Suitability of ad hoc admissions: Singapore Court admits English QC for arbitration appeal

Introduction

The Singapore High Court has taken the rare step of allowing an English QC to appear before it in relation to an application to set aside an arbitral award made in an investor-state arbitration; the first successful ad hoc admission of a foreign lawyer since 2012.  As the facts of the case are quite specific, it is not expected that this marks a significant departure from the Court's restrictive approach to foreign admissions. However, the case demonstrates that for highly complex and niche matters outside the field of general practice in Singapore, there is still a place for foreign counsel. 

The case is also of interest as both the Singapore law society and the Singapore Attorney General's chambers were permitted to intervene; each supporting different views.  Ultimately, the successful admission application reflected the Singapore Government's policy, put forward by the Attorney General's office, of encouraging Singapore as a leading seat of arbitration for both commercial and investment cases.

Representation in the Singapore Courts

As a general rule, representation in the Singapore Courts is limited to local Singapore advocates.  The two exceptions to the general rule are: (a) where the Court permits a Queens Counsel, or lawyer of equivalent rank, on an ad hoc basis for a specific case; and (b) where foreign lawyers have been registered to appear before the new Singapore International Commercial Court (see our post here).

When deciding whether to permit ad hoc admission of foreign counsel, the Singapore Courts will consider three mandatory requirements. The advocate must:

• hold the title of Queen's Counsel, or the equivalent distinction for other jurisdictions;

• not ordinarily reside in Singapore or Malaysia; and

• have special qualifications or experience for the purpose of the case.

If these requirements are met, the court must then consider:

• the nature of the factual and legal issues involved in the case;

• the necessity for the services of a foreign senior counsel;

• the availability of any Senior Counsel or any other advocate in Singapore with appropriate experience; and

• whether, having regard to the circumstances of the case, it is reasonable to admit a foreign senior counsel for the purpose of the case.

In considering these factors, the Court has "discretion to attribute appropriate weight to each factor" and the factors should be used as "signpost[s] pointing to the ultimate question of whether it is reasonable to admit the applicant".

Background to the case

In Re Wordsworth [2016] SGHC 172. the Kingdom of Lesotho (the "Claimant") applied to allow Mr Samuel Wordsworth QC to represent it in an application to set aside a Partial Award on Jurisdiction and the Merits arising from an investor-state arbitration.  The original arbitration, in which Mr Wordsworth was lead counsel, related to mining licences in Lesotho and involved the interpretation of a number of international treaties.

The Claimant argued that Mr Wordsworth's expertise would be highly relevant in resolving complex and novel issues in a case which was of unusual importance, given the lack of precedent. That position was supported by the Attorney-General, who also argued that allowing foreign counsel to act in cases such as the Claimant's would further enhance the attractiveness of Singapore as a seat for international arbitration, by confirming to parties that their lead arbitration counsel may continue to appear if the arbitral award is challenged in Court.

The Respondent argued that Mr Wordworth's expertise was not relevant, as the dispute turned on the interpretation of the International Arbitration Act and not complex issues of public international law and, therefore, the case could be adequately handled by local counsel. The Law Society criticized the Claimant's efforts in considering the availability of local counsel stating that it "failed to give due credit to the experience and quality of the local Bar".

The Court's decision

The Singapore Court agreed with the Claimant and admitted Mr Wordsworth QC on an ad hoc basis.  The Court confirmed that the application must be viewed through the "prism of need", viewed from the perspective of both the litigant seeking admission of its counsel, and more broadly, the need of the court to "receive proficient assistance from counsel with the requisite expertise and experience." As the case was of a complex and international nature and there were "few local advocates with the requisite expertise" to properly address the issues, it was unreasonable to limit the involvement of Mr Wordsworth.  That was particularly pertinent in this case due to Mr Wordsworth's familiarity with the case from the underlying arbitration and his expertise in the field such that he was best-placed to serve the needs of both the litigants and the Court.

The Court also stated that promoting Singapore as a venue for international arbitration was a "relevant consideration". However, this was not the dominant reason for admitting Mr Wordsworth, and instead was merely a factor which the courts should consider when determining whether admission was reasonable.

Conclusion

As the case is relatively fact specific, it is not expected that this marks a significant shift in policy by the Singapore Courts.  The Court highlighted the "unique circumstances" of this case, differentiating it from previous applications for admission where the issues were more local and the issues were "well within the range of competent Singapore counsel".

Nevertheless, it is significant that the Court took account of the policy objective of promoting Singapore as a venue for international arbitration.  As with other government initiatives, such as income tax exemptions for visiting arbitrators, the establishment of Maxwell Chambers as a purpose built dispute resolution venue, and the more recent creation of the Singapore International Commercial Court, Singapore demonstrates repeatedly how it is determined to be a leader in high-quality, commercially focussed, internationally attractive dispute resolution.

For more information on this case or representation in the Singapore International Commercial Court, please contact Alastair Henderson (Partner), Daniel Waldek (Senior Associate) or any of your usual Herbert Smith Freehills contacts.