Judgment no. 531/2007/KDTM-ST dated april 04, 2007 on dispute between company’s members

THE COURTROOM OF THE PEOPLE’S COURT OF HO CHI MINH CITY

JUDGMENT NO. 531/2007/KDTM-ST DATED APRIL 04, 2007 ON DISPUTE BETWEEN COMPANY’S MEMBERS


On March 28, 2007 and April 03-04, 2007, an open first-instance trial was conducted at the courtroom of the People’s Court of Ho Chi Minh City to hear the handled case No. 744/2006/TLST-KDTM dated November 09, 2006 regarding dispute between the Company’s members pursuant to the Decision to bring the case to the trial No. 452/2007/QDST-KDTM dated February 05, 2007 between the following litigants:

Plaintiff: UNITED CONCORD INTERNATIONAL LTD.

(hereinafter referred to as “UCI”)

Address: 3905 Two Exchange Square, 8 Connaught Place, Central, Hong Kong

Contact address: Suite 2003 Sun Wah Tower, 115 Nguyen Hue Street, District 1, Ho Chi Minh City

Representative: Mr. Le Cong Dinh - Executive Director

(Legal representative)

Defendant: RADIANT INVESTMENTS LIMITED

(hereinafter referred to as “RIL”)

Address: Suite B-12-01, Plaza Mont’ Kiara, No. 2 Jalan Kiara, Mont’ Kiara, 50480 Kuala Lumpur, Malaysia

Representative: Mr. Tran Tuan Phong, according to the Power of attorney dated December 22, 2006

Entities having duties and interests from the lawsuit:

+ SAIGON CONSTRUCTION CORPORATION

(hereinafter referred to as “SGC”)

Address: 18A Dinh Tien Hoang Street, District 1, Ho Chi Minh City

Representative: Mrs. Nguyen Thi Ha Xuan, according to the Power of attorney No. 286/GUQ-TCT dated December 01, 2006

+ Mr. NGUYEN VAN HAO

Temporary residence: 57 Phung Khac Khoan Street, District 1, Ho Chi Minh City

Representative: Mr. Nguyen Chinh, according to the authorization contract dated February 09, 2007

+ Mr. JAYA J.B TAN (also called as DATO’ JAYA J.B TAN)

Contact address: Suite B-12-01, Plaza Mont’ Kiara, No. 2 Jalan Kiara, Mont’ Kiara, 50480 Kuala Lumpur, Malaysia

Representative: Mr. Tran Tuan Phong, according to the Power of attorney dated March 09, 2007

+ Mr. PAUL WONG

Contact address: Suite B-12-01, Plaza Mont’ Kiara, No. 2 Jalan Kiara, Mont’ Kiara, 50480 Kuala Lumpur, Malaysia

Representative: Mr. Tran Tuan Phong, according to the Power of attorney dated March 09, 2007

Persons protecting rights and benefits of the plaintiff:
Lawyer Bui Quang Nghiem, Ho Chi Minh City Bar Association
Lawyer Phan Trung Hoai, Ho Chi Minh City Bar Association

Persons protecting rights and benefits of the defendant:
Lawyer Dinh Quang Thuan, Ho Chi Minh City Bar Association
Lawyer Le Hong Nguyen, Ho Chi Minh City Bar Association

FINDING THAT

The plaintiff stated:

Grand Imperial Saigon Hotel Company Limited (hereinafter referred to as “GISH”) has its headquarters located at 101 Hai Ba Trung Street, District 1, Ho Chi Minh City, and is a joint venture established and operating under the Law of Vietnam according to the Investment license No. 908/GP issued by the State Committee for Cooperation and Investment on July 06, 1994, and as amended in 1995, 1997, 2002 and 2005.

According to the Investment license and its amendments, participants in GISH JV are:

Vietnamese party: Saigon Construction Corporation (“SGC”)

Foreign party, including:

+ United Concord International Ltd (“UCI”) – Representative: Mr. Nguyen Van Hao – Company’s President

+ Radiant Investments Limited (“RI”) – Representative: Mr. Jaya J.B Tan – Company’s President.

