Reconciling the role of tribunal secretaries in international arbitration
Oblin Rechtsanwälte GmbH, Vienna
Given the factual and technical complexity of contemporary international arbitrations, the procedural organization of hearings is both a demanding and highly time-consuming process.
Seeking to facilitate the conduct of arbitral proceedings, tribunals have increasingly resorted to the assistance of ‘tribunal’ or ‘administrative’ secretaries (“Secretaries”). Although reliance on Secretary support is not novel, their engagement in arbitrations has sparked considerable debate over the potential for misuse. Given the ambiguity surrounding the scope of responsibilities that may be assumed by and delegated to Secretaries, their role has been deemed a ‘grey area’. Central to these concerns is the fact that ‘arbitrators are chosen intuitu personae for their expertise pertaining to the case at issue’, while Secretaries may not be.
In light of the continuous efforts of arbitral institutions to codify best practices and recent revisions to existing guidance notes, this article purports to identify key challenges that Secretary appointments pose and approaches that may be adopted to mitigate them. Using Austria as an example, this article posits that qualified specialist Secretaries can offer significant benefit to tribunals. While acknowledging the obstacles that a Secretary appointment may entail, the following provides suggestions for overcoming such hurdles.
The article will firstly contextualise debates surrounding the role of Secretaries and allegations of potential misuse. It will also set out current guidelines regulating the use of Secretaries. This study will conclude with proposed ways in which Secretarial assistance can be utilised in a manner that is both responsible and compliant with an arbitrators mandate.
Secretaries are active arbitration participants who, albeit not forming part of a tribunal, assist the latter throughout the proceedings with administrative tasks. Secretaries typically possess a legal education and may be junior lawyers, or could, as is the case in investor-state arbitrations, be secretariat members of an administering institution.
Secretary appointments are not typically subject to time restrictions. The “identify, qualifications, expertise and mission” of a Secretary candidate is usually disclosed by the tribunal in order to obtain party approval. This is of particular significance, as it allows any party to raise objections to such a Secretarial appointment.
Responsibilities of Secretaries generally concern offering administrative assistance to tribunals by providing logistical support and undertaking procedural case management functions. At the tribunal’s explicit direction other duties may involve ‘drafting parts of an award, organising procedural meetings and evidentiary hearings, [or] attending the tribunal’s deliberations.’ As a matter of good conduct and if not required by institutional rules, a Secretary will usually provide a statement of impartiality and independence prior to their appointment. The wording used will usually be the same as that used prior to the appointment of the members of the tribunal, thereby ensuring that both the tribunal and any Secretary appointed are subject to the same standards.
Civil and common law traditions and guidelines of international arbitral institutions
Over the years, national laws of some jurisdictions, such as Switzerland, have introduced provisions for the appointment of Secretaries subject to prior party approval. In Austria, the role of Secretaries has been compared to that of judicial clerks, to whom state court judges ‘routinely delegated the production of the first draft of a judgment’. However, various commentators have opposed such responsibility being carried out by Secretaries.
Seeking to harmonize these diverging approaches, UNCITRAL introduced its non-binding Notes on Organizing Arbitral Proceedings in 1996. This provided practitioners with guidance on procedural issues pertaining to Secretaries, including the range of tasks and functions that may be performed. Responsibilities could hereby extend to offering organizational support or carrying out substantive tasks such as legal research, excluding however, participation in the decision-making process of arbitral tribunals. A further crucial codification attempt was made by the International Chamber of Commerce (“ICC”) in 1995. This was further developed in a 2017 Note, which offered clearer recommendations on matters of appointment and remuneration and limiting the scope of duties to be exercised by Secretaries. Several international arbitration institutions have released or recently updated their non-binding written guidelines on this issue:
London Court of International Arbitration
- Provisions on the role (section 8.1), proposed use (section 8.2), approval (section 8.3) as well as removal or replacement (section 8.4) of Secretaries have been outlined in the 2017 LCIA Notes for Arbitrators and have largely been incorporated into section 14A of the DIFC-LCIA 2021 Rules;
- These Rules:
- Expressly prohibit the delegation of tribunal decision-making powers (Art 14.8);
- Require party approval on issues relating to appointment, assignment of tasks and hourly rates charged (Art 14.10);
- Establish that Secretaries have a continuing duty to disclose conflicts of interest (Art 14.9, 14.14); and
- Provide that party approval is deemed to have been given if no objections have been raised by the parties within a reasonable time (Art 14.12).
