The Role of the Tribunal Secretary in International Arbitration: A Call for a Uniform Standard

Dispute Resolution International homepage  »  October 2014

Michael Polkinghorne and Charles B Rosenberg[*]

 

 


 

Introduction

The role of the tribunal secretary in international arbitration is an ‘enormously grey area’ that has been subject to instances of ‘abuse’.[1] With concerns of the secretary going beyond his or her position as an assistant to the tribunal and becoming a decision-making ‘fourth arbitrator’,[2] the proper role of the tribunal secretary has been a regular topic of discussion within the international arbitration community in recent years.[3] No doubt fueling the debate is the fact that no uniform standard exists: different arbitration institutions provide different restrictions on the role of tribunal secretaries,[4] while other institutions provide no guidance at all.[5]

This article surveys the varying and sometimes undefined standards for the role of tribunal secretaries and proposes a uniform standard.

The debate

It is a well-established practice in large and complex international arbitrations for a secretary, often a junior lawyer, to be appointed to assist the tribunal.[6] A survey conducted as part of the 2012 International Council for Commercial Arbitration Congress in Singapore (‘2012 ICCA Survey’) – which surveyed 106 institutional representatives, arbitrators, counsel, lawyers who work as secretaries, and commercial users of the arbitral process[7] – reports that 95 per cent of respondents approve of the use of tribunal secretaries.[8] The 2012 International Arbitration Survey by White & Case and Queen Mary College (‘2012 W&C Survey’) – which surveyed 710 private practitioners, arbitrators, in-house counsel, counsel from arbitral institutions, academics, and expert witnesses[9] – reports that tribunal secretaries are appointed in 35 per cent of cases, more frequently in civil lawyers’ arbitrations (46 per cent) than common lawyers’ arbitrations (24 per cent).[10]

The prevalence of tribunal secretaries has sparked a debate within the international arbitration community regarding their proper role. While it is generally accepted that tribunal secretaries may handle administrative tasks, such as coordinating logistics and secretarial services,[11] the more contentious areas include research, attendance at deliberations and drafting procedural orders and portions of awards.[12]

Advocates for broad responsibilities contend that tribunal secretaries increase the efficiency of the arbitration proceeding,[13] allow the arbitrators to focus on deliberating on the merits,[14] and enable tribunals to render awards faster.[15] It also is commonly noted that using a tribunal secretary is cost effective because the hourly rate of the secretary is well below the rate of the arbitrators.[16]

By contrast, those who advocate for a limited role for tribunal secretaries argue that the selection of arbitrators is intuiti personae (‘in view of the person’) and therefore there should be no delegation.[17] Unlike domestic judges who cannot refuse a case due to a busy docket, the position of arbitrators is voluntary and they can simply decline appointment if they would need assistance from a secretary.[18] In addition, some express concern that any summary or research performed by the tribunal secretary necessarily bears the secretary’s perspective and thus might improperly influence the arbitrator’s own evaluation.[19] It also has been argued that secretaries increase the costs of the arbitration because the tribunal members, particularly the chairperson, must communicate with the secretary, which takes time and costs money.[20]

Survey of the role of tribunal secretaries

No uniform standard exists for the role of a tribunal secretary. As discussed below, some arbitration institutions define the role of the secretary, while others provide no guidance at all.[21]

Institutions that define the role of the secretary

The International Chamber of Commerce (ICC)

The ICC based in Paris, France is one of the world’s leading institutions for administering international commercial arbitrations. An earlier International Arbitration Survey by White & Case and Queen Mary College in 2010 (‘2010 W&C Survey’) – which was based on an online questionnaire completed by 136 corporate counsel and interviews of 67 corporate counsel[22] – reports that the ICC is the most preferred and widely used arbitration institution.[23] In 2013, 767 requests for arbitration were filed with the ICC, with nearly 80 per cent of them involving amounts in dispute in excess of US$1m.[24]

The ICC Arbitration Rules are silent on the duties of the tribunal secretary.In 2012, the Secretariat of the ICC International Court of Arbitration promulgated a two-page ‘Note on the Appointment, Duties and Remuneration of Administrative Secretaries’,[25] which replaced its 1995 Note on the same subject.

The 2012 Note provides that before an ICC tribunal appoints a secretary, the tribunal must submit to the parties the proposed secretary’s curriculum vitae and a declaration of independence and impartiality, which is ‘an undertaking on the part of the Administrative Secretary to act in accordance with the present Note and an undertaking on the part of the Arbitral Tribunal to ensure that this obligation on the part of the Administrative Secretary shall be met.’[26]

The Note further specifies that tribunal secretaries may perform ‘organisational and administrative tasks’, including the rather benign tasks of transmitting communications on behalf of the tribunal, organising and maintaining the tribunal’s files, and organising hearings and meetings.[27] More controversially, the Note considers the following also to be permissible ‘organisational and administrative tasks’: attending deliberations, performing legal research, and proofreading procedural orders and awards.[28] However, the Note strictly limits the role of the tribunal secretary:

‘Under no circumstances may the Arbitral Tribunal delegate decision-making functions to an Administrative Secretary. Nor should the Arbitral Tribunal rely on the Administrative Secretary to perform any essential duties of an arbitrator…. A request by an Arbitral Tribunal to an Administrative Secretary to prepare written notes or memoranda shall in no circumstances release the Arbitral Tribunal from its duty personally to review the file and/or to draft any decision of the Arbitral Tribunal.’[29]

Finally, the Note provides that ‘the engagement of an Administrative Secretary should not pose any additional financial burden on the parties.’[30] Hence, while the parties are responsible for the secretary’s ‘justified reasonable expenses for hearings and meetings’,[31] the secretary’s fees are to be paid by the tribunal out of the total funds available for the fees of all arbitrators.[32]

The London Court of International Arbitration (LCIA)

The LCIA based in London, England is another one of the world’s leading international arbitration institutions.[33] The 2010 W&C Survey reports that the LCIA (14 per cent of respondents) is the second most preferred arbitration institution after the ICC (50 per cent of respondents).[34] In 2013, 290 requests for arbitrations were filed with the LCIA, and nearly 60 per cent of them had amounts in controversy of US$1m or more.[35]

The LCIA Arbitration Rules are silent on the role of the tribunal secretary. The LCIA has published on its website, however, the four paragraph ‘LCIA’s position on the appointment of Secretaries to Tribunal’, which specifies that the secretary must be agreed upon by the parties and ‘subject to the usual conflicts check.’[36] The LCIA’s Position further provides that ‘[t]he duties of the administrative secretary should n[ot]… constitute any delegation of the Tribunal’s authority’ but allows ‘organising papers for the Tribunal, highlighting relevant legal authorities, maintaining factual chronologies, keeping the Tribunal’s time sheets and so forth.’[37]

The American Arbitration Association (AAA)

The AAA is a US-based arbitration institution that administers alternative dispute resolution proceedings.[38] The AAA’s International Centre for Dispute Resolution (ICDR) administers international arbitrations and mediations.[39] In 2013, 1,165 cases were filed at the ICDR, which reportedly ‘constitute[d] the largest number of new case filings of any international arbitral institution.’[40]

