CORPORATE SELF-REPRESENTATION BY FOREIGN BODIES CORPORATE IN SICC MATTERS
In Offshoreworks Global (L) Ltd v POSH Semco Pte Ltd [2020] SGCA(I) 4 (“Offshoreworks”), the Court of Appeal clarified that currently, corporate self-representation for foreign bodies corporate is not permissible in respect of matters before the Singapore International Commercial Court (“SICC”).
Corporate self-representation. As many practitioners would be aware, in general, a body corporate is prohibited from commencing or carrying on any action unless it is represented by a solicitor pursuant to O 5 r 6(2) and O 12 r 1(2) of the Rules of Court (the “ROC”) ([14] Offshoreworks).
In this regard, the Court of Appeal highlighted that:
1. O 5 r 6(2) ROC deals with a body corporate that “begins or carries on any proceedings” ([16] Offshoreworks; emphasis in original); while
2. O 12 r 1(2) ROC applies to a body corporate which is “a defendant to an action begun by writ who enters and appearance in the action or defend it” ([16] Offshoreworks).
There is a mechanism for a company or a limited liability partnership to seek leave pursuant to O 1 r 9(2) ROC ([17] Offshoreworks).
But there are strict limits to this provision, and a foreign company cannot avail itself of the leave mechanism under O 1 r 9(2) ROC ([21] Offshoreworks).
Foreign bodies corporate cannot avail themselves of the leave mechanism. As highlighted by the Court of Appeal at [22] Offshoreworks, the governing provisions of the ROC provide that “foreign bodies corporate in all proceedings before the SICC as well as in all appeals from the SICC (collectively referred to as “SICC matters”) must be represented by a solicitor…”
The Court of Appeal also held at [22] Offshoreworks that the leave mechanism pursuant to O 1 r 9(2) ROC is unavailable for foreign bodies corporate.
Less than satisfactory position. The present position is less than satisfactory.
Firstly, as stated by the Court of Appeal at [22] Offshoreworks, given that the purposes of the SICC was to “grow the legal services sector and to expand the scope for the internationalisation and export of Singapore law”, and since many SICC matters would involve one or more foreign bodies corporate, the unavailability of the leave mechanism leads to a less than satisfactory result.
Secondly, while there are cogent policy reasons behind the general prohibition against the lay representation of companies (including foreign bodies corporate), nonetheless, the “present legal regime does not permit foreign bodies corporate the possibility of availing themselves of the leave mechanism… As a result, the court is also deprived of its “important sieving function” to grant leave… such an outcome is neither pragmatic nor desirable in the context of SICC matters…” ([33] – [34] Offshoreworks; emphasis in original).
Conclusion. We agree with the Court of Appeal at [34] Offshoreworks that this lacuna in the current legal regime should be the subject to appropriate legislative amendments.
In the meantime, foreign bodies corporate should ensure that they have legal representation if they need to appear before the SICC.
Otherwise, as stated by the Court of Appeal at [34] Offshoreworks, if there is no legal representation, the company would be “… procedurally prohibited from corporate self-representation and [would also be] unable to apply for leave from the court to represent itself at the hearing…”
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