Young ICCA Webinars: Introduction to Arbitral Secretary Appointments

Post Event Report

by Thaís Gomes (Coach, Africa in the Moot (Mozambique)), Yvonne Mak (Associate, Withers KhattarWong LLP (Singapore)), and Poorvi Satija (Associate, White & Case LLP (UK))

On 29 September 2021, Young ICCA organized a webinar on the Use and Appointment of Arbitral Secretaries. Eleven speakers were invited to provide a comprehensive overview and insights into the role, tasks and practicalities of the work of an arbitral secretary based on the Young ICCA Guide on International Arbitral Secretaries (hereinafter referred to as the “Young ICCA Guide”).

Mr. Matthew Morantz (Young ICCA Co-Chair (New York)) provided an introduction to the session, followed by a presentation of the Young ICCA Guide by Mr. Garth Schofield (Senior Legal Counsel, Permanent Court of Arbitration (The Hague)). In his overview, Mr. Schofield explained that the Young ICCA Guide was developed following research by a panel on arbitral secretaries during the 2012 ICCA Congress. He highlighted that the Young ICCA Guide is intended to be a common frame of reference but, unless expressly adopted, it is not binding and subordinate to existing binding rules. The Young ICCA Guide addresses four issues:

1. Should arbitral secretaries be used?
2. How should they be appointed?
3. What role should an arbitral secretary perform?
4. How should they be paid?

Mr. Schofield then summarized that the Young ICCA Guide generally supports the use of arbitral secretaries where it contributes to the effective resolution of the dispute. However, arbitral secretaries should only be appointed with the consent and the knowledge of the parties. It is the responsibility of the tribunal to supervise the secretary and ensure that its decision-making mandate is not delegated. Since the publication of the Young ICCA Guide, national courts have addressed the use of arbitral secretaries and have concluded that the line between permissible and impermissible use of the secretary depends on whether the tribunal has delegated decision-making authority.

Ms. Lindsay Gastrell (Senior Counsel, Arbitration Chambers (New York)) and Mr. Panagiotis Chalkias (Associate, White & Case (Geneva)) discussed Article 3 of the Young ICCA Guide on the role of the arbitral secretary. Article 3 sets out a non-exhaustive list of tasks that arbitral secretaries may carry out. However, some tasks go beyond mere administrative tasks and may be controversial: for example, participating in deliberations of the tribunal, and drafting parts of the award. Most participants interviewed by the Young ICCA Task Force considered it uncontroversial for the arbitral secretary to draft the procedural history, factual background and summary of parties’ positions, but the majority felt that the tribunal should draft the analysis and legal reasoning. As a general rule, the tribunal’s supervision is necessary. The tribunal should also be fully transparent about the tasks of an arbitral secretary before appointing such secretary. Mr. Chalkias highlighted that the way the scope and tasks of the arbitral secretary are defined may differ depending on the arbitral institution’s applicable rules.

Two cases in which national courts have examined the role of the tribunal secretary in the drafting of arbitral awards were also discussed. Ms. Gastrell briefly covered the Yukos case, where the Hague Court of Appeal held, inter alia, that even if the tribunal assistant had drafted a significant portion of the legal reasoning part of the award, this would not in itself invalidate the award if the tribunal had reviewed that part of the award and assumed responsibility for that task. Mr. Chalkias summarized the Emek İnşaat Şti and WTE Group v European Commission judgment, where the Brussels Court of First Instance held that even if the tribunal secretary was involved in drafting part of the partial award, this did not mean that there was improper delegation of decision-making, and further, that the tasks of a tribunal secretary as set out under the ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration (to which the parties have consented by choosing to arbitrate under the ICC Rules), would go as far as drafting awards for the tribunal’s review.

Ms. Francisca Seara Cardoso (Associate, Armesto y Asociados (Madrid)) and Ms. Réka Papp (Counsel, Bureau Pierre Tercier (Fribourg)) then provided their comments on Articles 2 and 4 of the Young ICCA Guide on the practicalities and costs of appointing arbitral secretaries. Ms. Papp explained that the tribunal (or the President in consultation with the co-arbitrators) proposes the appointment of an arbitral secretary for the agreement of the parties. A list of documents would then be sent to parties, including the arbitral secretary’s CV, a statement of independence and impartiality, proposed tasks, and a statement of confidentiality. The tribunal may still proceed with the appointment even if the parties object to it, although some institutional rules require the agreement of all parties. Notably, the arbitral secretary enjoys the same immunity and exclusion of liability as the tribunal. With respect to costs, Ms. Cardoso explained that the general principle under Article 4 is that the appointment of the arbitral secretary should reduce the overall costs to be borne by the parties. Remuneration should be reasonable and proportionate, taking into account factors such as the secretary’s experience, the amount in dispute, and the complexity of the issues. Remuneration should be fixed and be transparent from the outset. Finally, the manner in which the fees of the arbitral secretary are paid depends on how the tribunal is remunerated. If the tribunal is paid on an ad valorem basis, then the compensation should come from the tribunal’s fees. If the tribunal is paid on an hourly basis, then the arbitral secretary’s fees should be paid directly by the parties on an agreed hourly rate, since the work performed by the secretary reduces the tribunal’s working hours.