In 2004, the AAA promulgated ‘The Code of Ethics for Arbitrators in Commercial Disputes’ to replace an earlier Code from 1977.[41] 
The 2004 Code, which ‘sets forth generally accepted standards of ethical conduct for the guidance of arbitrators and parties in commercial disputes’,[42] expressly envisions the appointment of a tribunal secretary: ‘An arbitrator may obtain help from an associate, a research assistant or other persons in connection with reaching his or her decision if the arbitrator informs the parties of the use of such assistance and such persons agree to be bound by the provisions of this Canon.’[43] However, the Code prohibits an arbitrator from ‘delegat[ing] the duty to decide to any other person’.[44]

Judicial Arbitration and Mediation Services, Inc (JAMS)

US-based JAMS is the largest private alternative dispute resolution provider in the world.[45] JAMS administers more than 12,000 commercial mediations and arbitrations a year.[46] In 2011, JAMS International was formed to provide mediation and arbitration of cross-border disputes.[47]

JAMS International has published ‘Guidelines for Use of Clerks and Tribunal Secretaries in Arbitrations’, which expressly permit arbitrators to use tribunal secretaries subject to the agreement of the parties and after completing ‘a separate conflicts disclosure form’.[48] The Guidelines further specify that ‘[a]t no time can a… Secretary engage in deliberations or decision-making on behalf of an arbitrator or tribunal.’[49] The Guidelines also provide that the secretary’s fees may be billed to the parties.[50]

The International Centre for Settlement of Investment Dispute (ICSID)

ICSID is an autonomous international institution based in Washington, DC that was established under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (‘ICSID Convention’) to provide facilities for the conciliation and arbitration of international investment disputes.[51] In 2013, ICSID registered a total of 40 cases.[52]

The ICSID Administrative and Financial Regulations provide that a secretary shall be appointed to each ICSID tribunal.[53] The Regulations further specify that the secretary shall ‘keep summary minutes of hearings’ and ‘perform other functions with respect to the proceeding at the request of the President of the… Tribunal… or at the direction of the [ICSID] Secretary-General.’[54] The ICSID Arbitration Rules clarify that secretaries are precluded from attending deliberations unless the tribunal consents:

‘Only members of the Tribunal shall take part in its deliberations. No other person shall be admitted unless the Tribunal decides otherwise.’[55]

In Compañía de Aguas v Argentina, Professor Jan Hendrik Dalhuisen authored a scathing Additional Opinion that criticised the expanded role of tribunal secretaries in ICSID arbitrations.[56] Professor Dalhuisen emphasised that the role of the secretary was one of ‘administration and support’ and that the secretary is ‘not the fourth member of ICSID Tribunals or ad hoc Committees.’[57] In Professor Dalhuisen’s view, a tribunal secretary should not draft any portion of an award:

‘What are the key facts and relevant arguments and how they should be presented in the final decision or award is for the Arbitrators or
ad hocCommittee Members to select and decide…. For the Secretariat also to draft part or all of the decisions and reasoning would appear wholly inappropriate, even if following basic instructions of Arbitrators or ad hoc Committee Members whilst the final version would naturally still be left to
them for approval. This would not appear to be sufficient to legitimise the text.’[58]

The Hong Kong International Arbitration Centre (HKIAC)

The HKIAC based in Hong Kong administers arbitrations, mediations, adjudications and domain name disputes.[59] In 2013, HKIAC handled 260 arbitration cases, 75 per cent of which were international.[60]

The HKIAC Administered Arbitration Rules (‘HKIAC Rules’) provide that a tribunal may appoint a secretary after consulting with the parties.[61] In June 2014, HKIAC published detailed ‘Guidelines on the Use of a Secretary to the Arbitral Tribunal’ that may be adopted by parties to arbitrations administered by HKIAC under the HKIAC Rules or the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules.[62] The Guidelines require a proposed secretary to sign a declaration of availability, impartiality and independence prior to his or her appointment.[63]

The Guidelines allow a secretary to perform ‘organisational and administrative tasks’ such as transmitting documents and communications on behalf of the tribunal, organising and maintaining the tribunal’s files, and coordinating logistics for hearings and meetings.[64] Moreover, unless the parties agree or the tribunal directs otherwise, the tribunal secretary may also: (i) conduct legal research; (ii) collect case law or published commentaries on legal issues defined by the tribunal; (iii) research discrete questions relating to factual evidence and witness testimony; (iv) draft memoranda summarising the parties’ submissions and evidence; (v) attend the tribunal’s deliberations; and (vi) prepare drafts of non-substantive parts of the tribunal’s orders, decisions and awards (such as procedural histories and chronologies of events).[65]

However, the secretary is not allowed to ‘draft any substantive parts of [the tribunal’s] orders, decisions and awards.’[66] The Guidelines also prohibit a tribunal from ‘delegat[ing] any decision-making functions to a tribunal secretary, or rely[ing] on a tribunal secretary to perform any essential duties of the tribunal.’[67]

The parties remain responsible for the secretary’s reasonable expenses.[68] If the tribunal’s fees are determined based on hourly rates, the parties are responsible for the secretary’s fees.[69] Otherwise, when the tribunal’s fees are determined based on the amount in dispute, the tribunal shall be responsible for the secretary’s fees.[70]

Arbitration Institute of the Finland Chamber of Commerce (FCC Institute)

The FCC Institute based in Helsinki, Finland has been administering arbitrations since 1911.[71] In 2013, the FCC Institute registered 80 cases, 25 per cent of which were international.[72]

The Arbitration Rules of the Finland Chamber of Commerce expressly allow a tribunal to appoint a secretary ‘after consulting with the parties… [and] when deemed appropriate’, assuming that the secretary satisfies ‘the same requirements of impartiality and independence as an[] arbitrator.’[73] The FCC Institute has published ‘Guidelines for Using a Secretary in FCC Arbitration’ which codify the intuiti personae principle: ‘The appointment of an arbitrator is personal and therefore the task of an arbitrator cannot be performed by other lawyers at the same law firm.’[74] To this end, the Guidelines significantly restrict the role of a tribunal secretary:

‘The secretary may check the accuracy of facts, figures and calculations in the arbitral award, but the arbitral tribunal retains the responsibility for the correctness of the arbitral award. The secretary may assist the arbitral tribunal in researching legal or technical matters as well as in obtaining background material.

The secretary acts as a technical assistant to the arbitral tribunal, but has no independent decision-making power. The secretary may neither participate in deliberations of the arbitral tribunal nor in decision-making and may not sign the arbitral award.

