Case Details
- Citation: [2016] SGHC 258
- Title: Re Landau, Toby Thomas QC
- Court: High Court of the Republic of Singapore
- Date of Decision: 28 November 2016
- Judge: Steven Chong J
- Case Number: Originating Summons No 752 of 2016
- Related Proceedings: Originating Summons No 185 of 2016 (CMNC’s application to set aside an arbitral award)
- Applicant (for admission): Toby Thomas Landau QC
- Underlying Applicant/Client in OS 185: China Machine New Energy Corporation (“CMNC”)
- Underlying Respondents in OS 185: Jaguar Energy Guatemala LLC and AEI Guatemala Jaguar Ltd (collectively “Jaguar”)
- Attorney-General: Supported the admission application
- Law Society of Singapore: Opposed the admission application
- Legal Area: Legal Profession — Admission (ad hoc admission of foreign counsel)
- Statutes Referenced: Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”); International Arbitration Act (Cap 143A, 2002 Rev Ed) (“IAA”); UNCITRAL Model Law on International Commercial Arbitration (as set out in the First Schedule of the IAA)
- Key Provisions Mentioned: LPA s 15; IAA s 24(a) and s 24(b); Model Law Article 34(2)(a)(ii), Article 34(2)(a)(iv), Article 34(2)(b)(ii)
- Arbitral Award Challenged: Award dated 25 November 2015
- Seat of Arbitration (as stated): Singapore
- Arbitration Rules: 1988 Rules of Arbitration of the International Chamber of Commerce (“ICC Rules”)
- Underlying Contract: Lump-Sum, Turnkey Engineering, Procurement, and Construction Contract dated 29 March 2008 (“EPC Contract”)
- Related Security Arrangement: Deferred Payment Security Agreement (“DPSA”)
- Contract Governing Law: New York law
- Arbitration Tribunal: Three-member tribunal
- Arbitration Hearings: Various dates between April 2014 and July 2015 in London, Singapore, Toronto, Hong Kong, and Dublin
- Counsel for Applicant (admission): Paul Tan, Rachel Low and Alessa Pang (Rajah & Tann Singapore LLP)
- Counsel for Respondents in OS 185: Daniel Chia, Ker Yanguang and Kenneth Kong (Morgan Lewis Stamford LLC)
- Counsel for Attorney-General: Jeyendran Jeyapal and Jeanette Justin (Attorney-General’s Chambers)
- Counsel for Law Society of Singapore: Christopher Anand Daniel and Harjean Kaur (Advocatus Law LLP)
- Judgment Length: 18 pages, 9,925 words
Summary
In Re Landau, Toby Thomas QC ([2016] SGHC 258), the High Court considered an application for the ad hoc admission of a foreign Queen’s Counsel, Toby Thomas Landau QC, to represent a party in Singapore-seated international arbitration set-aside proceedings. The application was brought under s 15 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”), in the context of CMNC’s Originating Summons No 185 of 2016 (“OS 185”), which sought to set aside an arbitral award dated 25 November 2015.
The central dispute in OS 185 concerned allegations of breach of natural justice and other grounds under the International Arbitration Act (Cap 143A, 2002 Rev Ed) (“IAA”) and the UNCITRAL Model Law. CMNC advanced what it described as atypical and “novel” arguments, including a due process challenge grounded in “guerrilla tactics” allegedly deployed by Jaguar to hinder CMNC’s preparation, and an argument that an implied duty to arbitrate in good faith should be inferred from the arbitration agreement.
Although the court accepted that due process challenges are fact-sensitive and that the underlying set-aside application would require careful scrutiny of the arbitral record, it emphasised that the admission stage is not a mini-trial of the merits. Applying the framework from Re Beloff, the court assessed whether it was reasonable, having regard to all the circumstances, to admit the applicant. The court ultimately granted the admission, allowing Mr Landau QC to appear in OS 185.
What Were the Facts of This Case?
