Admission of QC to Singapore Courts Permitted Only When Necessary

November 30, 2016

The Singapore High Court has issued another decision concerning the ad hoc admission of foreign counsel, underscoring that the current admissions regime should be viewed through the prism of “need.”

Foreign counsel may be admitted to appear in the Singapore courts on an ad hoc basis if the foreign lawyer (a) is a Queen’s Counsel (QC) or its equivalent, (b) does not ordinarily reside in Singapore or Malaysia but has come to Singapore to appear in the case in question, and (c) has special qualifications or experience for the purposes of the case. If these mandatory requirements are satisfied, the court will decide whether to exercise its discretion to admit the foreign lawyer, with regard to four further considerations: (a) the factual and legal issues involved in the case, (b) the necessity of the services of the foreign lawyer (c) the availability of local Senior Counsel or other counsel in Singapore with the requisite experience, and (d) whether it is reasonable in the circumstances of the case to admit the foreign counsel.

The respondents in a setting-aside application, Jaguar Energy Guatemala LLC and AEI Guatemala Jaguar Ltd (collectively, Jaguar) had secured an arbitral award against China Machine New Energy Corporation (CMNC) in an arbitration that concluded in 2015. CMNC has applied to set aside that award.

In Re Landau, Toby Thomas QC [2016] SGHC 258, the applicant, Toby Landau QC, was seeking ad hoc admission to represent CMNC in the setting-aside proceedings. Jaguar and the Law Society of Singapore resisted the application. Singapore’s Attorney-General’s Chambers supported the application.

The admission application was premised on the atypical arguments that CMNC had raised in its setting-aside application. CMNC alleged the award should be set aside on the basis of breach of natural justice and because it was contrary to Singapore public policy. It was argued that these issues were sufficiently novel and complex such that a QC’s admission was necessary to provide CMNC with proper legal representation.

The High Court considered that the QC in question, Mr. Landau, unquestionably satisfied the mandatory requirements outlined above. The court then turned to analyze each of the four arguments that CMNC relied on in the setting-aside application as the basis for ad hoc admission against the four factors that the court considers in exercising its discretion to admit foreign counsel. In assessing the factual and legal issues involved in the case, the court noted that it should be wary of delving too deeply into the merits of the case, given that the court is not hearing the underlying case for which admission is sought. At the same time, the court cannot completely ignore either party’s prospects of success. The strength of support for either party’s case would be something to be borne in mind as factors that may affect the court’s assessment of the novelty or complexity of the issues.

The court held that all four matters that the applicant raised were matters that Singapore courts and local counsel have experience hearing and arguing and were not therefore novel, and that the issues were not of sufficient complexity to warrant admission of the QC.

The court further highlighted that the applicant had failed to demonstrate why the expertise of a QC was needed and not merely desired. The court held that there is ample local jurisprudence in Singapore on applications to set aside arbitral awards, and it can be assumed that the court would be au fait with this area of law. The court also rejected an argument that, although it was not beyond the ability of competent local Senior Counsel to address the issues in isolation, because these complex issues arose together, they had the effect of compounding the case’s complexity. The court held that taking this argument to its logical conclusion may give the wrong impression that local counsel do not have the ability to handle cases with multiple complex issues.

Finally, the court noted that there was no indication from leading local counsel that the issues in the main setting-aside application were beyond their range of competence. Although one Senior Counsel was approached, who indicated that Mr. Landau would be more well-placed than local counsel to argue the case, the court felt that it was not satisfactory for that response to be relied upon as representative of the views of the local Bar. On the contrary, based on the number of setting-aside applications that local counsel argue, the court took the view that the pool of local counsel who could represent CMNC was not likely to be small.

Given all the circumstances, the court dismissed the application to admit the QC on an ad hoc basis. This judgment exemplifies the current admissions regime, which restricts foreign counsel’s admission to matters where such representation is necessary. The judgment also recognizes that the local Bar has the experience and expertise to represent parties in litigation ancillary to international arbitration proceedings, including setting-aside applications premised in whole or in part on grounds laid down by the UNCITRAL Model Law on International Commercial Arbitration, thereby reaffirming Singapore’s status as a leading international arbitration hub.

Parties who wish to engage foreign counsel for Singapore court proceedings may want to consider including a clause in their contract specifying the Singapore International Commercial Court (SICC) as the forum for resolving disputes; in certain defined circumstances, matters heard in the SICC may be argued by foreign counsel.

Morgan Lewis Stamford represented Jaguar in the admission proceedings.