According to the Certificate No. 1692/KHDT-DN dated April 04, 2006 issued by the Department of Planning and Investment of Ho Chi Minh City, Mr. Nguyen Van Hao is the Chairperson of the Board of Directors and General Director of GISH.

However, RIL and Mr. Jaya J.B Tan had planned to illegally change the mentioned positions of Mr. Nguyen Van Hao at the GISH JV by requesting the other participants in the joint venture, including the foreign party, UCI, and Vietnamese party, SGC, to sign the following “Resolutions of the Board of Directors”, including:

- The written resolution as a substitute for the meeting of the Board of Directors on the amended Company Charter.

- The written resolution as a substitute for the meeting of the Board of Directors on change of the Chairperson of the Board of Directors.

- The written resolution as a substitute for the meeting of the Board of Directors on change of General Director.

The mentioned resolutions all were signed by members of the Board of Directors of RIL on August 10, 2006 and by members of the Board of Directors of SGC on August 22, 2006.

On September 30, 2006, members of the Board of Directors of UCI had declared that all resolutions mentioned above were rejected and invalid.

On October 04, 2006, Mr. Jaya J.B Tan had impersonated the “Chairperson of the Board of Directors” and sent written notifications to participants in JV and other members of the Board of Director of the personnel change and the meeting of the Board of Directors convened on October 17, 2006 with the aims of requesting Mr. Nguyen Van Hao to transfer the company’s office, seal and all documents concerning GISH JV to Mr. Jaya J.B Tan and Paul Wong, and making necessary preparations for re-registration of the company according to the mentioned resolutions.

Because the mentioned resolutions all were not approved by members of the Board of Directors of UCI according to the unanimity rule defined in Article 8.3.1 of the GISH’s Charter, they were invalid. Thus, UCI filed a lawsuit against RIL, and requested the Court to:

- Cancel or invalidate three resolutions signed by members of the Board of Directors representing RIL and SGC on August 10, 2006 and August 22, 2006, including: The Resolution on Charter; the Resolution on Chairperson of the Board of Directors; and the Resolution on General Director.

- Cancel or invalidate written notifications signed by Mr. Jaya J.B Tan on October 04, 2006 on change of the Chairperson of the Board of Directors and General Director, and the meeting of the Board of Directors convened on October 17, 2006.

The defendant stated:

- The defendant rejected all requests of the plaintiff.

- The defendant requested the Court to confirm the legal validity of the mentioned resolutions.

- The defendant requested the Court to force Mr. Nguyen Van Hao to hand over all works to the new Chairperson of the Board of Directors of GISH, Mr. Jaya J.B Tan, and the new General Director of GISH, Mr. Paul Wong.

Entities having duties and interests from the lawsuit stated:

- + Mr. NGUYEN VAN HAO: He submitted no individual requests but agreed to all opinions and requests of the plaintiff. He refused the defendant’s request to hand over works to Mr. Jaya J.B Tan and Mr. Paul Wong.

+ SAIGON CONSTRUCTION CORPORATION: SGC did not individually submit requests but believed that the mentioned resolutions were lawfully approved according to the defendant's statements.

- Mr. JAYA J.B TAN and Mr. PAUL WONG: They did not submit individual requests but agreed to all opinions and requests of the defendant.

The Court attempted reconciliation but failed, all litigants still keep their opinions unchanged.

At this trial:

The plaintiff:

Requests the Court to:

- Cancel or invalidate three resolutions signed by members of the Board of Directors representing RIL and SGC on August 10, 2006 and August 22, 2006, including: The Resolution on Charter; the Resolution on Chairperson of the Board of Directors; and the Resolution on General Director.

- Cancel or invalidate written notifications signed by Mr. Jaya J.B Tan on October 04, 2006 on change of the Chairperson of the Board of Directors and General Director, and the meeting of the Board of Directors convened on October 17, 2006.

The defendant:

- Rejects all requests of the plaintiff.

- Requests the Court to confirm the legal validity of the mentioned resolutions and force Mr. Nguyen Van Hao to hand over all works to the new Chairperson of the Board of Directors, Mr. Jaya J.B Tan, and the new General Director of GISH, Mr. Paul Wong.