- Section XX of the 2021 ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration sets out guidance regarding the appointment, duties and remuneration of Secretaries;
- The non-exhaustive list of organisational and administrative tasks that may be performed by Secretaries includes, inter alia, ‘review[ing] drafts of procedural orders as well as factual portions of an award’, ‘proof-reading and checking citations, dates and cross-references in procedural orders and awards’ (para 224);
- Tribunals are prohibited from delegating any decision-making or essential arbitrator duties (para 223).
Vienna International Arbitral Centre
- Section I.6 of the VIAC Guidelines for Arbitrators requires tribunals to inform parties of their intention to appoint a Secretary, the nominee’s name and contact information as well as procedural costs;
- Parties must be offered an opportunity to comment;
- Proposed Secretaries are required to submit a CV and impartiality declaration;
- Tasks may be transferred, except for those genuinely reserved to the tribunal (i.e. decision-making powers).
The increasing number of arbitral institutions that have implemented rules, guidelines or notes on the role of arbitral Secretaries is indicative of the growing interest in the benefits that their appointment offers. It is also reflective of the perceived need to provide further certainty as to their precise responsibilities in order to ensure that tribunal members retain exclusive decision-making capabilities.
The advantages and disadvantages of engaging a Secretary
The appointment of Secretaries has, in recent years, been exposed to increased scrutiny by scholars and the arbitral community alike. It is commonly feared ‘that Tribunals may permit the administrative role of legal assistants to become unsupervised, or, even worse, to morph into that of a delegated decision maker, a Fourth Arbitrator’.
Advocates arguing in favour of broader Secretary responsibility contend that a Secretary appointment can streamline arbitration proceedings while enabling tribunals to render awards expeditiously through focused assessment of the merits of the case. By contrast, it is feared that the use of Secretaries could infringe upon the intuiti personae selection of arbitrators and thus undermine the legitimacy of any delegation by the tribunal. Furthermore, there may be a risk that any award drafts composed or research undertaken could bear the Secretary’s perspective and thus unduly influence the assessment of arbitrators. Frequent exchanges between tribunal and Secretary have also been identified as a factor that could detrimentally impact the speed and cost of proceedings. The lack of clearly defined standards on remuneration as well as what constitutes conflicts of interest could also be perceived as problematic.
The arbitrator-party relationship
While the principle of party autonomy forms the root of arbitration as a dispute resolution method, the appointment of a Secretary remains a decisive issue. The criticisms voiced are often directed at the ‘procedural ambiguity [and] perceived lack of transparency […] threaten[ing] to undermine the legitimacy of international arbitration' and subverting the arbitrator’s mandate.
The following will assess concerns relating firstly, to the parties’ discretionary right in selecting their arbitrators and secondly, the tension between the trust placed in them and the concept of arbitrator impartiality particularly regarding the nomination of Secretaries.
The freedom to choose one’s arbitrator is a cardinal feature of international arbitration and enjoys protection by legislators and state courts alike. It is based on a contractual relationship, which ‘gives rise to reciprocal rights and obligations on the part of both the arbitrator(s) and the parties’. Some parties may perceive the success of their arbitration as fundamentally turning upon appointment of an acceptable tribunal. Professional reputation and parties’ experiences hereby constitute the driving forces of the selection process. Apart from the time and effort invested, it is the personal choice from which a relationship of trust and confidence between parties and arbitrator is established. It implies that arbitrators are expected to personally discharge their duties, Thus arguably prohibiting the ‘delegation of the arbitrator’s contractual mandate’.
The arbitrator’s personal mandate
As service providers, arbitrators carry out a ‘“quasi-judicial” function as foreseen in the applicable arbitration law (lex arbitri)’ that vests in them adjudicatory powers and yet causes their role to be defined by the contractual terms set by the parties (receptum arbitri). Hence, there is both a judicial and contractual dimension to the arbitrator’s mandate.
The eminently personal core of the arbitrator choice and the ability to foresee, at least to some degree, what such a selection entails, extends not only to the arbitrator’s final assessment, ‘but also the conduct of the arbitral proceedings leading up to that decision’. A delegation of duties, would arguably circumvent party expectations since ‘the concrete form of the product [parties] receive, i.e. the arbitral award, is decisively influenced by the procedure leading to its making’.
