PARTY REPRESENTATION IN AN SIAC ARBITRATION
In CGS v CGT [2020] SGHC 183 (“CGS v CGT”), the Singapore High Court had the occasion to interpret Rule 23.1 of the SIAC Rules 2016 on a party’s right to representation in an arbitration.
Background. There was an expedited arbitration under the SIAC Rules 2016 between the claimant and the respondent. The claimant ceased to be legally represented after submitting the notice of arbitration. After a case management conference, the Tribunal issued a procedural order directing that “[w]here a Party is represented by Counsel, communications with the Tribunal shall be with Counsel instead of the Party’s representatives.” Subsequently, the claimant engaged legal counsel “T” for the hearing. ([4] – [8] CGS v CGT).
The claimant sought to set aside the arbitration award on the grounds that:
(a) the arbitration was not in accordance with the parties’ agreement;
(b) the claimant was unable to present its case; and
(c) there was a breach of natural justice.
One of the arguments relied upon by the claimant is that its representative, the general manager “R”, was excluded from email communications leading up to the hearing until shortly after the hearing, and that R was not allowed to act as co-counsel alongside T at the hearing. ([3] – [10] CGS v CGT).
Right to have a “mixed” team. Rule 23.1 of the SIAC Rules provides that “Any party may be represented by legal practitioners or any other authorised representatives.”
The respondent argued that this rule required parties to choose between representation by legal practitioners only, or by other authorised representatives only. In other words, the respondent’s argument is that under Rule 23.1 of the SIAC Rules, a party does not have the right to have a team comprising of legal counsel and other authorised party representatives, though the Tribunal would have the discretion to allow this.
The High Court, after considering various commentaries and the policy of promoting Singapore as an arbitration centre, disagreed and held that Rule 23.1 allowed parties to choose to be represented by both legal counsel and non-legally qualified representatives. ([12] – [21] CGS v CGT).
Not unfettered right. However, the High Court also held that Rule 23.1 SIAC Rules 2016 cannot be read in isolation from the other SIAC Rules or from what the arbitration process entails. Thus, the right to party representation is not an absolute one, similar to the party’s right to be heard which entails having a fair and reasonable opportunity to present its case ([22] – [29] CGS v CGT).
In particular, at [29] CGS v CGT, the High Court held that if it allowed the claimant’s submission (that just because the claimant was not allowed to proceed with its intended co-counsel arrangement would per se mean that the arbitral procedure was not in accordance with the parties’ agreement within Art 34(2)(a)(iv) of the Model Law), it would entail elevating the right to party representation above the right to be heard, which “did not seem right”.
No infringement of right to representation. The High Court then held that the procedural order did not infringe the claimant’s right to representation, because it was reasonable for the Tribunal to direct that there be only one line of communication between each party and the Tribunal.
Further, on the facts, the claimant did not take issue with the Tribunal’s procedural order until after the award was issued. Also, the procedural order was not a parties’ “agreed procedure” for the purpose of setting aside under Art 34 of the Model Law. ([34] – [40] CGS v CGT).
Need to make timely complaints. In relation to the complaint that R was left out of certain emails, this complaint was given short shrift by the High Court, who described it as “at best a storm in a teacup” (see [42] – [78] CGS v CGT).
It suffices to highlight [70] CGS v CGT, where the High Court made clear that “… if the Claimant considered that there had been a fatal failure in the process of the arbitration that had caused it prejudice, it had to complain. It could not simply press on with the hearing; there was no “prudent way forward”. …” (emphasis in original).
Tribunal’s role. Another complaint by the claimant concerned the Tribunal’s handling of the hearing ([79] CGS v CGT). This was again rejected by the High Court (see [79] – [92] CGS v CGT).
The High Court emphasized at [84] CGS v CGT that “… the right to be heard is not unqualified…. In determining whether this right has been infringed, the question the court should ask is whether the tribunal did (or decided not to do) falls within the range of what a reasonable and fair-minded tribunal in those circumstances might have done…”
This would not be easy to satisfy.
Application rejected. The High Court thus dismissed the claimant’s attempt to set aside on the basis of this party representation issue. It is important to note also [94] CGS v CGT, where the High Court made clear that in any event, the matters complained of did not result in any prejudice.
Significance. This case confirms that a party can be represented by both legal and non-legal representatives in an SIAC arbitration.
However, and as illustrated by CGS v CGT, such arrangements should not be generally adopted, as they can create difficulties over the roles of the respective representatives.
If such an arrangement is adopted, it is vital that the roles of the representatives are clarified during the arbitration proceedings, especially where it is envisaged that the non-legal representative would participate in the hearing.
Lastly, CGS v CGT is yet another reminder to parties that if they are of the view that there are issues with the arbitration, they should raise their objections in a timely manner. A failure to do so may prevent the party from raising any such complaints later before the Court.
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