Pursuant to the terms of a Consultancy Agreement dated 7 September 2012 between the respondent and a third party company (ZCo), ZCo was to provide services to the respondent in relation to mergers and acquisitions of oil and gas fields around the world. ZCo would be entitled to payment of a success fee subject to certain conditions (Success Fee) upon its presentation of an “Opportunity” to the respondent and the successful completion of that Opportunity.
In October 2013, ZCo, the appellant (ZCo’s sister company) and the respondent executed a Deed of Novation under which ZCo assigned and novated the Consultancy Agreement to the appellant. The Consultancy Agreement was also extended by one year from 31 December 2012 to 31 December 2013. The appellant and respondent also entered into an Assignment, Amended and Restated Consultancy Agreement (Amended Agreement), the terms of which were in substance the same as the Consultancy Agreement and due to expire at the same time on 31 December 2013.
The Consultancy Agreement, Deed of Novation and Amended Agreement all provided for disputes to be finally resolved by arbitration in Singapore at the Singapore International Arbitration Centre.
A dispute arose over whether the appellant was entitled to payment of the Success Fee under the Amended Agreement arising out of two opportunities presented to the respondent, namely the acquisition of shares in XCo (an owner-operator of oil fields in Africa) (Acquisition Opportunity), and a collaboration with YCo (an integrated energy company) (Collaboration Opportunity). The Acquisition Opportunity did not materialise during the time of the Consultancy Agreement and the Amended Agreement. It was not until 2016 that the respondent signed an agreement to acquire XCo’s shares, but that did not involve either ZCo or the appellant.
The appellant claimed that there was an oral agreement to extend the Consultancy Agreement beyond 31 December 2013 and it was entitled to Success Fees for both opportunities. The respondent rejected the appellant’s claim on the basis that the Consultancy Agreement and Amended Agreement had expired and it was not due to make payments after 2013.
In its award, the tribunal allowed the appellant’s claim for the Success Fee for the Acquisition Opportunity, although it rejected the appellant’s assertion that there was an oral or implied contract and found that there was no extension by mutual agreement after the expiry of the Amended Agreement. In arriving at its conclusion, the tribunal found that the parties’ contract was contained entirely in the three agreements. It rejected the appellant’s claim relating to the Collaboration Opportunity. The tribunal found, amongst other things, that:
(a) A sale and purchase agreement was not necessary to be executed or completed before the expiry of the Consultancy Agreement or Amended Agreement.
(b) The right to recover the Success Fee was not lost as long as a “clear link” to the successful completion of the Opportunity was demonstrated.
(c) There was no time bar under the relevant provision of the Consultancy Agreement or Amended Agreement.
High Court decision
The respondent applied to the High Court to set aside part of the award in relation to the findings of the tribunal as regards the Success Fee awarded to the appellant for the Acquisition Opportunity. The respondent’s application was made under section 24(b) of the International Arbitration Act (Cap 143A, 2002 Rev Ed) and Article 34(2)(a)(iii) of the UNCITRAL Model Law.
The High Court allowed the respondent’s application on the ground that the tribunal had exceeded its jurisdiction. The High Court found that it was an excess of jurisdiction for the tribunal to have found that there was no subsisting agreement but go on to allow the appellant’s claim for the Success Fee on grounds that did not exist in the appellant’s pleadings and submissions in the arbitration. According to the High Court, the entire premise of the appellant’s claim had been rejected by the tribunal and that ought to have ended the appellant’s claim. The tribunal’s findings were inconsistent with the appellant’s pleaded case and could not be described as ancillary to the matter submitted to arbitration.