In a first, SGCA approves appointment of Harish Salve to argue on arbitration related application before the Singapore Courts
The Singapore’s Court of Appeal has granted ad hoc admission for Senior Advocate Harish Salve, to argue on foreign law issues in applications to set aside an ICC arbitral award. Earlier, the Singapore High Court had dismissed the applications for Salve’s admission. It is significant to point that this is the first time that the Singapore Courts have granted a foreign counsel, other than the Queen’s Counsel, admission to argue a case before the local courts.
The dispute arose out of a Share Purchase and Subscription Agreement between Daiichi Sankyo Company Limited and certain shareholders of Ranbaxy Laboratories Limited. Daiichi initiated arbitration proceedings alleging fraudulent misrepresentation and concealment by the Ranbaxy of on-going investigations by the US regulatory authorities against the Ranbaxy before the Singapore International Arbitration Centre. The SIAC rendered its Award in favor of the Daiichi and initiated enforcement proceedings in India as well as Singapore. Leave was granted by the Singapore Court to enforce the award in Singapore and thereafter Ranbaxy moved applications for setting aside the Award and applications for Salve to gain ad hoc admission as foreign counsel. The proceedings in India were already being resisted by a legal team headed by Salve.
The High Court of Singapore had dismissed the applications for Salve’s admission on the ground that the “applicant had failed to show that, apart from his general expertise in Indian law, he had the requisite “special qualifications or experience” for the purposes of the specific issues in this case as required under section 15(1)(c) of the Act.” The Court also held that,
“Even if the Court had found that the Applicant possessed the “special qualifications or experience“, it would have (in considering the other grounds provided for under the Legal Profession (Ad Hoc Admissions) Notification 2012 (the “Notification Matters“)) dismissed the Applicant’s applications as:
The evidence on Indian law in the present case was not unusually complex or so difficult as to require the submissions of Indian counsel nor was it beyond the competence of local counsel;
In any event, it is not the complexity of specific issues that is of key relevance but the relevance of counsel’s qualifications and experience with those issues;
There is an adequate pool of local counsel capable of making submissions with the assistance of foreign legal experts (such experts can provide their opinion by way of expert reports and do not need to be admitted to make submissions); and
The Court did not find that its decision on admission would impact the setting aside applications and was not persuaded by the argument that the promotion of Singapore as a venue for international arbitration should be the dominant or “governing” reason for admission of foreign counsel.”
For a full analysis of the Judgment, click here.
Before the Court of Appeal, the following issues were framed before undertaking the analysis.
♦ What damages should be awarded for fraudulent misrepresentation under Indian law?
♦ What constitutes consequential damages under Indian law?; and
♦ What constitutes the law and public policy of India in relation to the contractual capacity of minors and their liability for contracts made on their behalf?
The Court found that Salve’s Curriculum Vitae demonstrated deep expertise and experience in the relevant area of law and that his tenure as Solicitor-General of India would indicate his experience in Indian public policy. The Court also found that “relevant issues of Indian law and policy were complex and unsettled such that substantial disagreements had arisen both between the arbitral tribunal, and “high calibre” Indian experts relying on numerous legislation and case authorities” and that an Indian lawyer with substantial experience in the law and policy of the country would be of greater assistance than local counsel (Read more here).
As earlier reported by The Indian Jurist, the Single Judge bench of the Delhi High Court, through Justice Jayant Nath, had allowed Daiichi’s application to enforce the Award valued at US$550 million in India.