Entities having duties and interests from the lawsuit:

- + Mr. NGUYEN VAN HAO: Submits no individual requests but agrees to all opinions and requests of the plaintiff. He refuses the defendant’s request to hand over works to Mr. Jaya J.B Tan and Mr. Paul Wong.

SAIGON CONSTRUCTION CORPORATION: Does not individually submit requests but finds that the mentioned resolutions were lawfully approved according to the defendant's statements.

- Mr. JAYA J.B TAN and Mr. PAUL WONG: Do not submit individual requests but both agree to all opinions and requests of the defendant.

Opinions of lawyers protecting rights and benefits of the plaintiff:

+ The involved parties should defend their rights and benefits on the basis of moral standards; when the law and morality contradict each other, the law should be adjusted.

+ The resolutions approved by members of the Board of Directors of RIL and of SGC are unlawful.

+ Mr. Nguyen Van Hao has made no errors in running the business of the joint venture to such an extent that the change of the Chairperson of the Board of Directors and General Director must be made. The joint venture has explicit financial statements; Mr. Hao has never involved in shady financial affairs.

+ There are reasonable grounds to believe that Mr. Ngo Thanh Tung (RIL’s representative) did not sign the resolutions on August 22, 2006 said by the defendant.

+ The appointment and dismissal of Chairperson of the Board of Directors and General Director must definitively follow the unanimity rule defined in Article 8.3.1 of the Joint Venture’s Charter. Provisions in Article 8.3.2 of the same only apply to decision on other issues.

+ Moreover, the written ballot must also comply with provisions laid down in Article 54 of the Law on enterprises in 2005. The application of this law must follow the prescribed road map.

+ The defendant quoted the English version of the Charter that the foreign party, Pengkalen, has the right to appoint the Chairperson of the Board of Directors, thus it also has the right to discharge the holder of the mentioned position but pursuant to the Law on investment, when the English version and the Vietnamese version contradict each other, the Vietnamese version shall apply.

+ Additionally, GISH has provided commitments not to change the Chairperson of the Board of Directors and General Director of the joint venture for sponsor banks.

For the foregoing reasons, the lawyers protecting rights and benefits of the plaintiff request the Trial panel to accept the plaintiff’s requests, and cancel the resolutions approved by members of the Board of Directors of RIL and SGC.

Opinions of lawyers protecting rights and benefits of the defendant:

+ The regulations replacing the voting rule upon the change of law laid down in Article 8.3.2 apply to not only the decisions mentioned in Article 8.3.2 but also all decisions made by the Board of Directors as defined in Article 8.3 (Powers of the Board of Directors).

+ Article 8.2.f of the Charter provides for specific procedures for approval for written resolutions of the Board of Directors, so Article 54 of the Law on enterprises in 2005 is not applied.

+ The defendant finds that there are no complex issues relating to sponsor banks as stated by the plaintiff.

+ Because the plaintiff quoted Article 54 of the Law on enterprises in 2005, it means that the plaintiff admits the new law, thus Article 52 of the Law on enterprises in 2005 should be applied.

For the foregoing reasons, the lawyers protecting rights and benefits of the defendant request the Trial panel to reject the plaintiff’s requests, acknowledge the legal validity of the resolutions approved by members of the Board of Directors of RIL and SGC, and force Mr. Nguyen Van Hao to hand over the position of the Chairperson of the Board of Directors to Mr. Jaya J.B Tan and the position of General Director to Mr. Paul Wong.

DEEMING THAT

After investigating documents in the case file, which have been verified at the trial, and based on the arguments at the trial, the Trial panel finds that:

1. Regarding the court jurisdiction:

This case is a business and commercial dispute (this is a dispute between the company’s members and also a dispute over the joint venture contract); the contract performance location (also the location where the headquarters of the joint venture whose members involved in the dispute is located) is Ho Chi Minh City. The plaintiff and other litigants of the case all confirmed at the trial that no arbitrator is chosen and the People’s Court of Ho Chi Minh City shall resolve the dispute. Thus, pursuant to Point m Clause 1, Clause 3, Article 29, Article 33, Clause 1 Article 34, Point g Clause 1 Article 36 and Point e Clause 2 Article 410 of the Civil Procedure Code, the People’s Court of Ho Chi Minh City has the jurisdiction to settle this dispute case according to the civil procedures.