The arbitral tribunal decides the structure of the arbitral award. The secretary does not participate in drafting of the arbitral award or in decision-making and may not influence the content of the arbitral award in any other way.[75]

The Guidelines also provide that the tribunal is responsible for the secretary’s fee.’[76]

United Nations Commission on Trade Law

UNCITRAL has promulgated arbitration rules for ad hoc arbitrations.[77] In 1996, UNCITRAL published its ‘Notes on Organizing Arbitral Proceedings’ to ‘assist arbitration practitioners by listing and briefly describing questions on which appropriately timed decisions on organising arbitral proceedings may be useful.’[78] The Notes envision the use of tribunal secretaries and describe the practice at the time:

‘To the extent the tasks of the secretary are purely organisational (eg, obtaining meeting rooms and providing or coordinating secretarial services), this is usually not controversial. Differences in views, however, may arise if the tasks include legal research and other professional assistance to the arbitral tribunal (eg, collecting case law or published commentaries on legal issues defined by the arbitral tribunal, preparing summaries from case law and publications, and sometimes also preparing drafts of procedural decisions or drafts of certain parts of the award, in particular those concerning the facts of the case). Views or expectations may differ especially where a task of the secretary is similar to professional functions of the arbitrators. Such a role of the secretary is in the view of some commentators inappropriate or is appropriate only under certain conditions, such as that the parties agree thereto. However, it is typically recognised that it is important to ensure that the secretary does not perform any decision-making function of the arbitral tribunal.’[79]

Institutions that do not define the role of the secretary

Arbitration Institute of the Stockholm Chamber of Commerce

The Arbitration Institute of the Stockholm Chamber of Commerce (SCC) based in Stockholm, Sweden was established in 1917 and historically has served as a neutral centre for the resolution of East-West disputes.[80] In 2013, the SCC registered 203 cases, 42 per cent of which were international.[81]

The SCC Arbitration Rules are silent on the appointment of a tribunal secretary. In 2014, the SCC promulgated revised ‘Arbitrator’s Guidelines’ which expressly allow a tribunal to appoint a secretary if the parties agree.[82] The Guidelines do not explain the role of the secretary, but do address remuneration: the parties are responsible for the secretary’s expenses, while the tribunal is responsible for the secretary’s fees.[83]

Netherlands Arbitration Institute (NAI)

The NAI based in Rotterdam, Netherlands was established to promote the resolution and settlement of disputes by arbitration, binding advice and mediation.[84] In 2013, the NAI administered 114 cases, 43 per cent of which were international.[85]

The NAI Arbitration Rules allow for the appointment of a lawyer who is impartial and independent from the parties as the secretary of the tribunal.[86] The NAI does not define the role and responsibilities of the secretary,[87] but has explained that the secretary’s role may vary by case:

‘Arbitrators may ask the Netherlands Arbitration Institute to appoint a secretary to perform certain activities for the arbitral tribunal. These activities depend on the division of duties between the arbitrators and the secretary. The division of duties is determined by the arbitrators.’[88]

The NAI Rules further provide that the costs of a tribunal secretary shall be paid by the parties.[89]

Swiss Chambers’ Arbitration Institution

The Chambers of Commerce and Industry of Basel, Bern, Geneva, Lausanne, Lugano, Neuchâtel and Zurich in Switzerland established the Swiss Chambers’ Arbitration Institution to offer a means of dispute resolution based on the Swiss Rules of International Arbitration.[90] In 2013, 68 new cases were submitted to the Institution, and the majority of parties were from outside Switzerland.[91]

The Swiss Rules of International Arbitration allow a tribunal to appoint a secretary after consulting with the parties.[92] The secretary must be impartial and independent and is under a continuing obligation to disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence.[93] In 2012, the Swiss Chambers published ‘Guidelines for Arbitrators’ which reiterate the requirements imposed on secretaries by the Rules.[94] The Guidelines also specify that the secretary’s fees ‘form part of those of the arbitral tribunal’ and thus the appointment of the secretary should not increase the overall fees payable by the parties.[95] However, the parties are responsible for reimbursement of the secretary’s ‘reasonable expenses’.[96]

Neither the Rules nor the Guidelines defines the role of a tribunal secretary.

Cairo Regional Centre for International Commercial Arbitration

The CRCICA based in Cairo, Egypt is an international organisation established under the auspices of the Asian-African Legal Consultative Organization.[97] In 2012, 78 arbitration cases were filed at CRCICA.[98]

The CRCICA Arbitration Rules recognise the possibility of tribunal secretaries.[99] However, neither the Rules nor the CRCICA provides any guidance on the role of the secretary.

Nordic Arbitration Centre of the Iceland Chamber of Commerce

The Nordic Arbitration Centre of the Iceland Chamber of Commerce is an arbitration institution based in Reykjavik, Iceland.[100]

The Arbitration Rules of the Nordic Arbitration Centre expressly provide that a tribunal may appoint a secretary after consulting with the parties.[101] The Rules further provide that the secretary must be impartial and independent from the parties and submit in writing a ‘Statement of Independence’ that discloses any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. However, the Rules do not define the role of the secretary.[102]

Uniform standard

A unique element of international arbitration is that different arbitration institutions do things differently. For example, the UNCITRAL Arbitration Rules provide as a default for a three-member tribunal,[103] while the ICC and LCIA Arbitration Rules call for a sole arbitrator.[104] Other examples include the distinctive feature of ICC arbitration that the ICC Court scrutinises all draft awards,[105] the overriding principle of party autonomy in UNCITRAL arbitration,[106] and the ‘self-contained’ regime of post-award review in ICSID Convention arbitration.[107] These are among the types of differences that lead parties to include (or exclude) particular arbitration institutions and rules in the dispute settlement provisions in their contracts.

However, the authors see no good reason for different arbitration institutions (nor ad hoc arbitrations) to provide considerably different restrictions on the role of tribunal secretaries, while other institutions provide no guidance at all. This discrepancy contributes to the uncertainty regarding the proper role of the tribunal secretary, which in turn might negatively affect the perceived legitimacy of the arbitral process and the resulting award, as questions might arise in the absence of a uniform standard as to whether the secretary has exceeded his or her position as an assistant to the tribunal. For example, in Sonatrach v Statoil, Algeria’s Sonatrach had challenged, albeit unsuccessfully, an ICC award worth US$536m in favour of Norwegian state oil company Statoil onthe basis that the ICC tribunal had improperly delegated authority to the secretary and impermissibly allowed the secretary to participate in deliberations.[108]

The 2012 ICCA Survey reports that nearly 60 per cent of respondents believe that there is a need to change today’s practice with regard to secretaries and that the arbitral process would benefit from greater regulation of the role and function of tribunal secretaries.[109] Moreover, an overwhelming 80 per cent of respondents in the 2012 ICCA Survey believe that guidelines of best practices should be promulgated.[110] 
In response, Young ICCA has taken an important first step in this process by publishing its ‘Young ICCA Guide on Arbitral Secretaries’. This Guide reflects the effort of young practitioners to codify existing best practices based on the 2012 ICCA Survey and a 2013 survey conducted by ICCA (‘2013 ICCA Survey’), which surveyed approximately 100 international arbitration practitioners, academics, representatives of arbitral institutions, and users.[111]

The international arbitration community should build on the foundation laid by Young ICCA by promulgating guidelines on the role of the tribunal secretary that arbitration institutions and parties (in the absence of institutional rules) could consider adopting. To stimulate dialogue on this important issue, we propose a standard that elaborates on
– and in some instances deviates from – the Young ICCA Guide. Our proposed standard addresses the following aspects of the role of the tribunal secretary: (i) organisational and administrative tasks;
(ii) research; (iii) attendance at deliberations; (iv) draft procedural orders and non-substantive portions of awards; (v) draft substantive portions of awards; and (vi) decision-making. We also address: the ‘Statement of Impartiality and Independence’ and remuneration.

