PP1043
Analítico de Periódico
GOUVEIA, Mariana França, e outro
Ad Hoc admission of Foreign Counsel in International Arbitration : related judicial proceedings : Singapore High Court Judgment of 2 August 2016 / Mariana França Gouveia, Ana Coimbra Trigo
PLMJ Arbitration Review, Lisboa, n.1 (2016), p.89-102
Esta revista encontra-se disponível em texto integral no endereço eletrónico: https://www.plmj.com/xms/files/PLMJ_Arbitration_Review/PLMJ_Arbitration_Review_n01.pdf
DIREITO INTERNACIONAL PÚBLICO, PRINCÍPIOS DE DIREITO INTERNACIONAL, ARBITRAGEM INTERNACIONAL / Singapura, INTERPRETAÇÃO DE TRATADOS / Singapura, RESPONSABILIDADE DO ESTADO / Singapura, INVESTIMENTOS / Singapura, REPRESENTAÇÃO / Singapura, ADVOGADO / Singapura
Pursuant to the Legal Profession Act (“LPA”) of Singapore, a British Queens’ Counsel filed an ad hoc application to be admitted before the Singapore High Court and appear in judicial proceedings regarding the setting aside of an arbitral award. The applicant, the Kingdom of Lesotho, argued that the British QC fulfilled all requirements provided in Article 15 of the LPA, including relevant and specialized expertise in the area of public international law and investment arbitration (namely, regarding the concept of “international investment”, relevant to the underlying analysis of the award to be set aside). Likewise, the four elements established in the Legal Profession (Ad Hoc Admission) Notification 2012 were also met: complex topics with precedential value were to be discussed (e.g., the extent of a Member State’s liability for acts undertaken by international organisations), the Singaporean pool of local counsel lacked advocates with equivalent experience, and the appearance of this lead counsel was considered reasonable and fair. The defendants, Mr Josias Van Zyl, the Josias Van Zyl Family Trust and the Burmilla Trust (investors allegedly expropriated by the applicant) replied that the barrister in question did not, in fact, have any experience related to the law they deemed applicable, the International Arbitration Act (“IAA”), that it would be unreasonable to admit him taking into account that the legal issue at hand could be resolved through the application of principles of interpretation regarding commonly addressed treaties and respective case law, and also that the applicant had failed to demonstrate that it had undertaken reasonable efforts to find available local counsel. After considering the stance of the Law Society of Singapore (that sided with the defendants) and of the Attorney General (that, conversely, sided with the applicant), the judge decided in favour of the Kingdom of Lesotho, transitorily admitting the barrister’s participation before the High Court of Singapore, in regard to the specific case mentioned. The court concluded that, in light of Article 15 of the LPA, the applicant-counsel held the necessary qualifications and experience to aid both its client and the court regarding the requested annulment of the arbitral award, also because it considered that at the centre of the dispute were issues of public international law and Investor-State arbitration, including the concept of “international investment”. Accordingly, the court concluded that this QC had indeed regularly explored this topic in previous cases. Furthermore, the court highlighted that these topics had been object of a dissenting opinion by one of the arbitrators in the underlying arbitration award (in crisis). Following the summarized analysis, the judge moved on to the elements established in the Legal Profession (Ad Hoc Admission) Notification 2012, and decided that the same conclusion was due considering the potential precedential value, with significant public (and international) impact, of an eventual setting aside decision. Lastly, as local counsel had no expertise regarding the legal topics at hand, the judge considered the presence of the British QC as “necessary”, more so than “convenient”. This decision constitutes the second recorded acceptance of a foreign counsel ad hoc admission application since the LPA’s newest amendment in 2012, and the first decision addressing international arbitration...