Re Harish Salve: Ad Hoc Admission for Indian Law Expertise in Arbitration Award Challenge

The High Court of Singapore heard applications by Harish Salve, a Senior Advocate of India, to be admitted ad hoc to represent the Sellers in Originating Summonses Nos 784 and 787 of 2016, which sought to set aside a Final Arbitral Award. The applications were dismissed by Justice Steven Chong, primarily because the court found that the applicant did not possess special qualifications or experience relevant to the specific issues in the case, and the court was not persuaded that the promotion of Singapore as a venue for international arbitration should be a dominant reason for admitting foreign counsel.

1. Case Overview

1.1 Court

High Court of the Republic of Singapore

1.2 Outcome

Applications dismissed with costs.

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Applications to admit Indian Senior Advocate Harish Salve to argue Indian law issues in setting aside an arbitration award were dismissed.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Attorney-GeneralOtherGovernment AgencyApplication SupportedNeutral
Jeyendran Jeyapal of Attorney-General’s Chambers
Elaine Liew of Attorney-General’s Chambers
May Ng of Attorney-General’s Chambers
Harish SalveApplicantIndividualApplication DismissedLost
SellersRespondentOtherApplication OpposedNeutral
Law SocietyOtherAssociationApplication OpposedNeutral

3. Judges

Judge NameTitleDelivered Judgment
Steven ChongJudgeYes

4. Counsels

Counsel NameOrganization
Jeyendran JeyapalAttorney-General’s Chambers
Elaine LiewAttorney-General’s Chambers
May NgAttorney-General’s Chambers
Kelvin PoonRajah & Tann Singapore LLP
Smitha MenonWongPartnership LLP
Alyssa LeongRajah & Tann Singapore LLP
Matthew KohRajah & Tann Singapore LLP
Stephanie YeoWongPartnership LLP
Doralyn ChanWongPartnership LLP
Suresh DivyanathanOon & Bazul LLP
Aaron LeongOon & Bazul LLP
Victoria ChooOon & Bazul LLP
Harjean KaurAdvocatus Law LLP
Christopher Anand DanielAdvocatus Law LLP

4. Facts

  1. Harish Salve, a Senior Advocate of India, applied for ad hoc admission to represent the Sellers in OS 784 and OS 787.
  2. The OSes sought to set aside a Final Arbitral Award dated 29 April 2016, which awarded over $500 million.
  3. The arbitration arose from an agreement subject to Indian law.
  4. The Applicant sought admission to address the court only on foreign law issues, specifically disputed issues on Indian law.
  5. The Individual and Corporate Sellers argued that the Tribunal had erred in awarding a measure of damages that puts the Buyer back in the position as if the representation had not been made.
  6. The Minors argued that the Award is contrary to the public policy of Singapore because it fails to protect the best interests of the Minors.
  7. The Law Society opposed the applications, arguing that a dispute over foreign law is insufficient basis to admit foreign counsel.

5. Formal Citations

  1. Re Harish Salve and another matter, Originating Summons Nos 1114 and 1115 of 2016, [2017] SGHC 28

6. Timeline

DateEvent
Final Arbitral Award issued
Originating Summons No 784 of 2016 filed
First affidavit of Harish Salve filed
First affidavit of Choo Li Yuet Victoria filed
Arbitration proceedings initiated
Share Purchase and Share Subscription Agreement signed
Transaction closed with Buyer acquiring controlling stake
Company signed consent decree with US regulator
Company paid penalty in settlement agreement with US government department
Judgment reserved
Judgment issued

7. Legal Issues

  1. Ad Hoc Admission of Foreign Counsel
    • Outcome: The court dismissed the applications, finding that the applicant did not possess the requisite special qualifications or experience and that the admission of foreign counsel was not necessary.
    • Category: Procedural
    • Sub-Issues:
      • Special qualifications or experience
      • Necessity for services of foreign counsel
      • Reasonableness of admitting foreign counsel
  2. Proof of Foreign Law
    • Outcome: The court noted that foreign law is an issue of fact that must be proved by adducing raw sources of foreign law or by adducing the opinion of an expert in foreign law.
    • Category: Procedural

