Re Gearing: Ad Hoc Admission for Investor-State Arbitration - Legal Profession Act

The High Court of Singapore heard an application by Matthew Peter Gearing QC for ad hoc admission to represent the defendant (the Investor) in Originating Summons No 685 of 2019, a case concerning the setting aside of a jurisdictional decision in an investor-state arbitration. The court, presided over by Steven Chong JA, dismissed the application, finding that the issues involved were not sufficiently complex to warrant the admission of foreign counsel and that local counsel were available and competent to handle the case. The Investor's claims in the Arbitration are for certain payments due and owing pursuant to certain certificates under the MOU.

1. Case Overview

1.1 Court

High Court of the Republic of Singapore

1.2 Outcome

Application dismissed.

1.3 Case Type

Civil

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Application to admit foreign counsel for investor-state arbitration. The court dismissed the application, finding no special reason for admission.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Matthew Peter GearingApplicantIndividualApplication DismissedLostThio Shen Yi, Monisha Cheong Rui Ying, Hannah Alysha Ashiq
InvestorDefendantCorporationApplication DismissedNeutralThio Shen Yi, Monisha Cheong Rui Ying, Hannah Alysha Ashiq
StatePlaintiffGovernment AgencyCosts AwardedWonAlvin Yeo, Koh Swee Yen, Tiong Teck Wee, Hannah Lee Ming Shan, Wong Yan Yee, Alexander Kamsany Lee
Law Society of SingaporeOtherStatutory BoardNeutralNeutralChristopher Anand Daniel, Harjean Kaur, Elizabeth Chua
Attorney-GeneralOtherGovernment AgencyNeutralNeutralJeyendran Jeyapal, Evans Ng, Ailene Chou

3. Judges

Judge NameTitleDelivered Judgment
Steven ChongJudge of AppealYes

4. Counsels

Counsel NameOrganization
Thio Shen YiTSMP Law Corporation
Monisha Cheong Rui YingTSMP Law Corporation
Hannah Alysha AshiqTSMP Law Corporation
Alvin YeoWongPartnership LLP
Koh Swee YenWongPartnership LLP
Tiong Teck WeeWongPartnership LLP
Hannah Lee Ming ShanWongPartnership LLP
Wong Yan YeeWongPartnership LLP
Alexander Kamsany LeeWongPartnership LLP
Christopher Anand DanielAdvocatus Law LLP
Harjean KaurAdvocatus Law LLP
Elizabeth ChuaAdvocatus Law LLP
Jeyendran JeyapalAttorney-General’s Chambers
Evans NgAttorney-General’s Chambers
Ailene ChouAttorney-General’s Chambers

4. Facts

  1. Mr. Gearing sought admission to represent the Investor in OS 685, which concerned setting aside a jurisdictional decision in an investor-state arbitration.
  2. The Tribunal had rejected the State's jurisdictional objections, finding the Bilateral Treaty's language unusually clear.
  3. The State raised four objections to the Tribunal's jurisdiction: improper constitution, claims barred, claims time-barred, and contractual nature of claims.
  4. The Investor's claims in the Arbitration are for certain payments due and owing pursuant to certain certificates under the MOU.
  5. The Investor relied on the fair and equitable treatment (FET) clause and umbrella clause of the Bilateral Treaty.
  6. The Deputy Registrar ordered OS 685 be transferred to the Singapore International Commercial Court (SICC).

5. Formal Citations

  1. Re Gearing, Matthew Peter QC, Originating Summons 853 of 2019, [2019] SGHC 249

6. Timeline

DateEvent
Investor commenced Arbitration proceedings
Investor nominated its party-appointed arbitrator
Investor wrote to the PCA to appoint the State’s party-appointed arbitrator and the presiding arbitrator
PCA confirmed the State’s party-appointed arbitrator
Secretary-General of the PCA appointed the Presiding Arbitrator
Tribunal rejected the State’s objections and affirmed its own jurisdiction
OS 685 transferred to the Singapore International Commercial Court
Judgment reserved
Judgment delivered

