CGS v CGT

• Jurisdiction: Singapore
• Judge: Andre Maniam JC
• Judgment Date: 14 September 2020
• Neutral Citation: [2020] SGHC 183
• Docket Number: Originating Summons No 1117 of 2019
• Date: 14 September 2020
• Published date: 11 December 2020
• Plaintiff Counsel: Devathas Satianathan, David Isidore Tan Huang Loong and Avinash Vinayak Pradhan (Rajah & Tann Singapore LLP)
• Defendant Counsel: Aaron Lee Teck Chye, Chong Xue Er Cheryl and Chua Xinying (Allen & Gledhill LLP)
• Court: High Court (Singapore)
• Hearing Date: 19 June 2020
• Subject Matter: Setting aside,Recourse against award,Arbitration,Award,Rules 2016,Singapore International Arbitration Centre

Andre Maniam JC: Introduction

How absolute are a party’s rights to decide who will represent it in arbitration, and how it will conduct its case? If a party feels that its rights have been infringed, can it keep silent and complain only if the award goes against it?

In this case, the applicant (the “Claimant” in the arbitration) claimed that it was not allowed to have its general manager act as co-counsel alongside its external legal counsel; it did not complain about this at the time, but applied to set aside the award (the “Award”) made by the arbitral tribunal (the “Tribunal”) thereafter.

The Claimant’s grounds for setting aside the Award were: the arbitral procedure was not in accordance with the agreement of the parties (Art 34(2)(a)(iv) of the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”) read with s 3 of the International Arbitration Act (Cap 143A, 2002 Rev Ed) (the “IAA”)); the Claimant was unable to present its case (Art 34(2)(a)(ii) of the Model Law read with s 3 of the IAA); and a breach of the rules of natural justice occurred in connection with the making of the Award by which the rights of the Claimant have been prejudiced (s 24(b) of the IAA).

Background The arbitration

The arbitration was subject to the Singapore International Arbitration Centre (“SIAC”) Rules (6th ed, 2016) (the “SIAC Rules”). Pursuant to the parties’ agreement, the SIAC had directed that the arbitration be conducted according to the Expedited Procedure in the SIAC Rules, and the arbitration was so conducted.

When the Claimant commenced arbitration on 14 June 2018, it was represented by legal counsel, who submitted the notice of arbitration on the Claimant’s behalf.

The Claimant ceased to be legally represented on 9 August 2018. According to the Claimant, this was because it wanted to proceed with the arbitration in a cost-effective and efficient manner. Its general manager (“R”) served as one of its party representatives.

On 18 October 2018, a case management conference was held over the telephone. The next day, the Tribunal circulated a draft procedural order,¹ paragraph 6 of which provided that “[w]here a Party is represented by Counsel, communications with the Tribunal shall be with Counsel instead of the Party’s representatives.” The Claimant did not raise any issues with that paragraph (although it did comment on other aspects of the draft), and on 30 October 2018, Procedural Order Number 1 (“PO 1”) was issued with paragraph 6 in terms of the draft.²

On 28 January 2019, the Claimant engaged legal counsel (“T”) for the upcoming hearing from 11 to 13 February 2019.

Paragraph 72 of PO 1 provides that “[a]ny Party has leave to apply to the Tribunal on three days’ notice for a variation of this Procedural Order No. 1, giving particulars of the variation sought and the reason for it”. The Claimant, however, never applied to vary paragraph 6 of PO 1. Instead, it waited until after the Award had been issued, and then complained that paragraph 6 of PO 1 had infringed its right to decide how it would be represented in the arbitration.

The Claimant’s complaints

The Claimant complained of the following: that because of paragraph 6 of PO 1, R was omitted from certain e-mail communications in the days leading up to the hearing up until shortly after the hearing. These e-mail communications were sent to T instead; that R was not allowed to act as co-counsel alongside T at the hearing: the Claimant wished to be represented by an R+T team, but that was thwarted – R conducted part of the Claimant’s oral opening, but did not question witnesses or make oral submissions; and that the Tribunal failed to deal with one of the Claimant’s claims as pleaded, namely, the Claimant’s “FRP Claim”.

I evaluate these complaints in the following sections: the nature of a party’s right to representation in arbitration; correspondence about communications with the Tribunal, and about R’s role at the hearing; R’s role at the hearing and thereafter; and whether there are grounds to set aside the Award, in whole or in part.

The nature of a party’s right to representation in arbitration

A party has a common law right to choose his representation in arbitration, although this right can be limited by statute. Thus, for example, “[parties’] common law right to retain whomsoever (from the category of unauthorised persons) they desire or prefer for their legal services in arbitration proceedings in Singapore has … been taken away by the [Legal Profession Act (Cap 161, 1985 Rev Ed) (the “LPA”)]”: Turner (East Asia) Pte Ltd v Builders Federal (Hong Kong) Ltd and another [1988] 1 SLR(R) 281 (“Turner”) at [34].

