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( Source of the document: ICC Digital Library )
The 18th of June is an auspicious date. It is, among others,2 the date of the Battle of Waterloo. The current year 20153 marks the bicentenary of the victory of the Duke of Wellington4 over Napoleon Bonaparte.5 It was not, however, simply a battle between the British and the French. The Duke of Wellington led a combined army of British and Dutch troops. While for many of Wellington's soldiers6 it was their 'finest hour', 7 many historians8 are also of the opinion that the Duke of Wellington would [Page392:] have lost the battle if it was not for the crucial intervention of Prussian troops led by Field Marshall Blücher.9 England and Prussia were part of the Seventh Coalition formed three months earlier during the Congress of Vienna to fight Napoleon.10
This contribution in honour of John Beechey posits that in international arbitration cooperation between colleagues from different countries is better than unilateralism, and seeks to alert readers to restrictions in certain jurisdictions that prevent the intervention of foreign legal allies in proceedings seated there. Efforts to liberalize access for foreign arbitration lawyers are to be encouraged.
When John established the arbitration group at Clifford Chance, he was at the forefront of the increased internationalization of international arbitration, creating a global multi-cultural team that worked on disputes around the globe. Then, it was relatively unusual to have a party represented by lawyers from different legal systems. Now, it is very common, with lawyers from the seat and/or governing law alongside 'international counsel' from specialist arbitration practices in global law firms, and teams of support lawyers from several jurisdictions located in offices in different countries.
Contemporary international arbitration is in so many ways truly transnational. Emblematic of this trend are: the New York Convention, now applicable in over 150 states; the UNCITRAL Model Law on International Commercial Arbitration (or a variant of it), which has been adopted in almost 100 jurisdictions; and the growing convergence of common law and civil law procedures under the harmonizing influence of such initiatives as the International Bar Association's Rules on the Taking of Evidence,11 Guidelines on Conflicts of Interest12 and Guidelines on Party Representation. A further manifestation of globalization is the tendency for leading advocates to appear in arbitrations around the world, irrespective of the seat or governing law. However, some countries seek to restrict representation in arbitrations by foreign advocates. Such barriers are outdated, protectionist and serve neither the interests of the parties to the arbitration, many of whom will be foreign investors, nor the long term interests of the jurisdiction in question. Co-counselling with foreign lawyers cannot be considered [Page393:] a necessity, nor is it even preferable, in many cases, but it certainly should not be prohibited or made difficult by local law and regulations. Even domestic arbitrations are sometimes domestic in name only and involve local subsidiaries of multinational companies. Arbitration advocacy sans frontières should be permitted.
The Arbitration Rules enacted as the First Schedule to the Arbitration and Conciliation Act 200413 apply to Nigerian domestic arbitrations and, unless otherwise agreed, international arbitrations seated in Nigeria. Article 4 provides that: 'The parties may be represented or assisted by legal practitioners of their choice.' Section 18 of the Nigerian Interpretation Act 199014 provides that the term 'legal practitioner' has the meaning assigned to it by the Legal Practitioners Act 1975 (LPA).15 Section 24 of the LPA in turn defines a legal practitioner as 'a person entitled in accordance with the provisions of this Act to practise as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings'. By virtue of section 2, subsections (1) and (2) of the LPA, persons who may be entitled to practise as a barrister and solicitor include persons whose names are on the roll or persons who have obtained a warrant from the Chief Justice of Nigeria. It is argued that as a consequence of these provisions foreign counsel are not permitted to represent any party in domestic arbitration or in an international arbitration in which the Arbitration Rules apply (unless the Chief Justice grants a warrant).
A recent illustration is afforded by a 2012 arbitration seated in Nigeria between Nigeria National Petroleum Corporation (NNPC) and the local subsidiary of an international oil company (IOC), and therefore a domestic arbitration. Relying on Article 4 of the Arbitration Rules, NNPC persuaded the arbitral tribunal, which included two non-Nigerian arbitrators, not to allow foreign counsel to represent the IOC at an important hearing.16 An excellent local senior advocate was co-counsel and was able to step in.
