Q. …These are the words that you had added in 2018, and they are being presented as if they were part of the original document dated 2017. You knew all of that, didn’t you? A. No, I thought it was an amendment. Q. What? A. My understanding, it was an amendment to the original agreement. Q. It doesn’t say ”amended” anywhere? A. I know. Q. It has just been re-signed as if it was made in 2017? A. Okay. Q. That is backdating in order to conceal the fact that it has been changed, isn’t it ? It is backdating the document to make it appear that it was signed in this form in 2017, when that was not true. Do you understand? A. I understand what you are saying, but ... Q. Do you agree? A. My understanding was this amendment occurred in 2018. I am sorry, I didn’t follow through in terms of what, sort of, whether it replaced which agreement and things like that. My understanding was it was some amendment of the original loan agreement. Q. I suggest this is another example of you being dishonestly involved in the fabrication of backdated documents? A. I co-ordinate sending back and forth the loan agreements and that’s what I did.”
“Contract Khun Nop and Khun Wisit and Khun Saran”
“Q. … the 200,000 shares which were transferred from Cornwallis to Opus Energy had nothing to do with this loan at all, did it? A. That I had no idea why it has got paid 200,000 share first, and that is the reason why I asked in that email that, you know, the Pitaksit brother ask for a million shares. Q. If this was genuine, they would only have got 800,000, wouldn’t they? A. That’s the reason that I asked. Q. Did you ever get an answer? A. I don’t think so. I can’t remember.”
“I’m not sure of the figures but I was aware that I would make some profit. That’s why I decided to sell 200,000 shares but not sure of the figures, but I thought to myself that if I was going to make profit, why not?”
“My dad would like to have Golden Music’s receipt for payment. He said that as we owe Golden Music, it would be better to have the receipt from it…”
“Oh. Okay. Straight-forward transaction could not be effectuated as there would be an issue in the English proceedings. Therefore, we should do as previously did. Loan Agreement. Then Khun Ying accepts the assignment of debt.”
“… the Remaining Amounts should have been paid by the Respondents [to the arbitration] several years ago, and that due to Respondents’ unwillingness to honour their side of the SPAs, Claimants have been forced to initiate, inter alia, the 2016 ICC Arbitrations and defend themselves from Respondents’ claims in the ALRO Arbitration. As concluded in paragraph 218 above, Respondents’ defences in this arbitration had already been decided in the ALRO Final Award, and thus there was no reason for Respondents to resist payment, particularly after that award was issued.”
“Although said in relation to commercial litigation, I consider that the observations of Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd[2013] EWHC 3560 (Comm) , paras 15-22 have much to commend them. In particular, his statement at para 22 appears to me to be especially apt: “… the best approach for a judge to adopt … is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.” “… the best approach for a judge to adopt … is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”
"The burden of proof lies on the [claimants] … Although the standard of proof is the same in every civil case, where fraud is alleged cogent evidence is needed to prove it, because the evidence must overcome the inherent improbability that people act dishonestly rather than carelessly. On the other hand inherent improbabilities must be assessed in the light of the actual circumstances of the case."
“The law applicable to non-contractual obligations under this Regulation shall govern in particular: … the manner in which an obligation may be extinguished and rules of prescription and limitation, including rules relating to the commencement, interruption and suspension of a period of prescription or limitation.”
“[2] However if the damages are claimed on account of an act punishable under the criminal law for which a longer prescription is provided such longer prescription shall apply.”
“The Claimants gained the requisite knowledge in respect of the claims and the fact that they were actionable as a matter of Thai law no earlier than one year before they were commenced. The Claimants gained the requisite knowledge in respect of the Conspiracy, of which all of the wrongdoing set out herein formed part, no earlier than7 May 2018 , when NS’s Companies first obtained the updated 2018 WEH Register. Alternatively, they gained the requisite knowledge of: 164B.1 the claims in respect of the Global Transaction Representations made by NN in respect of his intentions, upon NN’s testimony in the Arbitrations on9 February 2017 ; 164B.2 the claims in respect of the Global Transaction Representations made by Mr Phowborom, upon Mr Phowborom’s witness statement in the Arbitrations on25 November 2016 ; 164B.3 the claims in respect of the Watabak Representations, upon Mr Reansuwan’s witness statement in the Arbitrations on25 November 2016 ; alternatively in January 2016; … 164C. The claim form was issued on7 August 2018 . Any and all new claims added or substituted by way of amendment to these Particulars of Claim arise out of the same facts or substantially the same facts as a claim in respect of which the Claimants (or one or more of them) had already claimed a remedy in these proceedings, and are deemed (including for the purposes of any limitation defence) to have been commenced on7 August 2018 .”
“A person who, wilfully or negligently, unlawfully injures the life, body, health, liberty, property or any right of another person, is said to commit a wrongful act and is bound to make compensation therefor.”
“Whoever, dishonestly deceives a person with the assertion of a falsehood or the concealment of the facts which should be revealed, and, by such deception, obtains a property from the person so deceived or a third person, or causes the person so deceived or a third person to execute, revoke or destroy a document of right, is said to commit the offence of cheating and fraud, and shall be punished with imprisonment not exceeding three years or fined not exceeding six thousand Baht, or both.”
“Whoever, assists in concealing, disposing of, making away with, purchases, receives in pledge or otherwise any property obtained through the commission of an offence, and such offence being theft, snatching, extortion, blackmail, robbery, gang-robbery, cheating and fraud, misappropriation or misappropriation by an official, is said to receive stolen property, and shall be punished with imprisonment not exceeding five years or fined not exceeding ten thousand Baht, or both. If the offence of receiving stolen property be committed for profit or against the property obtained by theft under Section 335 (10), robbery or gang-robbery, the offender shall be punished with imprisonment of six months to ten years and a fine of one thousand to twenty thousand Baht. If such offence of receiving stolen property is committed against the property obtained by theft according to Section 335 bis, by the robbery according to Section 339 bis, or by the gang-robbery according to Section 340 bis, the offender shall be punished with imprisonment of five to fifteen years and fined of ten thousand to thirty thousand Baht.”
“The claim for damages arising from [a] wrongful act is barred by prescription after one year from the day when the wrongful act and the person bound to make compensation became known to the injured person, or ten years from the day when the wrongful act was committed.”
“However if the damages are claimed on account of an act punishable under the criminal law for which a longer prescription is provided such longer prescription shall apply.”
“In a criminal case, if the offender is not prosecuted and brought to the Court within the following specified period of time as from the date of the commission of the offence, the prosecution shall [b]e precluded by prescription …. (3) Ten years in cases of offences punishable with imprisonment of over one year up to seven years”
“Subject to Section 95, in case of [a] compoundable offence, if the injured person does not lodge a complaint within three months as from the date of the offence and offender to be known by the injured person, the criminal prosecution is precluded by prescription.”
“Where no prosecution has been brought against any offence, the victim’s right to enter a civil action on the basis of such offence shall be extinguished when the period of prescription fixed by the [Penal Code] for such prosecution does lapse.”
“The Plaintiff, as the injured party in a compoundable criminal offense, failed to file a complaint within 3-month statutory period, rendering the criminal case time-barred as per Section 96 of the Criminal Code. However, this does not render the civil case in relation to the criminal case to become time-barred as per the First Paragraph of Section 51 of the Criminal Procedure Code, as the filing of complaint is a step to be made upon filing criminal case, and is not related to the filing of civil case in relation to the criminal case.”