From a contractual perspective, it is the appointment that sets the transferral of responsibility from party to arbitrator into motion. According to the legal maxim of delegatus non potest delegare, which has been incorporated into the contract laws of most jurisdictions, duties assigned for the benefit of another cannot be delegated unless expressly authorised. This is because ‘the principle has no way of ascertaining the third person’s suitability to carry out the contractual mandate’. Failing to ensure that the participation of Secretaries is guided by this principle or proposing it only finds application in relation to the arbitrator’s substantive decision, falls short of acknowledging the intricate, multi-layered reasons that inform the parties’ selection of an arbitrator in the first place.
Mindful of the concerns raised thus far, the following focuses on three prevalent criticisms and seeks to suggest ways in which a specific type of Secretarial appointment – that of the ‘technical Secretary’ - could address them.
Making the case for technical secretaries - Austria
Notwithstanding the aforesaid, the use of highly-qualified, specialist Secretaries permits subject-specific assistance to be offered at the outset of technically complex arbitration proceedings. For instance, a technical Secretary’s role could include (a) explaining theoretical details, (b) identifying divergences in expert opinions or (c) advising arbitrators on the conclusiveness of submitted material. As such, expert reports could be shortened and arbitration proceedings significantly streamlined without compromising the tribunal’s accountability and the confidentiality of its decision-making process.
Under the Austrian Code of Civil Procedure, arbitral tribunals have the authority, unless otherwise agreed by the parties, to appoint experts and request the submission of reports. To this end, they may also order parties to grant experts access to any documents or objects that may be relevant for compiling said report. While nominating a Secretary may arguably reach ‘beyond the appointment for the submission of expert reports,’ the tribunal’s competence must be viewed in relation to the corresponding capacity of Austrian judges. In the absence of explicit provisions to the contrary, tribunals should be permitted to avail themselves of the same ‘consultancy’ rights that would be available in domestic court proceedings.
Opportunity to present case
Parties have repeatedly challenged Secretary appointments by alleging that their inability to weigh in or comment on the advice given by a Secretary, infringes their right to be heard. It is not uncommon for domestic court systems to call upon the expertise of legal assistants to enhance the tribunal’s proficiency and technical understanding while avoiding the excessive costs otherwise involved by the production of expert reports. The party’s right to be heard is not violated by seeking Secretary advice. Rather their role may facilitate the tribunal’s task of determining substantive issues while also protecting the award’s integrity by reviewing it against the parties’ submissions and evidence presented, thus drawing attention to details that may have otherwise been overseen.
Since the use of Secretaries may not deter parties from choosing their own experts, additional costs may accrue. Moreover, the search and appointment process could lead to a slowing down of proceedings. Seeking Secretary assistance could allow for the time spent on administrative tasks to be minimised and potential battles between party-appointed experts to be reduced or even avoided. A more expeditious delivery of an award would similarly contribute to and optimise the overall procedural efficiency.
In light of the uncertainty over the duties and responsibilities that may be appropriately entrusted to Secretaries, attempts have been made to establish a widely-acceptable framework on their role, particularly regarding arbitral awards.
In order to ensure the involvement of Secretaries in international arbitration can be sustained without violating the integrity and principles that define these procedures, arbitrations must be guided by the primacy of party autonomy. Taking account of their preferences and/or expectations prior to making appointment decisions, also includes providing parties with essential information on the Secretary’s identity and role. Since arbitral deliberations should be maintained as confidential, it is pivotal that parties can trust the arbitrator’s professionalism and transparency at the very outset of the proceedings, prior to the Secretary being nominated or the final award being rendered.
The role of Secretaries, although often compared to that of judicial assistants, differs fundamentally from that of the latter. Distinguishing them, is the very foundation upon which their assistance rests; namely the flexible procedures available in international arbitration, ‘tailored to the parties’ specific agreements and needs.’ This article has sought to demonstrate that the assistance of Secretaries does not ultimately infringe upon the arbitrator’s mandate, but rather that its use must be informed by a greater degree of party autonomy. It is thus indispensable that the appointment process is based on transparency and party consent as well as trust in the integrity of arbitrators.
Wyss, L.; Babey, A. (2020) ‘The role of secretaries in international commercial arbitration – what is the actual status under Swiss law?’ Bratschi Blog. Available at: https://www.bratschi.ch/de/uebersicht/detail/bratschi-arbitration-blog-the-role-of-secretaries-in-international-commercial-arbitration-what-is.html [accessed: 15.02.2021].
