A secretary to the arbitral tribunal or to the sole arbitrator (the “Secretary”) is most commonly a junior lawyer who works at the same law firm as the chair of the arbitral tribunal or the sole arbitrator. His or her role is 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.
As usage of Secretaries in capacities similar to those of legal clerks (i.e. preparation of draft orders upon instruction, handling organization issues, conduct of legal research, etc.) has become more common, their role in the decision-making process has raised many concerns. It has been claimed that a secretary may serve as a “fourth arbitrator”3 without any consent to be doing so by the parties. Potential conflicts of interests and unclear forms of remuneration have also raised significant concerns.
As described by the Young ICCA Guide on Arbitral Secretaries “[w]hen used properly, arbitral secretaries can support arbitral tribunals in performing their mandate with greater efficiency and effectiveness. However, when used improperly (e.g., without the consent or knowledge of the parties, or the appropriate supervision of the arbitral tribunal), the use of arbitral secretaries can undermine the legitimacy of the arbitral process. Ensuring that arbitral secretaries are used properly is an important step in encouraging the effective use of arbitral secretaries and protecting the integrity of the arbitral process.”4
III. Guidelines and rules of conduct
The Young ICCA Guide on Arbitral Secretaries was the first comprehensive document that aimed at taking a systematic approach to this issue. The Guide provides for the best practices for appointment and use of Secretaries.5 Pursuant to the Guide, inter alia, a Secretary may be appointed only with the knowledge and consent of the parties and that “[it] shall be the responsibility of each arbitrator not to delegate any part of his or her personal mandate to” the secretary.”6
The arbitral intuitions have also included respective provisions in their rules. The ICC Notes to Parties and Arbitral Tribunals on Conduct of Arbitration, updated in 2019, set forth in Section XIX detailed rules on the appointment, duties, disbursements and remuneration of Secretaries. The ICC Notes states that “[u]nder 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.” The LCIA Arbitration Rules in Article 14A foresee the possibility of appointing Secretaries with no possibility for the arbitral tribunal to delegate any decision-making function to the Secretary. Furthermore, Section 8 of LCIA Notes to Arbitrators includes guidelines as to a Secretary’s role, duties, remuneration, and the processes of approval by the parties and removal and replacement of a tribunal secretary. In the case of confidentiality, limitation of liability, removal or replacement, the LCIA Arbitration Rules apply mutatis mutandis to the secretary.7 Similarly the SCC (Article 24), the HKIAC (Article 13.4) and the SIAC rules include provisions pertaining to Secretary services.
Likewise, the Administrative and Financial Regulations of the ISCID Convention, foresee in Regulation 25 an opportunity for the Secretary-General to appoint a secretary to a tribunal or an ad hoc committee. The said provision sets out the scope of secretaries’ duties. Joining the arbitral tribunal’s deliberation has been explicitly excluded under Rule 15(2) of the ICSID Arbitration Rules. Under Regulation 25 a secretary’s role is slightly different as a candidate for a secretary may be drawn from among the Secretariat of the Centre staff and while serving in that capacity, be considered as a member of its staff. Furthermore, beside the secretary work, his or her role is to represent the Secretary-General and perform, within the frames of the delegation, all functions assigned to the latter by the Regulations, Rules or Conventions.
IV. The role of the Secretary as a ground for a set-aside of the arbitral award
The most common grounds boil down to interference with the arbitrator’s mandate and failure to fulfil his or her mandate personally because the Secretary played the crucial role in the decision-making process,10 or was entrusted with tasks beyond those permitted by the applicable rules and policies.11
The only successful challenge thus far pertained to the retention by an arbitral tribunal constituted of non-lawyers of a legal consultant, a lawyer, in order to assist the tribunal with law related matters. In the case Sacheri v. Robotto, the Italian Supreme Court handed down a judgment in 1989 in which the award was set aside as the arbitrators had violated their personal mandate by delegating their decision-making duty to a third party.12
The seminal case in this respect was Russia’s set aside request of the ECT arbitral award in the Yukos v. Russia case.13 One of the grounds for the set aside of the award was that the arbitrators did not personally fulfil their mandate. Russia’s main argument was based on juxtaposing the hours billed by the members of the tribunal, the Secretary and the assistant to the tribunal. Russia claimed that the assistant to the arbitral tribunal devoted between 40% to 70% more time to the arbitration than did any of the arbitrators. Therefore, he must have performed a substantive role in analysing the evidence and arguments, in deliberations and in preparing the Final Awards.14 Russia argued that a Secretary may only carry out administrative activities, which was not the case in the proceedings at hand and used as a point of reference the 1996 UNCITRAL Notes on Organizing Arbitral Proceedings, the ICC Note Concerning the Appointment of Administrative Secretaries15 and the Young ICCA Guide on Arbitral Secretaries The said award was not set aside on those grounds, however it raised a discussion of the Secretary’s role.16
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