“where no prosecution has been brought against any offence, the victim’s right to enter a civil action on the basis of such offence shall be extinguished when the period of prescription fixed by the [Penal Code] for such prosecution does lapse”
“must assert a falsehood of the facts”
‘to acquire any advantages for himself or for other persons, to which he is not entitled by law.’
“there must be an intention”
“Commentaries generally agree that the obtaining of property for the purposes of s.341 means transfer of ownership or title of the property from the victim to the doer”
“36… NS [Mr Suppipat] and the WEH Managers therefore commenced negotiations with NN [Khun Nop] and Mr Phowborom [Khun Nuttawut] for an arrangement under which: 36.1 NN (together with Mr Phowborom) would acquire indirect legal and beneficial ownership of 100% of REC from NS and the WEH Managers (“Part A”); 36.2 following successful completion of the IPO (by which further WEH shares would be issued, but without diluting REC’s stake in WEH below a majority), NN (together with Ms Collins and Mr Reansuwan) would cause 100% of the legal and beneficial ownership in REC to be sold back to entities owned by NS (“Part B”). 37. Part A and Part B were inseparable elements which together constituted the “Global Transaction”
“A person who, wilfully or negligently, unlawfully injures the life, body, health, liberty, property or any right of another person, is said to commit a wrongful act and is bound to make compensation therefore [sic].”
“the object of crime is property acquired through crime. The term ‘property’ must be understood in accordance with each related offence referred to by section 357. For example, it could mean electricity for theft and incorporeal property for criminal fraud …”
“The exercise of a right which can only have the purpose of causing injury to another person is unlawful.”
“I believed Emma as she had worked for me and we had a relationship of trust, and she was the CEO of WEH and Emma said that they (her and Thun) would protect Symphony’s interests. and Mr Suppipat confirmed in his oral evidence that Ms Collins was not working for Khun Nop. Day 12/46:9–11: “Q: And she was not working for Nop either, was she? A: No, no, she was not … .”
“Once Emma talks to [Mr Suppipat] this afternoon, who will give me a greenlight to expedite the Share Transfer Document. I have coordinated with Link[later]s on the paper, heads up to Symphony and Fullerton already I am going to advise K. Lakkanasiri to provide Nune REC Shareholders book So as to show Khun Nop’s company, Fullerton, as the new REC shareholder which could then be presented to SCB to secure the Wattabak funding. and this will be updated right after the signing”
“shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.”
“Choses in action generally are situate in the country where they are properly recoverable or can be enforced” and at §23-044: “A right of action in contract or tort is situate in the country where the action may be brought”
“Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.”
“The parties should have raised the possible difficulties of a further set of proceedings with the court at a stage when the matter could have been sorted out in a proper way at a Case Management Conference and not left it to fester in a way that has now made the difficulties problematic, time-wasting and expensive at a later stage.”
“This makes it unnecessary to deal with Mr. Johnson's submission that it is too late for the firm to raise the issue. If necessary, however, I should have regarded the delay as fatal. Indeed, I should have regarded it as more than delay; I think it amounted to acquiescence. There is no proper analogy with the case which discloses no cause of action. Although it is obviously desirable to apply to strike out a claim which is doomed to fail at the earliest opportunity, there is no point in proceeding with a trial which serves no useful purpose. Even if the point is taken at the trial itself, it is a matter for the trial judge to decide whether to hear the evidence and adjudicate on the facts before deciding whether they give rise to liability, or to assume that the plaintiff will establish his allegations and decide whether, as a matter of law, they give rise to liability. But the premise in the present case is that Mr. Johnson has a good cause of action which he should have brought earlier if at all. I do not consider that a defendant should be permitted to raise such an objection as late as this. A defendant ought to know whether the proceedings against him are oppressive. It is not a question which calls for nice judgment. If he defends on the merits, this should be taken as acquiescence. It might well be otherwise if the ground on which the proceedings are alleged to be an abuse of process were different. But in a case of the present kind the Court is not so much protecting its own process as the interests of the defendant.”
“In the summer of 2015, Respondents wilfully misled Claimants as to their intentions with respect to Part B of the Global Transaction and fraudulently induced the Claimants into entering and closing the SPAs…” b. The claimants then stated (at paragraph 10, p.8) that the “above egregious conduct calls for severe consequences in Phase II of these arbitration proceedings”, and (at paragraph 10.1) they maintained that they were fraudulently induced into entering the SPAs without Part B and then abstained from seeking rescission. They claimed relief in damages under s.161 TCCC. c. The claimants’ claims for damages for fraudulent misrepresentation were then articulated in Section IV of this document, which is headed “Claimants are entitled to Damages for Respondents’ Incidental Fraud in Causing Claimants to Enter into the SPAs”
“First Fact Pattern (mid-May 2015 - September 26, 2015) 183. In essence the first fact pattern covers the period between the initiation of negotiations between Mr Suppipat and Mr Narongdej (as well as his partners) in mid-May 2015 and the September 26, 2015 meeting in Paris which essentially transformed the Global Transaction into a straight sale arrangement limited to the SPAs. The key elements of the First Fact Pattern are : set out below and substantiated with contemporaneous evidence and witness evidence, including testimonies of Srisant Chitvaranund and Stephane … 183.1 Starting from the outset of the negotiations between Mr. Suppipat and Mr. Narongdej (and his partners), the latter understood that Mr. Suppipat was interested in a custodial / buy back arrangement over the WEH Shares. 183.2. This arrangement thereafter crystallised in what the parties dubbed “Part A'' and “Part B'' of the “Global Transaction.'' 183.3. “Part B'' was an essential element and condition for Mr. Suppipat agreeing to the terms of “Part A'', which Mr. Narongdej fully understood. 183.4. Likewise, from the outset of the negotiations, Mr. Narongdej confirmed his interest in such an arrangement and maintained such interest throughout the negotiations. 183.5. However, in reality Mr. Narongdej (and his partners) never intended to enter into “Part B'' of the Global Transation. Rather, they intended to limit it to “Part A,'' yet with all the terms that were discussed on the apparent understanding that “Part B'' would be implemented… 191. … in view of: (i) Mr. Narongdej representing that he is interested in both “Part A'' and “Part B'' of the Global Transaction, whereas he internally intended to only benefit from “Part A''; (ii) Mr. Suppipat believing this representation, not knowing Mr. Narongdej's true intentions; and (iii) Mr. Suppipat (through Symphony, NGI and DLV) entering into the SPAs based on this representation, this First Fact Pattern amounts on its face to fraud, as understood in Thai law. 192. Second, Mr. Suppipat appears to have discovered Mr. Narongdej's fraud (e.g. misrepresentation of his intention to enter into “Part B'' of the Global Transaction during the September 26, 2015 meeting in Paris (on which date the First Instalment under the KPN EH SPA was already overdue).”
“Claimants are entitled to damages for Respondents’ incidental fraud”
“…in Section XI of Claimant’s Phase II Reply submitted on15 July 2016 , Claimant requests the following relief from the Tribunal: With respect to Claimants’ claim for fraudulent inducement: Hold that Respondents (i) in a first step, fraudulently induced Claimants into signing and closing the SPAs without Part B (First Fact Pattern).”