Dr Makhloud, A. (2020) ‘Insight: Understand the role of the tribunal secretary.’ The Resolver: The quarterly Magazine of The Chartered Institute of Arbitrators. 2020(3), p.10.
Jensen, J.O. (2020) ‘Secretaries to Arbitral Tribunals: Judicial Assistants Rooted in Party Autonomy.’ International Journal for Court Administration 7. 11(3), p.3.
Makhloud, supra note 3, p.10.
Jensen, supra note 4, p.3.
Makhloud, supra note 3, p.10.
See Article 15 of the Swiss Concordat of 27 March 1969 on Arbitration (replaced by the Swiss Private International Law Act of 18 December 1987);
Dasser, F.; O.I. Emmanuel (2019) ‘Chapter III: The Award and the Courts, Efficient Drafting of the Arbitral Award: Traditional Ways Revisited – Lesson Learned from the Past?', in Klausegger, C.; Klein, P., et al. (eds), Austrian Yearbook on International Arbitration 2019, p.300.
Ibid., pp.300-301; Lloyd, H. (1994) Writing Awards – A Common Lawyer's Perspective, ICC Bull. 38, p.39.
Ibid., p.301; UNCITRAL Notes on Organizing Arbitral Proceedings (1996). Available at: https://uncitral.un.org/en/texts/arbitration/explanatorytexts/organizing_arbitral_proceedings [accessed: 16.02.2021].
Dasser, supra note 11, p.301; Secretariat of the ICC Court (1995) ‘Note Concerning the Appointment of Administrative Secretaries by Arbitral Tribunals.’ 6 ICC Int’l Ct. Arb Bull.
Ibid., p.301; ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration Under the ICC Rules of Arbitration (2018). Available at: https://iccwbo.org/publication/note-partiesarbitral- tribunals-conduct-arbitration/ [accessed: 28.02.2021].
LCIA, ‘LCIA implements changes to tribunal secretary processes’, 27 October 2017. Available at: www.lcia.org/News/lcia-implements-changes-to-tribunal-secretary-processes.aspx [accessed: 14.02.2021]. List of tasks at para 71; express party consent requirement via ‘LCIA implements changes to tribunal secretary processes’, 27 October 2017, www.lcia.org/News/ lcia-implements-changes-to-tribunal-secretary-processes.aspx [accessed: 17.02.2021].
DIFC-LCIA Arbitration Rules 2021. Available at: http://www.difc-lcia.org/arbitration-rules-2021.aspx [accessed 23.02.2021].
The 2021 ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration. Available at: https://iccwbo.org/content/uploads/sites/3/2020/12/icc-note-to-parties-and-arbitral-tribunals-on-the-conduct-of-arbitration-english-2021.pdf [accessed: 18.02.2021].
The Vienna Guideline for Arbitrators (2019), Available via: https://www.viac.eu/images/documents/Guideline_for_Arbitrators_2019.pdf [accessed 28.02.2021].
Williams, A. (2017) ‘Tribunal Secretaries: The LCIA seek to rein in the “Fourth Arbitrator.”’ HFW. Available at: https://www.hfw.com/Tribunal-Secretaries-the-LCIA-seek-to-rein-in-the-Fourth-Arbitrator-November-2017 [accessed 01.03.2021], p.1.
Polkinghorne, M.; Rosenberg, C. B. (2014) ‘The Role of the Tribunal Secretary in International Arbitration: A Call for a Uniform Standard.’ Dispute Resolution International. 8(2), p.109.
Wyss; Babey, ,em>supra note 1.
Carswell, C.; Winnington-Ingram, L. (2019) ‘Awards: Challenges based on misuse of tribunal secretaries’, in Rowley QC, J.W. The Guide to Challenging and Enforcing Arbitration Awards. Global Arbitration Review Edition 1, p.60.
Jensen, J. O. (2020) ‘Secretaries to Arbitral Tribunals: Judicial Assistants Rooted in Party Autonomy.’ International Journal for Court Administration 7. 11(3). Available at: https://www.iacajournal.org/articles/10.36745/ijca.356/ [accessed 03.03.2021], pp.6-7
Carswell; Winnington-Ingram, supra note 26, pp.66-67.
Jensen, supra note 27, pp.11-12.
Dr. Reiser, L.; Hüttmann, K. (2020) ‘A Daring Idea – Introducing a Technical Secretary to International Arbitration.’ SchiedsVZ 2020 Heft 5, p.216.