Re Gearing, Matthew Peter QC

• Jurisdiction: Singapore
• Judge: Steven Chong JA
• Judgment Date: 18 October 2019
• Neutral Citation: [2019] SGHC 249
• Plaintiff Counsel: Alvin Yeo SC, Koh Swee Yen, Tiong Teck Wee, Hannah Lee Ming Shan, Wong Yan Yee and Alexander Kamsany Lee (WongPartnership LLP),Thio Shen Yi SC, Monisha Cheong Rui Ying, and Hannah Alysha Ashiq (TSMP Law Corporation)
• Date: 18 October 2019
• Hearing Date: 04 October 2019
• Docket Number: Originating Summons No 853 of 2019
• Year: 2019
• Defendant Counsel: and Jeyendran Jeyapal, Evans Ng and Ailene Chou (Attorney-General's Chambers),Christopher Anand Daniel, Harjean Kaur and Elizabeth Chua (Advocatus Law LLP)
• Court: High Court (Singapore)
• Citation: [2019] SGHC 249
• Published date: 22 October 2019

Steven Chong JA: Introduction

Any application to admit foreign senior counsel under the ad hoc admissions regime prescribed by section 15 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the Act”) is predicated, inter alia, on the complexity of the case to warrant the admission. If the issues which are engaged by the case in question are within the competence of local counsel, it would be impermissible to overstate the complexity in order to justify the admission.

This admission application was filed in response to an action brought by a party to an arbitration agreement who had failed in its jurisdictional challenge against the arbitration. Various jurisdictional objections were raised but were dismissed by the tribunal. In its decision on jurisdiction, the tribunal disposed of the objections, inter alia, “by the plain and textual reading” of the relevant instrument which it described as “unusually clear”. However, in the applicant’s quest to satisfy the admission criteria, the issues have been described as “complex”, “significant”, “completely novel” and of “potential precedential value”¹ notwithstanding the tribunal’s contrary assessment in favour of the party whom the applicant is seeking to represent. Instead, one would expect that it would intuitively be in the interest of the putative party who is seeking the admission to show that the tribunal’s decision was correctly decided on the strength of clear and settled principles of law. Ultimately, it is for the court hearing the admission application to fairly and objectively assess the complexity, if any, of the issues irrespective of the parties’ subjective perceptions.

Procedural history

This is an application under s 15 of the Act for the applicant, Mr Matthew Peter Gearing QC (“Mr Gearing”) to be admitted to represent the defendant in Originating Summons No 685 of 2019 (“OS 685”).

The plaintiff in OS 685 seeks to set aside a decision on jurisdiction arising from an investor-state arbitration (“the Arbitration”) which was commenced pursuant to a bilateral treaty (“the Bilateral Treaty”) and the 2013 Arbitral Rules of the United Nations Commission on International Trade Law (“the UNCITRAL Rules”).² The Arbitration has its legal seat in Singapore.³

On 23 September 2019, shortly before the hearing, the Deputy Registrar of the Supreme Court ordered that OS 685 be transferred to the Singapore International Commercial Court (“SICC”) pursuant to O 110 rr 12 and 58 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“Rules of Court”). OS 685 was therefore converted to SICC Originating Summons No 8 of 2019. However, for ease of reference, I will refer to the suit before the SICC as “OS 685”.

Factual background

The defendant is an investor (“the Investor”) in the plaintiff, which is a foreign State (“the State”). The Investor and one of the plaintiff’s constituent states entered into a Memorandum of Understanding (“MOU”) regarding the Investor’s investment. Some years later, the State entered into the Bilateral Treaty, under which the Investor seeks to bring its Arbitration claims. The Investor relies in particular, upon clauses that are typical of these sorts of treaties known as a fair and equitable treatment clause (“the FET clause”) and an umbrella clause (“the umbrella clause”).

The Investor’s claims in the Arbitration are for certain payments due and owing pursuant to certain certificates (“the Certificates”)⁴ under the MOU.⁵ However, as the Investor had not been paid the sums under those Certificates, it commenced the Arbitration proceedings on 23 February 2017 pursuant to the Bilateral Treaty and the UNCITRAL Rules. On that same day, the Investor also nominated its party-appointed arbitrator.

I pause here to note that it is of no small significance that the defendant in OS 685 (the Investor, and who is the party seeking to admit Mr Gearing) is the claimant in the underlying Arbitration, while the plaintiff in OS 685 (the State) is the defendant in the Arbitration.