2. Regarding the prescriptive period:

On August 10, 20 and 22, 2006, members representing RIL and SGC in the Board of Directors of GISH JV have approved written resolutions replacing the meeting of the Board of Directors on re-registration of the company according to the new Law on enterprises, appointment of new Chairperson of the Board of Directors and General Director. On October 16, 2006, UCI filed a petition requesting the Court to cancel the mentioned resolutions and written notifications of UCI’s representative (signed on October 04, 2006) of contents of the mentioned resolutions.

Pursuant to Point a Clause 3 Article 159 of the Civil Procedure Code, the plaintiff filed a petition to the Court within the prescribed period (2 years from the date on which the plaintiff’s legitimate rights and benefits are infringed). Thus, the case should be accepted and resolved in accordance with applicable laws.

3. Regarding contents of dispute:

a) With regard to the plaintiff’s request for cancellation or invalidation of the resolutions on re-registration of company under the new Law on enterprises, appointment of new Chairperson of the Board of Directors and General Director, and written notifications of UCI’s representative signed on October 04, 2006 of contents of the mentioned resolutions:

The plaintiff filed a lawsuit on the grounds that the unanimity rule must be followed when the Board of Directors decides the appointment, replacement and dismissal the Chairperson of the Board of Directors and General Director of the joint venture as prescribed in Point 1 Clause 8.3 Article 8 (or Article 8.3.1) of the Company's Charter. The plaintiff believes that the unanimity rule is broken (because two members of the Board of Directors representing UCI did not give approval) when members of the Board of Directors representing RIL and SGC approve the mentioned resolutions of the Board of Directors. The plaintiff also believes that RIL is not capable of representing the “Foreign party” to dismiss Mr. Nguyen Van Hao from the position of the Chairperson of the Board of Directors and General Director as per Article 8.1(c) and Article 9.1(d) of the Charter. Thus, the plaintiff believes that the resolutions approved by members of the Board of Directors representing RIL and SGC on re-registration of company under the new Law on enterprises, appointment of new Chairperson of the Board of Directors and General Director, and written notifications of UCI’s representative signed on October 04, 2006 of contents of the mentioned resolutions are unlawful and invalid.

The defendant quoted Point 2 Clause 8.3 Article 8 (or Article 8.3.2) of the Joint Venture’s Charter that the unanimity rule that the Board of Directors applies to approval for decisions has been automatically replaced by the majority rule according to the capital contribution percentage as regulated in Article 52 of the Law on enterprises in 2005 (becoming effective on July 01, 2006).

After listening to the statements of the litigants, arguments of the lawyers defending legitimate rights and benefits of the concerned parties, and considering evidences provided and referred to by the concerned parties, and also investigated at the trial (including the written resolutions of the case; provisions of the Charter of GISH and the joint venture contract signed between the parties; the Investment license; official dispatches and other relevant documents), the Trial panel deems that:

Regarding the form of resolutions of the Board of Directors of GISH JV:

Pursuant to Clause 8.2 Article 8 of GISH’s Charter (including Paragraph 8.2(f)) and the written explanation about Grand Imperial Saigon Hotel Project signed by the participants in the joint venture on June 09, 1994 (including amendments to the paragraph 8.2(f) of the Charter), the Board of Directors of GISH has the right to give approval for decisions made within its competence by voting at its meetings or giving written opinions. This content and all contents of the JV's Charter have been approved by the State Commission for Cooperation and Investment by means of issuing the Investment License to the JV on July 06, 1994 (upon modification and re-registration by providing the written explanation dated June 09, 1994 by the mentioned parties at the request of the State Commission for Cooperation and Investment at the Official Dispatch No. 983/UB-TD dated May 30, 1994). The provisions on written ballot of the Board of Directors stated in the JV’s Charter are not contrary to regulations of the laws applicable at the time of promulgation of the Charter and during the operation of GISH JV because the Law on foreign investments in Vietnam in 1987, the Law on foreign investments in Vietnam in 1996, as amended in 1990, 1992 and 2000, all provide no limitation on methods for approval for decisions adopted by the Board of Directors of the JV, and Clause 3 Article 18 of the Government's Decree No. 24/2000/ND-CP dated July 31, 2000 on elaboration of the Law on foreign investments in Vietnam and Article 52 of the Law on enterprises in 2005 (becoming effective from July 01, 2006) also allow the Board of Directors to give approval for its decisions by either voting at its meetings or giving written opinions. Thus, regarding the form, the written resolutions disputed by the concerned parties have been lawfully approved.