Statement of impartiality and independence

Standard: Prior to appointment, the potential secretary must sign a “Statement of Impartiality and Independence” that discloses any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. The secretary is under a continuing obligation throughout the arbitration to disclose any such circumstances.’

To identify impermissible conflicts of interest and to provide the parties with a reasonable opportunity to object, the potential secretary must sign a ‘Statement of Impartiality and Independence’ that discloses any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. Moreover, the secretary once appointed remains under a continuing obligation to disclose any such circumstances. An overwhelming majority of respondents in the 2013 ICCA Survey agree (84 per cent)[112] and this is consistent with ICC, LCIA, JAMS International, HKIAC, Swiss Chambers and Nordic Arbitration Centre practice.[113]

The fact that the secretary’s tasks may in many cases be menial – and hence not much on the merits – is irrelevant; the aim is to engender confidence in the entire arbitral process.

Organisational and administrative tasks

‘Standard: The secretary may handle organisational and administrative tasks, including transmitting communications on behalf of the tribunal, organising and maintaining the tribunal’s files, and coordinating logistics and secretarial services.’

The secretary is an assistant to a tribunal who may handle organisational and administrative tasks on behalf of the tribunal. This is non-controversial: 97 per cent of respondents in the 2012 W&C Survey agree,[114] and this role is expressly recognised in ICC, LCIA, HKIAC and UNCITRAL practice.[115]

Research

‘Standard: The secretary may research factual and legal issues in the record at the detailed direction of a member of the tribunal. The secretary may not research factual and legal issues outside the record.’

Given the often voluminous factual documents and legal authorities submitted as evidence in complex international arbitrations, it may be time- and cost-efficient for the secretary to research certain factual and legal issues in the record rather than the arbitrators spending hours wading through pools of documents. Examples of permissible research activities include preparing factual chronologies and summarising or highlighting relevant legal authorities. However, any research to be performed by the secretary must be at the detailed direction of a member of the tribunal to minimise the risk that the secretary might inadvertently omit or misrepresent key facts or law (so even here a tribunal must be vigilant to avoid the risk of a secretary steering matters off course; the secretary’s role remains secondary to the tribunal’s duty to know the file).

Moreover, in light of the fact that tribunals generally are limited to deciding cases based on the record created by the parties, the secretary is precluded from researching factual and legal issues outside the record.

The 2013 ICCA Survey reports that the overwhelming majority of respondents believe that the secretary may perform legal research (86 per cent) and organise evidence (80 per cent),[116] and this role is expressly recognised in ICC, LCIA, HKIAC and FCC practice.[117]

Attendance at deliberations

‘Standard: The secretary may attend deliberations if all members of the tribunal consent.’

It can be very useful and time- and cost-efficient for a tribunal secretary to attend deliberations, particularly if the secretary will prepare drafts of procedural orders and non-substantive portions of awards, as discussed below.[118] Moreover, it is in the tribunal’s interest to have quick and efficient access to relevant case files during deliberations, which can greatly be facilitated by the assistance of a secretary.[119] The 2013 ICCA Survey reports that nearly 75 per cent of respondents believe that the secretary may attend deliberations.[120]

However, the secretary’s attendance must be conditioned on the consent of all members of the tribunal (similar to ICSID practice)[121] because deliberations generally are secret to ensure the free and unhindered exchange of views.[122] The secretary’s presence must not impair the frankness of the discussions to the detriment of the decision-making process.

In addition to handling the case file, the secretary’s role in deliberations must be strictly limited to memorialising the tribunal’s reasoning and decisions; the secretary must not actively participate in the deliberations. This is consistent with the 2012 W&C Survey, which reports that only nine per cent of respondents believe that the secretary may discuss the merits of the dispute with one or more of the arbitrators.[123]

Draft procedural orders and non-substantive portions of awards

‘Standard: The secretary may prepare draft procedural orders and non-substantive portions of awards if: (i) the tribunal provides detailed guidance to the secretary in advance of drafting; and (ii) the draft is scrutinized by the tribunal before finalizing. Ultimately, the responsibility for the contents of all procedural orders and awards remains with the members of the tribunal.’

It is not time-efficient (or cost-efficient when the tribunal is paid based on an hourly rate) for the tribunal to draft every single word of every single procedural order or award. The secretary, therefore, may draft procedural orders and non-substantive portions of awards, such as the procedural background and the parties’ positions. This also is somewhat non-controversial: nearly three-quarters of respondents in the 2012 W&C Survey (72 per cent)[124] and 2013 ICCA Survey (71 per cent) agree.[125]

Importantly, there must be two safeguards in place: first, the tribunal must provide detailed guidance to the secretary in advance of drafting, which ordinarily can be accomplished by having the secretary attend deliberations and be privy to the views of the tribunal; and second, the draft must be carefully scrutinised by the tribunal before finalising. This process ensures that the procedural order or portion of the award ultimately is the product of the tribunal rather than the secretary.

As the secretary is merely producing a draft that memorialises the tribunal’s reasoning and decisions, and is subject to review and approval by the entire tribunal, the responsibility for the contents of all procedural orders and awards remains with the members of the tribunal.

Draft substantive portions of awards

‘Standard: The secretary may not prepare draft substantive portions of awards.’

Unlike procedural orders and non-substantive portions of awards, the secretary may not draft substantive portions of awards. The substantive portion of an award goes to the heart of the arbitration and hence its drafting is an essential duty of the arbitrators. The intuiti personae principle thus dictates that this task must remain with the arbitrators. There exists too great a risk that the reasoning or dispositive section of the award might bear the secretary’s perspective and hence improperly influence the arbitrators’ evaluation. The 2013 ICCA Survey reports that nearly 70 per cent of respondents believe that the secretary may not draft the ‘legal reasoning’ part of the award,[126] and this is consistent with ICC, HKIAC, FCC and UNCITRAL practice.[127]

Decision-making

‘Standard: The secretary may not have decision-making functions.’

The secretary may not be the ‘fourth arbitrator’ and have decision-making functions. The role of the secretary must be limited to assisting (not replacing) the job of the arbitrators, as expressly recognised in ICC, LCIA, AAA, JAMS International, HKIAC, FCC and UNCITRAL practice.[128] Only five per cent of respondents in the 2012 ICCA Survey believe that the secretary may take part in the decision-making process of the tribunal.[129]

Remuneration

‘Standard: The parties are responsible for the reasonable expenses of the secretary, while the tribunal is responsible for any fees of the secretary.’