8. Remedies Sought

  1. Ad Hoc Admission to Practise as Advocate and Solicitor

9. Cause of Actions

  • Application for Ad Hoc Admission
  • Setting Aside of Arbitral Award

10. Practice Areas

  • Ad Hoc Admissions
  • Commercial Litigation
  • Arbitration

11. Industries

  • No industries specified

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Re Beloff Michael Jacob QCCourt of AppealYes[2014] 3 SLR 424SingaporeCited for the two-stage evaluation process for ad hoc admission and the principle that foreign senior counsel should only be admitted on the basis of need.
Re Wordsworth, Samuel Sherratt QCHigh CourtYes[2016] 5 SLR 179SingaporeCited for the principle that need should be assessed from the perspective of the litigant and the court.
Re Rogers, Heather QCHigh CourtYes[2015] 4 SLR 1064SingaporeCited for the requirement that an applicant for ad hoc admission possess special qualifications or experience relevant to the specific issues in the case.
Re Fordham, Michael QCHigh CourtYes[2015] 1 SLR 272SingaporeCited for clarifying that the focus is on the relevance of counsel’s qualifications and experience to the specific issues and not on whether those issues are difficult or complex.
Pacific Recreation Pte Ltd v S Y Technology IncCourt of AppealYes[2008] 2 SLR(R) 491SingaporeCited for the principle that foreign law is an issue of fact which must be proved either by adducing raw sources of foreign law or by adducing the opinion of an expert in foreign law.
Accent Delight International Ltd and another v Bouvier, Yves Charles Edgar and othersHigh CourtYes[2016] 2 SLR 841SingaporeCited as an example of a case where local counsel made submissions on the basis of expert opinions on foreign law.
Westacre Investments Inc v The State-Owned Company Yugoimport SDPR (also known as Jugoimport-SDPR) and othersHigh CourtYes[2015] 4 SLR 529SingaporeCited as an example of a case where local counsel made submissions on the evidence of foreign law.
Lim Weipin and another v Lim Boh Chuan and othersHigh CourtYes[2010] 3 SLR 423SingaporeCited as an example of a case where cross-examination of foreign law experts assisted the court in reaching a finding on foreign law.
Giant Light Metal Technology (Kunshan) Co Ltd v Aksa Far East Pte LtdHigh CourtYes[2014] 2 SLR 545SingaporeCited as an example of a case where cross-examination narrowed the areas of disagreement between foreign legal experts.
PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appealCourt of AppealYes[2014] 1 SLR 372SingaporeCited as an example of a case where foreign counsel were admitted to argue issues of international arbitration law that governed the substantive applications.
Re Landau, Toby Thomas QCHigh CourtYes[2016] SGHC 258SingaporeCited for identifying general principles to guide the qualitative evaluation of the issues.
Wu Yang Construction Group Ltd v Zhejiang Jinyi Group Co, Ltd and othersHigh CourtYes[2006] 4 SLR(R) 451SingaporeCited for concerns expressed about expert witnesses who were diametrically opposed and offered no nuanced explanation.
Re Joseph David QCHigh CourtYes[2012] 1 SLR 791SingaporeCited regarding the role as lead counsel in arbitration proceedings.
R C Thakkar v Gujarat Housing BoardGujarat High CourtYes[1973] Guj 34IndiaCited by the Tribunal for the proposition that in deceit claims, the plaintiff is entitled to be put back in the position he would have been in had the wrong not been committed. The Individual and Corporate Sellers argue that the Tribunal had erred in relying on this case because it had been overruled.
Smith New Court Securities Ltd v Citibank N AHouse of LordsYes[1997] AC 254England and WalesCited by the Tribunal as a case in which a similar position was adopted regarding the plaintiff being put back in the position he would have been in had the wrong not been committed.
Trojan & Co v RM N N Nagappa ChettiarSupreme Court of IndiaYesAIR 1953 SC 235IndiaCited by the Individual and Corporate Sellers’ expert as a decision of the Supreme Court of India on damages for the tort of fraudulent misrepresentation.
Azov Shipping Co v Baltic Shipping CoUnknownYes[1999] 1 Lloyd’s Rep 68UnknownCited as precedent for cross-examination of the Indian law experts in the context of applications to set aside arbitral awards.
Astra SA Insurance and Reinsurance Co v Sphere Drake Insurance LtdUnknownYes[2000] 2 Lloyd’s Rep 550UnknownCited as precedent for cross-examination of the Indian law experts in the context of applications to set aside arbitral awards.

13. Applicable Rules

Rule Name
Rules of Court (Cap 322, R 5, 2014 Rev Ed)

14. Applicable Statutes

Statute NameJurisdiction
Legal Profession Act (Cap 161, 2009 Rev Ed)Singapore
Indian Contract Act 1872 (Act No 9 of 1872)India
Indian Advocates Act 1961India

15. Key Terms and Keywords

15.1 Key Terms

  • Ad hoc admission
  • Senior Advocate
  • Indian law
  • Arbitration award
  • Setting aside
  • Special qualifications
  • Expert evidence
  • Public policy
  • Legal Profession Act
  • Notification Matters

15.2 Keywords

  • Ad hoc admission
  • Foreign counsel
  • Indian law
  • Arbitration
  • Singapore High Court
  • Legal Profession Act
  • Expert evidence

17. Areas of Law

Area NameRelevance Score
Ad Hoc Admission80
Arbitration70
Contract Law60
Evidence Law40
Corporate Law30
Legal Ethics and Professional Responsibility30
Professional Ethics20
Corporate Governance20
Administrative Law20
Criminal Law10

16. Subjects

  • Legal Profession
  • Civil Procedure
  • Arbitration
  • International Law
  • Contract Law