Regarding contents of the resolutions of the Board of Directors of GISH JV:

Pursuant to Point a Clause 14.1, Clause 14.2 Article 14 (Article 14.1.a and Article 14.2 for short) of the joint venture contract signed by the parties, Point a, Clause 8.1, Clause 8.3, Article 8 of the JV’s Charter and regulations of the laws applicable at the signing date of the joint venture contract and the JV’s Charter (April 04, 1994) until now, including Article 12 and Article 13 of the Law on foreign investments in Vietnam in 1987, Article 11 and Article 14 of the Law on foreign investments in Vietnam in 1996, as amended in 2000, Article 31 and Article 33 of the Government’s Decree No. 18-CP dated April 16, 1993 on implementation of the Law on foreign investments in Vietnam in 1987, as amended in 1990 and 1992, Clause 1 Article 17 of the Government’s Decree No. 24/2000/ND-CP dated July 31, 2000 on elaboration of the Law on foreign investments in Vietnam in 1996,as amended in 2000, and Article 52 of the Law on enterprises in 2005 (becoming effective from July 01, 2006), the contents of the written resolutions disputed by the parties are under the authority of the JV’s Board of Directors. Thus, contents of the mentioned resolutions all are lawful.

Regarding conditions (rules) for approving resolutions of the Board of Directors of GISH JV:

Pursuant to Article 14.2.1 of the joint venture contract signed between the concerned parties and Article 8.3.1 of the JV’s Charter, the matters stated in the written resolutions under this dispute (regarding change of registered operations; amendments to the JV's Charter; appointment of new Chairperson of the Board of Director and General Director of the JV) must be decided by the Board of Directors by applying the unanimity rule. When the Charter is approved (April 04, 1994), laws on foreign investments in Vietnam (including the Law on foreign investments in Vietnam in 1987 and Article 33 of the Government’s Decree No. 18-CP dated April 16, 1993) also provide the same regulations as mentioned above.

However, pursuant to Article 14.2.2 of the joint venture contract and Article 8.3.2 of the JV’s Charter, the participants in the JV have anticipated amendments to regulations of laws regarding the rule for approval for decisions of the Board of Directors, and agreed that: “Any amendments to laws regarding powers of the Board of Directors which allow application of majority rule to approval for decisions shall replace the mentioned provisions”.

It means that: If any amendments to the laws promulgated after the Charter is given approved allow the Board of Directors to decide matters within its competence (powers of the Board of Directors) under the majority rule (instead of the unanimity rule or the two-thirds supermajority rule as prescribed by the laws applicable at the signing date of the Charter), the majority rule shall, as a matter of course, replace the unanimity rule (or the two-thirds supermajority rule) agreed upon by the concerned parties in the mentioned provisions of the joint venture contract and the JV’s Charter.

On November 12, 1996, the National Assembly has ratified the (new) Law on foreign investments in Vietnam which supersedes the Law on foreign investments in Vietnam in 1987 and its amendments in 1990 and 1992, and provides no regulations on application of the unanimity rule by the Board of Directors to approval for decisions on appointment and dismissal of Chairperson of the Board of Directors. It means that amendments to laws allow the Board of Directors to give approval for a decision on appointment or dismissal of Chairperson of the Board of Directors by if it is approved by more than half (majority) of members of the Board of Directors present at the meeting (Article 14). Hence, pursuant to Article 14.2.2 of the joint venture contract and Article 8.3.2 of the JV’s Charter mentioned above, from the effective date of the Law on foreign investments in Vietnam in 1996 (the date announced in Article 67 of this Law), the unanimity rule is replaced by the majority rule in making decisions on appointment or dismissal of Chairperson of the Board of Directors.

