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Part I Conceptual Foundations, 2 Tribunal Secretaries: Practical Need and Legal Admissibility

J. Ole Jensen

From: Tribunal Secretaries in International Arbitration

J Ole Jensen

Content type:: Book content

Product:: International Commercial Arbitration [ICMA]

Series:: Oxford International Arbitration Series

Published in print:: 31 January 2019

ISBN:: 9780198835813

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Subject(s):: Appointment of arbitrator — Arbitral tribunals

(p. 51) 2 Tribunal Secretaries

Practical Need and Legal Admissibility

2.01 Today, it may seem beyond dispute that tribunal secretaries might at least play some role in the arbitral process—and yet a certain opposition remains.¹ There are practitioners who (p. 52) argue that the arbitrator’s entire mission is highly personal and that therefore she must carry out any and all tasks herself.² This leaves no room for secretarial support of any kind. The argument against these voices is that they are ignoring the realities of arbitral practice.³ It is undeniable that ‘the use of tribunal secretaries belongs to the modern reality of international arbitration practice’.⁴ To some, such reference to ‘arbitral reality’ is enough to not question the participation of tribunal secretaries any further. Yet, such a pragmatic explanation is unsatisfactory if tribunal secretaries are to be placed on robust legal footing.⁵ What is needed to ensure that the participation of tribunal secretaries becomes less controversial is first and foremost a sound legal basis for their appointment.

2.02 That is what the present chapter is concerned with. It first highlights the considerable practical need for the participation of tribunal secretaries (Section I) to then clarify on what legal grounds their appointment may be based (Section II). It further addresses the question which legal status the secretary assumes once she has been appointed (Section III).

I. The Practical Need for Tribunal Secretaries

2.03 The arbitrator’s mandate is made up of three main parts: the administration of the case, the conduct of the proceedings, and the resolution of the dispute by a decision or otherwise.⁶ It is usually said that the last part is the crucial one, deserving the focus of the arbitrator’s energies.⁷ Having tribunal secretaries take over less crucial tasks ‘free[s] up the arbitral tribunal to focus on its core role: listening carefully to the evidence and weighing up the arguments, in order to reach a decision on the merits’.⁸ In terms of this supportive role, there has long been a need for tribunal secretaries.⁹

(p. 53) 2.04 The need has only increased as international arbitration has evolved to the sophisticated and complex dispute resolution mechanism that it is today. Indeed, the increase in the procedural, factual, and legal complexity of cases has inevitably demanded an increase in professionalism.¹⁰ This entailed longer written pleadings, submission of more evidence, and employment of other tools borrowed from full-scale state court litigation, leading to a certain ‘judicialization’ of international arbitration.¹¹ These developments have been regarded with some scepticism, since they mean that ‘proceedings are becoming more and more complex and cumbersome’.¹² In response, arbitral tribunals have devised new ways of coping.¹³ One of them is the increased use of, and the corresponding need for, a division of labour. Tribunal secretaries serve to maintain the efficiency of the arbitral process despite increased complexity (Section I.A). They ensure that in-demand arbitrators remain available to accept cases (Section I.B), and they offer an important training ground for future generations of arbitrators (Section I.C). Yet, the need for tribunal secretaries does not exist in all types of cases (Section I.D).

A. The users’ perspective: Improving the efficiency of the arbitral process

2.05 Contemporary surveys of arbitral practice are unequivocal in identifying the main disadvantage of international arbitration as an inefficiency of the process.¹⁴ Users are increasingly disenchanted with international arbitration due to the time spent and the costs incurred by going through the process.¹⁵ Some are sceptical that international arbitrators can ever overcome this deficiency:

The speed of commerce, and the fluidity with which borders and time zones are crossed, and the virtual marketplaces where business is conducted, have long surpassed the ability of even (p. 54) the most efficient courts and arbitrators to keep up with the disputes that arise from them. And the gap is only getting greater with the passage of time.¹⁶

2.06 It is up to all stakeholders involved to remedy this situation and to find ways to improve efficiency.¹⁷ The term ‘efficiency’ in this context requires some clarification. Mainly, when addressing efficiency in international arbitration the focus is on time and cost efficiency.¹⁸ The goal is to offer swift proceedings at low costs. However, this leaves out a third crucial aspect to efficiency: quality.¹⁹ There is little use in a quick and cheap decision, if this decision is blatantly wrong, convinces neither of the parties, or does not hold up to state courts’ review of the award in setting aside or enforcement actions. Thus, any measure to increase efficiency in international arbitration must take into account all three factors: duration, costs, and quality. In regard to each of them, there are specific aspects in which efficiency can be enhanced by the use of tribunal secretaries.

1. Duration

2.07 The overall duration of an arbitration may be reduced if those tasks that are not part of the arbitrator’s mandate to decide the case personally are outsourced to tribunal secretaries, and if the arbitrator receives appropriate support in the tasks that belong to that mandate.²⁰

a. Administrative aspects of the case

2.08 Most modern high-stakes cases are so complex and time-consuming that ‘dealing with the mere logistics becomes a problem for the arbitral tribunal’.²¹ One chairman reports that the decision not to appoint a tribunal secretary to handle the administrative aspects of the case

has involved me in an immense amount of time in labour, drafting and dispatching letters and telexes and conducting telephone calls to and with representatives of four parties, as well as my fellow arbitrators. [. . .] A secretary would be very much more economical!²²

