BTN v BTP: Review of Arbitral Award on Jurisdiction and Res Judicata in Termination Dispute

The Singapore High Court heard Originating Summons No 683 of 2018 between BTN and BTO (Plaintiffs) and BTP and BTQ (Defendants), concerning a challenge to a partial arbitral award. The plaintiffs sought a review of the award, arguing that it was a negative jurisdictional decision or, alternatively, should be set aside. The court, presided over by Belinda Ang Saw Ean J, dismissed the originating summons, finding that the arbitral award was not a jurisdictional decision and that the grounds for setting it aside were not met. The case involved a dispute over the termination of the defendants' employment and its impact on earn-out considerations under a Share Purchase Agreement.

1. Case Overview

1.1 Court

High Court of the Republic of Singapore

1.2 Outcome

Originating Summons dismissed with costs.

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Singapore High Court reviews an arbitral award concerning the binding effect of a Malaysian Industrial Court decision on termination. The court dismisses the challenge.

1.7 Decision Date

15 September 2019

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
BTN	Plaintiff	Corporation	Claim Dismissed	Lost	Colin Liew of Colin Liew LLC Philip Jeyaretnam of Colin Liew LLC
BTO	Plaintiff	Corporation	Claim Dismissed	Lost	Colin Liew of Colin Liew LLC Philip Jeyaretnam of Colin Liew LLC
BTP	Defendant	Individual	Judgment for Defendant	Won	Chew Kei-Jin of Ascendant Legal LLC Stephanie Tan Silin of Ascendant Legal LLC Yeo Chuan Tat of Ascendant Legal LLC Michael Hwang of Ascendant Legal LLC
BTQ	Defendant	Individual	Judgment for Defendant	Won	Chew Kei-Jin of Ascendant Legal LLC Stephanie Tan Silin of Ascendant Legal LLC Yeo Chuan Tat of Ascendant Legal LLC Michael Hwang of Ascendant Legal LLC

3. Judges

Judge Name	Title	Delivered Judgment
Belinda Ang Saw Ean	Judge	Yes

4. Counsels

Counsel Name	Organization
Colin Liew	Colin Liew LLC
Philip Jeyaretnam	Colin Liew LLC
Chew Kei-Jin	Ascendant Legal LLC
Stephanie Tan Silin	Ascendant Legal LLC
Yeo Chuan Tat	Ascendant Legal LLC
Michael Hwang	Ascendant Legal LLC

4. Facts

Defendants were owners of a group of companies, with BTO as the principal holding company.
BTN acquired 100% ownership and control of the Group pursuant to a Share and Purchase Agreement.
The consideration for the acquisition included a Guaranteed Minimum Consideration and an Earn Out Consideration.
The SPA stipulated that the defendants had to be employed by BTO, governed by Promoter Employment Agreements.
BTO gave notices to the Employees, summarily dismissing them with reference to the SPA and PEA.
The Employees commenced proceedings under s 20 of the Industrial Relations Act 1967 (Malaysia).
The MIC gave judgment in their favour on 6 April 2015 and 29 July 2015 respectively.

5. Formal Citations

BTN and another v BTP and another, Originating Summons No 683 of 2018(Summons No 2611 of 2018), [2019] SGHC 212

6. Timeline

Date	Event
2012-09-26	Share and Purchase Agreement signed.
2012-11-01	Promoter Employment Agreements signed.
2014-01-08	BTO gave notices to the Employees, summarily dismissing them.
2015-04-06	MIC gave judgment in favour of BTP.
2015-07-29	MIC gave judgment in favour of BTQ.
2016-02-16	BTO's management notified of MIC notices.
2016-07-01	Employees commenced arbitration proceedings under the SPA.
2017-11-29	Tribunal issued Procedural Order No 5, setting out the agreed list of legal issues.
2017-12-06	Hearing of the legal issues took place.
2018-04-30	Partial arbitral award dated.
2018-06-01	Companies filed OS 683.
2018-09-21	Hearing date.
2019-03-18	Hearing date.
2019-05-30	Hearing date.
2019-09-16	Judgment reserved.
2019-09-16	Judgment date.

