SHAREHOLDER DISPUTES IN THE APAC REGION
CD: What do you consider be the key developments to have emerged in the shareholder disputes space in the Asia-Pacific (APAC) region in recent months? To what extent are disputes of this nature on the rise?
Meeson: An interesting development has been shareholder intervention in the context of corporate restructuring of public companies. We have seen the intervention of activist shareholders taking aggressive positions regarding a proposed restructuring in order to leverage better terms. There has also been the deployment of shareholder dispute tools being used for the purpose of obtaining control or influence in a restructuring process. This appears to be a novel development which reflects both an innovative approach by lawyers seeking to assist clients, and also an increasing focus of attention by activist funds and shareholders on this region.
Kwan: A key area of development is the question of whether disputes arising out of the company’s constitutional documents, such as articles of association, can be stayed in favour of arbitration if the underlying agreement between the shareholders contains an arbitration clause. The issue here is whether the dispute is purely a matter of company law or is in fact covered by the arbitration clause. In BTY v BUA and other matters (2018), the Singapore High Court set aside a stay of litigation on the basis that the dispute concerned the question of whether there was a breach of the articles, which meant that it was a matter of company law that could not have been contemplated to fall within the arbitration clause in the shareholders’ agreement. Disputes of this nature are on the rise because it is quite common for there to be differences in opinion as to how a particular joint venture (JV) should be governed.
Jan-Mar 2019 issue
Conyers Dill & Pearman
Skadden, Arps, Slate, Meagher & Flom LLP