To avoid increasing the cost of the arbitration as a result of the tribunal’s decision to use a secretary (a matter where the authors have seen abuse in past years), any fees charged by the secretary must be deducted from the tribunal’s fees, preferably from the chairperson’s fees. However, the parties remain responsible for reimbursement of the secretary’s reasonable expenses incurred in connection with the arbitration, including travel and lodging expenses. The majority of respondents in the 2013 ICCA Survey agree (61 per cent),[130] and this is consistent with ICC, FCC, SCC and Swiss Chambers practice.[131]

Conclusion

In light of the varied and often non-existent restrictions on the role of tribunal secretaries provided for by different arbitration institutions, the international arbitration community should consider regulating secretaries in a uniform manner. The authors recommend that the international arbitration community build on the good work of Young ICCA and develop a uniform standard in the form of guidelines of best practices that could be adopted by arbitration institutions and parties. This, in turn, would strengthen the perceived legitimacy of the arbitration process and resulting award by minimising the likelihood that the secretary would exceed his or her position as an assistant to the tribunal and impermissibly become a decision-making ‘fourth arbitrator’.

 



[*]     Michael Polkinghorne is a partner in the Paris office of White & Case. Charles B Rosenberg is an associate in the Washington, DC office of White & Case. The authors wish to thank Lauren Riley for her helpful research.

[1]           See Kyriaki Karadelis, ‘The Role of the Tribunal Secretary’ (21 December 2011) Global Arb Rev http://globalarbitrationreview.com/b/30051/.

[2]        See, for example, Constantine Partasides, ‘The Fourth Arbitrator? The Role of Secretaries to Tribunals in International Arbitration (2002) 18(2) Arb Int’l147 [hereinafter ‘Partasides – The Fourth Arbitrator’]; David Zaslowsky and Grant Hanessian, ‘The fourth arbitrator: contrasting guidelines on the use of law secretaries’ (14 January 2013) Lexology: www.lexology.com/library/detail.aspx?g=e7826e7b-0a84-409d-9ebb-af84ad6d1d3f.

[3]        See, for example, Karadelis, n1 above (GAR Live London 2011); Clemmie Spalton, ‘Are tribunal secretaries writing awards?’ (9 November 2012) Global Arb Rev: http://globalarbitrationreview.com/news/article/30962/are-tribunal-secretaries-writing-awards (GAR Live London 2012); Alison Ross, ‘What goes on in arbitrator deliberations?’ (29 May 2013) Global Arb Rev: http://globalarbitrationreview.com/news/article/31618/ (IBA Arbitration Day); Noradèle Radjai and Fredrik Ringquist, ‘STOCKHOLM: Party versus institutional appointment; tribunal secretary or not?’ (15 October 2012) 7(6) Global Arb Rev: http://globalarbitrationreview.com/news/article/30897/stockholm-party-versus-institutional-appointment-tribunal-secretary-not (Young Arbitrators Stockholm and ICDR Young & International event).

[4]        Sees III(A) (survey of institutions that define, to varying extents, the role of the secretary).

[5]        Sees III(B) (survey of institutions that do not define the role of the secretary).

[6]        See Redfern and Hunter, Law and Practice of International Commercial Arbitration (4th edn, Sweet & Maxwell 2004) 224; see also Pierre Tercier, ‘The Role of the Secretary to the Arbitral Tribunal’ in Lawrence W Newman and Richard D Hill, The Leading Arbitrators’ Guide to International Arbitration(Juris 2014)531, 544 (noting that ‘[i]t has become impossible for one person to do all of this work alone’).

[7]        See Young ICCA Guide on Arbitral Secretaries, International Council for Commercial Arbitration, The ICCA Reports No1, Annex B: www.arbitration-icca.org/media/0/14054083023530/aa_arbitral_sec_guide_composite_12_march_2014.pdf [hereinafter ‘2012 ICCA Survey’].

[8]        Ibid.

[9]        See2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process, 44: www.whitecase.com/files/Uploads/Documents/Arbitration/Queen-Mary-University-London-International-Arbitration-Survey-2012.pdf [hereinafter ‘2012 W&C Survey’].

[10]      Ibid,11.

[11]      Ibid,12(reporting that 97 per cent of respondents believe that the tribunal secretary may carry out organisational tasks).

[12]      For example, in Sonatrach v Statoil, Algeria’s Sonatrach had applied to set aside an International Chamber of Commerce award worth US$536m in favour of Norwegian state oil company Statoil on the basis that the ICC tribunal had impermissibly allowed the secretary to participate in deliberations. However, the High Court of Justice of England and Wales ultimately dismissed Sonatrach’s application. See Sonatrach v Statoil [2014] EWHC 875 (Comm) (2 April 2014), paras 46–50.

[13]      SeeConstantine Partasides, ‘Secretaries to Arbitral Tribunals’ in Bernard Hanotiau Alexis Mourre, Dossier of the ICC Institute of World Business Law: Players’ interaction in International Arbitration(ICC 2012) [hereinafter ‘Partasides – ICC Dossier’].

[14]      See Ross, n3 above.

[15]      See Spalton, n3 above.

[16]      SeeKaradelis, n1 above; see also Tercier, n6 above, 544 (‘[I]t would be absurd to force arbitrators to do work that others could do just as well – and for a lower fee.’).

[17]      SeePartasides – ICC Dossier, n13 above; see also Tercier, n6 above, 537 (‘The very essence of this function is that arbitrators – whom the parties have entrusted with this competence – must render their decisions personally. A violation of this principle could endanger the effectiveness of the award and lead to a refusal to recognize it.’).

[18]      SeePartasides – ICC Dossier, n13 above.

[19]      See Partasides – The Fourth Arbitrator, n2 above, 156; see also Compañía de Aguas del Aconquija SA & Vivendi Universal SA v Argentine Republic, ICSID Case No ARB/97/3 (Annulment Proceeding), Additional Opinion of Professor JH Dalhuisen under Art 48(4) of the ICSID Convention, 30 July 2010: www.italaw.com/sites/default/files/case-documents/ita0221.pdf.

[20]      SeeKaradelis, n1 above.

[21]      Other arbitration institutions – such as the China International Economic and Trade Arbitration Commission (CIETAC) and the Singapore International Arbitration Centre (SIAC) – do not appear to even contemplate tribunal secretaries. See generally China International Economic and Trade Arbitration Commission, www.cietac.org/; Singapore International Arbitration Centre, www.siac.org.sg/.

[22]      See2010 International Arbitration Survey: Choices in International Arbitration, 34: www.whitecase.com/files/upload/fileRepository/2010International_Arbitration_Survey_Choices_in_International_Arbitration.pdf [hereinafter ‘2010 W&C Survey’].

[23]      Ibid,23(reporting that 50 per cent of respondents prefer the ICC and that 56 per cent indicated that the ICC was the arbitration institution most frequently used over the past five years).

[24]      See Statistics, International Chamber of Commerce: www.iccwbo.org/Products-and-Services/Arbitration-and-ADR/Arbitration/Introduction-to-ICC-Arbitration/Statistics/.