7. Legal Issues

Jurisdiction of Arbitral Tribunal
- Outcome: The court held that the arbitral award was not a jurisdictional decision.
- Category: Jurisdictional
- Sub-Issues:
  - Negative jurisdiction ruling
  - Scope of submission to arbitration
- Related Cases:
  - [2014] 4 SLR 79
  - [2015] 3 SLR 154
  - [2007] 1 SLR(R) 597
  - [2015] 2 SLR 972
  - [2015] 5 SLR 1104
  - [2018] SGHC 275
  - [2015] 3 SLR 488
  - [2017] SGHC 289
  - [2019] 1 SLR 263
  - 207 F 3d 1126
  - [2011] 4 SLR 305
  - [2019] 3 SLR 12
  - [2018] SGHC 157
  - [2019] 2 SLR 131
  - [2007] 3 SLR(R) 86
  - [2013] 4 SLR 972
  - [2010] 1 SLR 733
  - [2011] 4 SLR 739
  - [2002] 1 SLR(R) 1088
  - [2014] 1 SLR 130
  - [2014] WASC 10
  - [2018] 2 SLR 1207
Res Judicata
- Outcome: The court found that the arbitral tribunal's decision on issue estoppel was not a jurisdictional decision.
- Category: Substantive
- Sub-Issues:
  - Issue estoppel
  - Privity of interest
- Related Cases:
  - [2014] 4 SLR 79
  - [2015] 3 SLR 154
  - [2007] 1 SLR(R) 597
  - [2015] 2 SLR 972
  - [2015] 5 SLR 1104
  - [2018] SGHC 275
  - [2015] 3 SLR 488
  - [2017] SGHC 289
  - [2019] 1 SLR 263
  - 207 F 3d 1126
  - [2011] 4 SLR 305
  - [2019] 3 SLR 12
  - [2018] SGHC 157
  - [2019] 2 SLR 131
  - [2007] 3 SLR(R) 86
  - [2013] 4 SLR 972
  - [2010] 1 SLR 733
  - [2011] 4 SLR 739
  - [2002] 1 SLR(R) 1088
  - [2014] 1 SLR 130
  - [2014] WASC 10
  - [2018] 2 SLR 1207
Breach of Natural Justice
- Outcome: The court found no breach of natural justice.
- Category: Procedural
- Sub-Issues:
  - Failure to consider argument
  - Reliance on disputed facts
- Related Cases:
  - [2014] 4 SLR 79
  - [2015] 3 SLR 154
  - [2007] 1 SLR(R) 597
  - [2015] 2 SLR 972
  - [2015] 5 SLR 1104
  - [2018] SGHC 275
  - [2015] 3 SLR 488
  - [2017] SGHC 289
  - [2019] 1 SLR 263
  - 207 F 3d 1126
  - [2011] 4 SLR 305
  - [2019] 3 SLR 12
  - [2018] SGHC 157
  - [2019] 2 SLR 131
  - [2007] 3 SLR(R) 86
  - [2013] 4 SLR 972
  - [2010] 1 SLR 733
  - [2011] 4 SLR 739
  - [2002] 1 SLR(R) 1088
  - [2014] 1 SLR 130
  - [2014] WASC 10
  - [2018] 2 SLR 1207
Public Policy
- Outcome: The court found that the Partial Award was not in conflict with the public policy of Singapore.
- Category: Substantive
- Sub-Issues:
  - Substantive injustice
- Related Cases:
  - [2014] 4 SLR 79
  - [2015] 3 SLR 154
  - [2007] 1 SLR(R) 597
  - [2015] 2 SLR 972
  - [2015] 5 SLR 1104
  - [2018] SGHC 275
  - [2015] 3 SLR 488
  - [2017] SGHC 289
  - [2019] 1 SLR 263
  - 207 F 3d 1126
  - [2011] 4 SLR 305
  - [2019] 3 SLR 12
  - [2018] SGHC 157
  - [2019] 2 SLR 131
  - [2007] 3 SLR(R) 86
  - [2013] 4 SLR 972
  - [2010] 1 SLR 733
  - [2011] 4 SLR 739
  - [2002] 1 SLR(R) 1088
  - [2014] 1 SLR 130
  - [2014] WASC 10
  - [2018] 2 SLR 1207
Contractual Interpretation
- Outcome: The court upheld the Tribunal's decision that the MIC awards were binding as a matter of contractual construction.
- Category: Substantive
- Sub-Issues:
  - Interconnected agreements
  - Binding effect of MIC awards
- Related Cases:
  - [2014] 4 SLR 79
  - [2015] 3 SLR 154
  - [2007] 1 SLR(R) 597
  - [2015] 2 SLR 972
  - [2015] 5 SLR 1104
  - [2018] SGHC 275
  - [2015] 3 SLR 488
  - [2017] SGHC 289
  - [2019] 1 SLR 263
  - 207 F 3d 1126
  - [2011] 4 SLR 305
  - [2019] 3 SLR 12
  - [2018] SGHC 157
  - [2019] 2 SLR 131
  - [2007] 3 SLR(R) 86
  - [2013] 4 SLR 972
  - [2010] 1 SLR 733
  - [2011] 4 SLR 739
  - [2002] 1 SLR(R) 1088
  - [2014] 1 SLR 130
  - [2014] WASC 10
  - [2018] 2 SLR 1207