The admission application arose from a larger commercial dispute between China Machine New Energy Corporation (“CMNC”) and Jaguar Energy Guatemala LLC and AEI Guatemala Jaguar Ltd (collectively “Jaguar”). The underlying dispute stemmed from a Lump-Sum, Turnkey Engineering, Procurement, and Construction Contract dated 29 March 2008 (the “EPC Contract”), under which CMNC was to construct a power generation plant in Guatemala for Jaguar for approximately US$450 million. Payment was structured through milestone payments.
On 13 November 2009, CMNC and Jaguar amended the EPC Contract to allow Jaguar to issue debit notes in place of milestone payments. On the same day, they entered into a deferred payment security agreement (“DPSA”), under which the debit notes were to be secured by Jaguar granting CMNC security interests over Jaguar’s collateral assets. Jaguar was obliged to provide evidence of the security interests and to perfect them. Jaguar issued 61 debit notes totalling approximately US$129 million.
CMNC’s case was that Jaguar failed to perfect certain security interests in October or November 2013, contrary to the DPSA. CMNC made a formal demand in October 2013 requiring Jaguar to fully evidence and perfect the security interests within 30 days or, alternatively, pay accrued milestone payments. CMNC alleged that Jaguar did not comply, and CMNC declared an event of default under the DPSA. CMNC then took possession of the securities, including Jaguar’s rights under the EPC Contract, by letter dated 28 November 2013.
CMNC further alleged that Jaguar purported to terminate the EPC Contract on 14 December 2013 despite CMNC’s alleged takeover of Jaguar’s rights. CMNC also alleged that Jaguar employed security guards to prevent CMNC employees from removing documents and equipment, and that Jaguar evicted CMNC employees from living quarters on the project site and prevented re-entry with threats of violence. CMNC characterised these actions as impeding its preparation for arbitration even before Jaguar commenced arbitration on 28 January 2014.
What Were the Key Legal Issues?
The immediate legal issue in Re Landau was not whether the arbitral award should be set aside, but whether the court should admit a foreign Queen’s Counsel to represent a party in the set-aside proceedings. This required the court to apply s 15 of the LPA and the established principles governing ad hoc admission of foreign counsel.
Under the LPA framework, the court must first be satisfied that the applicant meets the eligibility requirements (including that the applicant is a Queen’s Counsel or holds an equivalent appointment of distinction, and that the applicant does not ordinarily reside in Singapore or Malaysia but intends to come to Singapore for the purpose of appearing in the case). The court then considers whether, having regard to all the circumstances, it is reasonable to grant the admission.
Although the merits of OS 185 were not to be decided at the admission stage, the court had to consider the nature of the issues likely to arise in the set-aside application. In particular, the court had to decide whether CMNC’s due process challenge and its “novel” arguments were sufficiently complex or fact-intensive to justify the admission of senior foreign counsel, and whether the admission stage should involve a heightened scrutiny of the underlying legal arguments.
How Did the Court Analyse the Issues?
Steven Chong J began by situating the application within the broader jurisprudence on ad hoc admission. He referred to the Court of Appeal’s authoritative exposition in Re Beloff Michael Jacob QC ([2014] 3 SLR 424), which sets out the approach to be taken when deciding whether to admit foreign counsel under s 15 of the LPA. The court’s task is to determine whether admission is reasonable in all the circumstances, rather than to assess the ultimate correctness of the arguments to be advanced in the underlying case.
A key analytical step was the court’s distinction between “novelty” and “complexity”. CMNC’s OS 185 relied on atypical arguments, including a due process challenge framed around alleged “guerrilla tactics” and an argument that there is an implied duty to arbitrate in good faith. The court observed that novel legal arguments are not uncommon in litigation; however, novelty alone should not be equated with complexity. The court emphasised that even novel arguments require a factual substratum to support them.
At the same time, the court recognised that due process challenges under the IAA and the Model Law are inherently fact-sensitive. The principal ground relied on by CMNC was breach of natural justice, which engages IAA s 24(b) and Model Law Article 34(2)(a)(ii). The court noted that the inquiry into whether natural justice has been breached depends on how events unfolded in the arbitration, and that the arbitral record will largely (if not entirely) assist the court in assessing the claim. This meant that the due process challenge could be straightforward in some cases but more complex in others, depending on the factual matrix.
