Section 46 of the Companies Act (2023 Revision) and Juniper Life Sciences Ltd RBH Holdings Plaintiff v Juniper Life Sciences Ltd Defendant

• Jurisdiction: Cayman Islands
• Judge: Walters J.
• Judgment Date: 08 June 2023
• Docket Number: FSD 59 of 2023 (AWJ)
• Court: Grand Court (Cayman Islands)

In the Matter of Section 46 of the Companies Act (2023 Revision)

And in the Matter of Juniper Life Sciences Ltd

RBH Holdings

Plaintiff

and

Juniper Life Sciences Ltd.

Defendant

Coram:

Walters J. (acting)

FSD 59 of 2023 (AWJ)

IN THE GRAND COURT OF THE CAYMAN ISLANDS

FINANCIAL SERVICES DIVISION

HEADNOTE

Application to stay proceedings in favour of arbitration pursuant to s.4 Foreign Arbitral Awards Enforcement Act or by way of a case management stay, forum non conveniens, identification of matter in dispute, consideration of whether real and substantial dispute and whether it falls within relevant arbitration clause .

Appearances:

Mr Richard Millett KC, instructed by Mr Jonathon Milne and Mr Jordan McErlean of Conyers Dill & Pearman LLP for the Plaintiff

Mr Alain Choo Choy KC, instructed by Mr Denis Olarou and Ms Kalyani Dixit of Carey Olsen for the Defendant

IN CHAMBERS

1 These proceedings were commenced by the Plaintiff by way of Originating Summons dated 8 March 2023. The substance of the relief sought by the Plaintiff is as follows:

• “1. A declaration that the written resolution of the board of directors of Juniper Life Sciences Ltd. dated 27 October 2022 exercising the discretion under Article 9.1(c) of the Articles of Association (the “Articles”) dated 21 December 2021 to redeem the 5,000 ordinary shares held by RBH Holdings at the par value of USD 5,000 with effect from 27 October 2022 (the “Resolution” 1) constituted an exercise of a power for an improper purpose and is void (or, alternatively, voidable).

• 2. An order that the Resolution be set aside ab initio.

• 3. A declaration that RBH Holdings has since 27 October 2022 been and continues to be a shareholder of Juniper Life Sciences Ltd.

• 4. Pursuant to section 46 of the Companies Act (2023 Revision) the register of the members of Juniper Life Sciences Ltd. shall be rectified forthwith (including re-designating and/or cancelling shares as appropriate) such that it reflects the share register immediately prior to the passing of the Resolution with retroactive effect from 27 October 2022 and in the alternative, with effect from the date of this Order, such that:

  • 4.1 RBH Holdings shall be recorded as the holder of 5,000 ordinary shares; and

  • 4.2 Sylvan Asia Growth Master Fund I Pte Ltd shall be recorded as the holder of the remaining 45,000 ordinary shares.”

2 The Originating Summons was supported by the first affirmation of Mr Laika Saputra Rudianto (“Mr Rudianto”) dated 6 March 2023 (“Rudianto 1”). Mr Rudianto confirms that he is the sole shareholder and director of the Plaintiff, RBH Holdings (“RBH”).

3 After proceedings were issued and served, a summons for directions dated 20 March 2023 was issued by Conyers Dill & Pearman LLP (“Conyers”), attorneys for RBH. That summons was listed for hearing on 4 April 2023. On 3 April 2023, Stuarts Walker Hersant Humphries (“Stuarts”), who had come on the record for Juniper Life Sciences (“JLS” or the “Company”) issued a second summons (the “Stay Summons”) seeking the following relief:

• “1. Pursuant to the Overriding Objective, all further proceedings in this action be stayed pending a mediation under the Singapore Mediation Centre.

• 2. Alternatively, pursuant to section 9 (2) of the Arbitration Act 2012, all further proceedings in this action be stayed pending an arbitration administered by the Singapore International Arbitration Centre.

• 3. Alternatively, pursuant to GCR Order, 12, Rule 8, that all further proceedings in this action be stayed as Forum Non Conveniens.

  …

  Grounds

  The Defendant seeks the relief set out above on the following grounds:

  • 1. Insofar as a stay pursuant to the Overriding Objective or section 9 (2) of the Arbitration Act 2012 is concerned, the Defendant relies upon clause 18 (Dispute Resolution) of the Subscription Agreement dated 12 January 2022 (as amended on 5 April 2022) between (1) [Sylvan Growth Asia Master Fund I Pte. Ltd] (2) [JLS] and [RBH]. This clause provides that any disputes arising out of or in connection to that agreement shall initially be referred to mediation under the Singapore Mediation Centre, and if unresolved, shall be finally resolved by arbitration administered by the Singapore International Arbitration Centre with a tribunal consisting of one arbitrator and the seat of the arbitration being Singapore.

  • 2. Insofar as a stay pursuant to an application made on Forum Non Conveniens grounds, the Defendant relies on the facts and matters set out in the letter from the Defendant's attorneys dated 3 April 2023 2.”

4 On 4 April 2023, I gave directions for the Stay Summons to be listed for hearing on 27 and (if necessary) 28 April 2023 and for the Originating Summons to also be listed in order for any directions to be given in relation to the action as a whole.