Ms. Niuscha Bassiri (Partner, Hanotiau & van den Berg (Brussels)) and Mr. Eugene Thong (Tribunal Law Clerk, The Arbitration Chambers (Singapore)) then took over the presentation on the six general principles on the appointment and use of arbitral secretaries set out in Article 1 of the Young ICCA Guide. A summary of the points raised by Ms. Bassiri and Mr. Thong are as follows:

1. In order to work effectively and efficiently, there should be appropriate assistance to the tribunal that is not necessarily based on the amount of the dispute but the complexity of the case.
2. Parties should have knowledge of and give consent to the appointment of the secretary, so that the process remains transparent.
3. The tribunal should notify the parties of its intention to appoint an arbitral secretary, and avoid delay in doing so. This is usually by the first procedural meeting or the making of the first procedural order.
4. The tribunal is the one who carries out its decision-making power, therefore the arbitral secretary should not accept any delegations of the tribunal’s personal decision-making mandate. The supervision of the arbitral secretary by the tribunal is key.
5. An arbitral secretary may have diverse tasks because different institutional rules have different approaches to the role of the arbitral secretary. Any additional assistance by an arbitral secretary will have to adjust to the tasks already carried out by the arbitral institution. Institutions may also issue notes providing guidance on the role of arbitral secretaries.

Finally, Mr. Ibifubara Berenibara (Partner, LawQue Legal (Lagos)), Ms. Krystle Baptista (Independent Practitioner (Madrid)) and Mr. Rahul Donde (Counsel, Lévy Kaufmann-Kohler (Geneva)) took the participants through the different phases of an arbitration and the various tasks of an arbitral secretary at each step – from the pre-hearing phase to the phase where the award is made. The speakers explained that the appointment of the secretary should take place before or at the first case management conference, where the tribunal considers whether a secretary is needed. Thereafter, the parties are consulted and give their consent based on the evaluation of documents that confirm the arbitral secretary’s impartiality and independence. The duties of an arbitral secretary during the pre-hearing phase consist of administrative tasks, such as drafting correspondence and organizing evidence and submissions, and of substantive tasks, such as drafting procedural orders and conducting research on specific issues of the case. During the hearing, an arbitral secretary mainly performs organizational tasks, such as preparing a chronology of events, summary of facts and documents for the tribunal, and providing documents that are necessary for the tribunal’s deliberations. Finally, at the post-hearing phase but before the award is made, the arbitral secretary may undertake tasks such as drafting the facts, summarizing the main arguments of the parties, and organizing a meeting with the tribunal to discuss the structure of the award, and timelines.

The webinar would have been incomplete without an arbitrator’s perspective, and Professor Eduardo Zuleta (Partner, Zuleta Abogados (Bogotá)), provided some valuable practical insights. Professor Zuleta emphasized how, in the absence of any uniform principles regarding the use and appointment of arbitral secretaries, the Young ICCA Guide had come to be “the” reference document. He highlighted that there are different approaches to the appointment of an arbitral secretary in different legal cultures and stressed the importance of consulting with co-arbitrators on such appointments at the very beginning of an arbitration. In doing this, he recommended that arbitrators should also consider whether the case is complex enough to warrant the appointment of an arbitral secretary.

With regard to the role of an arbitral secretary, he found it curious that the discussion around the tasks of an arbitral secretary still focused on administrative tasks. He noted that no arbitrator would appoint brilliant young lawyers as arbitral secretaries if their only tasks were administrative, and that in practice, arbitral secretaries are expected to take on broader tasks. In his view, the assumption by arbitral secretaries of tasks such as drafting certain sections of an award or procedural orders should not be a problem as long as the decision-making function is not delegated. Like some of the previous speakers, he stressed that the appointment of an arbitral secretary and the tasks to be undertaken by him or her must be transparent to the parties in order to avoid objections at a later stage. He recommended that arbitrators communicate to the parties, in clear and unequivocal terms, the specific tasks that the arbitral secretary would be expected to perform, and explain how such an appointment would improve efficiency by reducing overall costs. He also pointed out that, in practice, counsel now evaluate whether an arbitrator has a support team, including an arbitral secretary, before nominating them on complex construction or investment arbitration cases. A good arbitral secretary, he said, should strive to find the balance between showing initiative and not being intrusive. He pointed out that the institution of arbitral secretaries is a useful training ground for young lawyers who want to improve their skills in international arbitration. He also urged Young ICCA to update the comments in the Young ICCA Guide in light of recent developments around the use and appointment of arbitral secretaries.

The event ended with each of the speakers giving their top tip for being effective arbitral secretaries. Several speakers stressed the importance of humility, including Ms. Papp, Ms. Gastrell, (whose advice was to “[g]et used to being the least important person in the room”) and Mr. Schofield (who advised secretaries to “check [their] ego at the door”). Mr. Chalkias cautioned practitioners to pay attention to what is set out in their respective CVs – given that courts look closely at the CVs of arbitral secretaries when considering issues of permissible delegation by arbitral tribunals. Ms. Cardoso stressed the importance of being organized and detail-oriented, while Mr. Berenibara stressed the importance of being familiar with the applicable institutional rules and the differences between them. Mr. Thong’s advice was to “[k]now what you are supposed to do and do it well, and know what you should not do and make sure you do not do it at all.” Ms. Bassiri encouraged young practitioners to learn from each and every member of the tribunal, as it is an immense opportunity to get a peek behind the scenes into arbitral decision-making. Finally, Professor Zuleta’s advice was to understand and accept cultural differences and remember to “have fun” - this is, after all, a once-in-a-lifetime opportunity.

At the end of the presentations, Mr. Maanas Jain (Young ICCA Co-Chair (London)) moderated a short Q&A session in which the speakers discussed the prospect of automation and whether there are tasks currently performed by arbitral secretaries that could be automated or eliminated. Mr. Jain also closed the event and thanked the speakers and participants. The participants received instructions from Ms. Ana Coimbra Trigo (Young ICCA Events Co-Director) on a practical exercise comprising five questions on the tasks typically expected of an arbitral secretary.

* This report reflects the discussions that took place and does not reflect the views of any individuals involved in the drafting of the report or their firm.