The Arbitral Tribunal’s Administrative Secretary: Judicial Assistant or Fourth Arbitrator?
By Chioma Menankiti, first-year master’s student in Economic Law,
From Yukos v Russia to the Belgian Court of Cassation’s pending decision[1] on the drafting of an ICC award by an arbitral secretary, it is clear that the number of set aside appeals on the basis of the ‘improper use of secretaries’ is growing. Award annulment proceedings on this ground highlight that the line which separates the tribunal secretary’s role of a judicial assistant from that of a fourth arbitrator has become increasingly blurred. The proliferation of concerns regarding the secretary’s position has emphasized the importance of understanding the secretary’s role as well as the issues which result from their misuse.
The role of the secretary to the arbitral tribunal or the sole arbitrator was conceived to “assist the arbitral tribunal or the sole arbitrator in case management related issues in order to save the time spent on the case, which also leads to limiting costs.”[2] The secretary has also been described as “a player in the arbitral proceeding who is not a member of the arbitral tribunal, but who supports the latter at all stages.”[3]
Moreover, their responsibilities vary widely among jurisdictions with countries like Switzerland and the Netherlands assigning mainly administrative and logistical roles to the secretary as opposed to the more substantive roles assigned to them in Latin American countries. In the latter case, these ‘mandatory secretaries’ play the role of a certifying authority who “witness the proceedings and certifies the authenticity of all acts by the arbitrator.”[4] International institutions such as the ICC, UNCITRAL, LCIA and ICSID have taken a more administrative perspective to the secretary’s position and include secretarial tasks like organising hearings, summarizing proceedings, and drafting correspondence.
Due to the relevant roles played by arbitral secretaries, their involvement in arbitration proceedings have been regarded as beneficial in increasing efficiency and reducing costs,[5] while enhancing the quality of arbitration proceedings.[6] As a result, a survey conducted by Queen Mary University and White & Case reveals that tribunal secretaries are used in 35% of arbitrations.[7]
Despite the advantages accompanied by secretaries involvement in arbitration proceedings, concerns have arisen concerning their sometimes “excessive” role.[8] Constantine Partasides, one of the early scholars to document these concerns, likened the position of the administrative secretary as one of a “fourth arbitrator.”[9] Even the UNCITRAL Notes on Organizing Arbitral Proceedings highlights that controversies arise where “a task of the secretary is similar to professional functions of the arbitrators.”[10] The questions asked in several cases have included: Should tribunal secretaries be involved in drafting procedural orders and parts of the awards? Should the arbitrators discuss the merits of the dispute with their secretaries and should the latter participate in deliberations?[11] The cases summarized below show the different ways these questions have appeared in arbitration proceedings.
One early challenge to an award which was partly based on the functions of the tribunal secretary was in the case of Compagnie Honeywell Bull SA v. Computación Bull de Venezuela CA. In the case, Honeywell, the appellant argued for an award rendered by the International Chamber of Commerce (ICC) to be set aside on the basis that “the tribunal secretary had ‘interfered’ during the two-day hearing on the dispute.”[12] Although the Paris Court of Appeal rejected this argument due to Honeywell’s failure to explain how the secretary interfered in the proceedings, the case remains one of the first known avenues where a party challenged an award employing the secretary’s actions as one of its arguments.
