Case Details
- Citation: [2017] SGHC 28
- Title: Re: Harish Salve
- Court: High Court of the Republic of Singapore
- Date: 17 February 2017
- Judges: Steven Chong J
- Proceedings: Originating Summons Nos 1114 and 1115 of 2016
- Underlying Arbitration Context: Applications to set aside a Final Arbitral Award dated 29 April 2016
- Applicant: Harish Salve, Senior Advocate of India
- Respondent/Defendant in OSes: Buyer (name not stated in the extract)
- Underlying OSes: OS 784 and OS 787 of 2016 (collectively “the OSes”)
- Related Enforcement Proceeding: OS 490 of 2016 (leave to enforce the Award against all 20 Sellers)
- Parties in OS 784 and OS 787: 20 plaintiffs (“Sellers”) seeking to set aside the Award; defendant (“Buyer”) seeking enforcement
- Minors: Five plaintiffs in OS 787 are minors (“the Minors”); they are separately represented in the proceedings
- Arbitral Tribunal Decision: Majority decision 2–1; Award in excess of S$500 million
- Legal Areas: International arbitration; admission of foreign counsel; setting aside arbitral awards; proof of foreign law; public policy
- Statutes Referenced: Legal Profession Act (Cap 161, 2009 Rev Ed); International Arbitration Act (Cap 143A, 2002 Rev Ed); Rules of Court (Cap 322, R 5, 2014 Rev Ed) (O 28 r 4(3)); Indian Contract Act 1872
- Judgment Length: 39 pages, 11,744 words
- Cases Cited: [2016] SGHC 258; [2017] SGHC 28 (this case); R C Thakkar v Gujarat Housing Board AIR 1973 Guj 34; Smith New Court Securities Ltd v Citibank N A [1997] AC 254
Summary
In Re: Harish Salve ([2017] SGHC 28), the High Court considered applications by Harish Salve, a Senior Advocate of India, to be admitted as foreign counsel in Singapore proceedings to set aside a large arbitral award arising from an India-governed share purchase agreement. The applications were unusual in several respects: it was the first time a Senior Advocate from the Indian Bar sought admission in this manner; the admission was sought only to argue certain issues (specifically disputed questions of Indian law); and the court was asked to assess how foreign counsel should fit within Singapore’s established ad hoc admission regime where foreign law must be “proved”.
The court accepted that the setting-aside applications were governed by Singapore law, particularly the International Arbitration Act, but recognised that Indian law was relevant because the arbitration agreement and substantive claims were rooted in an underlying contract governed by Indian law. The court’s central focus, however, was not the merits of the arbitral award. Instead, it addressed the procedural and evidential question of how foreign law should be presented to the court, and whether admitting a foreign senior advocate for limited purposes was necessary or appropriate given the existing expert evidence on Indian law.
What Were the Facts of This Case?
The underlying dispute arose from a Share Purchase and Share Subscription Agreement (“SPSSA”) dated 11 June 2008. Under the SPSSA, a Buyer acquired shares held by Sellers in a company incorporated in India. The SPSSA was governed by Indian law, and the arbitration agreement was contained in Article 13.14 of the SPSSA. The transaction closed on 7 November 2008, with the Buyer acquiring a controlling stake.
The factual background was shaped by regulatory investigations into the Indian company by US regulators and authorities. These investigations were ongoing during the negotiations leading up to the signing and completion of the SPSSA. Although the Buyer was aware that investigations were being carried out, the parties disagreed about the quality and severity of the Buyer’s knowledge at the time of contracting. Subsequently, under the Buyer’s direction, the company entered into a consent decree with a US regulator in January 2012, with estimated compliance costs of US$35m to US$50m per year. In addition, the company paid a further US$500m penalty under a settlement agreement with a US government department in May 2013.
Against this backdrop, the Buyer initiated arbitration proceedings on 12 November 2012 against the Sellers. The Buyer’s case was that the Sellers had fraudulently misrepresented the level of risk posed by the investigations and suppressed key reports evidencing widespread and intentional breaches. The Buyer relied on the Indian Contract Act 1872, in particular s 19, to claim damages that would put it in the position it would have been in had the representations been true. The Buyer also sought pre-award and post-award interest.
In the arbitration, the Sellers contested liability for fraud and also disputed the computation and measure of damages under s 19 of the Indian Contract Act. A key factual element in the damages dispute was that the Buyer entered into a share swap agreement with a third party in April 2014 and then sold the shares acquired under that swap in the open market on 21 April 2015 for a sum exceeding the Buyer’s original investment. The arbitral tribunal nevertheless awarded damages exceeding S$500 million.
What Were the Key Legal Issues?
The immediate legal issue before the High Court was whether Harish Salve should be admitted as foreign counsel on an ad hoc basis under the Legal Profession Act regime. The court had to consider the scope of such admission, particularly where the foreign counsel sought to argue only some issues rather than the entire case. The court also had to address what role foreign counsel should play in proving foreign law in Singapore proceedings.
Although the setting-aside applications were governed by Singapore law, the court had to grapple with the relevance of Indian law to the dispute. The Sellers’ case (as described in the extract) alleged that the arbitral tribunal’s treatment of disputed Indian law issues was so wrong that it offended Singapore’s public policy. The alleged error involved the tribunal relying on an Indian High Court decision that had been overruled by the Indian Supreme Court, a development that had not been raised by the parties during the arbitration. The Sellers also alleged that the award exceeded the tribunal’s jurisdiction by awarding consequential damages in breach of the arbitration agreement.
Accordingly, the court’s decision on admission necessarily intersected with a broader procedural question: if foreign law must be proved, and the parties already had expert reports on Indian law, what additional value would be provided by admitting a foreign senior advocate to argue foreign-law issues? The court also had to consider the availability of local counsel and the practical mechanics of presenting foreign law to the court.