“As highlighted at [47]-[52] of Respondents' Phase II D&CC; [70]-[73] of Respondents' Phase II Reply, the factual premises of this Claim (vi), the two alleged "deceptions" practised by Respondents / Mr Narongdej on Claimants / Mr Suppipat, concerning (i) "Part B" and (ii) Respondents' / Mr Narongdej 's creditworthiness) have already been shown / conceded as false and/or spent in Phase I. 42. First, the Tribunal would recall that the factual substratum of the 'first deception" (that Respondents had ‘pretend[ed] to consent to" "Part B" before "fraudulently reneging" on it) was already conceded as a falsehood at the Phase I Hearing, where Mr Suppipat admitted during cross-examination that parties did not in fact "consent to" / agree to any "Part B" / "nominee deal" / call option for a buy back of the REC Shares from Respondents. Claimants thus expressly renounced the "Part B" allegation at the Phase I Hearing in the following terms (and are bound by the same): Mr Bertrou: I confirm that we are not arguing part B nor the call options and I confirm that we have basically renounced to such claims and we are focusing on the SPAs. The reason why we dropped that is because you raised an objection on the jurisdiction of the Tribunal, because although the MOU and the call options provide for an arbitration provision and we could have made the arguments that the provision extends to the SPAs that have been signed we did not want to waste time on the bifurcation of jurisdictions and we went straight to the core of the dispute, which is the SPAs. I mean we are not arguing that the agreements [i.e, in respect of "Part B"I are binding, just to spare time. 43. Given the foregoing, Claimants' assertion at the Phase II Hearing that they had only given up the "enforcement" of "Part B" ("Claimants renounced to enforcing the COAs or the MOU, which have not been signed") and can presumably still rely on "Part B" for other purposes (e.g., to provide the basis for the alleged " first deception"), is nothing short of absurd — their confirmation to the Tribunal in Phase I (see [42] above) was, without any qualification, that they "are not arguing part B nor the call options" (i.e., not rely on "Part B" for any and all purposes). What is more, this confirmation was rightly made given Mr Suppipat's repeated concession that there was in fact no agreement on "Part B" (see FN 87).”
“See Respondents' Phase I PHB at [16]-[25]; Respondents' Phase T Reply P1-TB at [10]-[12];8 Feb 2017 transcripts at p 335 (lines 7-20) ("MR YEO: You see, Mr Suppipat, you were choosing to go ahead with the sale without reaching an agreement on the call option lie Part B]. Is that not right? Mr. Suppipat: We have an agreement but we have vet to know the detail of the transaction... I believe I can ask him to do anything within reason and as long as it is legitimate, so I would not be worried if the call option is not structured or is not final..");8 Feb 2017 transcripts at p 354 (line 21)-p 355 (line 3) ("MR YEO: Have I summarised your evidence correctly first? They have agreed to having a call option so long as they will not fall ford of the law but they have not agreed on the terms of that call option...? MR SUPPIPAT: We have not come up with terms yet so yes.");8 Feb 2017 transcripts at p 356 (lines 6-9) ("The Chairman: As long as you have not made a firm deal, it is a possibility, it is not a certainty. Will you agree with me? MR SUPPIPAT: I do agree");8 Feb 2017 transcripts at p 450 (lines 8-21) ("MR KIM: ... do you still believe that it is a nominee deal? Mr SUPPIPAT: No, the nominee deal was gone.. .So, yes, no more nominee deal, now just straight deal ... MR KIM. So you now agree that there is no nominee deal? MR SUPPIPAT: I do agree"). See also Respondents' Phase II D&CC at [70]-[72].”
“… the various representations allegedly made by Mr Narongdej or Respondents’ representatives regarding Part B of the transaction or the call option (First Fact Pattern) described immediately above cannot be invoked as evidence of fraudulent inducement or incidental fraud in light of the fact that Mr Suppipat subsequently agreed to abandon the Part B under the SPAs and also in light of the statements made by Mr Suppipat and Claimants’ counsel in Phase I of this arbitration. To attempt to use the statements or representations of Mr Narongdej concerning Part B at this stage, following the admission that no such agreement could be made and in light of the plain wording of the amended and restated SPA, is ineffective.”
“(1) In cases where there is no res judicata or issue estoppel, the power to strike out a claim for abuse of process is founded on two interests: the private interest of a party not to be vexed twice for the same reason and the public interest of the state in not having issues repeatedly litigated; see Lord Diplock in Hunter v. Chief Constable, Lord Hoffmann in the Arthur Hall case and Lord Bingham in Johnson v. Gore Wood. These interests reflect unfairness to a party on the one hand, and the risk of the administration of public justice being brought into disrepute on the other, see again Lord Diplock in Hunter v. Chief Constable. Both or either interest may be engaged. (2) An abuse may occur where it is sought to bring new proceedings in relation to issues that have been decided in prior proceedings. However, there is no prima facie assumption that such proceedings amount to an abuse, see Bragg v. Oceanus; and the court's power is only used where justice and public policy demand it, see Lord Hoffmann in the Arthur Hall case. (3) To determine whether proceedings are abusive the Court must engage in a close 'merits based' analysis of the facts. This will take into account the private and public interests involved, and will focus on the crucial question: whether in all the circumstances a party is abusing or misusing the court's process, see Lord Bingham in Johnson v. Gore Wood and Buxton LJ in Taylor Walton v. Laing. (4) In carrying out this analysis, it will be necessary to have in mind that: (a) the fact that the parties may not have been the same in the two proceedings is not dispositive, since the circumstances may be such as to bring the case within 'the spirit of the rules', see Lord Hoffmann in the Arthur Hall case; thus (b) it may be an abuse of process, where the parties in the later civil proceedings were neither parties nor their privies in the earlier proceedings, if it would be manifestly unfair to a party in the later proceedings that the same issues should be relitigated, see Sir Andrew Morritt V-C in the Bairstow case; or, as Lord Hobhouse put it in the Arthur Hall case, if there is an element of vexation in the use of litigation for an improper purpose. (5) It will be a rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse of process, see Lord Hobhouse in In re Norris.”
"Privy … is not established merely by having 'some interest in the outcome of the litigation.' … [T]he doctrine of privity for this purpose is somewhat narrow and has to be considered in relation to the fundamental principle nemo debet bis vexari pro eadem causa …. I do not think that in the phrase 'privity of interest' the word 'interest' can be used in the sense of mere curiosity or concern …. I cannot see that this provides any basis for a successful defendant to say that the successful defence is a bar to the plaintiff suing some third party, or for that third party to say that the successful defence prevents the plaintiff suing him, unless there is a sufficient degree of identity between the successful defendant and the third party. I do not say that one must be the alter ego of the other: but it does seem to me that, having due regard to the subject matter of the dispute there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party"
“the corporate relationship and financial interest alleged cannot on any view be sufficient to establish privity of interest. The contrary conclusion would effectively drive a coach and horses through the doctrine of separate corporate personality and lead to piercing of the corporate veil, something which is not to be encouraged given the limited scope ascribed to the doctrine of piercing the corporate veil by the Supreme Court in Prest v Prest[2013] UKSC 34 ;[2013] 2 AC 415 .”
“He was in a position to decide when to pursue the two claims and whether to pursue them together or separately, and that is enough for present purposes”
“A person who, willfully or negligently, unlawfully injures the life, body, health, liberty, property or any right of another person, is said to commit a wrongful act and is bound to make compensation therefor.”
