Tribunal secretaries, also commonly referred to as administrative secretaries or arbitral secretaries, are a regularly debated topic in arbitration. Indeed, although they are supposed to help the tribunal in the conduct of the arbitration, the issue of the extent of their role and their consequences on the integrity of the arbitral process are often raised to express a need to limit the danger resulting from their misuse: secretaries are not a “fourth” arbitrator.
In this context, on 9 April 2014, Young ICCA, a network for young practitioners and students functioning under the auspices of the International Council for Commercial Arbitration (ICCA), launched the Young ICCA Guide on Arbitral Secretaries (the “Guide”).
The Guide has a purpose similar to the ICC revised note on the Appointment, duties and remuneration of administrative secretaries issued in August 2012. However, it is more complete.
It contains four articles detailing best practices for the use of arbitral secretaries under the following general headings: (i) general principles on the appointment and use of arbitral secretaries, (ii) appointment of arbitral secretaries, (iii) their role and (iv) the costs of using arbitral secretaries. Each article is completed by a long commentary.
Key points are as follows:
- Appointment of arbitral secretaries: the Guide recommends choosing a secretary which is independent, impartial and free of any conflicts of interest. As is the case for arbitrators, parties should also be given an opportunity to object to the appointment of the secretary. The Guide does not go as far as recommend that arbitral secretaries submit a statement of impartiality and independence. Indeed, the Guide’s drafters believe that the arbitral secretary should be under the arbitral tribunal’s responsibility, therefore, it is up to the tribunal to confirm that the secretary is independent, impartial and free of any conflicts of interests. The absence of a formal statement may appear regretful, since, as for arbitrators, transparency and trust in the secretary may be important in arbitration users’ eyes.
- The function of arbitral secretaries: the secretaries’ role may go beyond what is “purely administrative” to assist the tribunal in the overall management of the arbitration. Their tasks may involve drafting procedural orders, communicating with the institution and the parties, and researching factual and legal issues – to the extent that arbitrators do not rely solely on the secretary’s factual research. A delicate issue when debating the use of a secretary is that of his presence at the tribunal’s deliberations. The Guide’s drafters found a balanced solution to this issue, which relies on the distinction between attendance and participation: the secretary should attend the deliberation in so far as the tribunal may use him as a resource during the course of the deliberation, to the extent that he does not participate in the deliberation.
- Remuneration and costs of secretaries: the Guide makes it clear that the use of a secretary should not result in any additional financial burden for the parties. To the contrary, it should reduce rather than increase the overall costs of the arbitration. Cost saving is, before time saving, one of the principal reasons for appointing an arbitral secretary. Therefore, the Guide indicates that the secretary’s remuneration should come out of the arbitral tribunal’s fees when these are paid on the basis of the amount in dispute. However, the secretary is to be paid by the parties when the arbitrators are paid on an hourly basis.
- The Guide also provides a model clause for tribunals to insert in procedural orders or terms of reference to record the secretary’s appointment.
All in all, the Guide explains the balance which must be struck between arbitrators’ responsibility and additional efficiency and benefits of having a secretary. To do so, it focuses on transparency, party consent and cost efficiency. There is no controversy that a properly appointed, supervised and diligent arbitral secretary will contribute to keeping the arbitral proceedings organized and on schedule.
Like judicial clerkships, arbitral secretaries are an invaluable tool, and may be essential for the success of some arbitrations. It is a major point that their existence and their role become official and transparent.
The Guide is available here.