Another case was in the appeal to set aside an award rendered by an ICC arbitration between Sonatrach, the Algerian state oil company, and Statoil, a subsidiary of Norwegian oil company Statoil ASA. In a bid to annul the award, Sonatrach argued that the tribunal secretary had exceeded the scope of her duty thus permitting the appellant to challenge the award under Section 68 of the English Arbitration Act of 1996 which allows a party to challenge awards in the ground of “serious irregularity affecting the tribunal, the proceedings or the award.” [13] Sonatrach defended its challenge, inter alia, on the ground that “the tribunal improperly delegated its authority to the tribunal secretary and impermissibly allowed her to participate in its deliberations.”[14] This was supported by evidence that the secretary produced notes on substantive matters for the tribunal. The judge dismissed the argument stating that the allegations were without merit[15]
A popular case where the argument that the tribunal’s secretary acted as a fourth arbitrator is in the Yukos appeal to the Court of Appeal of The Hague to set aside the award rendered during its arbitration proceedings against Russia. On this subject, Russia argued that i) the arbitral tribunal failed to comply with its mandate by delegating the arbitrator’s personal adjudicative tasks to the secretary, and ii) the arbitral tribunal was improperly constituted as the awards which were supposed to be rendered by three arbitrators, were rendered by four arbitrators, with the fourth being the non-appointed secretary. To support their argument, Russia showed that the tribunal’s assistant, Mr. Valasek, had billed 2,625 hours in the second phase of the proceedings while the arbitrators averaged 1,661 hours each and argued that such a disproportionate amount of time must have been spent working on the substantive parts of the proceedings.[16] Moreover, the tribunal did not obtain the parties’ permission before appointing Mr Valasek as the tribunal secretary and did not inform the parties of the nature and extent of the work. The court concluded in this case that “Russia had failed to establish that the secretary had participated in the actual decision-making process or that the Tribunal had delegated any portion of such decision-making process to the secretary”[17] and thus rejected both arguments raised by the appellant. Despite the failure of the argument to hold weight in court, the case demonstrates that the secretary’s improper use can be a threat to the enforcement of an arbitral award.
One case where a third-party’s involvement successfully led to the annulment of the award is in Sacheri v Robotto. The arbitral tribunal which, in this case, was constituted of non-lawyers, hired a lawyer as a legal consultant to “assist the tribunal with law related matters,”[18] one of which included, drafting the award.[19] The Italian Supreme Court acknowledged that the arbitrators had adjudicated their mandate in this case: “due to the arbitrators’ professed incapacity to decide issues other than technical construction problems, it amounted to delegating a third person to formulate the final decision, which the arbitrators were not able to conceive and which they could not critically examine once it had been drafted.”[20] This decision confirmed that the task of legal decision making is an important responsibility of the arbitrators and cannot be delegated to a third party. Although in Sacheri v. Robotto, the lawyer hired to draft the award was not a secretary to the tribunal, the issue of arbitrators delegating their personal, adjudicative tasks to a non-member of the tribunal is echoed in the controversy on the role of tribunal secretaries.
A challenge to the improper delegation of arbitrator’s responsibilities to the tribunal secretary is not restricted to appeals to set-aside awards. In P v. Q, the claimant applied for the co-arbitrators appointed by the London Court of International Arbitration (LCIA) to be removed from the tribunal. This complaint was provoked by an e-mail unintentionally sent by the chairperson of the tribunal to the claimant’s lawyers where the former “had asked for the secretary’s views about the claimant’s compliance with a document production order.”[21] The claimant argued that by allowing the secretary to have a say on the matter, the arbitrators were delegating their adjudicative tasks to the secretary. Just as in the Yukos case, time records of the arbitrators and the secretary were used to support the claimant’s argument. The LCIA court dismissed the claimant’s argument and Justice Popplewell cited that “an arbitrator who receives the views of a tribunal secretary does not thereby necessarily lose the ability to exercise full and independent judgment on the issue in question.”[22]
The above cases present different scenarios where the improper delegation of the arbitrator’s tasks to the secretary has triggered objections to arbitration proceedings and served as a basis for challenging awards. However, the importance of this topic lies in the legal issues associated with this growing improper practice and in particular, the violation of major principles of the arbitration practice.