“[w]hoever in order to prevent his creditor or the creditor of the other person from receiving payment in whole or in part which has been or will be claimed through the Court, removed, conceals or transfers any property to another person, or maliciously contracts a debt for any sum which is not true, shall be punished with imprisonment not exceeding two years or fined not exceeding forty thousand Baht, or both”
“64. The academic debate over the relevance of the distinction between absolute and relative rights for a tortious claim stems from the question as to whether an act can constitute a wrongful act and breach of contract concurrently. Legal scholars commonly accept the feasibility of an act constituting both a tort and a breach of contract concurrently. That is consistent with the approach in the Courts. For example, the Supreme Court recently held that an act could constitute both a tort and a breach of contract. In a Supreme Court case decided in [2020], the defendants sold travel packages, including rooms at resort hotels and travel services, to a number of customers. The defendants had known that a resort hotel was closed for renovation but offered it to the customers who were subsequently unable to use the rooms. The Court held the defendants liable to pay damages under tort law. The Supreme Court opined that [SCD No 4189/2563]: ‘The circumstance that the defendants deceived the consumers into misunderstanding and paying money as the two lower courts described in detail is considered not only breach of contract but also a wrongful act...’”
“After considering, it was found that the plaintiff filed the lawsuit to request a refund of money the consumer lost from the fraud by the two defendants, it can be considered as filing for punitive damages or compensation. This is because the Civil and Commercial Code, Section 438, paragraph two states that compensation includes the return of property that the injured person has lost because of the violation or the payment for the price of that property. The circumstances of the two defendants deceiving consumers into believing and obtaining their money, as the two lower courts have already decided in detail, is not only breaching the contract, but also can be regarded as a violation against consumers Namely, a wrongful act. Dr Munin’s translation of this sentence is as follows: “The circumstance that the defendants deceived the consumers into misunderstanding and paying money as the two lower courts described in detail is considered not only breach of contract but also a wrongful act.”
“65. Based on the Supreme Court Decision No 4189/2563, a plaintiff can seek compensation in tort for acts which also give rise to a claim of breach of contract. If it is proved that the defendant failed to perform the obligation which arises from the contract which is formed as a result of fraud by the defendant and the contract is not yet avoided by the plaintiff, the defendant would be held contractually liable for non-performance, i.e. breach of contract, under section 215 CCC. If fraud is proved to satisfy all conditions of section 420 CCC, the defendant would be liable under section 420 CCC for his wrong that damaged the right of the plaintiff.”
“A fraudulent act which can be cancelled under s.237 CCC may concurrently constitute a wrongful act for the purposes of s.420 when the debtor transfers a specific thing to avoid it being enforced by the creditor. In a case decided in 1970 [SCD 648/2513], the first defendant conspired with the second defendant to transfer property between them to avoid it being seized by the creditor. The Supreme Court, in consultation with the General Assembly of Supreme Court Justices, held that the Defendants’ fraudulent act under s.237 CCC constituted the crime of defrauding a creditor under s.350 of the Penal Code and constituted a wrongful act under s.420 CCC. The creditor was therefore entitled to demand damages in tort.”
“I agree with Dr Munin that if a transfer constitutes an offence under s350 of the Penal Code then that offence will constitute a wrongful act for the purposes of s420. The distinction is demonstrated by [SCD 648/2513] to which Dr Munin refers…. b. It is clear from the following passage of the judgment of the Supreme Court that it was the offence under S350 of the Penal Code which gave rise to the claim under S420 of the CCC: “the actions of the two defendants were deliberately illegal which is an offense of cheating creditors under the Criminal Code, S350. […] For the defendants’ offense, under the Civil and Commercial Code, Section 422, it is presumed that the defendants are at fault which is a violation of the plaintiff. Both defendants will be liable to pay compensation to the plaintiff under the Civil and Commercial Code, Section 420.”
“If the wrongful act alleged is a transaction designed to cheat creditors contrary to s.350, then in order to bring a claim under s. 420 TCCC the plaintiff would have to be the creditor affected; being a shareholder of such a creditor would not be sufficient.”
“Whilst it is correct that criminal laws will be construed restrictively, they will not be construed in a manner that defeats the clear effect of the law.”
“Whilst it is correct that criminal laws will be construed restrictively, they will not be construed in a manner that defeats the clear effect of the law.”
“ For the purposes of S350, the transferor of property may be a party other than the debtor itself. For example, if Party A (a debtor) transfers the property to Party B, and then Party B transfers the same to Party C with knowledge that Party A’s creditor is going to claim for cancellation of the transfer between Party A and Party B for the purpose of enforcing performance from Party A, Party B can be held to have committed the offence of S350 (this example was adapted from Supreme Court Decision No. 271/2522).”
“202. Although s.350 of the Penal Code only mentions ‘Court’, not arbitration, based on the Supreme Court Decision No 8774/2550 I consider that entering an arbitration can prove that a person would file a claim against the debtor to enforce an arbitral award or to claim the repayment of the debt where the arbitration fails. 203. It would be sufficient to found a criminal offence under s.350 that the defendant knew that the plaintiff had issued an arbitration claim, and concealed property to prevent the plaintiff receiving sums they might be found entitled to in that Arbitration. In my opinion, an informal letter sent to the debtor expressing the creditor’s intention to initiate an arbitration is also sufficient for the purposes of s.350. It sufficiently gives the debtor a warning that the creditor intends to enforce the debt over the property of the debtor through court in the future.”
“it will be a question of fact whether commencing an arbitration in Singapore against a Thai company and a BVI company communicates an intention to commence court proceedings in Thailand.”
“Please try to push it to 450+ level for all of us”
“Given that transactions before and after the Ploenchit Valuation are at a higher value, it is difficult to justify that that the acquisition by Dr Kasem meets this definition [of fair value/orderly transaction]. This will be raised by the SEC.”
“The creditor is entitled to claim cancellation by the Court of any juristic act done by the debtor with knowledge that it would prejudice his creditor; but this does not apply if the person enriched by such act did not know, at the time of the act, of the facts which could make it prejudicial to the creditor, provided, however, that in case of gratuitous act the knowledge on the part of the debtor alone is sufficient. The provisions of the foregoing paragraph do not apply to a juristic act whose subject is not a property right.”
“A fraudulent act which can be cancelled under s.237 CCC may concurrently constitute a wrongful act for the purposes of s.420 when the debtor transfers a specific thing to avoid it being enforced by the creditor. In a case decided in 1970, the first defendant conspired with the second defendant to transfer property between them to avoid it being seized by the creditor. The Supreme Court, in consultation with the General Assembly of Supreme Court Justices, held that the Defendants’ fraudulent act under s.237 CCC constituted the crime of defrauding a creditor under s.350 of the Penal Code and constituted a wrongful act under s.420 CCC. The creditor was therefore entitled to demand damages in tort.”
“A: and 237 itself is an unlawful act, in opinion. This can be the second route. Q: Second route only? A: yes.”
“If a person produces or amends their own document, or a document which they have authority to produce or amend, then they do not commit an offence under s.264. Further s.264 does not apply to a situation where a person who has the authority to produce a document produces a document which includes false information. For example, s.264 does not apply to the backdating of a document where the person produces the entire document or had authority to backdate the document.”
“A. Because if the power of attorney is still with you, you may always change it. But if the power of attorney, for example, had been submitted to the court, to submit to some authority or any third parties, you take it back, make some amendment in that, then it should fit 264 as a forgery. Because you no longer have the authority to do that. MR JUSTICE CALVER: The premise of this question, Professor Suchart, is that the forgery is committed to make a person believe it is a genuine document. A. Yes, it must −− MR JUSTICE CALVER: If that is the case, backdating, then it would fall, wouldn’t it, within section 264. A. Right, my Lord.”
“Further, to the extent that ss. 264, 265 and 268 do not, for any reason, apply, Cs also rely on ss 179 and 180 TPC (concerning, respectively, the fabrication of false evidence and the adducing or producing of false evidence in any judicial proceedings).”
