Re Landau: Ad Hoc Admission for CMNC's Arbitration Award Challenge
The High Court of Singapore heard an application by Toby Thomas Landau QC for ad hoc admission to represent China Machine New Energy Corporation (CMNC) in Originating Summons No 185 of 2016, an application to set aside an arbitral award in favor of Jaguar Energy Guatemala LLC and AEI Guatemala Jaguar Ltd. The Attorney-General supported the application, while Jaguar and the Law Society of Singapore opposed it. Steven Chong J dismissed the application, finding that the legal issues were not sufficiently novel or complex to warrant the admission of foreign counsel, and that competent local counsel were available.
1. Case Overview
1.1 Court
High Court of the Republic of Singapore1.2 Outcome
Application dismissed with costs.
1.3 Case Type
Civil
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Application to admit Toby Thomas Landau QC to represent CMNC in setting aside an arbitral award. The court dismissed the application, finding no need for foreign counsel.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Toby Thomas Landau | Applicant | Individual | Application Dismissed | Lost | Paul Tan, Rachel Low, Alessa Pang |
| China Machine New Energy Corporation | Other | Corporation | Application Dismissed | Lost | Paul Tan, Rachel Low, Alessa Pang |
| Jaguar Energy Guatemala LLC | Respondent | Corporation | Opposition Upheld | Won | Daniel Chia, Ker Yanguang, Kenneth Kong |
| AEI Guatemala Jaguar Ltd | Respondent | Corporation | Opposition Upheld | Won | Daniel Chia, Ker Yanguang, Kenneth Kong |
| Attorney-General | Other | Government Agency | Neutral | Neutral | Jeyendran Jeyapal, Jeanette Justin |
| Law Society of Singapore | Other | Association | Opposition Upheld | Won | Christopher Anand Daniel, Harjean Kaur |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Steven Chong | Judge | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Paul Tan | Rajah & Tann Singapore LLP |
| Rachel Low | Rajah & Tann Singapore LLP |
| Alessa Pang | Rajah & Tann Singapore LLP |
| Daniel Chia | Morgan Lewis Stamford LLC |
| Ker Yanguang | Morgan Lewis Stamford LLC |
| Kenneth Kong | Morgan Lewis Stamford LLC |
| Jeyendran Jeyapal | Attorney-General’s Chambers |
| Jeanette Justin | Attorney-General’s Chambers |
| Christopher Anand Daniel | Advocatus Law LLP |
| Harjean Kaur | Advocatus Law LLP |
4. Facts
- CMNC applied to set aside an arbitral award in favor of Jaguar.
- The underlying dispute concerned a Lump-Sum, Turnkey Engineering, Procurement, and Construction Contract.
- CMNC was to construct a power generation plant in Guatemala for Jaguar for approximately US$450m.
- Jaguar allegedly took steps to hinder CMNC's preparation for the arbitration.
- CMNC alleged the arbitral tribunal was hostile towards them.
- CMNC alleged the Award was contrary to public policy because of corruption.
- The arbitral tribunal found in favor of Jaguar and awarded it US$129,389,417 in damages.
5. Formal Citations
- Re Landau, Toby Thomas QC, Originating Summons No 752 of 2016, [2016] SGHC 258
6. Timeline
| Date | Event |
|---|---|
| EPC Contract dated | |
| Toby Thomas Landau appointed Queen’s Counsel | |
| CMNC and Jaguar amended the EPC Contract | |
| CMNC and Jaguar entered into a deferred payment security agreement | |
| Jaguar began issuing debit notes | |
| CMNC made a formal demand for Jaguar to perfect the security interests | |
| CMNC declared an event of default under the DPSA | |
| Jaguar notified CMNC that the EPC Contract and the DPSA were terminated | |
| Jaguar commenced arbitration | |
| Arbitration hearings took place | |
| Arbitration hearings took place | |
| Award rendered | |
| Originating Summons 185 of 2016 filed | |
| Hearing before Steven Chong J | |
| Judgment reserved |
7. Legal Issues
- Ad Hoc Admission of Foreign Counsel
- Outcome: The court dismissed the application for ad hoc admission, finding that the legal issues were not sufficiently novel or complex and that competent local counsel were available.
- Category: Procedural
- Sub-Issues:
- Special qualifications and experience
- Necessity of foreign counsel
- Availability of local counsel
- Nature of factual and legal issues
- Breach of Natural Justice
- Outcome: The court found that whether Jaguar’s obstructive conduct would justify setting aside the Award for breach of natural justice is not so complex or novel a point as to lean in favor of admission.
- Category: Substantive
- Sub-Issues:
- Obstructive conduct
- Tribunal's failure to restrain conduct
- Implied Duty of Good Faith in Arbitration
- Outcome: The court found that the question of an implied duty to arbitrate in good faith only assumes relevance if such a duty is shown to exist, Jaguar breached the duty, and such a breach translates into a ground to set aside the Award.