On 1 May 2017, the Investor wrote to the Secretary-General of the Permanent Court of Arbitration (“PCA”) to appoint the State’s party-appointed arbitrator and the presiding arbitrator of the arbitral tribunal. There were some difficulties with the State’s initial nominee for its party-appointed arbitrator. Eventually, on 31 October 2017, the PCA confirmed the State’s party-appointed arbitrator. On 3 November 2017, using the list procedure in Art 8(2) of the UNCITRAL Rules, the Secretary-General of the PCA appointed the presiding arbitrator (“the Presiding Arbitrator”) and the Arbitral tribunal (“the Tribunal”) was constituted.

The State objected to the Tribunal’s jurisdiction. It raised, among other things, four objections: First, the Tribunal was improperly constituted under the procedure prescribed in the Bilateral Treaty read with the UNCITRAL Rules (“the first objection”); Second, the Investor’s claims were barred under the Bilateral Treaty, as the Investor’s subsidiaries have raised similar claims in the foreign State’s court (“the second objection”); Third, the Investor’s claims are time-barred under the Bilateral Treaty (“the third objection”); and Fourth, the Investor’s claims are contractual in nature under the MOU and subject to an exclusive jurisdiction clause under the MOU that prevents it from commencing the proceedings in the underlying Arbitration (“the fourth objection”).

Mr Gearing was the lead counsel before the Tribunal for the jurisdictional hearings. On 29 April 2019, the Tribunal rendered a 131-page decision (“the Decision”) unanimously rejecting the State’s objections and affirming its own jurisdiction to hear the Investor’s claims. In OS 685, the State applied to set aside the Decision.

The present application is for Mr Gearing to be admitted to represent the defendant in OS 685 (“the Investor”) and to urge the court in OS 685 to affirm the Tribunal’s decision on jurisdiction.

The ad hoc admissions regime

In an application to admit a foreign senior counsel under s 15 of the Act, the court undertakes a two-stage sequential inquiry: see Re Wordsworth, Samuel Sherratt QC [2016] 5 SLR 179 (“Re Wordsworth”) at [24]–[26]. Under the first stage of the inquiry, the court considers the statutory requirements as set out in s 15 of the Act, which states:

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 practise as an advocate and solicitor any person who — (a) holds — (i) Her Majesty’s Patent as Queen’s Counsel; or (ii) any appointment or 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. (2) The court shall not admit a person under this section in any case involving any area of legal practice prescribed under section 10 for the purposes of this subsection, unless the court is satisfied that there is a special reason to do so.

…

(6A) The Chief Justice may, after consulting the Judges of the Supreme Court, by notification published in the Gazette, specify the matters that the court may consider when deciding whether to admit a person under this section.

It is only if the three mandatory requirements set out in s 15(1) of the Act are satisfied that the court is permitted to move on to the second stage of the inquiry. At this juncture, the court is exercising its discretion with regard to s 15(6A) of the Act read with para 3 of the Legal Profession (Ad Hoc Admissions) Notification 2012 (S 132/2012), which specifies four matters (“Notification matters”) for the court’s consideration. These 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.

Although there may often be substantial overlap between the third mandatory requirement (ie, whether the counsel in question has special qualifications or experience) and the Notification matters, the former is still a distinct analytical inquiry that has to be answered in the affirmative before the court considers whether to exercise its discretion with regard to the Notification matters: Re Beloff Michael Jacob QC [2014] 3 SLR 424 (“Re Beloff”) at [58].

The mandatory requirements

It is relatively uncontroversial that Mr Gearing meets the first two mandatory requirements under sections 15(1)(a) and (b) of the Act. However, counsel for the State, Ms Koh Swee Yen (“Ms Koh”) and counsel for the Law Society of Singapore (“the Law Society”), Mr Christopher Anand Daniel (“Mr Daniel”) took the position that Mr Gearing does not possess “special qualifications and experience for the purposes of the case” under the third mandatory requirement.⁶ Mr Jeyendran Jeyapal (“Mr Jeyendran”) on behalf of the Attorney-General, on the other hand, quite properly acknowledges that Mr Gearing “more than adequately” demonstrates that he has deep expertise and experience in the area of law that the court would be concerned with.⁷

A critical part of the inquiry under the third mandatory requirement is whether there is some notable...