The author is aware of some awards presently being challenged on the grounds that a party was represented by foreign counsel. The author is also aware of a number of Nigerian senior advocates who insist on strict application of Article 4 in arbitrations in which they are involved. As a result, it appears that in domestic arbitrations foreign counsel's role will be limited to offering consultancy services.17
The author understands from Nigerian counsel that there are a number of arguments that can be made against this conclusion, for example: the LPA imposes specific prohibitions on non-Nigerian lawyers appearing before the Nigerian courts, but does not expressly apply any restriction to arbitration proceedings or hearings; and Article 4 is permissive not mandatory. Some commentators have suggested that Article 4 may be circumvented if the parties expressly classify their arbitration as international, even if the parties are Nigerian entities, and designate the UNCITRAL or other arbitral rules.18 It has also been suggested that the opposing party may waive the nationality requirement. However, the author is not aware that any of these approaches has been endorsed by arbitral tribunals and the Nigerian courts.
In contrast to the Arbitration Rules appended to the Arbitration and Conciliation Act, Article 5 ('Representation and Assistance') of the Arbitration Rules of the Lagos Court of Arbitration, promulgated on 1 March 2011 (Lagos Rules), simply provides that: 'Each party may be represented or assisted by persons chosen by them.' No reference is made to lawyers.19 Locally incorporated subsidiaries may wish to consider the Lagos Rules as an alternative, if they want to be represented by foreign lawyers. The 2015 Rules of the Lagos Chamber of Commerce International Arbitration Centre are more explicit and provide that no objection may be raised to a party's representative based on nationality (Article 6).
The author is also aware of another argument aimed at ousting foreign counsel. Section 51(1) of the Nigerian Oil and Gas Industry Content Development Act 2010 provides that: 'All operators, contractors and other entities engaged in any operation, business or transaction in the Nigerian oil and gas industry requiring legal services shall retain only the services of a Nigerian legal practitioner or a firm of Nigerian legal practitioners whose office is located in any part of Nigeria.'20 This would appear to exclude the involvement of foreign counsel.21 However, section 11(1) of the Act also provides that the minimum Nigerian content of any project to be executed in the Nigerian oil and gas industry shall be consistent with the level set in the Schedule to the Act, which under the heading 'Project Management/Consulting' indicates that only 50% of legal consultancy contracts need comply with local content [Page395:] requirements. As far as the author is aware, this aspect of the Act has not yet been tested and interpreted by arbitral tribunals or the Nigerian courts.22
Given the requirement to operate through locally incorporated subsidiaries, the size of foreign investment needed in Nigeria and the high value of many disputes, the bar on foreign counsel representing parties in nominally domestic arbitrations, and possibly limiting their involvement in international arbitrations, will only discourage foreign investors.
Section 29 of India's Advocates Act 1961 provides that only 'advocates' are entitled to practise law in India. According to section 24(1)(a)), to be an advocate one must be an Indian citizen. These restrictions arguably extend to all arbitrations seated in India, including international arbitration. They are subject to two exceptions: first, if another country permits Indian lawyers to practise in its jurisdiction, then lawyers from that country will be granted reciprocal privileges in India; and secondly, by special permission of the Bar Council of India (s. 47). Neither exception has been used to permit foreign lawyers to practise law in India.
In 2009, in Lawyers Collective v. Bar Council of India & Ors, a case that started in 1995, the Bombay High Court held that this prohibition applied to persons practising in litigious and non-litigious matters,23 but did not answer the question of whether foreign lawyers could practise their own law in India.
In March 2010, A.K. Balaji, an Indian lawyer acting on behalf of the Tamil-Nadu-based Association of Indian Lawyers, filed a writ in the Madras High Court seeking a complete ban on foreign lawyers operating in India, and named thirty-one law firms as defendants, including the author's firm (A.K. Balaji v. The Government of India, Ashurst LLP & Ors). Specifically, Balaji objected to foreign lawyers establishing India-oriented practices in neighbouring countries and entering India on a temporary basis to provide corporate legal services and conduct arbitrations. In February 2012, the Madras High Court dismissed Balaji's petition.24 The court confirmed that foreign lawyers cannot practise Indian law in India, whether it be in contentious or non-contentious matters; however, the court ruled that there was no bar on foreign lawyers visiting India on a 'fly-in, fly-out' basis to provide legal advice to their clients in India on foreign and international law. In addition, foreign lawyers representing parties in international commercial arbitrations [Page396:] are permitted to participate in such proceedings in India. This includes international arbitrations that are governed by Indian law, but in that event the foreign lawyers must work alongside Indian lawyers. In its decision, the Madras High Court did not mention the Advocates Act, but instead relied on the Arbitration and Conciliation Act of 1996, noting that debarring foreign lawyers from conducting arbitrations in India would have a counterproductive effect on the Indian government's express goal of making India a hub for international arbitration. The court further reasoned that the availability of international arbitration played a 'vital part' in attracting foreign direct investment into India.25 The Bar Council of India appealed the decision to the Supreme Court, arguing among other things that the questions considered had already been dealt with in the judgment of the Bombay High Court in the Lawyers' Collective case. That appeal is still being heard.
