Re Wordsworth, Samuel Sherratt QC

• Jurisdiction: Singapore
• Judge: Steven Chong J
• Judgment Date: 29 August 2016
• Neutral Citation: [2016] SGHC 172
• Published date: 28 September 2016
• Date: 29 August 2016
• Year: 2016
• Hearing Date: 02 August 2016
• Plaintiff Counsel: Paul Tan and Alessa Pang (Rajah & Tann Singapore LLP)
• Defendant Counsel: Jeyendran Jeyapal, Elaine Liew and Jocelyn Teo (Attorney-General's Chambers),Smitha Menon, Oh Sheng Loong and Tara Radakrishnan (WongPartnership LLP),Christopher Anand Daniel and Harjean Kaur (Advocatus Law LLP)
• Court: High Court (Singapore)
• Citation: [2016] SGHC 172
• Docket Number: Originating Summons No 643 of 2016

Steven Chong J: Introduction

As fittingly observed by the Court of Appeal in Re Beloff Michael Jacob QC [2014] 3 SLR 424 (“Re Beloff”) at [42], the suitability of ad hoc admissions under the new statutory framework pursuant to the Legal Profession (Amendment) Act 2012 (Act 3 of 2012) (“the 2012 Amendment”) is now to be viewed through the prism of “need”. While it is true that it is no longer necessary to show that the issues in the case are of “sufficient difficulty and complexity”, which was a requirement under s 21 of the Legal Profession Act (Cap 161, 1990 Rev Ed), the correct characterisation of the issues before the court continues to play a vital role in the admission application. After all, the requirement of “need” must necessarily be examined with reference to the issues as that will, in turn, have a direct bearing on the size of the pool of available local counsel to address those issues and, correspondingly, the need for foreign counsel’s assistance.

Since the introduction of the 2012 Amendment, effectively only one application has been allowed – Re Andrews Geraldine Mary QC [2013] 1 SLR 872 (“Re Andrews”). I should mention that when Ms Geraldine Andrews QC was elevated to the English Bench after the conclusion of the trial she was admitted to argue, Mr Richard Millet QC was admitted in her place to argue the appeal. His application was largely uncontested as Ms Geraldine Andrews QC’s admission was for the trial of the action and any appeal therefrom. There have been five other applications, which were not allowed for a variety of reasons: see Re Caplan Jonathan Michael QC [2013] 3 SLR 66 (“Re Caplan”), Re Lord Goldsmith Peter Henry PC QC [2013] 4 SLR 921 (“Re Lord Goldsmith”), Re Beloff, Re Fordham, Michael QC [2015] 1 SLR 272 (“Re Fordham”) and Re Rogers, Heather QC [2015] 4 SLR 1064 (“Re Rogers”). These applications were disallowed because the “special reason” requirement for the ring-fenced areas of legal practice under s 15(2) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”) was not satisfied (Re Caplan, Re Lord Goldsmith, and Re Fordham), because the issues were “uniquely local” (Re Rogers), and because the issues were “well within the range of competent Singapore counsel” (see Re Beloff at [80]).

The present application is for Mr Samuel Sherratt Wordsworth QC to be admitted to represent the Kingdom of Lesotho (“Lesotho”) in Originating Summons No 492 of 2016 (“OS 492”), which is Lesotho’s application to set aside a Partial Award on Jurisdiction and the Merits dated 18 April 2016 (the “Award”) arising from an investor-state arbitration. Mr Wordsworth was the lead counsel for Lesotho in the arbitration. Apart from the fact that the seat of the arbitration was Singapore, there is nothing “local” about this case at all. All the parties are resident outside jurisdiction. It concerned alleged breaches of international obligations and events which occurred in Lesotho. Fundamentally, the origin of the dispute can partly be traced to a multilateral treaty involving 15 States of the Southern African Development Community (“SADC”). It is also common ground that the legal issues which will be fully ventilated in OS 492 are predominantly governed by principles of public international law, which is not a ring-fenced area of legal practice requiring “special reason” to be shown before Mr Wordsworth can be admitted (s 15(2) of the LPA).

Typically, the question of necessity is viewed from the perspective of the litigant seeking the admission. However, there is nothing in the 2012 Amendment to limit the court’s assessment of necessity only with reference to the needs of that party. This decision will examine the extent to which the question of necessity should also be examined from the perspective of the court and if so, how this consideration would feature under the new statutory framework. It is uncontroversial that the setting-aside application in OS 492 is unique in many aspects. The court’s eventual decision on the merits of the setting-aside application will undoubtedly have a bearing on the jurisprudence in an emerging area of public international law. It is therefore essential for the court to receive proficient assistance from lawyers with particular expertise in this area of the law. Would this consideration fall within the rubric of the ultimate question, namely “whether having regard to all the circumstances of the case, it is reasonable to admit the foreign counsel” (see Re Beloff at [53])?

