Singapore Court of Appeal affirms foreign-incorporated entities prohibited from self-representation before Singapore International Commercial Court

28 April 2021

Offshoreworks Global (L) Ltd v POSH Semco Pte Ltd [2021] 1 SLR 27

In Offshoreworks Global (L) Ltd v POSH Semco Pte Ltd, the Singapore Court of Appeal ruled that under the present legal regime, a foreign-incorporated entity is prohibited from representing itself in proceedings before the Singapore International Commercial Court (“SICC”) and appeals from the SICC (collectively referred to as “SICC matters”). The bench comprising Justice of Appeal Andrew Phang Boon Leong, International Justice Arjan Kumar Sikri and International Justice David Edmond Neuberger encouraged the introduction of legislative amendments so that foreign-incorporated entities may seek the court’s permission to self-represent in SICC matters.

Background

The dispute between the parties arose from a guarantee provided by the appellant, Offshoreworks Global (L) Ltd, to the respondent, POSH Semco Pte Ltd. The appellant was a Malaysia-registered body corporate. After the appellant filed the necessary appeal papers, but before the appeal came up for hearing, the appellant’s counsel applied to be discharged. The Court of Appeal allowed counsel’s application.

The appeal came up for hearing on 1 April 2020. The appellant’s sole shareholder and executive director appeared at the hearing on behalf of the appellant. The hearing on 1 April 2020 was adjourned to allow the appellant to appoint new solicitors. However, at the adjourned hearing on 5 August 2020, the appellant once again appeared without legal representation. The issue of whether Singapore law permitted corporate self-representation for foreign bodies corporate thus arose.

Court of Appeal’s decision

The Court of Appeal affirmed that the starting point under Singapore law is that a body corporate (whether Singapore incorporated or otherwise) is prohibited from commencing or carrying on any action, as well as from entering an appearance in or defending such action unless it is represented by a solicitor. The Rules of Court provide an exception which allows a “company” to seek the court’s permission for its officer to act on its behalf. However, as the term “company” is limited to “a company incorporated under [Singapore’s] Companies Act (Chapter 50)”, the mechanism to obtain the court’s permission to self-represent was not available to a foreign-incorporated entity like the appellant.

Significantly, the Court of Appeal opined that the current regime appeared to be inconsistent with the raison d’être of the SICC which is to grow the legal services sector and to expand the scope for the internationalisation and export of Singapore law. The Court of Appeal added that, as the present legal regime does not allow foreign bodies corporate to seek permission to self-represent, the court does not have the opportunity to consider whether a foreign-incorporated entity should be allowed to self-represent so that justice is administered both fairly and efficiently in the interest of the immediate parties and the wider public.

In spite of its observations, the Court of Appeal declined to rewrite the relevant rules, and encouraged legislative amendments instead.

Based on the above, the Court of Appeal dismissed the appeal on the basis that the appellant remained unrepresented at the hearing on 5 August 2020 notwithstanding that it had been given adequate and sufficient notice of the consequences of being unrepresented.

For completeness, the Court of Appeal held further that the appeal ought to be dismissed on the merits.

Comment

Based on the judgment in Offshoreworks Global (L) Ltd v POSH Semco Pte Ltd, Singapore-incorporated companies may continue to seek the court’s permission to be represented by their officers in proceedings before the Singapore courts. In this situation, the court will consider whether it would be unduly prejudicial to the administration of justice where the lay representative is allowed to have carriage of the proceedings. In the absence of legislative amendments, this avenue remains unavailable to foreign-incorporated entities in all proceedings before the Singapore courts (including SICC matters) for the time being.

Allen & Gledhill Partner Jason Chan, SC represented the successful respondent in this case.

This article has been prepared with the assistance of Evangeline Oh, Senior Associate.