Rights of representation in international arbitration: are you being heard? 

A recent decision of the Singapore High Court declined to set aside a Singapore International Arbitration Centre (“SIAC”) award where the applicant asserted that the Tribunal had improperly excluded its General Manager from acting as co-counsel. This decision contains important guidance on the qualified nature of a party’s right to be heard, and re-emphasises the “light touch” taken by the Singapore courts in relation to reviewing arbitral awards.

CGS v CGT

The applicant commenced an expedited SIAC arbitration in June 2018. In August 2018 it dismissed its initial legal counsel and was to be represented by its General Manager (the “GM”).

Paragraph 6 of the first Procedural Order (“PO1”) provided that, “[w]here a Party was represented by Counsel, communications with the Tribunal shall be with Counsel instead of the Party’s representatives”. Subsequently the applicant appointed new legal counsel (“Legal Counsel”) for the substantive hearing, during which, its Legal Counsel clarified that the GM intended to participate but would “solely” address the Tribunal for its Opening Statement.

Due to PO1, the GM was omitted from certain email communications with the Tribunal leading up to the hearing. At the hearing, the GM was “interrupted” during Opening Statement when the Tribunal requested a better explanation of an aspect of the claim, and was prevented from asking a question of a factual witness by the Tribunal.

The applicant subsequently applied to set aside the award on the basis that (i) the arbitral procedure was not in accordance with the agreement of the parties; (ii) the applicant was unable to present its case; and (iii) a breach of the rules of natural justice had occurred, and the applicant’s rights were prejudiced.

Exclusion from Email Correspondence

The Honourable Judicial Commissioner Andre Maniam held that there was no protocol for communications agreed between the parties, and that PO1 was not the parties’ “agreed procedure” for the purposes of a setting aside application under the Model Law. The Judge also held that PO1 did not infringe the parties’ right to representation, and the Tribunal could reasonably direct that there be only one line of communication between each party and the Tribunal.

Further, the Judge held that if the applicant considered its rights to have been infringed it should have raised its objection or applied to vary PO1 immediately, instead of raising the issue in a set-aside action. In circumstances where the applicant considered there to have been a fatal failure in the process, it ought to have complained and not simply press on with the hearing.

The Judge also noted that fairness of the procedure must be judged against what the parties contemporaneously communicated to the Tribunal. In the present case, the Legal Counsel had, in fact, acknowledged the Tribunal’s request to follow paragraph 6 of PO1 by email. Therefore, the Judge was of the view that there was no reason for the Tribunal to think that paragraph 6 of PO1 was objectionable.

The Judge also found no merit in the applicant’s allegation that the omission of the GM from certain correspondence led to a document being served out of time, and so no prejudice was suffered by the applicant.

Conduct of the Hearing

The respondent argued that rule 23.1 of the SIAC Rules (“any party may be represented by legal practitioners or any other authorised representatives”) required the parties to choose between either being represented by legal practitioners, or by other authorised party representatives (such as the GM). While rejecting the respondent’s argument and holding that rule 23.1 of the SIAC Rules does allow for representation by both legal counsel and non-legally qualified representatives, the Judge nevertheless dismissed the applicant’s complaint that it was unable to “present its case as intended”.

The applicant’s complaint was based on the grounds that the GM was interrupted in the Opening Submissions, and was also prevented from asking a question of a witness.

After reviewing the transcripts of the hearing, the Judge held that the alleged interruption was in fact “entirely innocuous” and that “it would be a sad day if such a complaint sufficed to set aside an arbitral award”. The Judge also ruled that the GM had only been granted permission to assist in the Opening Statement, and not with interrogation of witnesses.

Therefore, the Judge held that the Tribunal had been reasonable and fair in holding the applicant to what it had represented as being the GM’s role for the hearing. It was, in the Judge’s view, “fanciful and entirely speculative” for the applicant to argue that the GM had participated more extensively as co-counsel.

Conclusion

This case is an important reminder that the Singapore courts will not set an award aside lightly. Parties who choose to arbitrate in Singapore agree to give the Tribunal wide and flexible discretion to determine its own procedures and processes.

This case also reinforces that a party’s rights to be heard and to present its case are not absolute. While a party must be given a fair and reasonable opportunity to be heard, what is fair and reasonable will depend on the particular circumstances of each case. The Judge held that the Tribunal is entitled to make procedural decisions to give the parties a reasonable right to present their case, after weighing the competing considerations.

Finally, the decision emphasises how critical it is for parties to raise their objections on procedural unfairness (or anything else which may lead to an award being impugned) in a timely manner with the Tribunal. Where a party fails to do so, it cannot expect a sympathetic reception from the courts by belatedly trying to set aside the award based on the objections which should have been raised earlier.

References: CGS v CGT [2020] SGHC 183.