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40. Case No. (Red) 100/2558

The Arbitral Tribunal have determined the issues of dispute as follows:

1. Has the Respondent been in breach of the various Articles of the EL Thai
Joint Venture Agreement dated October 22, 1992 (EL Thai JVA), and the TF 2539 Joint Venture
Agreement dated March 19, 1996 (TF 2539 JVA), entered into between the Claimant and the
Respondent, as alleged and claimed by the Claimant?
2. Whether the Claimant has the right to terminate the EL Thai JVA and the TF
2539 JVA, and demand for dissolution of EL Thai Company Limited and TF (2539) Company
Limited, and other relieves and remedies as requested?

3. Whether the Claimant’s claims are barred by prescription?
4. Whether the Claimant or the Respondent shall have to bear the cost and
expenses with respect to this Arbitration, and to what extent?

The Tribunal determined on the burden of proof that as the first and the second
issues are raised and claimed by the Claimant and denied by the Respondent, the burden of proof
shall fall upon the Claimant. The third and the fourth issues are issues of law and can be decided
by the Arbitral Tribunal, and thus directed that the Claimant shall first proceed to adduce its
evidence to prove its claims and upon completion of the Claimant’s evidence, the Respondent shall
then adduce its evidence to support its defence.

The First Issue:

Has the Respondent been in breach of the various Articles of the EL Thai Joint
Venture Agreement dated October 22, 1992 (EL Thai JVA), and the TF 2539 Joint Venture Agreement
dated March 19, 1996 (TF 2539 JVA), entered into between the Claimant and the Respondent, as
alleged and claimed by the Claimant?

In the case of EL Thai

The Tribunal find that the audited financial statements of EL Thai for the period

ending December 31, 2009 and December 31, 2010 were not delivered to the Claimant until June
14, 2010 and June 23, 2011 respectively. Further, the Respondent did not adduce any evidence to
prove that a general meeting of shareholders (AGM) had actually been convened to review and
approve the 2010’s financial statements of EL Thai in April 2011. Despite such failure, EL Thai under
the management of the Respondent submitted the 2010 audited financial statements to the Bangkok
Company Registry on May 31, 2011 with a statement that such financial statements had been
approved by the shareholders on April 30, 2011. These actions were again in breach of both the
EL Thai JVA, and Section 1197.of the CCC, the provision of which is undoubtedly a law concerning
public policy.
The Claimant further gave evidence that an amount of Baht72 million had been

recorded in EL Thai’s books of account as loan or advance from the Respondent group as of 2007
despite the fact that according Article 6.3 of the EL Thai JVA, loan or advance of money by any party
to EL Thai shall in aggregate not be in excess of Baht 5 Million. Mr. Wichai Tulyathan, the
Respondent’s witness, admitted, in the cross examination, that the loan was necessary because of
the pressure from bankers who demanded a better debt to equity ratio in the company’s financial