On November 29, 2005, the National Assembly has ratified the (new) Law on enterprises which replaces regulations on organizational structure and operation of enterprises in the Law on foreign investments in Vietnam in 1996 and its amendments in 2000, including the regulation on allowing the Board of Directors to make decision by applying contributed capital or charter capital-based majority rule (65% or 75% of total capital contributed by members present at the meeting if a decision of the Board of Members is approved at the meeting or 75% of charter capital if a decision of the Board of Members is approved by getting written opinions). Thus, according to Article 14.2.2 of the joint venture contract and Article 8.3.2 of the JV’s Charter mentioned above, from the effective date of the Law on enterprises in 2005 (July 01, 2006), the unanimity rule has been replaced by the majority rule (based on contributed capital) which the Board of Directors applies when making decisions on re-registration (amendments to Charter), appointment or dismissal of General Director.

Based on the resolutions under the dispute submitted to the Court and confirmations by representatives of the litigants at this trial, the mentioned resolutions have been approved by 5 members of the Board of Directors representing RIL (holding 51% of the legal capital of the joint venture as specified in the Investment License) and 3 members of the Board of Directors representing SGC (holding 30% of the legal capital) of total members (10 members) of the Board of Directors of GISH.

At this trial, although the plaintiff’s representative only admits that the mentioned resolutions have been approved by 4 members of the Board of Directors representing RIL and 3 members of the Board of Directors representing SGC and refuses the event that the mentioned resolutions have been approved by Mr. Ngo Thanh Tung, member of the Board of Directors representing RIL, on August 20, 2006, there are reasonable grounds that the mentioned resolutions have been approved by 5 members of the Board of Directors representing RIL (holding 51% of the legal capital of the joint venture as specified in the Investment License) and 3 members of the Board of Directors representing SGC (holding 30% of the legal capital) on the basis of evidences which are the original resolutions bearing the signature of Mr. Ngo Thanh Tung (dated August 20, 2006) presented by the defendant and admitted by the defendant’s representative at the trial, and the plaintiff’s evidence that is the Document No. 364/GISH-DH dated November 13, 2006 signed by Mr. Nguyen Van Hao in the capacity of the Chairperson of the Board of Directors and General Director of GISH JV, and submitted to the Department of Planning and Investment, and Chairperson of the People’s Committee of Ho Chi Minh City, in which (at page 3, line 5-8 counted from the bottom) the confirmation that the appointment of new Chairperson of the Board of Directors and General Director of GISH is approved by 8 members and disapproved by 2 members is specified. Thus, in consideration of either the number of members of the Board of Directors as regulated in the Law on foreign investments in Vietnam or the contributed capital of members of total charter capital of the joint venture (limited liability company) as regulated in the Law on enterprises in 2005, the mentioned resolutions have been lawfully approved by the Board of Directors of GISH under the majority rule (8/10 members and 81% of the charter capital).

Regarding the opinion given by the lawyers defending rights and benefits of the plaintiff that the mentioned resolutions approved by members of the Board of Directors representing RIL and SGC are unlawful because of the following: Pursuant to Article 8.3, the agreement on change of the voting rule upon changes in law as specified in Article 8.3.2 only applies to the decisions specified in this article and shall be not applied to the decisions mentioned in Article 8.3.1; procedures for approval for the mentioned resolutions violate Article 54 of the Law on enterprises in 2005, and pursuant to Article 52 of this Law, the specific voting percentage of the Board of Directors shall be still subject to the company's Charter (that is 100%), the Trial panel finds that:

With regard to the replacement of the unanimity rule (100%) by the majority rule as agreed in Article 8.3.2 of the JV’s Charter and Article 14.2.2 of the joint venture contract:

+ Firstly, based on the outline of Article 8.3 of the Charter (and Article 14.2 of the joint venture contract), the agreement on replacement of voting rule deals with any changes in laws in respect of power of the Board of Directors, so it also deals with any decisions of the Board of Directors specified in Article 8.3 (including 8.3.1 and 8.3.2) because the heading of Article 8.3 is “Powers of the Board of Directors”.