8. Remedies Sought

Review of arbitral award
Setting aside of arbitral award

9. Cause of Actions

Breach of Contract

10. Practice Areas

Arbitration
Commercial Litigation

11. Industries

Online Travel Agency

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
BLC and others v BLB and another	High Court	Yes	[2014] 4 SLR 79	Singapore	Cautioned against parties crafting arguments based on an alleged breach of natural justice.
Coal & Oil Co LLC v GHCL Ltd	High Court	Yes	[2015] 3 SLR 154	Singapore	Cautioned against parties crafting arguments based on an alleged breach of natural justice.
PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA	Court of Appeal	Yes	[2007] 1 SLR(R) 597	Singapore	Discussed the requirements for an award under the International Arbitration Act and the concept of res judicata. Distinguished on facts.
AQZ v ARA	High Court	Yes	[2015] 2 SLR 972	Singapore	Addressed the applicability of Section 10(3)(b) to awards containing both jurisdictional and substantive decisions.
The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate Advisory Pte Ltd and others, other parties) and another appeal	Court of Appeal	Yes	[2015] 5 SLR 1104	Singapore	Explored and explained the concepts of res judicata and jurisdiction.
BAZ v BBA and others and other matters	High Court	Yes	[2018] SGHC 275	Singapore	Explained the difference between the concepts of admissibility and jurisdiction.
AKN and another v ALC and others and other appeals	Court of Appeal	Yes	[2015] 3 SLR 488	Singapore	Advised that the courts do not and must not interfere in the merits of an arbitral award.
BNX v BOE and another matter	High Court	Yes	[2017] SGHC 289	Singapore	Cited regarding subject matter identity in res judicata.
Swissbourgh Diamond Mines (Pty) Ltd and others v Kingdom of Lesotho	Court of Appeal	Yes	[2019] 1 SLR 263	Singapore	Discussed the concepts of jurisdiction and admissibility.
Chiron Corp v Ortho Diagnostic Systems	US Court of Appeals for the Ninth Circuit	Yes	207 F 3d 1126	United States	Held that a res judicata objection based on a prior arbitration proceeding is a legal defense that is a component of the dispute on the merits and must be considered by the arbitrator, not the court.
CRW Joint Operation v PT Perusahaan Gas Negara (Persero) TBK	Court of Appeal	Yes	[2011] 4 SLR 305	Singapore	Discussed breach of Art 34(2)(a)(iii) and s 24(b) because the arbitral tribunal failed to go into the substantive merits of the parties’ dispute.
Kingdom of Lesotho v Swissbourgh Diamond Mines (Pty) Ltd and others	High Court	Yes	[2019] 3 SLR 12	Singapore	Followed AQZ v ARA.
Sinolanka Hotels & Spa (Private) Limited v Interna Contract SpA	High Court	Yes	[2018] SGHC 157	Singapore	Followed AQZ v ARA.
Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Pte) Ltd	Court of Appeal	Yes	[2019] 2 SLR 131	Singapore	Held that it was not necessary for a party to file a formal objection or plea in the legal sense of the term in order to engage Art 16(3).
Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd	High Court	Yes	[2007] 3 SLR(R) 86	Singapore	Discussed the requirements to establish breaches of natural justice.
TMM Division Maritima SA de CV v Pacific Richfield Marine Pte Ltd	High Court	Yes	[2013] 4 SLR 972	Singapore	A tribunal is not obliged to deal with every argument; all that is required of the tribunal is to ensure that the essential issues are dealt with.
SEF Construction Pte Ltd v Skoy Connected Pte Ltd	High Court	Yes	[2010] 1 SLR 733	Singapore	Natural justice does not require that the parties be given responses on all submissions made.
AJU v AJT	High Court	Yes	[2011] 4 SLR 739	Singapore	Such findings of fact and law by the Tribunal in a public policy challenge cannot be reviewed by this court.
WSG Nimbus Pte Ltd v Board of Control for Cricket in Sri Lanka	High Court	Yes	[2002] 1 SLR(R) 1088	Singapore	The defendants commenced proceedings in a foreign court in breach of an anti-suit injunction ordered by the Singapore High Court, which they were aware of, and the High Court held that it would be a breach of public policy to give recognition to the foreign judgment and thus the foreign judgment did not give rise to issue estoppel.
International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd and another	High Court	Yes	[2014] 1 SLR 130	Singapore	Compliance with mandatory steps is a precondition to any arbitration.
Pipeline Services WA Pty Ltd v ATCO Gas Australia Pty Ltd	Supreme Court of Western Australia	Yes	[2014] WASC 10	Australia	It was mandatory for the parties to arbitrate their disputes.
Marty Ltd v Hualon Corp (Malaysia) Sdn Bhd (receiver and manager appointed)	High Court	Yes	[2018] 2 SLR 1207	Singapore	The Employees’ conduct in commencing proceedings in the MIC was a repudiatory breach of the arbitration agreements.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
International Arbitration Act (Cap 143A, 2002 Rev Ed)	Singapore
Industrial Relations Act 1967 (Act 177)	Malaysia

15. Key Terms and Keywords

15.1 Key Terms

Share Purchase Agreement
Promoter Employment Agreement
Earn Out Consideration
Without Cause Termination
With Cause Termination
Malaysian Industrial Court
Res Judicata
Issue Estoppel
Audited Accounts
Negative Jurisdiction

15.2 Keywords

Arbitration
Jurisdiction
Res Judicata
Termination
Employment
Contract
Singapore
Malaysian Industrial Court

17. Areas of Law

Area Name	Relevance Score
Arbitration	90
Contract Law	75
International Arbitration Act	60
Jurisdiction	60
Estoppel	50
UNCITRAL Model Law	50
Promoter Employment Agreements	40
Share Purchase Agreement	40
Malaysian Industrial Court Awards	30
Company Law	30
Restructuring and Insolvency	15

16. Subjects

Arbitration
Contract Law
Employment Law
Civil Procedure