One key distinguishing feature for which parties choose arbitration as a method to resolve their disputes is the parties’ freedom to choose the arbitrators or decision-makers for their case. This right, contained in many guiding legal rules on international arbitration, is important as “the selection of the ‘right’ arbitrator for one’s case is a key element to a successful outcome.”[23] As a cardinal feature of international arbitration, this principle must be safeguarded in all arbitration proceedings. However, the use of the tribunal secretary poses a threat to the parties’ rights to choose their decision-makers as the secretary assumes the position of a fourth arbitrator which the parties have not agreed to and did not choose to make final decisions on the case. This is one reason for which several challenges to awards rendered regarding the improper use of the secretary argue on the bases of an improper constitution of the arbitral tribunal.
Another direct consequence of abusing the role of the secretary to the arbitral tribunal concerns the the competence and expertise for which arbitrators are chosen by the parties. Gary Born outlines that the freedom of parties to choose their arbitrators “is intended to enable the parties – who have the most intimate knowledge of their disagreements and the greatest incentive to choose a capable tribunal – to select arbitrators with the best experience, abilities and availability for their dispute.”[24] Indeed, the commercial competence and expertise which most arbitrators possess is one of the major advantages which arbitration has over domestic litigation. Therefore, the delegation of decision-making tasks to the secretary poses a problem as the secretaries are often younger, less experienced lawyers who do not possess the expertise of the appointed arbitrators. This improper delegation of tasks can consequently jeopardize the just adjudication of the case.
Additionally, as is the case in dispute resolution mechanisms such as litigation, the arbitrators are expected to be independence and impartial. The arbitrator’s state of mind has been described as impartial[25] and the use of impartial adjudicative procedures is a defining characteristic of arbitration.[26] In this regard, the performance of decision-making functions and substantive tasks by the secretary threatens the impartiality of the arbitrators as it can be argued that the former’s improper involvement in this process indicates the presence of external influence on the adjudication of the case.
In order to avoid these risks posed by the improper use of tribunal secretaries in arbitration proceedings, institutions such as the ICC, LCIA and UNCITRAL have included guidelines in their rules to prevent the overstepping of secretaries’ boundaries. One measure adopted by the ICC and the Young ICCA Guide on Arbitral Secretaries requires the tribunal to acquire the parties’ consent before appointing an administrative secretary for the case.[27] The LCIA goes a step further to ensure that the parties also agree on the tasks to be carried out by the secretary.[28]
Another step taken in setting limits to the roles played by the secretary to the administrative tribunal is by ensuring that the secretary is independent and impartial. While the ICC sets independence and impartiality requirements for the secretaries to abide by,[29] both the LCIA[30] and UNCITRAL impose a duty for secretaries to disclose circumstances which may generate doubts as to their impartiality and independence.[31]
Finally, as issues with the improper use of the arbitral secretary mainly arise due to the arbitrators’ delegation of adjudicative or substantive tasks to the secretary, many rules on the conduct of international arbitration have codified the arbitrator’s responsibility to not delegate decision-making tasks to the secretary. Furthermore, the ICC Note on the Conduct of Arbitration mentions that tasks entrusted to an administrative secretary, such as the preparation of written notes or memoranda, will not release the arbitral tribunal from its duty to personally review the file and/or draft itself any arbitral tribunal’s decision.[32] This requirement places on the arbitrator, the responsibility of ensuring that the secretary to the tribunal is employed properly in a way which does not menace the integrity of the proceedings.
The guidelines offered by institutional rules have been useful in providing parameters for tribunals to use when administrative secretaries are appointed to cases. However, some questions remain unanswered including whether the drafting of an award by secretary is a delegation of the tribunal’s decision-making powers, a question which the Belgian Court of Cassation is currently reviewing. Such decisions provide some much needed clarity regarding a role which has quickly become enveloped in controversy. As this trend continues to appear in set-aside proceedings, more jurisdictions will have to answer the burning question of where to draw the line separating a tribunal secretary from becoming a fourth arbitrator.