[25]      See Note on the Appointment, Duties and Remuneration of Administrative Secretaries, International Chamber of Commerce(2012): www.iccwbo.org/Products-and-Services/Arbitration-and-ADR/Flash-news/Introduction-of-revised-Note-on-the-Appointment,-Duties-and-Remuneration-of-Administrative-Secretaries/ [hereinafter ‘ICC Note’].

[26]      Ibid,s 1.

[27]      Ibid,s 2.

[28]      Ibid.

[29]      Ibid.

[30]      Ibid,s3.

[31]      Ibid,s4.

[32]      Ibid,s3.

[33]      See‘About the LCIA’, London Court of International Arbitration: www.lcia.org/LCIA/Introduction.aspx.

[34]      See2010 W&C Survey, n22 above, 23 (reporting that 14 per cent of respondents prefer the ICC).

[35]      See Registrar’s Report 2013, London Court of International Arbitration, 1, 3: www.lcia.org/LCIA/Casework_Report.aspx.

[36]      See‘Frequently Asked Questions’, London Court of International Arbitration; www.lcia.org/Frequently_Asked_Questions.aspx#Secretaries [hereinafter ‘LCIA FAQs’].

[37]      Ibid.

[38]      Seegenerally‘About American Arbitration Association’, American Arbitration Association: www.adr.org/aaa/faces/s/about?_afrLoop=2243988458246179&_afrWindowMode=0&_afrWindowId=yfcwwnda1_185#%40%3F_afrWindowId%3Dyfcwwnda1_185%26_afrLoop%3D2243988458246179%26_afrWindowMode%3D0%26_adf.ctrl-state%3Dyfcwwnda1_229.

[39]      See generally ‘ICDR Dispute Resolution Services’, International Centre for Dispute Resolution: www.icdr.org/icdr/faces/icdrservices/icdrdisputeresolution?_afrLoop=2244397766139696&_afrWindowMode=0&_afrWindowId=4e3dt8eax_200#%40%3F_afrWindowId%3D4e3dt8eax_200%26_afrLoop%3D2244397766139696%26_afrWindowMode%3D0%26_adf.ctrl-state%3D4e3dt8eax_272.

[40]      See 2013 Annual Report, American Arbitration Association, May 2014, 18: www.adr.org/aaa/ShowProperty?nodeId=%2FUCM%2FADRSTAGE2021420&revision=latestreleased.

[41]      See The Code of Ethics for Arbitrators in Commercial Disputes, American Arbitration Association, 1 March 2004: www.adr.org/aaa/ShowProperty?nodeId=/UCM/ADRSTG_003867[hereinafter‘AAA Code of Ethics’].

[42]      Ibid, 1.

[43]      Ibid, at Canon VI(B).

[44]      Ibid,at Canon V(C).

[45]      See generally ‘About JAMS’, JAMS: www.jamsadr.com/aboutus_overview/.

[46]      See ‘JAMS International Fact Sheet’, JAMS International: www.jamsinternational.com/wp-content/uploads/JAMS-International-Fact-Sheet.pdf.

[47]      See generally ‘About JAMS International’, JAMS International: www.jamsinternational.com/about.

[48]      See ‘Guidelines for Use of Clerks and Tribunal Secretaries in Arbitrations’, JAMS International: www.jamsinternational.com/wp-content/uploads/JAMS-International-Clerks-Secretaries-in-Arbitrations.pdf [hereinafter ‘JAMS International Guidelines’].

[49]      Ibid.

[50]      Ibid.

[51]      See generally ‘About ICSID’, International Centre for Settlement of Investment Disputes: https://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=ShowHome&pageName=AboutICSID_Home.

[52]      SeeThe ICSID Caseload – Statistics (Issue 2014-1), International Centre for Settlement of Investment Disputes, 7: https://icsid.worldbank.org/ICSID/Front
Servlet?requestType=ICSIDDocRH&actionVal=ShowDocument&CaseLoadStatistics=True&language=English51.

[53]      See ICSID Financial and Administrative Regulations, Art 25 (‘The [ICSID] Secretary-General shall appoint a Secretary for each Commission, Tribunal and Committee.’).

[54]      Ibid, at Arts 25(c), (d).

[55]      See ICSID Arbitration Rules, Art 15(2).

[56]      See Compañía de Aguas, n19above.

[57]      Ibid, paras 3, 21; see also ibid, para 3 (‘[I]t is clear that the [ICSID] Secretariat has no original powers in the dispute resolution and decision taking process.’).

[58]      Ibid, paras 4, 7.

[59]      See‘Statistics’, Hong Kong International Arbitration Centre: http://hkiac.org/en/hkiac/statistics.

[60]      Ibid.

[61]      SeeHong Kong Administered Arbitration Rules (2013), Art 13.4.

[62]      See‘Guidelines on the Use of a Secretary to the Arbitral Tribunal’, Hong Kong International Arbitration Centre, 1 June 2014, para 1.1: www.hkiac.org/images/stories/arbitration/HKIAC%20Guidelines%20on%20Use%20of%20Secretary%20to%20Arbitral%20Tribunal%20-%20Final.pdf [hereinafter ‘HKIAC Guidelines’].

[63]      Ibid,para 2.2; see also ibid, 6 (‘Tribunal Secretary’s Declaration of Acceptance and Statement of Availability, Impartiality and Independence’).

[64]      Ibid,para 3.3.

[65]      Ibid,para 3.4.

[66]      Ibid,para 3.6.

[67]      Ibid,para 3.2; see also ibid, para 3.4 (allowing the tribunal secretary to provide certain assistance to the tribunal ‘provided that the arbitral tribunal ensures that the secretary does not perform any decision-making function or otherwise influence the arbitral tribunal’s decisions in any manner’).

[68]      Ibid, para 4.5.

[69]      Ibid, para 4.2.

[70]      Ibid, para 4.3.

[71]      See generally ‘The Arbitration Institute’, The Arbitration Institute of the Finland Chamber of Commerce: http://arbitration.fi/en/.

[72]      See ‘Statistics’, The Arbitration Institute of the Finland Chamber of Commerce: http://arbitration.fi/en/statistics/.

[73]      See Arbitration Rules of the Finland Chamber of Commerce (2013), Art 25.5 (‘A secretary shall meet the same requirements of impartiality and independence as any arbitrator under Article 20.1.’); see alsoibid, Art 20.1 (‘Each arbitrator shall be and remain impartial and independent of the parties.’).

[74]      See Guidelines for Using a Secretary in FCC Arbitration, The Arbitration Institute of the Finland Chamber of Commerce: http://arbitration.fi/en/files/Guideline_Secretary_FCC_Arbitration.pdf [hereinafter ‘FCC Guidelines’].

[75]      Ibid.

[76]      Ibid.

[77]      See UNCITRAL Arbitration Rules (1976); UNCITRAL Arbitration Rules (2010).

[78]      See UNCITRAL Notes on Organizing Arbitral Proceedings, United Nations Commission on International Trade Law, 1996, para 1: www.uncitral.org/pdf/english/texts/arbitration/arb-notes/arb-notes-e.pdf [hereinafter ‘UNCITRAL Notes’].