Very recently, departing from its long-held position, the Bar Council of India agreed to a government proposal explicitly to allow foreign law firms to provide legal services in international arbitration cases seated in India.26 The Society of Indian Law Firms, a representative body for the Indian legal industry, which has long opposed opening the legal sector to foreign firms, has also agreed to the proposal. Media reports suggest that the government is planning to legislate on the right of foreign lawyers to enter India temporarily to participate in arbitrations or advise on international law matters (although some would argue that this right already exists, following the Balaji decision). Clarification and modernization of the position in India is to be encouraged.
Section 6125 of the California State Bar Act provides that, although persons may represent themselves, no one but an active member of the State Bar may practise law for another person in California.
In the 1998 case of Birbrower, Montalbano, Condon & Frank v. The Superior Court of Santa Clara County,27 attorneys from a New York law firm performed substantial work in California when representing a Californian company in an arbitration against a Delaware corporation seated in California. The dispute was settled, but the law firm sued its client for unpaid fees. The client argued that the fee agreement was unenforceable because the law firm had practised law without a licence in California and failed to associate with local counsel while doing so. Birbrower argued that section 6125 applied only to non-attorneys seeking to practise law, but if it did apply to out-of-state attorneys not registered in California, an exception should apply for work incidental to private arbitration or other alternative dispute [Page397:] resolution proceedings. In its judgment, the California Supreme Court rejected Birbrower's arguments and held that Birbrower had breached section 6125.
The decision received considerable negative comment. In response, the California State Legislature recognized an exception to section 6125 in international disputes resolved in California under the state's rules for arbitration and conciliation of international commercial disputes. This exception, found at section 1282.4 of the California Code of Civil Procedure and Rule 9.43 of the California Rules of Court, provides that in commercial arbitration proceedings in California the person assisting or representing a party need not be a member of the legal profession or licensed to practise law in California. However, commentators note that this exception does not apply to foreign lawyers, and opine that 'by prohibiting foreign lawyers from participating, California is missing out'.28 To overcome the restriction, it is possible to register as a Foreign Legal Consultant (Supreme Court Rule 9.44(d)), but this is administratively cumbersome and protracted.29
Similar restrictions may apply in other US states, so it is important to check.
It is beyond the scope of this contribution to carry out a global survey. However, there are a number of other jurisdictions where restrictions exist. For example, the IBA Arbitration Guide for Thailand notes that foreign nationals may represent clients in arbitration only if the law governing the dispute is not Thai law or if the award will not be enforced in Thailand.30 Colleagues have alerted the author to difficulties they have encountered in a number of other jurisdictions as well.
Freedom of choice
In contrast to the jurisdictions referred to above, Singapore provides an example of the success that can follow from opening up and allowing unfettered cooperation with foreign counsel. In 1987,31 in Turner (East Asia) Pte Ltd v. Builders Federal (Hong Kong) Ltd & Anor,32 the Singapore High Court issued an ex parte injunction preventing foreign [Page398:] lawyers from appearing in an arbitration seated in Singapore because it considered that it would constitute a breach of the Legal Profession Act. The applicant's position was supported by the Bar Society of Singapore. A contested hearing followed to determine whether the ex parte injunction should stand, with the High Court rejecting arguments that international arbitration lay beyond the reach of the domestic regulatory framework established in the Act. This provoked an outcry in the international arbitration community, with Singapore being viewed as an unattractive seat for arbitration. In 1992, as part of an effort to boost itself as a trading and business hub and promote the recently established Singapore International Arbitration Centre, Singapore amended the Legal Profession Act to permit foreign lawyers to act in arbitrations in the city state in which Singaporean law was not applicable. In 2004, this restriction too was removed. Sundaresh Menon, the Chief Justice of Singapore (who had been junior counsel33 for the applicant in the Builders Federal case) recently reflected that Singapore is now a successful seat of arbitration, often mentioned in the same breath as London, Paris and New York, but that it 'could have turned out very differently'.34
England and Wales can be held up, too, as an example of an especially liberal jurisdiction. It is an offence for an unqualified person to act as a solicitor35 and for anyone to carry out a reserved activity, which includes appearing in court, unless entitled to do so;36 but it is not an offence to advise on English law without an English university and/or professional legal qualification. Section 36 of the Arbitration Act 1996 provides that: 'Unless otherwise agreed by the parties, a party to arbitral proceedings may be represented in the proceedings by a lawyer or other person chosen by him.' Unlike Nigeria, this is not interpreted as a mandatory requirement that any lawyer must be an English solicitor or barrister.