“Claims against the directors for compensation for injury caused by them to the company may be entered by the company or, in case the company refuses to act, by any of the shareholders. Such claims may also be enforced by the creditors of the company in so far as their claims against the company remain unsatisfied.”
“The directors must cause true accounts to be kept: (1) Of the sums received and expended by the company and of the matters in respect of which each receipt or expenditure takes place. (2) Of the assets and liabilities of the company.” (1) Of the sums received and expended by the company and of the matters in respect of which each receipt or expenditure takes place. (2) Of the assets and liabilities of the company.” b. s. 1207 TCCC: “The directors may cause minutes of all proceedings and resolutions of meetings of shareholders and directors to be duly entered in the books which shall be kept at the registered office of the company. Any such minutes signed by the chairman of the meeting at which such resolution were passed or proceedings had, or by the chairman of the next succeeding meeting, are presumed correct evidence of the matters therein contained, and all resolutions and proceedings of which minutes have been made are presumed to have been duly passed. Any shareholder may at any time during business hours demand inspection of the above documents.”
“This case has issues that need to be addressed, the court has to determine according to the petition of the 1st and 2nd defendants whether the 2nd defendant shall be personally liable to the incident together with the 1st defendant or not. The 2nd defendant filed a petition that the 1st defendant is a legal entity, a separated entity from the 2nd defendant. Mr Sutan was an employee driving the truck, in the official capacity employed by the 1st defendant, causing the violation. In this case, the 2nd defendant was not Mr Sutan’s employer and did not cause the violation directly. The 2nd defendant was a director of the company, who assumes responsibility for duties according to the Civil and Commercial Code, Section 1168. If the director does not perform such duties, the director will be personally liable to the company and third parties. The 2nd defendant was therefore not personally responsible for the violation. Commerce Section 1169 states that “if a director causes damages to the company, the company may file a lawsuit to claim compensations from the director. In the event that the company refuses to file a lawsuit, any shareholder may do so. Incidentally, for such claim, the creditor of the company may file a claim as long as the creditor still has the right to file a claim against the company.”
“If the director does not perform such duties [under s.1168], the director will be personally liable to the company and third parties.”
“The agent must act according to the express or implied directions of the principal. In the absence of such directions, he must pursue the accustomed course of business in which he is employed. The provisions of Section 659 concerning Deposit apply mutatis mutandis.”
“If the deposit is undertaken gratuitously the depositary is bound to exercise as much care of the property deposited as he is accused to exercising in his own affairs. If the deposit is undertaken with remuneration the depositary is bound to exercise such care and skill as a person of ordinary prudence would exercise in the circumstances. This includes the exercise of special skill where such skill is required. If the depositary professes a particular trade, business or calling, he is bound to exercise the degree of care and skill usual and requisite in such trade, business or calling.”
“To engage in the trade, business or to behave himself which is contrary to good morals or which prejudices the dignity and reputation of a lawyer.”
“A person who, wilfully or negligently, unlawfully injures the life, body, health, liberty, property or any right of another person, is said to commit a wrongful act and is bound to make compensation therefore.”
“If several persons by a joint wrongful act cause damage to another person, they are jointly bound to make compensation for the damage. The same applies if, among several joint doers of an act, the one who caused the damage cannot be ascertained.”
“Whoever, in a manner likely to cause injury to another person or the public, makes use of … the document begotten from the commission of the offence according to … section 265 … shall be liable to the punishment as provided to such Section.”
“156 – Any particular act that causes another person to commit an offense is certainly said to have “caused” another person to commit an offense, whether directly by, among others, using, forcing, threatening, hiring, asking, encouraging, ordering or requesting him/her to do, or indirectly by any means, such as, bet that he would not dare to attack another person, provoke someone to get angry with another, persuade someone to act or even when an employer orders the driver to arrive in time, which necessitates a high speed exceeding the traffic law, this is said to be a form of using. … If the offender decides to commit such an offense, it is because the instigator has caused the offender to make such a decision, which is also deemed as using him/her to commit an offense. A mere suggestion or failure to prevent another person from committing any offense is not regarded as causing another person to commit an offense.”
“the principles can only apply to companies in modified form, for they are complex associations of natural persons with different interests, different legal relationships with the company and different degrees of involvement in its affairs. A natural person and his agent are autonomous in fact as well as in law. A company is autonomous in law but not in fact. Its decisions are determined by its human agents, who may use that power for unlawful purposes. This gives rise to problems which do not arise in the case of principals who are natural persons.”
“In order to establish that a person is a shadow director: (A) It is necessary to plead and prove: (1) the identity of the directors of the company, both de facto and de jure; (2) that the alleged shadow director instructed the directors how to act in relation to the company or that they were one of the individuals who did so; (3) that those directors acted in accordance with such instructions; (4) that they were accustomed so to act; (5) whether the company considered that person to be a director and held them out as such; and (6) whether third parties considered that they were a director. (B) It is necessary to prove that there was a pattern of behaviour, over a period of time and amounting to a regular practice, in which the directors of the company did not exercise any discretion or judgment of their own, but acted in accordance with the directions of others.”
“it was recommended by lawyers that it should be the overseas company to avoid tax”
“the offence of the defendant must be described in detail to fully cover the elements which constitute the criminal offence. Any plaint that falls short of what is required by law is not a proper plaint. In the event that it is uncertain whether the act of the defendant is contrary to any criminal offence, or where the person is criminally labile jointly with the wrongdoer, then the longer period of the criminal offence is not applicable.” b. The relevant complaint in this case, filed in Thailand in Black Case Aor 157/2561 on23 January 2018 , was made by Symphony, NGI and DLV. It has no effect on the limitation period for claims by other putative ‘victims’, and therefore the limitation period on NS’s personal claims continued to run. Suchart 2, [75]: “for s.51(2) to apply to the civil case brought in connection with a criminal case, it must be the plaintiff in the civil action who has also instituted criminal charges against the defendant in the criminal proceedings.”
“The transfers of the Relevant WEH shares were unlawful as contrary to s.350 Criminal Code and/or s.237 TCCC. In particular, they constituted a fraud on the creditors of REC, and on the creditors of NN’s Companies whose only substantial asset was their interest in WEH held through REC … . The transfer from REC to Kasem was at an undervalue, leaving REC and NN’s Companies unable to satisfy their debts when they fall due, and without full compensation for the assets transferred, to the detriment of their creditors.”
“If the Court is of the opinion that the pleading … is not legible or is drawn up unintelligibly or with excessive prolixity, or does not contain or bear all such particulars or signatures … the Court may issue an order returning it for redrafting, amendment, or duly paying or laying the Court fees …” and it is not referred to in s. 193/14(2) TCCC. Munin 3 [12]; Day 38/96:3-4 , Claimants’ Written Closings [1094 (a) and (e)(b)] ii. The Claimants submit that Professor Suchart’s view is overly literal and that, if adopted, “the word ‘arbitration’ would mean domestic arbitration only, which is completely wrong”
“However if the damages are claimed on account of an act punishable under the criminal law for which a longer prescription is provided such longer prescription shall apply.”
“As the Second Defendant is neither the actor nor the co-actor in criminal action with the First Defendant, but instead, the government agency shall be [sic: who is] liable for the wrongful act between the First Defendant and the Plaintiff, the Plaintiff’s right to claim damages from the Second Defendant shall therefore be subject to the first paragraph of Section 448 […] not the case where the statute of limitation under the second paragraph shall apply.”