How Did the Court Analyse the Issues?
The court began by framing the applications as “somewhat out of the ordinary”. It emphasised that the admission regime for foreign counsel is governed by the same principles applicable to other foreign counsel seeking ad hoc admission. The fact that the applicant was a Senior Advocate from the Indian Bar did not, by itself, justify a different approach from the usual treatment of foreign senior counsel. The court therefore treated the applications as governed by the established statutory and procedural framework under the Legal Profession Act.
Next, the court addressed the relevance of Indian law. It accepted that the setting-aside applications were governed by Singapore law, particularly the International Arbitration Act. However, Indian law remained relevant because the arbitration arose from an agreement subject to Indian law. The Sellers’ argument was that the tribunal’s handling of Indian law was so erroneous that it should be characterised as contrary to Singapore public policy. This meant that the Singapore court would need to understand and evaluate disputed questions of Indian law to determine whether the alleged public policy breach could be made out.
The court then turned to the practical question of how foreign law is to be proved in Singapore proceedings. The applicant’s proposed role was limited: he would address only foreign-law issues, while Singapore counsel—both Senior Counsel—would address Singapore-law issues. The court observed that, in the context of foreign law, the evidential mechanism typically involves expert evidence. Here, the parties had already retained two experts on Indian law each, and all experts had filed reports. The court therefore asked what incremental benefit would be gained by admitting the applicant, given that the court would already have expert materials on the disputed Indian law issues.
Significantly, the court explored an alternative procedural route. It invited the Sellers’ counsel to consider applying under O 28 r 4(3) of the Rules of Court for leave to cross-examine the experts. The court considered this “desirable and preferable” because the substantive arguments by local counsel on Indian law would depend on the court’s determination of the disputed Indian law issues, and the court would be assisted by testing the experts’ positions through cross-examination. The Sellers declined this invitation and instead pursued the applications to admit Harish Salve.
In analysing necessity and reasonableness, the court also considered the broader role of foreign counsel in proving foreign law. It noted that foreign law must be proved, and that the court’s determination of foreign law would be informed by the expert reports already before it. The court therefore scrutinised whether the applicant’s admission was required to ensure a fair and efficient hearing, or whether it would be duplicative of the expert evidence and the arguments already to be presented by Singapore counsel. The court’s reasoning reflects a concern with procedural economy and with ensuring that the court’s fact-finding and legal evaluation processes are properly structured.
Finally, the court’s analysis implicitly acknowledged the tension between (i) the need for accurate presentation of foreign law and (ii) the Singapore court’s responsibility to apply Singapore legal standards to arbitral setting-aside review. Even if Indian law is central to the alleged public policy breach, the court remains the ultimate decision-maker on the Singapore-law question of whether the award should be set aside. Admission of foreign counsel, therefore, could not be treated as a substitute for the court’s own assessment of the foreign-law issues through the evidence and submissions properly before it.
What Was the Outcome?
The extract does not include the final dispositive orders. However, the structure of the judgment indicates that the court was deciding whether to grant ad hoc admission to Harish Salve for limited purposes in OS 784 and OS 787. The court’s detailed discussion of the admission regime, the necessity of foreign counsel, and the availability of expert evidence and cross-examination suggests that the outcome turned on whether the applicant’s participation was genuinely required to assist the court on disputed Indian law issues.
Practically, the decision would determine whether Harish Salve could appear and argue foreign-law issues in the setting-aside proceedings, and to what extent. For parties in arbitration-related litigation, the outcome also signals how Singapore courts manage the interface between foreign-law proof and Singapore procedural standards, particularly where expert evidence is already in place.
Why Does This Case Matter?
Re: Harish Salve is significant for practitioners because it clarifies how Singapore courts approach ad hoc admission of foreign counsel in arbitration-related setting-aside proceedings. The case underscores that admission is not automatic merely because the applicant is a highly qualified foreign senior advocate. Instead, the court will examine whether the proposed role is necessary and reasonable in the context of the proceedings, including the scope of issues to be argued and the existing evidential framework.
More broadly, the case highlights the evidential mechanics of proving foreign law in Singapore. Where parties have already adduced expert reports on foreign law, the court may question the incremental value of additional foreign counsel. The court’s suggestion to consider cross-examination of experts under O 28 r 4(3) reflects a preference for structured evidential testing rather than expanding advocacy roles beyond what is required to assist the court.
For lawyers handling international arbitration disputes, the case also illustrates the conceptual separation between the substantive foreign-law issues and the Singapore-law review standard. Even where the alleged error concerns foreign law (here, Indian Contract Act principles and the tribunal’s reliance on Indian authorities), the ultimate question for the Singapore court remains whether the award should be set aside under Singapore public policy and the International Arbitration Act framework. Foreign counsel may assist on foreign-law content, but the court will still apply Singapore legal standards to determine the outcome.
Legislation Referenced
- Legal Profession Act (Cap 161, 2009 Rev Ed), in particular the ad hoc admission regime (Section 15 referenced in the originating summons)
- International Arbitration Act (Cap 143A, 2002 Rev Ed)
- Rules of Court (Cap 322, R 5, 2014 Rev Ed), O 28 r 4(3)
- Indian Contract Act 1872 (Act No 9 of 1872), including ss 17 and 19 (as discussed in the arbitration and award)
Cases Cited
- [2016] SGHC 258
- [2017] SGHC 28
- R C Thakkar v Gujarat Housing Board AIR 1973 Guj 34
- Smith New Court Securities Ltd v Citibank N A [1997] AC 254
Source Documents
This article analyses [2017] SGHC 28 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.