7. Legal Issues

  1. Admissibility of Foreign Counsel
    • Outcome: The court held that the foreign counsel's admission was not warranted due to the lack of complexity of the issues and the availability of competent local counsel.
    • Category: Procedural
    • Sub-Issues:
      • Special qualifications or experience
      • Necessity for services of foreign counsel
      • Availability of local counsel
  2. Jurisdiction of Arbitral Tribunal
    • Outcome: The court considered the objections to the Tribunal's jurisdiction in assessing the complexity of the case but did not make a ruling on the jurisdiction itself.
    • Category: Substantive
    • Sub-Issues:
      • Improper constitution of tribunal
      • Claims barred under Bilateral Treaty
      • Claims time-barred
      • Contractual nature of claims

8. Remedies Sought

  1. Admission of Foreign Counsel

9. Cause of Actions

  • Application for Ad Hoc Admission

10. Practice Areas

  • Commercial Litigation
  • Arbitration
  • International Arbitration

11. Industries

  • No industries specified

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Re Wordsworth, Samuel Sherratt QCHigh CourtYes[2016] 5 SLR 179SingaporeCited for the two-stage sequential inquiry in an application to admit a foreign senior counsel.
Re Beloff Michael Jacob QCHigh CourtYes[2014] 3 SLR 424SingaporeCited for the inquiry under the third mandatory requirement is whether there is some notable and particular expertise relevant to the issues at hand.
Re Rogers, Heather QCHigh CourtYes[2015] 4 SLR 1064SingaporeCited for the applicant to have general expertise pertaining to the particular issues that will be before the court is not sufficient.
Re Joseph David QCHigh CourtYes[2012] 1 SLR 791SingaporeCited as an example of cases where admitted applicants were arguing against some pre-existing award.
Re Harish Salve and another appealCourt of AppealYes[2018] 1 SLR 345SingaporeCited for the assessment of the four Notification matters is a holistic rather than sequential exercise.
Tan Cheng Bock v Attorney-GeneralCourt of AppealYes[2017] 2 SLR 850SingaporeCited for fundamental principles of statutory interpretation.
Sanum Investments Ltd v Government of the Lao People’s Democratic RepublicCourt of AppealYes[2016] 5 SLR 536SingaporeCited for the application of the Vienna Convention on the Law of Treaties in the context of investor-state treaty arbitration.
Swissbourgh Diamond Mines (Pty) Ltd and others v Kingdom of LesothoCourt of AppealYes[2019] 1 SLR 263SingaporeCited for the application of the Vienna Convention on the Law of Treaties in the context of investor-state treaty arbitration.
Lee Hsien Loong v Review Publishing Co Ltd and another and another suitHigh CourtYes[2007] 2 SLR(R) 453SingaporeCited for the application of the Vienna Convention on the Law of Treaties.
Yong Vui Kong v Public ProsecutorCourt of AppealYes[2015] 2 SLR 1129SingaporeCited for the application of the Vienna Convention on the Law of Treaties.
Re Caplan Jonathan Michael QCHigh CourtYes[2013] 3 SLR 66SingaporeCited for the party supporting the application to provide full details of the party’s efforts in securing local counsel.
Re BSLHigh CourtYes[2018] SGHC 207SingaporeCited for the position with regard to ad hoc admissions remains the same in SICC cases even in arbitration-related matters.
Kingdom of Lesotho v Swissbourgh Diamond Mines (Pty) Ltd and othersHigh CourtYes[2019] 3 SLR 12SingaporeCited as an example of a case which engaged many complex issues of public international law.

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
International Arbitration Act (Cap 143A, 2002 Rev Ed)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Ad hoc admission
  • Investor-state arbitration
  • Bilateral Treaty
  • UNCITRAL Rules
  • Jurisdictional challenge
  • Special qualifications
  • Notification matters
  • Vienna Convention on the Law of Treaties
  • Fork-in-the-road provision
  • Fair and equitable treatment clause
  • Umbrella clause

15.2 Keywords

  • Ad hoc admission
  • Foreign counsel
  • Investor-state arbitration
  • Singapore International Commercial Court
  • Legal Profession Act

16. Subjects

  • Legal Profession
  • Arbitration
  • International Law
  • Civil Procedure

17. Areas of Law

  • Legal Profession
  • Admission
  • Ad hoc
  • Arbitration Law
  • Investor-State Arbitration
  • Public International Law
  • Treaty Interpretation