- Category: Substantive
- Tribunal's Use of Attorney's Eyes Only Orders
- Outcome: The court did not regard the issue of whether the tribunal’s use of AEO orders impinged on CMNC’s right to be heard as sufficiently novel or complex to lean in favor of admitting the Applicant to argue the point.
- Category: Procedural
- Duty to Investigate Corruption
- Outcome: The court did not think the existence of the duty to investigate corruption is an exceptionally novel point.
- Category: Substantive
8. Remedies Sought
- Setting aside of arbitral award
9. Cause of Actions
- Breach of Contract
10. Practice Areas
- Ad Hoc Admissions
- Arbitration
11. Industries
- Construction
- Energy
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Re Wordsworth, Samuel Sherratt QC | High Court | Yes | [2016] 5 SLR 179 | Singapore | Cited for comparison regarding the admission of foreign counsel in arbitration cases, particularly concerning the complexity of issues. |
| Re Beloff Michael Jacob QC | Court of Appeal | Yes | [2014] 3 SLR 424 | Singapore | Cited as the most authoritative exposition on the law governing ad hoc admission of foreign counsel under s 15 of the LPA. |
| Re Andrews Geraldine Mary QC | High Court | Yes | [2013] 1 SLR 872 | Singapore | Cited regarding the special qualifications and experience required for ad hoc admission. |
| Re Caplan Jonathan Michael QC | High Court | Yes | [2013] 3 SLR 66 | Singapore | Cited regarding the likelihood of stated issues arising for determination and the nature of supporting evidence. |
| Re Rogers, Heather QC | High Court | Yes | [2015] 4 SLR 1064 | Singapore | Cited regarding the court's ability to determine if issues will arise based on clear legal authority. |
| Re Fordham, Michael QC | High Court | Yes | [2015] 1 SLR 272 | Singapore | Cited regarding the complexity of legal propositions extracted from conflicting authorities. |
| Re Lord Goldsmith Peter Henry QC | High Court | Yes | [2013] 4 SLR 921 | Singapore | Cited regarding the breadth and depth of research required to address legal issues. |
| PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA | Court of Appeal | Yes | [2007] 1 SLR(R) 597 | Singapore | Cited to define 'public policy' in the context of setting aside an arbitral award, referring to fundamental principles of law and justice. |
| Coal & Oil Co LLC v GHCL Ltd | High Court | Yes | [2015] 3 SLR 154 | Singapore | Cited regarding parties' attempts to expand the boundaries of natural justice as a ground for setting aside an award. |
| BLB and another v BLC and others | High Court | Yes | [2013] 4 SLR 1169 | Singapore | Cited regarding the court's role in reviewing an arbitral award for breaches of natural justice. |
| TMM Division Maritima SA de CV v Pacific Richfield Marine Pte Ltd | High Court | Yes | [2013] 4 SLR 972 | Singapore | Cited regarding the standard of evidence required to demonstrate breaches of natural justice. |
| Dongwoo Mann+Hummel Co Ltd v Mann+Hummel GmbH | High Court | Yes | [2008] 3 SLR(R) 871 | Singapore | Cited regarding the breach of natural justice for a tribunal to allow one party not to produce documents to the other side in discovery on the ground of confidentiality. |
| Triulzi Cesare SRL v Xinyi Group (Glass) Co Ltd | High Court | Yes | [2015] 1 SLR 114 | Singapore | Cited regarding the challenge of a tribunal's case management powers as a breach of the rules of natural justice. |
| PT Prima International Development v Kempinski Hotels SA and other appeals | Court of Appeal | Yes | [2012] 4 SLR 98 | Singapore | Cited regarding the arbitral tribunal's duty and mandate to investigate matters raised which, if proven, would render the award unenforceable for being contrary to public policy. |
| AJU v AJT | Court of Appeal | Yes | [2011] 4 SLR 739 | Singapore | Cited regarding the court's power to examine the facts of the case afresh. |
| PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal | Court of Appeal | Yes | [2014] 1 SLR 372 | Singapore | Cited as a previous case where the Applicant was admitted, involving complex questions of international arbitration law. |
13. Applicable Rules
| Rule Name |
|---|
| Legal Profession (Ad Hoc Admissions) Notification 2012 (S 132/2012) |
| 1988 Rules of Arbitration of the International Chamber of Commerce |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Legal Profession Act (Cap 161, 2009 Rev Ed) | Singapore |
| International Arbitration Act (Cap 143A, 2002 Rev Ed) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Ad hoc admission
- Arbitral award
- Rules of natural justice
- UNCITRAL Model Law
- International Arbitration Act
- Attorney's Eyes Only order
- Public policy
- Guerrilla tactics
- Implied duty of good faith
- Lump-Sum, Turnkey Engineering, Procurement, and Construction Contract
15.2 Keywords
- ad hoc admission
- foreign counsel
- arbitration
- Singapore
- Legal Profession Act
- International Arbitration Act
- natural justice
- public policy
16. Subjects
- Arbitration
- Legal Profession
17. Areas of Law
- Legal Profession
- Arbitration Law
- Civil Procedure