+ Additionally, based on the contents, the agreement between the concerned parties also clearly mentions that “any changes in laws” in respect of “power of the Board of Directors” in general (without mentioning specific matters) shall replace "the above-mentioned provisions”. It means that provisions on voting rule mentioned in paragraph 2 Clause 8.3 Article 8 and previous contents (including paragraph 1 Clause 8.3 Article 8) are all replaced without limitation on any article, clause or point of the Charter.

Thus, the opinion given by the lawyers defending rights and benefits of the plaintiff that the agreement on change of the voting rule upon changes in law as specified in Article 8.3.2 only applies to the decisions specified in Article 8.3.2 is unfounded.

With regard to procedures for approval for the resolutions under dispute:

Pursuant to Article 54 of the Law on enterprises in 2005, provisions in this Article shall apply to approval for decisions only in case where the company's Charter provides no provisions on procedures (including the authority and form of getting written opinions from members of the Board of Directors). Paragraph f and paragraph i Clause 8.2 Article 8 of the Charter provide specific provisions on these matters (a written resolution of the Board of Directors must not be drafted by its Chairperson and approved by all members at the meeting, it only requires the approval by the minimum number of members by signing the written resolutions, both English version and Vietnamese version, provided they must bear the signature of the Chairperson or Deputy Chairperson of the Board of Directors) and the mentioned resolutions have been lawfully approved in accordance with the Charter (according to the procedures specified Article 8.2 (f) of the Charter, and the voting rule is applied according to Article 8.3 of the Charter and Article 14.2 of the joint venture because the voting rule specified in Article 8.2 (f) of the Charter is not conformable with the Law on foreign investments and provisions of the joint venture contract). Thus, regulations of Article 54 of the Law on enterprises in 2005 should not apply to the conclusion that the procedures for approval for the mentioned resolutions violate Article 54 of the Law on enterprises in 2005.

With regard to the voting percentage of the Board of Directors which is not lower than 75% as regulated in Article 52 of the Law on enterprises in 2005 or is 100% as regulated in Article 8.3.1 of the Charter:

+ “the specific percentage as regulated in the company’s Charter” means the replaced percentage as regulated in Article 8.3.2 of the Charter and Clause 3 Article 52 of the Law on enterprises in 2005. It means that pursuant to the Law on enterprises in 2005, a decision shall be made if it is approved by the number of members holding at least 75% in total of the charter capital but not 100% as former.

+ Moreover, if the unanimity rule (specific percentage is 100%) as regulated in the Charter should be maintained because it is allowed by the Law on enterprises in 2005 and it should be replaced only when the application of a specific percentage regulated in the company’s Charter is not allowed by law, it is unable to explain the purposes of the concerned parties when reaching the agreement on replacement of voting percentage (from 100% to majority) as specified in Article 8.3.2 of the Charter because the Charter needs to be amended in conformity with the law (“a decision is made under the majority rule”) if the application of a specific voting percentage defined in the company's Charter (that is 100% in this case) is not allowed by the law. If the Charter is not amended, the unanimity rule is still no longer valid and the Board of Directors is required to comply with regulations of laws. It is not necessary to reach an agreement as specified in the Charter.

For the foregoing reasons, the written resolutions on re-registration of operation in conformity with the new Law on enterprises, appointment of new Chairperson of the Board of Directors and General Director of GISH JV signed by members of the Board of Directors representing RIL and SGC on August 10, 20 and 22, 2006 are legally valid and must be respected and implemented by participants in the joint venture as well as members of the Board of Directors of GISH JV according to Article 3 and Article 14 of the joint venture contract, Article 5 and Article 8 of the JV's Charter, Clause 2 and Clause 3 Article 42 and Article 47 of the Law on enterprises in 2005 and Article 20 of the Government's Decree No. 20/2006/ND-CP on re-registration, conversion and registration of change of investment certificate by foreign-invested enterprises in accordance with the Law on enterprises and the Law on investment.

