In light of the above, we further submit the following: a) The disputes between the Plaintiffs, the First Defendant, and the Second to Sixth Defendants are interrelated. Therefore, the disputes cannot be bifurcated, S/N M/pC6Khwu0aijoj4qz9x/Q with part addressed through arbitration and another part through the courts. The risk of split litigation should be avoided. b) The inherent risk of duplicative proceedings and inconsistent outcomes between arbitration and civil proceedings is a pertinent factor that must be considered. c) There should not be two forums adjudicating the same issues on retention sum and fraudulent trading. [81] The Liquidators rely on the following cases, set out in their written submissions in Enclosure 21 at paragraphs 28 to 30 and 35, to support their conclusion in paragraph 34: i. Chase Perdana ii. Jaya Sudhir iii. Peninsula Education (Setia Alam); and iv. Uat Energy. Court’s analysis [82] We must not lose sight of the fact that it is Aturan, relying on its arbitration agreement with Pustaka, which is applying for a stay of Pustaka’s court proceedings in favour of arbitration. [83] The stay application is not made by the 2nd to 6th defendants who do not have an arbitration agreement with Pustaka. Neither is the application before me an injunction application by the 2nd to 6th defendants to stay court proceedings pending the outcome of the S/N M/pC6Khwu0aijoj4qz9x/Q arbitration between Pustaka and Aturan on ground of avoiding duplicity or inconsistent outcomes between arbitration and court proceedings. [84] The application before me is also not an injunction application by the 2nd to 6th defendants to stay the arbitration between Pustaka and Aturan pending the outcome of the court hearing between Pustaka and the 2nd to 6th defendants. [85] These various scenarios have critical differences in the principles that are applicable and much confusion has happened in the Liquidators’ submissions before me by counsel who have conflated and mixed up these different principles. The approach to take [86] It is trite law that an arbitration agreement must be given effect to by a court once the pre-conditions for a stay are satisfied. After granting a stay, then only the court examines whether a non-party to the arbitration agreement is entitled to stay the related court proceedings pending the outcome of the arbitration or stay/ restrain by injunction the arbitration hearing pending the outcome of the related court proceedings on ground of avoiding duplicity or inconsistent outcomes between arbitration and court proceedings. [87] The proper approach to adopt when dealing with this potentially overlapping court and arbitral proceedings is well articulated by Sundaresh Menon CJ sitting in the Singapore Court of Appeal in Tomolugen Holdings: S/N M/pC6Khwu0aijoj4qz9x/Q 2 These appeals raise issues concerning the arbitrability of disputes over minority oppression or unfairly prejudicial conduct, as well as the proper approach to adopt when dealing with potentially overlapping court and arbitral proceedings. They draw out a tension that will mount as commercial transactions and the disputes which they spawn grow in their sophistication and complexity. This tension is one that is likely to arise whenever disputes straddle court and arbitral proceedings, with the two sets of proceedings engaging common, although not necessarily identical, issues and parties. The tension lies in the court’s desire, on the one hand, to avoid the complications inherent in having to resolve a dispute across two different fora and, on the other hand, its recognition that it must conform to the statutory mandate laid down in s 6 of the IAA to direct that any dispute concerning a matter which is the subject of an arbitration agreement governed by the IAA is to be resolved by arbitration. Where these two considerations pull in opposite directions, the latter necessarily prevails because of the mandatory terms of s 6. The question which then arises for the court is how it can best manage the proceedings that it has control over in order to ameliorate the complications that are bound to arise by reason of the overlapping proceedings. … 137 We therefore find that there is a prima facie case that the Management Participation Allegation falls within the scope of the arbitration clause in the Share Sale Agreement. The court proceedings in respect of this allegation as between Silica Investors and Lionsgate are thus subject to a mandatory stay under s 6(1) of the IAA. However, the Share Issuance Allegation, in our judgment, is clearly not covered by the arbitration clause based on the pleadings and the evidence placed before us. Whether the rest of the court proceedings against Lionsgate and the remaining defendants should be stayed pending the resolution of the arbitration between Silica Investors and Lionsgate S/N M/pC6Khwu0aijoj4qz9x/Q 138 This leaves us with that part of the court proceedings in the Suit which are not subject to a mandatory stay under s 6 of the IAA. These comprise: (a) the court proceedings between Silica Investors and Lionsgate concerning the Share Issuance Allegation, the Guarantees Allegation and the Asset Exploitation Allegation; and (b) the court proceedings between Silica Investors and the remaining defendants concerning those three allegations as well as the Management Participation Allegation. The parties do not dispute the court’s inherent power to stay court proceedings in the interests of case management pending the resolution of a related arbitration. The only dispute is over whether and, if so, how this power should be exercised in the present case. The options available to the court 139 Broadly speaking, there are three options available to a Singapore court which is faced with