[79]      Ibid, para 27.

[80]      See generally ‘About the SCC’, Arbitration Institute of the Stockholm Chamber of Commerce: www.sccinstitute.com/hem-3/om-oss-3.aspx.

[81]      See ‘A Strong Year’, Arbitration Institute of the Stockholm Chamber of Commerce: www.sccinstitute.com/hem-3/statistik-2.aspx.

[82]      SeeArbitrator’s Guidelines, Arbitration Institute of the Stockholm Chamber of Commerce, March 2010, 6: www.sccinstitute.com/filearchive/4/47229/SCC%20Arbitrator’s%20Guidelines%202014.pdf [hereinafter ‘SCC Guidelines’].

[83]      Ibid.

[84]      See generally ‘Purpose’,Nederlands Arbitrage Instituut: www.nai-nl.org/en/info.asp?id=314.

[85]      See ‘Summary Annual Report NAI 2013’, Nederlands Arbitrage Instituut: www.nai-nl.org/en/newsletter.asp?id=583.

[86]      SeeNAI Arbitration Rules (2010), Art 39.

[87]      See Bommel van der Bend, Marnix Leijten and Marc Ynzonides, A Guide to the NAI Arbitration Rules(Kluwer 2009)173–74 (‘The secretary to the arbitral tribunal carries out his or her tasks under the direction of the arbitral tribunal and will usually provide administrative and organizational assistance to the arbitral tribunal in relation to the arbitral proceedings. The NAI Rules do not define the role and responsibilities of the secretary and these may vary depending on the circumstances.’).

[88]      ‘Secretary’, Nederlands Arbitrage Instituut: www.nai-nl.org/en/info.asp?id=339.

[89]      SeeNAI Arbitration Rules (2010), Art 59(2).

[90]      See generally ‘Organisation’, Swiss Chambers’ Arbitration Institution: www.swissarbitration.org/sa/en/organisation.php.

[91]      See ‘Arbitration Statistics 2013’, Swiss Chambers’ Arbitration Institution, 1: www.swissarbitration.org/sa/download/statistics_2013.pdf (reporting that only 27 per cent of parties were from Switzerland).

[92]      See Swiss Rules of International Arbitration, Art 15(5).

[93]      Ibid.

[94]      See ‘Guidelines for Arbitrators’, Swiss Chambers’ Arbitration Institution, 1 June 2012, 1: www.swissarbitration.org/sa/download/guidelines_for_arbitrators_2012.pdf [hereinafter ‘Swiss Chambers Guidelines’].

[95]      Ibid.

[96]      Ibid.

[97]      See generally ‘Welcome to CRCICA’, The Cairo Regional Centre for International Commercial Arbitration: www.crcica.org.eg/.

[98]      See CRCICA Annual Report (2012–2013), The Cairo Regional Centre for International Commercial Arbitration, 5: www.crcica.org.eg/publication/annual/pdf/English/13/CRCICA_ANNUAL_REPORT_2012_2013.pdf.

[99]      See CRCICA Arbitration Rules, Art 40(1) (imposing a confidentiality requirement on ‘the arbitrators, the tribunal-appointed experts, the secretary of the arbitral tribunal and the Centre’) (emphasis added).

[100]   See generally The Nordic Arbitration Center, Iceland Chamber of Commerce: www.gamla.vi.is/english/service/legal-counsel-and-arbitration/the-nordic-arbitration-center/.

[101]   See Arbitration Rules of the Nordic Arbitration Centre of the Iceland Chamber of Commerce (2013), Art 21(3).

[102]   Ibid.

[103]   SeeUNCITRAL Arbitration Rules (2010), Art 7(1) (‘If the parties have not previously agreed on the number of arbitrators, and if within 30 days after the receipt by the respondent of the notice of arbitration the parties have not agreed that there shall be only one arbitrator, three arbitrators shall be appointed.’).

[104]   See ICC Arbitration Rules (2012), Art 12(2) (‘Where the parties have not agreed upon the number of arbitrators, the Court shall appoint a sole arbitrator, save where it appears to the Court that the dispute is such as to warrant the appointment of three arbitrators.’); LCIA Arbitration Rules, Art 5(4) (‘A sole arbitrator shall be appointed unless the parties have agreed in writing otherwise, or unless the LCIA Court determines that in view of all the circumstances of the case a three-member tribunal is appropriate.’).

[105]   See ICC Arbitration Rules (2012), Art 33 (‘Before signing any award, the arbitral tribunal shall submit it in draft form to the Court. The Court may lay down modifications as to the form of the award and, without affecting the arbitral tribunal’s liberty of decision, may also draw its attention to points of substance. No award shall be rendered by the arbitral tribunal until it has been approved by the Court as to its form.’).

[106]   SeeUNCITRAL Arbitration Rules (2010), Art 1(1) (‘Where parties have agreed that disputes between them in respect of a defined legal relationship, whether contractual or not, shall be referred to arbitration under the UNCITRAL Arbitration Rules, then such disputes shall be settled in accordance with these Rules subject to such modification as the parties may agree.’) (emphasis added).

[107]   See ICSID Convention, Arts 50–52 (interpretation, revision, and annulment of the award).

[108]   See Sonatrach, n12 above, para 46; see also Tercier, n6 above, 537 (‘The very essence of this function is that arbitrators – whom the parties have entrusted with this competence – must render their decisions personally. A violation of this principle could endanger the effectiveness of the award and lead to a refusal to recognise it.’).

[109]   See2012 ICCA Survey, n7 above.

[110]   Ibid.

[111]   See Young ICCA Guide on Arbitral Secretaries, International Council for Commercial Arbitration, The ICCA ReportsNo1, Annex D: www.arbitration-icca.org/media/0/14054083023530/aa_arbitral_sec_guide_composite_12_march_2014.pdf; see alsoibid, at Annex C [hereinafter ‘2013 ICCA Survey’]; 2012 ICCA Survey, n7 above.

[112]   See 2013 ICCA Survey, n111 above; see also 2012 ICCA Survey, n7 above (reporting that 55 per cent of respondents believe that a secretary should file a statement of independence).

[113]   See ICC Note, n25 above, s 1 (requiring a ‘declaration of independence and impartiality’); LCIA FAQs, n36 above (requiring the ‘usual conflicts check’); JAMS International Guidelines, n48 above (requiring ‘a separate conflicts disclosure form’); HKIAC Guidelines, n62 above, para 2.2 (requiring that a proposed secretary complete a declaration of availability, impartiality and independence); Swiss Rules of International Arbitration, Arts 9(2), 15(5) (requiring secretaries to disclose ‘any circumstances likely to give rise to justifiable doubts as to their impartiality or independence’); Arbitration Rules of the Nordic Arbitration Centre of the Iceland Chamber of Commerce (2013), Art 21(3) (‘The tribunal secretary is subject to the same disclosure as is required of arbitrators pursuant to Article 14 of these Rules and shall be and remain throughout the proceedings impartial and independent pursuant to Article 15 of these Rules.’).

