Background

The statutory framework governing ad hoc admission of foreign counsel can be found in section 15(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (the LPA), which sets out the three mandatory requirements under which a Court may exercise its discretion to admit an applicant:-

Ad hoc admissions

15.—(1) Notwithstanding anything to the contrary in this Act, the court may, for the purpose of any one case, admit to practice as an advocate and solicitor any person who —

(a) holds —

(i) Her Majesty's Patent as Queen's Counsel; or

(ii) any appointment of equivalent distinction of any jurisdiction;

(b) does not ordinarily reside in Singapore or Malaysia, but has come or intends to come to Singapore for the purpose of appearing in the case; and

(c) has special qualifications or experience for the purpose of the case.

Section 15 of the LPA is further supplemented by the Legal Profession (Ad Hoc Admissions) Notification 2012 (S 132/2012) (the Notification Matters). If the mandatory requirements under section 15 of the LPA are satisfied, the court will go on to decide whether to exercise its discretion to admit the applicant by having regard to the matters as set out in paragraph 3 of the Notification Matters, which are:-

Matters specified under section 15(6A) of Act

3. For the purposes of section 15(6A) of the Act, the court may consider the following matters, in addition to the matters specified in section 15(1) and (2) of the Act, when deciding whether to admit a person under section 15 of the Act for the purpose of any one case:

(a) the nature of the factual and legal issues involved in the case;

(b) the necessity for the services of a foreign senior counsel;

(c) the availability of any Senior Counsel or other advocate and solicitor with appropriate experience; and

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

Facts

The plaintiff sought to set aside an award rendered by an International Chamber of Commerce (ICC)tribunal seated in Singapore by way of an Originating Summons No. 375 of 2018 (OS 375). The plaintiff's case was that:

• The arbitral tribunal had breached the rules of natural justice by failing to consider the parties' evidence and submissions.
• The plaintiff was unable to present its case in the arbitration.

The underlying dispute in the arbitration concerned the performance and termination of a contract between the parties in OS 375 for the construction of a gas pipeline management and communication system in another country. BSL, who had acted in the arbitration proceedings, made an application under section 15 of the LPA to be admitted as lead counsel for the plaintiff in OS 375.

Decision

The Singapore High Court held that the BSL's case only shows that the plaintiff merely had a "preference" for the BSL's services, and that it was not a "necessity". Accordingly, the application under section 15 of the LPA was dismissed.

The Mandatory Requirements

It was undisputed that BSL satisfied the two formal requirements under section 15(1)(a) and (b) of the LPA in that he is a Queen’s Counsel and is not ordinarily resident in Singapore or Malaysia. 

The question for the court was whether BSL had "special qualifications or experience for the purpose of this case" pursuant to section 15(1)(c) of the LPA. BSL's main submission was that he has "special qualifications and experience" on the basis of, first, his extensive experience in international commercial arbitration and, second, his familiarity with the factual and legal issues in the arbitration proceedings underlying OS 375 given his involvement as lead counsel in the arbitration.Justice Chong was concerned that BSL's submissions only referred to his general expertise in international commercial arbitration. It was held that this relates to a general field of legal practice, which does not meet the requirement of specificity under section 15(1)(c) of the LPA.

Nonetheless, the High Court found that BSL did have special qualifications and experience in cases involving the setting aside of an arbitral award on grounds relating to breach of natural justice. Therefore, it was satisfied that the mandatory requirements under section 15(1) of the LPA had been made out.

The Notification Matters

BSL argued that there were novel and complex legal issues in OS 375 relating to whether a tribunal's failure to consider the parties' arguments and evidence at the oral hearing and the post-hearing submissions would amount to a breach of the rules of natural justice or a party's right to present its case.

The High Court, however, did not agree and found that the issues in OS 375 were not particularly complex, novel or beyond the expertise of local counsel. Such applications to set aside arbitral awards regularly come to court and are invariably handled by local counsel. The High Court states that

"[t]here can be no dispute that there is a pool of local counsel well versed in international arbitration matters, specifically in relation to issues relating to breach of natural justice in an arbitration setting."

The High Court found that there was no reason why the current solicitors for the plaintiff in OS 375 would not be able to adequately represent it in the set-aside proceedings.

Justice Chong disagreed with BSL's position relating to the continuity of representation that arbitration counsel must invariably be admitted to handle court applications for the setting aside and recognition of awards. This proposition is contrary to existing jurisprudence. The legal issues must be of sufficient difficulty and complexity to convince the court that the issues argued are inextricably linked to the arbitration proceedings and that there will be a real benefit in having the same counsel assist the court.

Having regard to the relevant circumstances of this case and the considerations specified in the Notification Matters, the High Court was of the view that the legal issues were not of sufficient difficulty and complexity to warrant the exercise of judicial discretion in favour of BSL's admission.

In dismissing the application, the High Court stressed that the touchstone for the admission of foreign counsel under section 15 of the LPA must be the basis of need, and not merely because admission would be "desirable or convenient or sought as a matter of choice". Justice Chong cautioned the courts to adopt a "matter centric approach that pays particular attention to the sufficiency of complexity and difficulty of the issues raised". Although there have been several cases in which the ad hoc admission of foreign counsel were allowed for example, Re Geraldine Mary Andrews QC [2013] 1 SLR 872 and Re Wordsworth, Samuel Sherratt QC [2016] SGHC 172), the Singapore courts have always been conscious of the need for issues raised in court proceedings to be of sufficient complexity and difficulty so as to warrant the admission of a QC in deciding whether to grant an ad hoc admission application.

Comment

This decision adds to the growing Singapore High Court jurisprudence on the ad hoc admission of foreign counsel in Singapore court proceedings in relation to setting aside of arbitral awards rendered in Singapore. The decision highlights that under the current admissions regime ", the test is one of necessity rather than preference. The court must find that the legal issues are of sufficient difficulty and complexity such that it is convinced that the issues argued are inextricably linked to the arbitration proceedings and that there will be a real benefit in having the foreign counsel assist the court.

Case

Re BSL [2018] SGHC 207 (Honourable Justice Steven Chong), 20 September 2018.