Background

The arbitration concerned the alleged expropriation by Lesotho of mining leases granted to and held by the defendants in OS 492, who were the claimants in the arbitration. They are: (a) Swissborough Diamond Mines (Pty) Limited, (b) Mr Josias Van Zyl, (c) The Josias Van Zyl Family Trust, (d) The Burmilla Trust, (e) Matsoku Diamonds (Pty) Limited, (f) Motete Diamonds (Pty) Limited, (g) Orange Diamonds (Pty) Limited, (h) Patiseng Diamonds (Pty) Ltd, and (i) Rampai Diamonds (Pty) Limited (referred to collectively as “the defendants”). The 1st defendant is a company registered under the laws of Lesotho. The 2nd defendant is a South African national who incorporated the 1st defendant and is one of its shareholders. The 3rd and 4th defendants are trusts established under the laws of South Africa; they are alleged to hold the remaining shares in the 1st defendant. The 5th to 9th defendants are companies incorporated under the laws of Lesotho who were the original licensees of the mining leases. ¹

The SADC Treaties

As mentioned, this case has a significant public international law dimension to it. In addressing the defendants’ claims, the arbitral tribunal had to consider and interpret the following three treaties or international instruments: The Treaty of the Southern African Development Community, Windhoek, 17 August 1992 (in force 30 September 1993) (“SADC Treaty”); The Protocol on the Tribunal in the Southern African Development Community, Windhoek, 7 August 2000 (in force 14 August 2001) (“SADC Tribunal Protocol”); and The Protocol on Finance and Investment, Maseru, 18 August 2006 (in force 16 April 2010) (“SADC Investment Protocol”).

The SADC Treaty is a multilateral treaty to which 15 member states, including Lesotho, are parties to.² It established the SADC, an international organization with separate personality under international law.

Article 9 of the SADC Treaty provides for the establishment of a tribunal (“SADC Tribunal”) to adjudicate on disputes which may be referred to it. Article 10 of the SADC Treaty provides for the establishment of a Summit of Heads of State or Government of all member states (“SADC Summit”) as the supreme policy-making organ of the SADC.³ The SADC Tribunal came into being on 14 August 2001 with the incorporation of the SADC Tribunal Protocol as part of the SADC Treaty. The SADC Tribunal Protocol established, among other things, the composition, powers, functions, jurisdiction, and procedures of the SADC Tribunal.

The SADC Investment Protocol entered into force on 16 April 2010. In the arbitration, the defendants invoked Article 28 to Annex 1 of the SADC Investment Protocol as the provision on which the jurisdiction of the arbitral tribunal was founded. So far as is relevant, Article 28 states: 1. Disputes between an investor and a State Party concerning an obligation of the latter in relation to an admitted investment of the former, which have not been amicably settled, and after exhausting local remedies shall, after a period of six (6) months from written notification of a claim, be submitted to international arbitration if either party to the dispute so wishes.

…

4. The provisions of this Article shall not apply to a dispute, which arose before entry into force of this Annex.

The words “investor” and “investment” are defined in Article 1(2) of Annex 1 of the SADC Investment Protocol:⁴ The word “investor” means “a person that has been admitted to make or has made an investment”; The word “investment” means “the purchase, acquisition or establishment of productive and portfolio investment assets” and includes “shares, stocks and debentures of companies or interest in the property of such companies” and “rights conferred by law or under contract, including licences to search for, cultivate, extract or exploit natural resources”.

The defendants’ claims

The factual narrative out of which the arbitration arose spanned a period of nearly 25 years. It began with the 1st defendant being granted mining leases in respect of five areas in Lesotho sometime in 1988.⁵ Between 1989 and 1990 the 1st defendant entered into licensing agreements with the 5th to 9th defendants by which each of the five companies would hold and exercise the rights to one of the five areas covered by the mining leases.⁶ Sometime in the middle of 1991, disputes emerged over the validity of the mining leases and the measures taken by Lesotho which purported to cancel them. This led to a further dispute over whether the 1st and 5th to 9th defendants were entitled to compensation from Lesotho. The dispute over Lesotho’s purported interference with the defendants’ mining leases led to protracted litigation between the defendants and Lesotho or its governmental agencies from 1991 to 2000.⁷ The defendants commenced proceedings in the Lesotho High Court to recover damages for Lesotho’s expropriation of the five mining leases. However, in separate proceedings, the Lesotho High Court made a declaration that the lease held through the 9th defendant was void ab initio. That decision was upheld on appeal on 6 October 2000, after which the defendants did not continue to pursue any of the claims for compensation that they had started in the courts of Lesotho.⁸

The defendants then took their claims to the SADC Tribunal. On 12 June 2009, the defendants instituted proceedings against Lesotho before the SADC Tribunal claiming...