“Though the Third Paragraph of Section 51 of Criminal Procedure Code provides that […] that is, the statute of limitation is 10 years, such statute of limitation shall apply towards the actor or co-actor in criminal act who shall be directly liable in civil case for wrongful act, and shall not include other person not involved in the criminal act or the person the law specified to be jointly liable for the act of other person, such as in the case of the Fourth and Fifth Defendants.”
"Trade takes place increasingly on an international basis. So does fraud. Money is transferred quickly and easily. To meet these changing conditions English courts are more prepared than formerly to grant injunctions in suitable cases against non-residents or foreign nationals in respect of overseas activities. As I see it, the considerations set out above and taken as a whole lead irresistibly to the conclusion that, when considering the expression "any person" in the sections, it is impossible to identify any particular limitation which can be said, with any degree of confidence, to represent the presumed intention of Parliament. What can be seen is that Parliament cannot have intended an implied limitation along the lines of Ex parte Blain, 12 Ch D 522. The expression therefore must be left to bear its literal, and natural, meaning: any person."
“The effect of the legislation, therefore, is that it confers on the court power to make orders against persons or property outside England and Wales, subject to the court being satisfied that there is a close enough connection with England and Wales.”
“The breadth of the potential scope of section 423 makes it all the more important that in a case with a foreign element the court is scrupulous to ensure that the safeguards are rigorously applied.”
“I particularly note from the foregoing that Sir Donald Nicholls regarded no one factor as decisive. Each case will turn on its own facts with the weight to be given to connecting factors or their absence dependent on their real significance having regard to the overall situation. In Jyske Bank (Gibraltar) Ltd v Spjeldnaes[1999] 2 BCLC 101 Evans-Lombe J, whose experience in this field is very considerable, exercised the jurisdiction even though as he expressly recognised there were present none of the sort of connections with England which the Vice Chancellor had set out.”
“the existence of litigation in this jurisdiction between the same parties and which is related to the s. 423 claim is itself a connecting factor”
“Mr Adair relied on the decision of Tomlinson J in Dornoch Ltd v Westminster International BV (The WD Fairway) (No 3)[2009] 2 Lloyds Rep 420 . In that case the judge set aside the transfer of a ship registered in the Netherlands, but located in Thailand, to a Nigerian corporation. However, the impugned sale took place in the course of a dispute between the owners and underwriters which was already on foot. Indeed, the sale took place after the owners had been served with proceedings in England and had been notified of an application for an injunction to stop any disposal of the vessel (see the Dornoch case, paras 82—83). The dispute itself arose under a policy of insurance governed by English law, placed in the London market with English underwriters. It also contained an exclusive jurisdiction clause. The facts of that case could well be viewed as an attempt to frustrate any award of an English court arising out of a dispute that was already before the court. The facts of this case are entirely different.” b. Similarly, Fortress Value was only concerned with an application for permission to amend, where all that the claimants had to show was that, if their case was made out, there was a real prospect that they would be entitled to relief under s 423, and Flaux J held that “The claimants arguably demonstrate a close connection with England on the same grounds as they have an arguable case that there is a manifestly closer connection with England than with Luxembourg for the purposes of art 4(3) of the Rome II Regulation”
“A stay may be successfully resisted on the basis of cogent evidence that there is a real risk that the claimant will not receive substantial justice in the foreign court. Such an allegation requires a deeper level of scrutiny, not least because of the risk that such a finding may offend international comity. … [W]here the claimant is able to persuade the court that there is a risk that the foreign court will single out the claimant or the claim for flagrantly unjust treatment, or that the foreign court is generally and seriously unreliable, the court will not generally order a stay of proceedings. The evidence required to support this contention need not be particular to the claimant or the individual claim (though it may be more persuasive if it is), but may be based on more general evidence of judicial failure or misconduct in relation to claims of the type advanced by the claimant. This factor has been of particular importance in cases in which there may be said to be a State interest in the outcome of the litigation, but the modern statement of the principle is not confined to such cases.”
“a person who, wilfully or negligently, unlawfully injures the life, body, health, liberty, property or any right of another person, is said to commit a wrongful act and is bound to make compensation therefor.”
“it is erroneous for anyone to claim that it is the ‘starting point’ in Thai law that loss is assessed at the date of the wrongful act. It is also incorrect to suggest that future loss which can be crystallised after the wrong is not claimable because loss must be assessed at the date of the wrong only.”
“The Supreme Court Decision No 6988/2545 (2002) confirms that future loss is recoverable. In that case, the defendant extended structures on to the plaintiff’s land. The Supreme Court ordered the removal of the extension and awarded the plaintiff an amount of damages on a monthly basis until the removal was complete. My observation is that the plaintiff was compensated for the loss of a chance to fully utilise the property although it was not certain whether he would be able to fully utilise it and to earn the same amount of money awarded by the Court.”
“I have not come across any Supreme Court decision where the Court has discussed whether, and if so how, to take into account a counterfactual scenario in order to assess damages. In my experience, a Thai court would not consciously assess compensation by comparing the plaintiff’s ‘actual’ situation with an alternative hypothetical counterfactual situation where the wrongful act had not taken place. Instead, if the claim is for damage to or loss of a property, the starting point for the assessment of damages will be the value of the property on the date of the wrongful act. […] The Thai court has not (as far as I am aware) ever been asked to look at what happened after the wrongful act in quantifying the Claimant’s loss.”
“Generally, use of hindsight is not directly provided or suggested in the civil procedural code. In determining the issues in dispute, the court will more rely on the evidence adduced by the parties. There is a possibility that the court may use hindsight in the determination if it is so presented to the court that way, though in practice it is unlikely.”
“Further, had the Defendants not carried out the acts set out above pursuant to the Conspiracy: […] NN’s Companies would have complied with their obligations to pay NS’s Companies under the REC SPAs;”
“by reason of the Defendants’ acts in furtherance of the Conspiracy, the Claimants or NS’s Companies lost: […] the payments that would have been made under the REC SPAs; the ability to enforce their rights under the First Partial Awards against the assets of NN’s Companies and/or REC, and under any future award made in favour of NS’s Companies in the 2021 Arbitration or any arbitration arising out of the REC SPAs,” the payments that would have been made under the REC SPAs; the ability to enforce their rights under the First Partial Awards against the assets of NN’s Companies and/or REC, and under any future award made in favour of NS’s Companies in the 2021 Arbitration or any arbitration arising out of the REC SPAs,”
“The Defendants have conspired to injure the Claimants by unlawful means. On various unknown dates, in the period from May 2015 to date, the Defendants and/or any of them agreed or combined together (and/or with Fullerton, KPN EH and/or REC) with a common intention, that being to injure the Claimants by unlawful means: 41.1 by depriving them of any interest, legal or beneficial, direct or indirect, in REC and/or WEH, and/or the value of those interests; and 41.2 by ensuring that they cannot obtain and/or enforce any right to payment or compensation to which they would be or are entitled, contractually or as damages or equitable compensation or otherwise, as a result of being so deprived.”