Although various institutional rules provide that a party may be represented by legal representatives,37 this does not override any legislative or regulatory restriction imposed at the seat on the involvement of foreign lawyers.
The value and importance of unrestricted representation is recognized in the principles for creating an effective, efficient and 'safe' seat for the conduct of international commercial arbitration,38 issued by the Chartered Institute of Arbitrators39 and launched at its recent Centenary Conference in London in 2015. Under the heading 'Right of Representation' the principles prescribe: 'A clear right for parties to be represented at arbitration by party representatives (including but not limited to legal counsel) of their choice whether from inside or outside the Seat.'
The sentiment expressed in the Chartered Institute principles is not intended to encourage foreign lawyers to usurp local lawyers. In this author's opinion, it would be unwise, bordering on negligent, to conduct an arbitration governed by a different substantive or procedural law from that of the foreign advocate without consulting and involving local lawyers. Wellington could not have done it without Blücher, and vice versa.
The Chartered Institute's Centenary Conference was held at Guildhall in London, which has in its Great Hall a large monument honouring the Duke of Wellington. The Duke is buried nearby in the crypt of St Paul's Cathedral.40 A bronze memorial features two intricate supports: 'Truth tearing the tongue out of the mouth of False-hood' and 'Valour trampling Cowardice underfoot' - an inspiration for anyone involved in international arbitration and especially arbitration advocates sans frontières.
Queen's Counsel; partner, Clifford Chance LLP; Audley.Sheppard@CliffordChance.com.
June 18 is remembered in France less for the Battle of Waterloo than for General de Gaulle's address to 'free France' from London in 1940: 'For France is not alone. She is not alone! She is not alone! She has an immense Empire behind her. She can unite with the British Empire, which commands the sea and is carrying on with the struggle. Like England, she can make unlimited use of the vast industries of the United States. This war is not confined to the unhappy territory of our country. This war has not been decided by the Battle of France. This war is a world-wide war … Whatever happens the flame of French resistance must not and shall not go out.'(Translation from http://www.historytoday.com/anne-corbett/certain-june-18th, last accessed 19 Oct. 2015.)
Other anniversaries in 2015 are: Magna Carta issued 800 years ago on 15 June 1215; Battle of Agincourt fought 600 years ago on 25 October 1415; first day of ANZAC landing at Gallipoli 100 years ago on 25 April 1915; VE Day and VJ Day 70 years ago on 8 May and 2 September 1945, respectively; and the death of Sir Winston Churchill 50 years ago on 24 January 1965.
Field Marshall Arthur Wellesley, 1st Duke of Wellington (1769(1852), born in Dublin, Ireland, Prime Minister of the United Kingdom. The present Duke is the 9th, born 19 August 1945, educated at Eton College and Christ Church, Oxford.
Napoleon I (1769-1821), born in Corsica, Emperor of the French.
One of Wellington's officers at Waterloo was Sir Andrew Barnard. He went on to be one of the founding members of the Garrick Club, a governor of the Royal Academy of Music and lieutenant-governor of Chelsea Hospital.
This expression is best known from the speech made by Winston Churchill to the House of Commons, also on 18 June 1940: 'Let us therefore brace ourselves to our duties, and so bear ourselves that, if the British Empire and its Commonwealth last for a thousand years, men will still say, "This was their finest hour"'.
E.g. Sir Richard Evans, former Regius Professor of History, Cambridge, and honorary Doctor of Letters, Oxford (2015), who is renowned for his history of the Third Reich. Wellington himself is reported as saying 'God, give me night or give me Blücher' and of the battle 'the nearest run thing you ever saw in your life'.