[114]   See2012 W&C Survey, n9 above, 12.

[115]   See ICC Note, n25 above, s 2 (providing that a tribunal secretary may perform ‘organizational and administrative tasks’, including organising hearings and meetings); LCIA FAQs, n36 above (allowing ‘organising papers for the Tribunal[,]… keeping the Tribunal’s time sheets and so forth’); HKIAC Guidelines, n62 above, para 3.3 (‘Unless the arbitral tribunal directs otherwise, a tribunal secretary may perform organisational and administrative tasks including, but not limited to….’); UNCITRAL Notes, n78 above, para 27 (‘To the extent the tasks of the secretary are purely organization (eg, obtaining meeting rooms and coordinating secretarial services), this is usually not controversial.’).

[116]   See2013 ICCA Survey, n111 above; see also 2012 ICCA Survey, n7 above (reporting that 69 per cent of respondents believe that the secretary may perform legal research).

[117]   See ICC Note, n25 above, s 2 (providing that a tribunal secretary may ‘perform[] legal research’); LCIA FAQs, n36 above (allowing a tribunal secretary to ‘highlight[] relevant legal authorities [and] maintain[] factual chronologies’); HKIAC Guidelines, n62 above, para 3.4 (allowing the tribunal secretary to ‘conduct[] legal or similar research,’ ‘research[] discrete questions relating to factual evidence and witness testimony,’ and ‘locat[e] and assembl[e] relevant factual materials from the records as instructed by the arbitral tribunal’); FCC Guidelines, n74 above (‘The secretary may assist the arbitral tribunal in researching legal or technical matters as well as in obtaining background material.’); see alsoUNCITRAL Notes, n78 above, para 27 (‘Differences in view, however, may arise if the tasks include legal research and other professional assistance to the arbitral tribunal (eg, collecting case law or published commentaries on legal issues defined by the arbitral tribunal [or] preparing summaries from case law and publications . . .) . . . Such a role of the secretary is in the view of some commentators inappropriate or is appropriate only under certain conditions, such as that the parties agree thereto.’).

[118]   See s IV(E) (draft procedural orders and non-substantive portions of awards).

[119]   SeeTercier, n6 above, 547.

[120]   See2013 ICCA Survey, n111 above.

[121]   See ICSID Arbitration Rules, Art 15(2) (‘Only members of the Tribunal shall take part in its deliberations. No other person shall be admitted unless the Tribunal decides otherwise.’).

[122]   See Emmanuel Gaillard and John Savage, Fouchard Gaillard Goldman on International Commercial Arbitration(Kluwer 1999)s1374 (‘Although, again, most laws do not explicitly require deliberations in international arbitration to be secret, such secrecy is generally considered to be the rule.’); see also LCIA Arbitration Rules, Art 30.2 (‘The deliberations of the Arbitral Tribunal are likewise confidential to its members…’.); ICSID Arbitration Rules, Art 15 (‘The deliberations of the Tribunal shall take in private and remain secret. Only members of the Tribunal shall take part in its deliberations. No other person shall be admitted unless the Tribunal decides otherwise.’).

[123]   See2012 W&C Survey, n9 above, 12; see also2012 ICCA Survey, n7 above (reporting that only 17 per cent of respondents believe that the secretary may give his or her view on the matter to the tribunal).

[124]   See2012 W&C Survey, n9 above, 12.

[125]   See2013 ICCA Survey, n111 above; see also2012 ICCA Survey, n7 above (reporting that 60 per cent of respondents believe that the secretary may draft procedural orders and that 45 per cent believe that the secretary may draft parts of the award).

[126]   See2013 ICCA Survey, n111 above; see also 2012 ICCA Survey, n7 above (reporting that only 45 per cent of respondents believe that the secretary may draft parts of the award).

[127]   See ICC Note, n25 above, s 2 (‘Nor should the Arbitral Tribunal rely on the Administrative Secretary to perform any essential duties of an arbitrator.’); HKIAC Guidelines, n62 above, para 3.6 (prohibiting a tribunal secretary from ‘draft[ing] any substantive parts of [the tribunal’s] orders, decisions and awards’); FCC Guidelines, n74 above (‘The secretary does not participate in drafting of the arbitral award…’.); UNCITRAL Notes, n78 above, para 27; see also Compañía de Aguas, n19 above, para 7 (‘For the Secretariat also to draft part or all of the decisions and reasoning would appear wholly inappropriate, even if following basic instructions of Arbitrators or ad hoc Committee Members whist the final version would naturally still be left to them for approval. This would not appear to be sufficient to legitimize the text.’).

[128]   SeeICC Note, n25 above, s 2 (‘Under no circumstances may the Arbitral Tribunal delegate decision-making functions to an Administrative Secretary.’); LCIA FAQs, n36 above (‘The duties of the administrative secretary should n[ot]… constitute any delegation of the Tribunal’s authority.’); AAA Code of Ethics, n41 above, at Canon V(C) (prohibiting an arbitrator from ‘delegat[ing] the duty to decide to any other person’); JAMS International Guidelines, n48 above (‘At no time can a… Secretary engage in… decision-making on behalf of an arbitrator or tribunal.’); HKIAC Guidelines, n62 above, para 3.2 (‘The arbitral tribunal shall not delegate any decision-making functions to a tribunal secretary, or rely on a tribunal secretary to perform any essential duties of the tribunal.’); FCC Guidelines, n74 above (‘The secretary… has no independent decision-making power. The secretary may neither participate in deliberations of the arbitral tribunal nor in decision-making…. The secretary does not participate… in decision-making…’.); UNCITRAL Notes, n78 above, para 27 (‘[I]t is typically recognized that it is important to ensure that the secretary does not perform any decision-making function of the arbitral tribunal.’).

[129]   See 2012 ICCA Survey, n7 above.

[130]   See 2013 ICCA Survey, n111 above.

[131]   See ICC Note, n25 above, ss 3–4 (‘With the exception of the Administrative Secretary’s reasonable personal disbursements… the engagement of an Administrative Secretary should not pose any additional financial burden on the parties.’); FCC Guidelines, n74 above (‘The payment due to the secretary is part of the arbitral tribunal’s fee and it is included in the arbitral tribunal’s expenses.’); SCC Guidelines, n82 above, 6 (‘The fee of the secretary is borne by the arbitral tribunal… Any expenses that the secretary incurs are borne by the parties.’); Swiss Chambers Guidelines, n94 above, 1 (‘The administrative secretary’s fees form part of those of the arbitral tribunal… [T]he arbitral tribunal shall be careful to ensure that the appointment of an administrative secretary does not increase the overall fees payable by the parties. The administrative secretary’s reasonable expenses shall be reimbursed…’.); see also HKIAC Guidelines, n62 above, paras 4.3, 4.5 (‘Where the fees of the arbitral tribunal are determined based on the amount in dispute, fees of a tribunal secretary shall form part of the arbitral tribunal’s fees…. A tribunal secretary’s reasonable expenses shall be borne by the parties…’.).

 

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