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Shopee's lawyers from JWS Asia Law Corporation, Mr Clarence Ding Si-Liang, Ms Ariane Kea Tong and Ms Sarah Teo, argued that Mr Lim's new role was "substantially similar" to the roles he had in Shopee.
These include managing user experience, designing of policies for seller and listing management and managing after-sale services such as returns and refunds.
Mr Lim argued that his new role was in a team that had a primarily supporting role, including assisting with data analysis and root cause analysis to enhance operational metrics.
On top of this, TikTok Shop operates in the United States, United Kingdom and parts of Southeast Asia, while his last role with Shopee was in Brazil, where TikTok Shop does not currently operate.
TikTok Shop therefore cannot be construed as a competitor of Shopee in Brazil, Mr Lim argued.
According to his reading of the RCA Mr Lim signed, the judge said the period for consideration was the 12 months before Mr Lim left Shopee.
During this period, Mr Lim held only the position of executive director, head of operations for Shopee Brazil.
Shopee initially said Mr Lim also had concurrent duties or managerial responsibilities as executive director of regional operations, but later accepted there was nothing in its own affidavits testifying to this.
Counsel for Shopee said e-commerce is a highly specialised industry, and that Mr Lim had a "very senior" position in Shopee, receiving "extensive training" during his long tenure.
While Shopee was unable to point to any specific confidential information Mr Lim had access to, its lawyers said Shopee's concern "was more with the general know-how" that Mr Lim was exposed to, rather than any specific set of information.
Shopee said Mr Lim acquired certain confidential information by taking part in "regularly held regional operations meetings" where Shopee's strategies and priorities for all markets would be shared and discussed.
However, Justice Kwek said this argument would mean that Mr Lim would have to be excluded from being employed in all the markets where Shopee was operating, even though Mr Lim had not worked there, had no responsibilities for and had no specific information about in the 12 months before his employment with Shopee ended.
"In effect, (Mr) Lim would simply be restrained from working for any competitor of Shopee who had been in Shopee's markets," said Justice Kwek.
"I have serious doubts that it could be said that there is a serious question if this would be regarded as reasonable as between the parties or reasonable in the interest of the public."
On non-solicitation of Shopee's customers, the e-commerce giant did not have any specific evidence that Mr Lim had breached those restrictions.
Instead, Shopee argued that there was a risk of a breach, pointing to how Mr Lim refused to provide undertakings that he would not breach them.
Justice Kwek disagreed. He said Mr Lim had already provided these undertakings when he first signed the RCA when taking on his job with Shopee in 2015.
Shopee's own lawyers acknowledged that the new undertakings Shopee requested in 2022 did not add anything legally, as Mr Lim had already committed to those obligations when he signed the RCA and ECA.
Mr Lim was defended by lawyers Mr Tham Wei Chern and Ms Charis Wang from Fullerton Law Chambers.
He said he did not want to provide the further undertakings for the non-compete restriction for reasons including that the "trade restraint clause is unreasonable in scope and duration and amounts to an unlawful restraint of trade".
Justice Kwek said it could hardly be said in the circumstances that Mr Lim was unreasonable in refusing to provide the further undertakings.
Mr Lim has also stated in a sworn statement before the court that he has not breached and will not breach his confidentiality obligations to Shopee.
https://www.channelnewsasia.com/sin...n-bytedance-non-compete-lim-teck-yong-4091011
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01-Feb 2024 Thursday
1:35 PM (87 days ago)
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