Since Turner, the LPA has been amended and there is now no legislative impediment to parties in arbitrations in Singapore being represented by whomsoever they choose. This freedom of choice is reinforced in SIAC arbitrations by rule 23.1 of the SIAC Rules, which states: “Any party may be represented by legal practitioners or any other authorised representatives.”

The respondent however argued that rule 23.1 requires parties to choose between two alternatives: either to be represented by legal practitioners, or to be represented by other authorised party representatives. It argued that the rule did not give parties the right to a team comprising legal counsel and other authorised party representatives (although the Tribunal would have the discretion to allow this).

I did not agree with the respondent on this. In my view, rule 23.1 does allow parties to choose to be represented by both legal counsel and non-legally-qualified party representatives.

Rule 23.1 uses the term “legal practitioners”. That would not include legally-trained persons in the employ of a party, such as in-house counsel, who would instead be “other authorised representatives” within rule 23.1. If (as the respondent contended) rule 23.1 required a party to choose between “legal practitioners” and “other authorised representatives” (but did not allow a party to choose both), an in-house team could still be assembled comprising legally-qualified and non-legally-qualified party representatives. The SIAC Rules thus do not force a choice between legally-qualified and non-legally-qualified party representatives. If the legally-qualified party representative happens to be a “legal practitioner”, it makes no sense to then exclude all other party representatives. The inclusion of rule 23.1 in the SIAC Rules was meant to promote free choice in this regard, not to restrict it.

The Claimant cited two commentaries by Gary B Born (“Born”) for the proposition that a party’s right to representation in international arbitral proceedings, by lawyers or others, is of fundamental importance: Gary B Born, “Legal Representatives and Professional Responsibility in International Arbitration” in International Arbitration: Law and Practice (Kluwer Law International, 2nd Ed, 2015) (“Born, IA”) ch 14.01 at p 267 and Gary B Born, “Legal Representation and Professional Conduct in International Arbitration” in International Commercial Arbitration (Kluwer Law International, 2nd Ed, 2014) (“Born, ICA”) ch 21.01 at p 2833.

Born goes on to say that “[m]ost institutional rules recognize the parties’ rights of representation in the arbitral proceedings, either expressly or impliedly providing that a party is entitled to be represented by persons of its own choice”.³ As examples, Born specifically includes, inter alia, the UNCITRAL Rules and the London Court of International Arbitration Rules 2014 (the “LCIA Rules”).⁴

According to Born, “[s]ome institutional rules either expressly or impliedly provide for the possibility of representation by non-lawyers as well as lawyers” [emphasis added].⁵ He cites the LCIA Rules as an “explicit” example of this.⁶ Rule 18.1 of the LCIA Rules states that “[a]ny party may be represented by legal practitioners or any other representatives”. That phrase “legal practitioners or any other representatives” is identical to that found in rule 23.1 of the SIAC Rules.

As such, rule 23.1 of the SIAC Rules would certainly be interpreted the same way by Born, who is also the President of the SIAC Court of Arbitration. The same interpretation is adopted in Choong, Mangan and Lingard, A Guide to the SIAC Arbitration Rules (Oxford University Press, 2nd Ed, 2018) at paragraph 9.90: “The SIAC Rules, consistent with their hallmarks of party autonomy and procedural flexibility, provide that a party is free to choose its representatives, which can include persons not qualified as lawyers” [emphasis added].

Giving rule 23.1 of the SIAC Rules the restrictive interpretation for which the respondent contends would also go against the policy of promoting Singapore as an arbitration centre. In explaining the amendment to the LPA prompted by the Turner ([12] supra) case, the Minister of Law referred to the importance of giving effect to the parties’ freedom of representation to Singapore’s position as an international arbitral centre: Born, IA, ch 14.01 at p 269; see also Singapore Parliamentary Debates, Official Report (15 June 2004) vol 78 at cols 96–97 (Prof S Jayakumar, Minister for Law). A restrictive interpretation to rule 23.1 would instead go against the promotion of SIAC arbitration.

The right to representation is, however, not an absolute one. As Born notes:⁷

Questions would arise as to the limits of a party’s entitlement to legal counsel of its choice if its preferred counsel were supposedly unable to attend a hearing, or to complete written submissions, in accordance with the parties’ or tribunal’s procedural timetable. Although tribunals often exhibit a degree of flexibility in such circumstances, there are cases where arbitrators will order a hearing to proceed, or a submission to be filed, even if a party’s counsel claims to be unavailable.

These sorts of orders do not,...