Field Marshall Gebhard Leberecht von Blücher, Prince von Wahlstatt (1742-1819), born in Rostock, now part of Germany. 'Ran wie Blücher' ('charge like Blücher') is a popular German epithet for someone taking very direct and aggressive action, in war or otherwise.
One can speculate on the development of arbitration in England and common law countries had Napoleon won at Waterloo. A. Redfern, M.J. Hunter, N. Blackaby and C. Partasides note that 'the French Code of Civil Procedure, in 1806, effectively turned arbitration into the first stage of a procedure which would lead to the judgment of a court' (Redfern and Hunter on International Arbitration, 5th ed. (2009), § 1.13, note 18). However, as readers know, arbitration law in France developed somewhat differently over the subsequent two centuries.
John Beechey was a member of the drafting committee for both the 1999 and 2010 versions.
John was a member of the original drafting committee, in 2004.
Cap A18, Laws of the Federation of Nigeria 2004 (LFN).
Cap I23, LFN.
Cap L11, LFN.
A. Atake, 'Domestic Arbitration in Nigeria: Can Foreign Counsel Still Run the Race?', IBA Arbitration Committee Newsletter (February 2013) 22.
Article 4, if applied literally, might also prohibit a party from being 'assisted' by a foreign lawyer.
See supra note 16 at 23.
Cf. UNCITRAL Arbitration Rules 2010, Art. 5.
Contravention of section 51(1) constitutes an offence making the operator liable upon conviction to a fine of 5% of the project sum or cancellation of the project (s. 68).
Every six months the operator must provide a list of external solicitors used for legal services.
The author understands from Nigerian counsel that there are a number of arguments that can be made against a 100%, or even 50%, prohibition of involvement of foreign counsel, including in particular advising on disputes and participating in arbitration.
W.P. No. 1526 of 1995, judgment dated 16 Dec. 2009.
W.P. No. 5614 of 2010, judgment dated 21 Feb. 2012.
See K. Feuer, 'Opening India's Legal Market: the Madras High Court Cracks the Door of Foreign Lawyers' (2014) 37 Boston College International and Comparative Law Review 16.
Global Arbitration Review, 'Will India open up?', 30 June 2015.
(1998) 17 Cal. 4th 119. 70 Cal. Rptr 2d 304.
D. Caron & L. Harhay, 'The Less-Than-Golden State of International Aribtration', The Recorder (1 Jan. 2010), https://www.law.berkeley.edu/article/by-prohibiting-foreign-lawyers-from-participating-california-is-missing-out/ (last accessed 19 Oct. 2015).
Jason Fry, former Secretary General of the ICC International Court of Arbitration, has had to do this recently.
A. Henderson, 'Thailand', Arbitration Guide, IBA Arbitration Committee, § I(v), available at http://www.ibanet.org/Article/Detail.aspx?ArticleUid=a646cf32-0ad8-4666-876b-c3d045028e64 (last accessed 19 Oct. 2015).
Also the year of the Clifford Turner and Coward Chance merger.
 SGHC 28.
Senior counsel was Wong Meng Meng, subsequently senior partner in the Wong Partnership.
Global Arbitration Review, 'Safe seat principles launched in London', 2 July 2015.
Solicitors Act 1974, s. 20. The offence is sanctioned by a fine or imprisonment of up to two years, or both.
Legal Services Act 2007, s. 14 and Schedule 2. This offence too is sanctioned by a fine or imprisonment of up to two years, or both.
E.g. LCIA Rules 2014, Art. 18.1; cf. the ICC Arbitration Rules 2012, Art. 26.4, which merely provides that the parties may appear in person or through duly authorized representatives; and similarly the UNCITRAL Arbitration Rules 2010, Art. 5, which provides that each party may be represented or assisted by persons chosen by it. In contrast, the GAFTA Rules provide that the parties may engage lawyers to assist in drafting written submissions to the tribunal, but there is no legal representation at oral hearings: The Grain and Feed Trade Association, Arbitration Rules No. 125, Rule 16.
CIArb, 'The London Centenary Principles 2015', available at https://www.ciarb.org/docs/default-source/centenarydocs/london/the-principles.pdf (last accessed 19 Oct. 2015).
The drafting working group was led by Professor Doug Jones AO and The Rt Hon. Lord Goldsmith QC, and included the author.
The Duke's younger brother, the Hon. and Rev. Gerald Valerian Wellesley, was the first Rector of St Luke's Church, Chelsea, which was consecrated in 1824.