proceedings whose outcome depends on the resolution of a related arbitration, namely: a) stay the whole of the court proceedings pending the resolution of the putative arbitration (ie, resolve the arbitration first); b) stay the court proceedings only to the extent that is required under s 6 of the IAA, but on the condition that the putative arbitration proceed only after the resolution of the remaining court proceedings (ie, resolve that part of the court proceedings which falls outside s 6 first); or c) stay the court proceedings only to the extent that is required under s 6 of the IAA, and allow the putative arbitration and the remaining court proceedings to run in parallel (ie, concurrent resolution of the arbitration and that part of the court proceedings which falls outside s 6). … 188 …The court must in every case aim to strike a balance between three higher-order concerns that may pull in different considerations: first, a plaintiff’s S/N M/pC6Khwu0aijoj4qz9x/Q right to choose whom he wants to sue and where; second, the court’s desire to prevent a plaintiff from circumventing the operation of an arbitration clause; and third, the court’s inherent power to manage its processes to prevent an abuse of process and ensure the efficient and fair resolution of disputes. The balance that is struck must ultimately serve the ends of justice… [Emphasis added] [88] The correct methodology when dealing with overlapping court and arbitral proceedings put forward by the Singapore Court of Appeal in Tomolugen Holdings was commented on favourably by our Court of Appeal in Protasco Bhd v Tey Por Yee & Another Appeal [2018] 5 CLJ 299 CA [“Protasco Bhd”] at [48]. Protasco Bhd [89] Protasco Bhd is a case where the High Court granted a stay of the court proceedings between Protasco and non-parties [Tey and Ooi] to an arbitration agreement pending the disposal of the arbitration proceedings between Protasco and PT ASU. The Court of Appeal allowed the appeal and ordered: i. The court proceedings against Tey and Ooi only are to proceed to trial in the High Court; and ii. The arbitration proceedings between Protasco and PT ASU are temporarily stayed pending the disposal of the court proceedings in the High Court only, and may proceed immediately upon such adjudication of Protasco’s claim against Tey and Ooi. S/N M/pC6Khwu0aijoj4qz9x/Q [90] The facts in Protasco were that Protasco had brought a claim against the first defendant PT ASU, the second defendant Tey and the third defendant Ooi. The dispute between Protasco and PT ASU was governed by an arbitration clause in the sale and purchase agreement executed. PT ASU obtained a stay of the court proceedings between Protasco and itself pursuant to section 10 of the AA 2005. [91] Subsequent to this, Tey and Ooi filed applications for a stay of the court proceedings pending the disposal of the arbitration proceedings between Protasco and PT ASU, which were allowed, based on the trial judge’s decision that the issues and factual matrix of Protasco’s claim against the three defendants/respondents were inter-related. [92] Protasco appealed to the Court of Appeal against the stay of the court proceedings pending the disposal of the arbitration proceedings between Protasco and PT ASU. [93] Nallini Pathmanathan JCA said: [46] In the Singapore Court of Appeal case of Tomolugen Holdings … numerous authorities in the Commonwealth were considered and analysed comprehensively. There were appeals against a judge’s refusal to stay court proceedings in favour of arbitration. It related to an oppression suit. One of the defendants argued that part of the dispute in the court proceedings fell within an arbitration clause in a share sale agreement between itself and the plaintiff and was subject to a mandatory stay. A stay of the remaining court proceedings was also sought pending the completion of the arbitration between itself and the plaintiff. S/N M/pC6Khwu0aijoj4qz9x/Q [47] In allowing the appeals and granting a stay of the court proceedings against non-parties pending arbitration, the Singapore Court of Appeal inter alia, opined that the grant of a stay of court proceedings to non-parties to the arbitration under the inherent jurisdiction of the court ought not, to be relegated to such a high threshold as the “rare and compelling circumstances” test articulated in Reichhold Norway ASA and Another v. Goldman Sachs International [2000] 2 All ER 679 [“Reichhold Norway”]. [48] The decision of the Singapore Court of Appeal in Tomolugen is instructive as it studies the approaches adopted in several Commonwealth jurisdictions prior to arriving at the proper approach to be adopted in Singapore. This therefore affords us a bird’s-eye view of the approach adopted in several other jurisdictions enabling this court to consider the reasoning in these jurisdictions prior to determining the best approach to be taken in these appeals. [49] Insofar as Tey and Ooi are concerned, as they are not parties to the arbitration agreement, s. 10 of the AA does not come into play. The court’s power to grant a stay is derived from its inherent power to stay court proceedings pending arbitration in the interests of the justice of the case. Therefore, the sole issue for consideration is whether the discretion ought to be exercised to allow a stay as sought by Tey and Ooi or to refuse such a stay as submitted by Protasco… [50] In Tomolugen, the Singapore Court of Appeal outlined the options available to a Singapore court when faced with court proceedings against non-parties, when there was a related arbitration. Those options afford a logical, and with respect, well-summarised series of choices available to a court faced with such an issue. The options as set out in Tomolugen and adopted here are: