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statement. Yet, the Respondent did not adduce any evidence in rebuttal but sought to rely on the
oral statement of Mr. Wichai Tulyathan alone, which did not go any distance in proving its case.

In the case of TF 2539

The Respondent’s witnesses gave evidence that many actions taken by the

Respondent in respect of TF 2539 had constituted material breaches of the TF 2539 JVA, similar to
the EL Thai case. These include, inter alia, passing of a special resolution in 1995 to change Article
36 of the company’s Articles of Association without the Claimant’s knowledge nor endorsement;
failure to keep true and correct accounting records and books; failure to provide to shareholders in
a timely manner audited financial statements; extending shareholder’s loan in violation of the TF
2539 JVA; failure to hold AGMs in a timely manner; and refusal to give the claimant an access to TF
2539’s accounts and records for inspection
With respect to changing the Articles of Association, the Claimant’s witness asserted
that it had not been informed of the general meetings and thus could not attend the meetings or

appointed any proxy to attend and vote on its behalf. The Respondent obviously breached Articles
3.2 and 3.5.3 of the Foam 2539 JVA. The Respondent further caused TF 2539 to prepare and submit
to the Bangkok Company Registrar an application for the registration of change of the TF 2539’s
Articles of Association with a statement that the general meetings had been attended by all the
shareholders of TF 2539 and that the special resolution cited above was passed by unanimous votes
of the shareholders, which was false and untrue.
The Claimant’s witness also asserted that TF 2539 under the management of the
Respondent had failed to prepare and keep true accounting records, thus breaching Article 8.2 of

the JVA Material discrepancies were found between the financial statements that TF 2539 delivered
to the Claimant and the financial statements that TF 2539 submitted to the Company Registry for
the accounting years 2000, 2001, 2002 and 2003
The Claimant’s witness confirmed that a copy of audited financial statements in
many accounting years were not submitted within 4 months after the close of each accounting year
(April) despite the Claimant’s repetitive reminders and complaints. The audited financial statements
of TF 2539 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. These Respondent’s action
violated not only Article 8.3 of the JVA but also Section 1197 of the CCC.

It was also found that the shareholder’s loan provided to TF 2539 by the
Respondent and/or its affiliated companies stands at Baht 9,640,015.78 in the financial statements
for the period ending December 31, 2010, of TF 2539. Clearly, such lending was in violation of
Article 6.3 of the TF 2539 JVA which restricts lending to not exceeding Baht: 5 Million.
It was found that the Claimant also by its letter dated June 28, 2011, requested
permission to inspect the books and accounts of TF 2539 but no response was received up to the
date of the Claimant’s submission of its Statement of Claims for arbitration in this case. Such denial

of the shareholder’s access to the books and accounts of a company in which it holds shares
constitutes a violation of Article 8.2 of the TF 2539 JVA.
The two notices called for the dissolution and liquidation of EL Thai and TF 2539,
and the distribution of the net assets of both companies to their respective shareholders pursuant
to Article 13.2 of both EL Thai JVA and TF 2539 JVA. Because of the Respondent’s continuing silence