“Sixth, Cs assert the alleged loss of “the ability to enforce their rights under the First Partial Awards against the assets of NN’s Companies and/or REC, and under any future award made in favour of NS’s Companies in the 2021 Arbitration or any arbitration arising out of the REC SPAs”: RAPOC ¶163.1(d). The premise of this claim is that, but for the alleged Conspiracy, “NS’s Companies would have been able to enforce their right to that payment [under the REC SPAs] against NN’s Companies”: RAPOC ¶162.7(e). As to this: 229.1. An ability to enforce rights under an arbitration award is a ‘relative’ and not an ‘absolute’ right. It is therefore not a right protected by s.420 TCCC. 229.2. In any event, so far as concerns any claim regarding rights under the First Partial Awards, Cs have been paid the principal sum awarded, and their only claim now is for interest. There is a dispute ongoing in the Thai and BVI courts as to whether they are entitled to enforcement of the Tribunal’s award of interest. If the answer is ‘no’, then Cs will have lost nothing (because they never had any right to enforcement). If the answer is ‘yes’, then the likelihood on a balance of probabilities is that Cs will successfully enforce that award (or otherwise receive the sums awarded due), either because NN will voluntarily procure payment or because SCB will enforce NN’s undertaking and/or threaten to call default under its lending arrangements with WEH and its subsidiaries. 229.3. It is Cs’ own evidence in these proceedings (on the security for costs application) that there is in fact a likelihood of any future awards being paid (whether in whole or in substantial part). It has not been established that REC has no assets; among other things, it has receivables corresponding to the amounts lent to KPN EH. Accordingly, any asserted ‘loss’ under this heading is speculative (and would at best be a future contingent loss, which is irrecoverable). 229.4. So far as concerns claims “under any future award made in favour of NS’s Companies in the 2021 Arbitration”, the same points apply, with the difference only that there is even less certainty as to whether the relevant contingency (non-payment of and subsequent inability to procure satisfaction of potential arbitration awards which have not yet been rendered) will ever occur, and even less likely that there has been any relative right injured for the purpose of a s.420 claim.”
“… damage to Cs’ contractual or contractually-derived rights under or in respect of the REC SPAs would be to relative not absolute rights, and would not give rise to a cause of action under s.420. In particular, impairment of the ability to enforce an arbitral award would be an injury (if at all) to a relative right, as accepted by Dr Munin: “Q: Would you accept this: a right to enforce an arbitral award is a relative right, isn’t it? A: It is a relative right.”
“See Burrell 10th at ¶90-¶91 and ¶103 {K1.44/1/36-42}, including (i) at ¶90.1 “Value should be ascribed to the Awards (…) The Awards might or might not be capable of being enforced – but in the absence of evidence of certainty in this regard, plainly they should be treated as having some enforcement value”; and (ii) at ¶90.3, “the Defendants [sic] have a track record of selling packages of the WEH shares received from Nick to raise funds when it suits them to do so”.”
“SCB has served notices on Mr Narongdej and on relevant WEH subsidiaries, recording its expectation that payments due from Fullerton Bay Investment Limited and KPN Energy Holding Co., Ltd should “be settled as soon as possible”, and noting and reserving the right to rely on the default provisions of the relevant facilities agreements if payment is not promptly made “…once the arbitral award regarding such payment obligation and the final court judgement to enforce such arbitral award are rendered”.”
“If several persons by a joint wrongful act cause damage to another person, they are jointly bound to make compensation for the damage. The same applies if, among several joint doers of an act, the one who caused the damage cannot be ascertained.”
“[p]ersons who instigate or assist in a wrongful act are deemed to be joint actors.”
‘If several persons owe an act of performance in such manner that each is bound to effect the whole performance, though the creditor is entitled to obtain the whole performance only once (i.e. joint debtors), the creditor may demand the performance at his option from any one of the debtors, in the whole or in part. Until the whole performance has been effected all of the debtors remain bound.’
“As between themselves the persons jointly bound to make compensation are liable in equal shares unless, under the circumstances, the Court otherwise decides.”
“273. The extent of joint tortfeasors’ liability is generally determined by s.291 CCC, which concerns the scope of liability of joint debtors. However, s.432 CCC gives the Court a discretion to divide liability of joint tortfeasors in accordance with the circumstances of the wrong. In this case, s.291 CCC does not apply to divided liability of joint tortfeasors. 274. If the court chooses to exercise its discretion not to make the tortfeasors jointly liable (which it is entitled to do as explained in the previous paragraph) it can make one debtor liable for the entire damage or such percentage of the damage as it considers appropriate by exercising its discretion, which is very broad. 275. However, it is more common for the Court to find all tortfeasors jointly liable under s.291 CCC than to divide liability for each tortfeasor. 276. Supreme Court Decision No 4978/2562 (2019) is a rare example of divided liability under s. 432 paragraph 3. In that case, the Court held that liability of each tortfeasor should be based on the degree of their involvement in killing the victim. The Court ordered the accomplices to pay more damages than the accessory.”
“(a) Were aware of the ASA and their and Ms Siddique’s obligations to NGI thereunder. (b) Entered into the Oral Agreement with Khun Nop and Khun Weerawong on17 March 2016 , which entailed that the WEH Managers and Ms Siddique would receive Relevant WEH Shares (for no consideration) in lieu of payment under the ASA. By acting as they did and with such knowledge, the WEH Managers (together with Khun Nop and Khun Weerawong) wrongfully effected the transfer of the Relevant WEH Shares to themselves, knowing that they would, and wrongfully inducing themselves to, breach their obligations to NGI under the ASA as a result.”
“Evaluating proposals from prospective purchasers on behalf of [NGI] and providing guidance with respect to the structure of a Transaction”. b. Sch 1, Clause 11: “Co-ordinating, reviewing and negotiating all legal and related documentation including, but not limited to, term sheets, common terms agreements, sale and purchase agreements, shareholders’ agreements, and ancillary documentation”. c. Sch 1, Clause 12: “Working with [NGI] to ensure that all the conditions precedent, covenants and undertakings contained in the Share Purchase Agreements are met and executed.”
“Transaction” means, the direct or indirect transfer of, the shares and other equity interests, directly or indirectly, in [REC] pursuant to the Share Purchase Agreements, together with the execution by the Purchasers of their obligations thereunder, including without limitation, the payment to the Sellers of the Purchase Price, payable pursuant to the Share Purchase Agreements…”
“This Agreement shall take effect on the date hereof and subject to earlier termination in accordance with this clause 5… and the terms set out in this Agreement, shall remain valid and operative unless one Party serves the other with a written notice of termination with a notice period of at least 60 days.”
“A Party may terminate this Agreement by giving 30 days advance written notice to the other Party if that other Party commits a material breach of its obligations under this Agreement and that breach has not been remedied within 30 days after receipt of notice giving full particulars of the breach and requiring the other party to remedy it.”
“1.9 The Parties agree that WEH management will place a key role in the successful completion of the IPO and WEH Projects and should be properly incentivised in this respect. Accordingly, the Parties agree that: 1.9.1 upon payment of the first cash instalment of the Acquisition Price each of Emma Louise Collins and Thun Reansuwan will receive 12.5% of the price payable in respect of the Acquisition from Fullerton, including: (i) 19.45% of any “Call Option Consideration” payments to Fullerton in excess of 50 million US dollars, pursuant to an advisory services agreement with Fullerton, a form of which is attached as Annex H; and (ii) 12.5% of the final “Purchase Price” payments to Fullerton, in the form of distributions from Fullerton.” 1.9.1 upon payment of the first cash instalment of the Acquisition Price each of Emma Louise Collins and Thun Reansuwan will receive 12.5% of the price payable in respect of the Acquisition from Fullerton, including: (i) 19.45% of any “Call Option Consideration” payments to Fullerton in excess of 50 million US dollars, pursuant to an advisory services agreement with Fullerton, a form of which is attached as Annex H; and (ii) 12.5% of the final “Purchase Price” payments to Fullerton, in the form of distributions from Fullerton.”