5 On 21 April 2023 a further summons was issued by the Defendant pursuant to GCR O. 32, r.2 (3) seeking leave to amend the Stay Summons in the following terms:

• “1. Pursuant to the Overriding Objective, all further proceedings this action be stayed pending resolution of the dispute in accordance with clause 18 (Dispute Resolution) of the Subscription Agreement dated 12 January 2022 (as amended) (the Subscription Agreement) between (1) [Sylvan Asia Growth Master Fund I Pte Ltd] (2) [JLS] and (3) [RBH] a mediation under the Singapore Mediation Centre.

• 2. Alternatively, pursuant to section 4 of the Foreign Arbitral Awards Enforcement Act 3 section 9(2) of the Arbitration Act 2012, all further

  proceedings in this action be stayed pending arbitration administered by the Singapore International Arbitration Centre in accordance with clause 18 (Dispute Resolution) of the Subscription Agreement.

  …”

6 The Grounds were amended accordingly and a reference was made to further evidence sworn on behalf of the Defendant. At the hearing on 27 April 2023, Mr Millett KC on behalf of the Plaintiff did not actively oppose the granting of leave to amend. It was suggested by the Defendant that in the absence of any direct Cayman Islands authority, the applicable test to apply is for the amendment of pleadings and originating process which was set out by Smellie CJ in Cayman Islands Civil Aviation Authority v Island Air Limited:

“ It is now settled law in this jurisdiction that an amendment should always be allowed unless it would cause injustice to the other party or constitute a useless claim because no evidence would be available to support it. This principle applies at any time up to the time of trial…” 4

Having heard from Mr Choo-Choy KC and receiving an explanation from him as to the reason for the proposed amendment (being that the incorrect statute had been referred to in error), I granted leave.

Corporate Structure

7 In Rudianto 1, Mr Rudianto sets out the background to the proceedings and explains his understanding 5 of the relationship between the parties.

8 The Defendant, JLS was incorporated as a Cayman Islands exempted company with limited liability on 21 December 2021 with a registered office located at IQ EQ Corporate Services (Cayman) Limited (“IQ EQ”). JLS, together with its subsidiaries (as described below) (the “Juniper Group”), forms part of a private equity venture focused on the healthcare industry. Mr Rudianto says that Juniper Therapeutix Pte Ltd (“Therapeutix”) and Juniper Biologics Pte Ltd (“Biologics”) are the most valuable entities within the Juniper Group.

9 As set out in the structure chart in Appendix 1 6, his understanding is that the Juniper Group has direct or indirect interests through its shareholding in the following subsidiaries:

• 9.1 JLS owns 100% of Juniper Holdings Ltd (“JHL”), which is a Cayman Islands exempted company with limited liability which was incorporated on 20 June 2022.

• 9.2 JHL owns 82.4% of Therapeutix. Mr Rudianto says that Therapeutix, was incorporated on 1 October 2020 under the laws of the Republic of Singapore and that the directors of Therapeutix are Jeun Byong Jun (“Mr Jeun”, a resident of Singapore) (since 26 October 2022) and Ramandeep Singh (“Mr Singh”) (since 1 October 2020).

• 9.3 JHL owns 75% of Biologics. Mr Rudianto explains that Biologics, was incorporated on 4 September 2020 under the laws of the Republic of Singapore. The directors of Biologics are Aidan Chan Tiong Eyong (“Mr Chan”) (since 26 September 2022), Mr Jeun (since 26 September 2022), Mr Singh (since 4 September 2020), Kim Julie Yun Won (since 26 September 2022), and Jean Thoh Jing Herng (since 22 July 2022).

10 Mr Rudianto holds the shares in Margie River CS, which owns 2.6% of the shares in Therapeutix and 2.4% of the shares in Biologics. Margie River CS is an exempted Cayman Islands company with limited liability which was incorporated on 12 January 2022 with a registered office located at IQ EQ.

11 RBH is an investment holding company which Mr Rudianto describes as the “founding” shareholder of JLS. He is the 100% shareholder of RBH and also a director of RBH.

12 Sylvan Asia Growth Master Fund I Pte. Ltd (“Sylvan MF”) was incorporated on 26 April 2021 under the laws of the Republic of Singapore. Mr Rudianto says that at all material times prior to the Resolution, Sylvan MF was the only other shareholder of JLS other than RBH. He understands that:

• 12.1 the directors of Sylvan MF are Mr Chan (since 9 January 2023) and Mr Jeun (since 23 February 2023) and;

• 12.2 Sylvan MF is wholly owned by Sylvan Asia Growth GP 1, Ltd. (“Sylvan GP”). Sylvan GP is the sole shareholder of Sylvan MF, and is a Cayman Islands exempted company with

  limited liability which was incorporated on 5 January 2021 with a registered office located at Maples Corporate Services Limited.

13 Sylvan Capital Management Pte Ltd (“SCM”) was incorporated on 25 September 2019 under the laws of the Republic of Singapore. He says that the directors of SCM are Mr Chan (since 14 December 2022) and Mr Jeun...