[1] Sanderson, C. (2022). Belgian Supreme Court to Rule on Tribunal Secretaries. Global Arbitration Review
https://globalarbitrationreview.com/belgian-supreme-court-rule-tribunal-secretaries
[2] Tujakowska A. & Duggal K. (2021). Secretary of the Tribunal. Jus Mundi.
https://jusmundi.com/en/document/wiki/en-secretary-of-the-tribunal
[3] Makhlouf, A. (2020). How to understand the role of the tribunal secretary. CIArb’s The Resolver Magazine, 2020(3), 10-10.
[4] Jensen, J. O. (2020). Secretaries to Arbitral Tribunals: Judicial Assistants Rooted in Party Autonomy. In IJCA (Vol. 11, p. 1).
[5] Andersson, S. (2015). A Fourth Arbitrator or an Administrative Secretary?: A Study on the Appointment and Authority of Arbitral Secretaries in Swedish Arbitral Proceedings.
[6] Makhlouf, A. (2020). How to understand the role of the tribunal secretary. CIArb’s The Resolver Magazine, 2020(3), 10-10.
[7] Friedland, P., & Brekoulakis, S. 2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process’(2013). Const L Intl, 8, 39. Pg 12
[8] Partasides, C. (2014). The Fourth Arbitrator? The role of secretaries to tribunals in international arbitration. Arbitration International, 18(2), 147-163.
[9] Partasides, C. (2014). The Fourth Arbitrator? The role of secretaries to tribunals in international arbitration. Arbitration International, 18(2), 147-163.
[10] United Nations Commission on International Trade Law. (2012). Notes on Organizing Arbitral Proceedings. Pg 12
[11] Jones, D. Ethical Implications of Using Paralegals and Tribunal Secretaries. Pg 251
https://www.wgtn.ac.nz/__data/assets/pdf_file/0004/920119/Jones.pdf
[12] Carswell С, W. I. L. (2019). Awards: Challenges based on misuse of tribunal secretaries. The Guide to Challenging and Enforcing Arbitration Awards. JW Rowley JW, Gaillard E., Kaiser GE, Global Arbitration Review, 60-73.
[13] Arbitration Act 1996 (of England)
https://www.legislation.gov.uk/ukpga/1996/23/section/68
[14] Carswell С, W. I. L. (2019). Awards: Challenges based on misuse of tribunal secretaries. The Guide to Challenging and Enforcing Arbitration Awards. JW Rowley JW, Gaillard E., Kaiser GE, Global Arbitration Review, 60-73.
[15] Herbert Smith Freehills. (2014). Sonatrach v Statoil: backdoor attempt to challenge the tribunal’s findings of fact receives short shrift from the English Court
[16] Puertas, O. & Álvarez B. The Yukos Appeal Decision on the Role of Arbitral Tribunal’s Secretaries
https://www.ibanet.org/article/B55CB7F1-01C6-4BDF-9383-90F567C17147
[17] Ibid.
[18] Tujakowska A. & Duggal K. (2021). Secretary of the Tribunal. Jus Mundi.
https://jusmundi.com/en/document/wiki/en-secretary-of-the-tribunal
[19] Galagan, D., & Živković, P. (2015). The Challenge of the Yukos Award: an Award Written by Someone Else–a Violation of the Tribunal’s Mandate.
[20] Ibid.
[21] Ashurst. (2017). Tribunal secretaries- back in the limelight.
[22] Ibid.
[23] Jensen, J. O. (2020). Secretaries to Arbitral Tribunals: Judicial Assistants Rooted in Party Autonomy. In IJCA (Vol. 11, p. 1).