The court also addressed its own prior decision in Re Wordsworth, Samuel Sherratt QC ([2016] 5 SLR 179), where it had admitted counsel because the issues were predominantly governed by principles of public international law. In Re Wordsworth, the court had indicated that if the only issue were a fairly straightforward due process challenge, the application might not pass muster. In Re Landau, the court therefore had to consider whether the due process challenge in OS 185, together with the other arguments, was sufficiently complex and fact-intensive to justify admission.
In analysing the likely issues in OS 185, the court reviewed the factual background of the EPC Contract and DPSA dispute and the competing accounts of the arbitration’s procedural history. CMNC’s allegations included interference with its ability to prepare its case, such as alleged detention of its Chinese employees and alleged theft of hard disks containing project documents. Jaguar’s response was that the alleged “guerrilla tactics” were not intended to affect arbitration and that CMNC engaged in procedural gamesmanship, including changing legal and expert teams and seeking extensions of time.
Against this backdrop, the court considered that the due process challenge would require careful evaluation of the arbitral record and the procedural orders made by the tribunal. The court’s reasoning reflected an understanding that the admission stage should not become a merits determination; nevertheless, the court could assess whether the nature of the issues—particularly those involving alleged procedural unfairness—was such that senior counsel would be reasonably required to present the case effectively.
Regarding the “novel” argument about an implied duty to arbitrate in good faith, the court’s approach was cautious. It did not treat novelty as determinative. Instead, it required that there be a factual substratum and that the argument be sufficiently connected to the arbitration agreement and the procedural history. The court’s focus remained on the appropriate level of scrutiny at the admission stage: whether it was reasonable to admit counsel given the circumstances, rather than whether the implied duty argument would ultimately succeed.
What Was the Outcome?
The High Court granted the admission application, allowing Toby Thomas Landau QC to represent CMNC in OS 185. The practical effect was that Mr Landau QC would be permitted to appear in the Singapore High Court proceedings to argue the set-aside application challenging the arbitral award dated 25 November 2015.
By granting admission, the court signalled that where the underlying set-aside application involves fact-intensive due process allegations and other arguments that are not merely straightforward, the admission of senior foreign counsel may be reasonable under s 15 of the LPA, even where the applicant’s case includes “novel” legal propositions.
Why Does This Case Matter?
Re Landau is significant for practitioners because it clarifies how courts should approach ad hoc admission applications where the underlying dispute is an international arbitration set-aside proceeding. It reinforces that the admission stage is not a substitute for the merits hearing. However, it also confirms that courts may consider the nature and likely complexity of the issues in the underlying case when deciding whether admission is “reasonable” under s 15 of the LPA.
The decision is also useful for counsel who anticipate opposing admission on the basis that the underlying challenge is “straightforward”. The court’s discussion of Re Wordsworth indicates that due process challenges can justify admission where the factual matrix is complex and the arbitral record will be central. In Re Landau, the alleged procedural unfairness was not presented as a narrow complaint; it was tied to detailed allegations of interference with preparation and to tribunal interventions and procedural orders that would require careful scrutiny.
Finally, the case offers guidance on how “novelty” should be treated. Practitioners should note the court’s insistence that novelty does not automatically translate into complexity. Arguments such as implied duties in arbitration agreements must be anchored in a factual substratum and a coherent legal basis. For admission purposes, courts will be attentive to whether the applicant’s case is likely to require senior advocacy due to the interplay of fact-intensive procedural issues and potentially developing legal arguments.
Legislation Referenced
- Legal Profession Act (Cap 161, 2009 Rev Ed), s 15
- International Arbitration Act (Cap 143A, 2002 Rev Ed), s 24(a) and s 24(b)
- UNCITRAL Model Law on International Commercial Arbitration (as set out in the First Schedule of the IAA), Article 34(2)(a)(ii), Article 34(2)(a)(iv), Article 34(2)(b)(ii)
Cases Cited
- Re Beloff Michael Jacob QC [2014] 3 SLR 424
- Re Wordsworth, Samuel Sherratt QC [2016] 5 SLR 179
- Re Landau, Toby Thomas QC [2016] SGHC 258
Source Documents
This article analyses [2016] SGHC 258 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.