“I was not involved in the details of the proposed ASA and just left it for the others to deal with. I thought it was a simple form agreement and did not address my mind to it as I was busy working on other matters for the company.”
“It's actually 175M = 6M then, come IPO, you receive another 4M and in case I receive a prepayment between the 175M and the IPO then you will get a prorate…In any case - nominee or true sale or whatever - this 175M USD will always have to be fulfilled.” (Emphasis in original).
“Q The truth was, on your evidence, that you had negotiated the deal on 17 March with Khun Nop, yes, your 1.25% shares? A. With Khun Nop, yes. Q. And who else – with who else? A. Khun Nuttawut was there.”
“Q…Did you not discuss the ASA with [Mr Lakhaney]? No, not at all. Q. Did you read it? A. No I didn’t. Q. Did you know what you were signing up to? A. no, I just knew that this was part of whatever settlement they had just reached with Mr Suppipat on their recent trip. Q. Have you ever read it? A. No I have not. Q. Even to this day you have not read it? A. No I haven’t. Q. Did you understand that it imposed obligations on you? A. No.”
“Q. Did you know that you were meant to be doing any of those things? A. No, I did not.”
“Further, had Ms Collins, Mr Reansuwan and Ms Siddique carried out their obligations as required under the Advisory Services Agreement as set out at paragraph 160 above, or had NN, Mr Phowborom and/or the WEH Managers not induced those breaches of contract, or had the WEH Managers not breached their fiduciary duties as set out above: (a) Ms Collins, Mr Lakhaney and Mr Reansuwan would not have assisted in or enabled the transfer of the Relevant WEH Shares to Kasem, and/or would have taken steps to investigate and/or prevent that transfer, and REC would have retained the Relevant WEH Shares. (b) The Claimants would have become aware that the transfer of the Relevant WEH Shares from REC to Kasem as set out above was in contemplation, or that steps were being taken to effect that transfer, as set out above. NS would have (i) caused NS’s Companies to apply for and obtain an order in the Arbitrations preventing that transfer, (ii) informed Kasem and the New REC Directors of the nature of the proposed transfer and their potential civil and criminal liability, (iii) informed NN, the WEH Managers, Mr Phowborom and SCB that he was aware of their involvement in the proposed transfer and of their potential civil and criminal liability, and/or (iv) caused NS’s Companies to inform Ms Collins, Mr Reansuwan and Ms Siddique of their potential liability under the Advisory Services Agreement. In any of those cases, REC would not have disposed of the Relevant WEH Shares as set out above.”
“From the date of and by reason of the execution of the Advisory Services Agreement, Ms Collins, Mr Reansuwan and Mr Lakhaney (through contractual arrangements made by Ms Siddique, his nominee), were in a relationship of trust and confidence in which they undertook to act on behalf of NGI and/or NS in connection with the performance by NN’s Companies of the REC SPAs.”
“a fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.”
“fiduciary duties typically arise where one person undertakes and is entrusted with authority to manage the property or affairs of another and to make discretionary decisions on behalf of that person.”
“The inquiry, in other words, is an objective one involving the normative question whether the nature of the relationship is such that one party is entitled to repose trust and confidence in the other.”
“fiduciary duties do not commonly arise in commercial settings outside the settled categories of fiduciary relationships because it is normally inappropriate to expect a commercial party to subordinate its own interest to those of another commercial party: Snell’s Equity (34th ed.) [7-005].”
“I trust them, because I hired them as top management…You can’t run a business without trusting your top lieutenants”
“Declarations that the WEH Managers and their Companies hold all benefits they have received in breach of fiduciary duty and/or as secret commissions, including any interest in the Relevant WEH Shares transferred to the WEH Managers and their Companies, on trust for NGI and/or NS, and orders for those benefits to be transferred to NGI or NS, and all necessary and consequential relief.”
“you decided that you would terminate your agreement which protected Mr Suppipat, the shareholders’ agreement, and your obligations to Mr Suppipat under the advisory services agreement and instead enter into an agreement with Mr Narongdej in exchange for 1.25% of WEH shares. That’s a fact, isn’t it ?… Q. That was part of the overall structure or agreement under which you agreed to accept 1.25% of WEH shares as an incentive, was it not? A. No. … Q. So why on earth would you terminate an agreement and give up your right to$10 million for no good reason? A. Again, I’ve explained why. You know, it was −− we were −− threatening emails and it was conflicting and we terminated the agreement. Q. I suggest that is untrue and that the reason you terminated it was because you understood that it contained continuing obligations which you had effectively ignored by terminating the shareholders’ agreement and permitting the sale of the WEH shares. A. I disagree.”
“(i) the person making the payment makes it to the agent of another person with whom he is dealing; (ii)…he makes it to that person knowing that that person is acting as the agent of the other person with whom he is dealing; and (iii)… he fails to disclose to the other person with whom he is dealing that he has made that payment to the person whom he knows to be the other person’s agent.”
“44. The vice involved in the payment of a bribe, for the purpose of civil remedies, is that it may induce the payee to depart, consciously or otherwise, from the duty he owes to another person”. 45. The circumstances in which such a duty may be owed will vary greatly. Some may involve persons who clearly owe fiduciary duties in any event, such as trustees, directors or employees. At perhaps the other extreme, a person may be retained for the purpose of giving a single piece of advice. In any of these cases, and in the many other cases that will arise somewhere between them, the person owing the duty is at risk of being suborned by a payment or offer from a third party as an inducement to favour the payer or others .”
“160CA.1 The WEH Managers are liable to account in equity, or to give restitution, to NGI for the value of the WEH shares received as secret commissions. 160CA.2 The WEH Managers held the WEH shares so received on constructive trust for NGI, and transferred them to the WEH Managers’ Companies in breach of trust […] Accordingly, NGI is entitled to claim those WEH shares or their traceable proceeds.”
“the right of a plaintiff who has alternative remedies against the briber (1) to recover from him the amount of the bribe as money had and received, or (2) to recover, as damages for tort, the actual loss which he has sustained as a result of entering into the transaction in respect of which the bribe was given;”
"The elements of the cause of action are as follows: i) A combination, arrangement or understanding between two or more people. It is not necessary for the conspirators all to join the conspiracy at the same time, but the parties to it must be sufficiently aware of the surrounding circumstances and share the same object for it properly to be said that they were acting in concert at the time of the acts complained of: Kuwait Oil Tanker at [111]. ii) An intention to injure another individual or separate legal entity, albeit with no need for that to be the sole or predominant intention: Kuwait Oil Tanker at [108]. Moreover: a) The necessary intent can be inferred, and often will need to be inferred, from the primary facts – see Kuwait Oil Tanker at [120-121], citing Bourgoin SA v Minister of Agriculture [1986] 1 QB: "[i]f an act is done deliberately and with knowledge of the consequences, I do not think that the actor can say that he did not 'intend' the consequences or that the act was not 'aimed' at the person who, it is known, will suffer them". b) Where conspirators intentionally injure the claimant and use unlawful means to do so, it is no defence for them to show that their primary purpose was to further or protect their own interests: Lonrho Plc v Fayed[1992] 1 AC 448 , 465-466, [1991] B.C.C. 641; see also OBG v Allan[2008] 1 AC 1 at [164-165]. c) Foresight that his unlawful conduct may or will probably damage the claimant cannot be equated with intention: OBG at [166]. iii) In some cases, there may be no specific intent but intention to injure results from the inevitability of loss: see Lord Nicholls at [167] in OBG v Allan, referring to cases where: "