[24] Born, G. B. (2021). International arbitration: law and practice. Chapter 1: Introduction to International Arbitration. Kluwer Law International BV. Pg 6
[25] Jung, H. (2008). The Standard of Independence and Impartiality for Arbitrators in International Arbitration: A Comparative Study Between the Standards of the SCC, the ICC, the LCIA and the AAA. Uppsala University Faculty of Law
[26] Born, G. B. (2021). International arbitration: law and practice. Chapter 1: Introduction to International Arbitration. Kluwer Law International BV. Pg 2
[27] International Council for Commercial Arbitration. (2014). Young International Council for Commercial Arbitration (ICCA) Guide on Arbitral Secretaries. Pg 5
[28] London Court of International Arbitration. LCIA Arbitration Rules
https://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules-2020.aspx#Article%2014A
[29] International Chamber of Commerce. (2021). Note to parties and Arbitral Tribunals on the Conduct of the Arbitration. Pg 30
[30] London Court of International Arbitration. LCIA Arbitration Rules
[31] United Nations Commission on International Trade Law. (2012). Notes on Organizing Arbitral Proceedings
[32] International Chamber of Commerce. (2021). Note to parties and Arbitral Tribunals on the Conduct of the Arbitration. Pg 30
Bibliography:
- Sanderson, C. (2022). Belgian Supreme Court to Rule on Tribunal Secretaries. Global Arbitration Review
https://globalarbitrationreview.com/belgian-supreme-court-rule-tribunal-secretaries
- Tujakowska A. & Duggal K. (2021). Secretary of the Tribunal. Jus Mundi.
https://jusmundi.com/en/document/wiki/en-secretary-of-the-tribunal
- Makhlouf, A. (2020). How to understand the role of the tribunal secretary. CIArb’s The Resolver Magazine, 2020(3), 10-10.
- Jensen, J. O. (2020). Secretaries to Arbitral Tribunals: Judicial Assistants Rooted in Party Autonomy. In IJCA (Vol. 11, p. 1).
- Andersson, S. (2015). A Fourth Arbitrator or an Administrative Secretary?: A Study on the Appointment and Authority of Arbitral Secretaries in Swedish Arbitral Proceedings.
- Friedland, P., & Brekoulakis, S. 2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process’(2013). Const L Intl, 8, 39.
- Partasides, C. (2014). The Fourth Arbitrator? The role of secretaries to tribunals in international arbitration. Arbitration International, 18(2), 147-163.
- United Nations Commission on International Trade Law. (2012). Notes on Organizing Arbitral Proceedings.
- Jones, D. Ethical Implications of Using Paralegals and Tribunal Secretaries.
https://www.wgtn.ac.nz/__data/assets/pdf_file/0004/920119/Jones.pdf
- Carswell С, W. I. L. (2019). Awards: Challenges based on misuse of tribunal secretaries. The Guide to Challenging and Enforcing Arbitration Awards. JW Rowley JW, Gaillard E., Kaiser GE, Global Arbitration Review, 60-73.
- Arbitration Act 1996 (of England)
https://www.legislation.gov.uk/ukpga/1996/23/section/68
- Herbert Smith Freehills. (2014). Sonatrach v Statoil: backdoor attempt to challenge the tribunal’s findings of fact receives short shrift from the English Court
- Puertas, O. & Álvarez B. The Yukos Appeal Decision on the Role of Arbitral Tribunal’s Secretaries
https://www.ibanet.org/article/B55CB7F1-01C6-4BDF-9383-90F567C17147
- Galagan, D., & Živković, P. (2015). The Challenge of the Yukos Award: an Award Written by Someone Else–a Violation of the Tribunal’s Mandate.
- (2017). Tribunal secretaries- back in the limelight
- Born, G. B. (2021). International arbitration: law and practice. Chapter 1: Introduction to International Arbitration. Kluwer Law International BV.
- Jung, H. (2008). The Standard of Independence and Impartiality for Arbitrators in International Arbitration: A Comparative Study Between the Standards of the SCC, the ICC, the LCIA and the AAA. Uppsala University Faculty of Law
- International Council for Commercial Arbitration. (2014). Young International Council for Commercial Arbitration (ICCA) Guide on Arbitral Secretaries.
- London Court of International Arbitration. LCIA Arbitration Rules
https://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules-2020.aspx#Article%2014A
- International Chamber of Commerce. (2021). Note to parties and Arbitral Tribunals on the Conduct of the Arbitration.
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