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Pca Case Nº 2012-01 in the Matter Of PCA CASE Nº 2012-01 IN THE MATTER OF THE RAILWAY LAND ARBITRATION -before- A TRIBUNAL CONSTITUTED IN ACCORDANCE WITH A SUBMISSION AGREEMENT BETWEEN SINGAPORE AND MALAYSIA DATED 9 JANUARY 2012 -between- MALAYSIA -and- THE REPUBLIC OF SINGAPORE -under- THE PERMANENT COURT OF ARBITRATION OPTIONAL RULES FOR ARBITRATING DISPUTES BETWEEN TWO STATES __________________________________________________________ AWARD __________________________________________________________ ARBITRAL TRIBUNAL: Lord Phillips of Worth Matravers KG, PC (President) The Honourable Murray Gleeson AC, QC Judge Bruno Simma REGISTRY: Permanent Court of Arbitration 30 October 2014 this page intentionally blank TABLE OF CONTENTS A. THE PARTIES AND THEIR REPRESENTATIVES ............................................................................. 1 B. THE DISPUTE ............................................................................................................................................ 2 C. THE JOINT COMPANY ........................................................................................................................... 8 D. RELIEF REQUESTED .............................................................................................................................. 8 (i) Singapore’s Request .......................................................................................................................... 8 (ii) Malaysia’s Request ............................................................................................................................ 8 E. PROCEDURAL HISTORY ....................................................................................................................... 9 F. PRINCIPLES OF INTERPRETATION ................................................................................................. 12 G. A SUMMARY OF THE ISSUES ............................................................................................................. 14 H. THE STRUCTURE OF THIS AWARD .................................................................................................. 15 I. DEVELOPMENT CHARGE ................................................................................................................... 15 (i) The general principles ..................................................................................................................... 15 (ii) Sales of land by the Government ..................................................................................................... 18 J. BACKGROUND TO THE POA .............................................................................................................. 21 K. THE NEGOTIATION OF THE POA ..................................................................................................... 24 L. INITIAL STEPS TOWARDS THE IMPLEMENTATION OF THE POA .......................................... 28 M. IMPASSE................................................................................................................................................... 29 N. THE POA REVIVED AND REVISED AS SET OUT IN THE JOINT STATEMENT OF 24 MAY 2010 .................................................................................................................................................. 30 O. EVENTS AFTER 24 MAY 2010 .............................................................................................................. 36 P. THE CORRECT INTERPRETATION OF THE POA AT THE TIME OF ITS CONCLUSION ......................................................................................................................................... 41 (i) Singapore’s submissions in outline ................................................................................................. 41 (ii) Malaysia’s submissions in outline ................................................................................................... 43 (iii) The value to the Parties of the railway lands ................................................................................... 43 (iv) Prime Minister Lee Kuan Yew’s dinner .......................................................................................... 45 (v) The nature of the transaction ........................................................................................................... 48 (vi) Singapore’s municipal law .............................................................................................................. 50 (vii) The ordinary meaning of the terms of the POA ............................................................................... 51 (viii) The subjective intention of the Parties ............................................................................................. 56 (ix) The subsequent conduct of the Parties ............................................................................................. 57 (x) Conclusions ..................................................................................................................................... 59 Q. THE EFFECT OF THE CONDUCT OF MALAYSIA IN AND AFTER 2008 ..................................... 59 (i) Did the 24 May Joint Statement, and the negotiations leading up to it, constitute an agreement that evidenced the intention of the Parties at the time the POA was negotiated in 1990? .......................................................................................................................... 64 (ii) What was the nature of the agreement contained in the 24 May Joint Statement? .......................... 64 (iii) What is the true interpretation of the 24 May Joint Statement? ....................................................... 65 (iv) Estoppel ........................................................................................................................................... 66 R. DECISION................................................................................................................................................. 69 i GLOSSARY OF DEFINED TERMS 24 May Joint Statement Joint Statement on Singapore–Malaysia Leaders’ Retreat between Prime Minister Lee Hsien Loong and Prime Minister Dato’ Sri Mohd Najib Tun Abdul Razak, 24 May 2010, Singapore (Exhibit S-65) CIQ Customs, immigration and quarantine DC Development charge, a tax provided for in Singapore’s municipal law for written permission to develop land in a manner departing from the zoning or plot ratio set out in Singapore’s Master Plan Differential Premium Premium amounting to 100% of the enhancement in the value of the land attributable to the lifting, upon application, of restrictive covenants in a lease of State land IM Iskandar Malaysia, a special economic zone in South Johor, Malaysia Jurong Spur Spur line of the railway in Singapore, running between Bukit Timah and Jurong Khazanah Khazanah Nasional Berhad KTMB Keretapi Tanah Melayu Berhad Minister Anifah Dato’ Sri Anifah Aman, Foreign Minister of Malaysia as from April 2009 Minister Daim Tun Daim Zainuddin, Finance Minister of Malaysia between July 1984 and March 1991 Minister Dhanabalan Mr Suppiah Dhanabalan, Minister for National Development of Singapore from January 1987 to August 1992 Minister Mah Mr Mah Bow Tan, Minister for National Development of Singapore from June 1999 to May 2011 Minister Nor Tan Sri Nor Mohamed Yakcop, Minister in the Prime Minister’s Department and Head of the Economic Planning Unit in the Office of the Prime Minister of Malaysia from 10 April 2009 to 5 May 2013 Minister Rais Datuk Seri Utama Dr Rais Yatim, Foreign Minister of Malaysia between March 2008 and April 2009 Minister Yeo Mr George Yeo, Foreign Minister of Singapore between August 2004 and May 2011 MOU Draft Memorandum of Understanding prepared by Singapore in advance of the 12 November 1992 meeting between KTMB and the Ministry of National Development of Singapore (Exhibit S-25) MRA Malayan Railway Administration M-S M-S Pte Ltd, a private company limited by shares, incorporated in Singapore and owned 60% by Kazanah and 40% by Temasek Parties Malaysia and the Republic of Singapore PCA Optional Rules The Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between Two States PCA The Permanent Court of Arbitration POA Points of Agreement on Malayan Railway Land in Singapore dated 27 November 1990 ii Prime Minister Abdullah Tun Abdullah Ahmad Badawi, Prime Minister of Malaysia from October 2003 to April 2009 Prime Minister Najib Dato’ Sri Mohd Najib bin Tun Abdul Razak, Prime Minister of Malaysia as from April 2009 railway lands Land in Singapore used for the operation of a railway, first by the MRA and later by KTMB Rule 4 Rule 4 of the Singapore Planning (Development Charges – Exemption) Rules 1996 (Exhibit M-39) Singapore The Republic of Singapore SRTO Singapore Railway Transfer Ordinance Submission Question Question set out in Article 1 of the Submission Agreement between Singapore and Malaysia dated 9 January 2012 Temasek Temasek Holdings (Private) Limited three Bukit Timah parcels Three parcels of land at Bukit Timah offered by Singapore in the Letter dated 2 June 2008 from Singapore Minister for Foreign Affairs George Yeo to Malaysian Minister of Foreign Affairs Dr. Rais Yatim (Exhibit S-52) three POA parcels Three parcels of land at Keppel, Kranji and Woodlands identified in the annexes to the POA TPN Third Party Notes, a form of diplomatic correspondence URA Urban Redevelopment Authority of Singapore valuation footnote Footnote referencing the need for M-S Pte Ltd to
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