Because the mentioned resolutions are legally valid, it is unfounded to accept the plaintiff's request for cancellation or invalidation of the mentioned resolutions and the document signed by Mr. Jaya J.B Tan on October 04, 2006 (notification of change of Chairperson of the Board of Directors and General Director and the meeting of the Board of Directors convened on October 17, 2006).

b) With regard to the defendant’s counterclaim for confirmation of legal validity of the resolutions of the Board of Directors of GISH JV on re-registration of operation in conformity with the new Law on enterprises, appointment of new Chairperson of the Board of Directors and General Director, and requesting Mr. Nguyen Van Hao to hand over relevant works to the new Chairperson of the Board of Directors of GISH, Mr. Jaya J.B Tan, and the new General Director of GISH, Mr. Paul Wong:

According to the above-mentioned analysis, because the written resolutions on re-registration of operation in conformity with the new Law on enterprises, appointment of new Chairperson of the Board of Directors and General Director of GISH JV signed by members of the Board of Directors representing RIL and SGC on August 10, 20 and 22, 2006 are legally valid and must be respected and implemented by participants in the joint venture as well as members of the Board of Directors of GISH JV, it's well-grounded to accept the defendant's counterclaim.

4. Regarding the court fees:

Pursuant to Clause 1 Article 131 of the Civil Procedure Code and Article 15, Article 18 and Article 19 of the Government's Decree No. 70/CP dated June 12, 1997 on the court fees and charges;

- The plaintiff must pay the first-instance court fees with regard to the petition which is not accepted by the Court.

- The defendant must not pay the court fees and shall be reimbursed the counterclaim court fees temporarily paid.

For the said reasons,

THE COURT DECIDES

Pursuant to Clause 2 and Clause 3 Article 42, Article 47, Clause 1 and Clause 3 Article 52 of the Law on enterprises in 2005 and Article 20 of the Government’s Decree No. 101/2006/ND-CP dated September 21, 2006 on re-registration, conversion and registration of change of investment certificate by foreign-invested enterprises in accordance with the Law on enterprises and the Law on investment;

1. The Court refuses the plaintiff’s request for cancellation or invalidation of the resolutions on re-registration of company under the new Law on enterprises, appointment of new Chairperson of the Board of Directors and General Director of Grand Imperial Saigon Hotel Company Limited, and written notifications signed by the representative of Radiant Investments Limited on October 04, 2006 of contents of the mentioned resolutions.

2. The defendant’s counterclaim is accepted. Three resolutions signed by members of the Board of Directors representing Radiant Investments Limited and Saigon Construction Corporation on August 10, 20 and 22, 2006 are recognized as lawful resolutions made by the Board of Directors of Grand Imperial Saigon Hotel Company Limited (including: The resolution on re-registration, the resolution of Chairperson of the Board of Directors and the resolution on General Director). Mr. Nguyen Van Hao is forced to hand over relevant works to the new Chairperson of the Board of Directors of Grand Imperial Saigon Hotel Company Limited, Mr. Jaya J.B Tan, and to new General Director of Grand Imperial Saigon Hotel Company Limited, Mr. Paul Wong.

3. Regarding the court fees:

United Concord International Ltd must pay the first-instance court fees of VND 500,000 (five hundred thousand) which is deducted from the court fees of VND 250,000 (according to the Receipt No. 003353 dated November 06, 2006 of Department of Civil Judgment Enforcement of Ho Chi Minh City). Thus, UCI must also pay VND 250,000.

Radiant Investments Ltd must not pay the court fees and is reimbursed the first-instance court fees of VND 250,000 temporarily paid according to the Receipt No. 004546 dated March 19, 2007 of Department of Civil Judgment Enforcement of Ho Chi Minh City.

4. The litigants shall have the right to appeal against this judgment within 15 days from the date of judgment announcement.


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Judgment no. 531/2007/KDTM-ST dated april 04, 2007 on dispute between company’s members

Số hiệu:531/2007/KDTM-ST
Cấp xét xử:Sơ thẩm
Agency issued: Tòa án nhân dân Hồ Chí Minh
Field:Kinh tế
Date issued: 04/04/2007
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  • Address: 17 Nguyen Gia Thieu, Vo Thi Sau Ward, District 3, Ho Chi Minh City
    Phone: (028) 7302 2286 (6 lines)
    E-mail: info@lawnet.vn
Parent company: THU VIEN PHAP LUAT Ltd
Editorial Director: Mr. Bui Tuong Vu - Tel. (028) 7302 2286
P.702A , Centre Point, 106 Nguyen Van Troi, Ward 8, Phu Nhuan District, HCM City;