Indeed, there is no objective argument why the arbitral tribunal should carry out such purely logistical and administrative tasks itself.²³ If the tribunal secretary takes over these tasks, the (p. 55) arbitrator is freed up to concern herself with the material issues of the case,²⁴ thus reducing the overall duration of the proceedings.²⁵ Accordingly, the ICC Commission’s Report on Controlling Time and Costs in International Arbitration suggests that the arbitral tribunal should ‘[c]onsider whether or not an administrative secretary to the arbitral tribunal would assist in reducing time and cost’.²⁶ This advice should encourage the appointment of more tribunal secretaries to handle the administrative aspects of cases.²⁷

b. Paper tsunamis

2.09 The multitude of documents submitted and the amount of information accrued in the course of a contemporary international arbitration have been described as a ‘paper tsunami’.²⁸ Today, the wave of several rounds of written submissions, folders of documentary evidence and legal authorities, correspondence on procedural and administrative matters, as well as transcripts of hearings can wash over even the most seasoned of arbitrators.²⁹ The accumulated length of such documents can amount to tens of thousands of pages in hard-copy³⁰ or terabytes of digital information.³¹ If one were to suppose that an arbitrator reads every single one of those pages, one would arrive at impressive numbers. For example, assuming a record of 15,000 pages and an average reading speed of three minutes per page, an arbitrator would need 750 hours (or—assuming an eight-hour working day—94 days devoted exclusively to that case file) merely to read all submitted information—and this does not mean that she would have fully comprehended all documents, would have put them into perspective, or would be able to recall them afterwards.³²

2.10 Realistically, ‘[i]t has become impossible for one person to do all of this work alone’.³³ The structural imbalance between the parties, on one side, employing a host of lawyers and (p. 56) other support staff, and the arbitral tribunal, on the other, which is by default tasked with dealing with all this information on its own, has been described rather vividly:

It is sufficient to look into some of the hearings we are attending where you have on the claimant’s side five, ten, fifteen people sitting in two rows and similar numbers on the respondent’s side and you have the submissions. I have one where I have 20 boxes for one Statement of Claim, 20 boxes each with six or eight folders. You have large numbers of lawyers and experts who prepare the case and, on the other side, the Tribunal members are faced with all of what I called on some occasion the paper tsunami: you have one or three or four individuals who have to deal with this mass.³⁴

The fact that this practitioner refers to ‘four’ individuals dealing with submissions indicates that the use of tribunal secretaries to support the tribunal in coming to terms with voluminous submissions is already commonplace.³⁵ Secretaries may summarize the parties’ submissions, indicate particularly important information to the tribunal, and organize the record based on specific instructions.³⁶ Moreover, a tribunal secretary may not only be helpful in coming to terms with all documents at the outset of the proceedings, but may prove even more effective when it comes to deliberations where she can support the tribunal in locating relevant information in the record.³⁷ All of these tasks can dramatically reduce the duration of arbitral decision-making.

c. Rendering the final award

2.11 It is axiomatic that ‘justice delayed is justice denied’.³⁸ One particularly disheartening situation for parties arises when the final hearing is over, post-hearing submissions have been filed, and the tribunal has closed the proceedings—but it still takes many months or even years for the decision to arrive. The drafting of an arbitral award is a complex, delicate, and time-consuming task. Nevertheless, situations where it takes longer for the award to be rendered than the duration of the entire proceedings to date—from filing of the statement of claim until post-hearing briefs—are unfortunate for parties.³⁹ Accordingly, there are calls (p. 57) for the arbitral award to be rendered within two to six months after closing of the proceedings,⁴⁰ and some institutions impose specific time limits to that effect.⁴¹ Tribunal secretaries have been considered ‘the best solution’ to meet ambitious deadlines.⁴² How specifically they may be employed at this stage will be discussed in detail in Chapter 5.⁴³

2. Costs

2.12 The costs involved in conducting an international arbitration are steadily on the rise.⁴⁴ The three main components making up the overall costs are the costs the parties incur in presenting their case (legal representation, experts, etc), the costs the institution charges for the administration of the dispute (if any) and the arbitral tribunal’s fees and expenses.⁴⁵ According to a survey of 221 ICC awards, a lion’s share of these costs are the parties’ costs for representation (83 per cent), followed by the institution’s administrative costs (15 per cent) and dwarfing the arbitral tribunal’s fees and expenses (2 per cent).⁴⁶

2.13 First and foremost, the appointment of a tribunal secretary affects the smallest share of these cost factors, namely the tribunal’s fees and expenses. In that regard, a decisive cost factor is the method of remuneration both of the arbitrator and the tribunal secretary. There are two principal models in regard to both actors: arbitrators are either paid a fixed fee (usually determined ad valorem)⁴⁷ or at an hourly rate.⁴⁸ The costs for tribunal secretaries are either born by the arbitral tribunal or the parties.⁴⁹ Depending on which of these models is used in which combination, the total amount of costs for the arbitration will either decrease or increase.

(p. 58) 2.14 If the arbitrators are remunerated ad valorem, ie in light of the amount in dispute, the parties remunerate them with a lump sum. In that case, chances for the parties to save costs are slim: if the arbitrators use a tribunal secretary at their own expense, this does not decrease the lump sum they are entitled to;⁵⁰ if the parties are burdened with the costs for the tribunal secretary in addition to the arbitrators’ fees, the overall costs for the dispute even increase. That would frustrate the entire purpose of appointing a tribunal secretary.⁵¹ Thus, where the arbitrators are paid ad valorem, it will be difficult for the parties to save costs through the use of a tribunal secretary.

2.15 If the arbitrators are remunerated on an hourly basis, however, overall costs can be reduced considerably if arbitrators are supported by a tribunal secretary. In that case, the parties pay the arbitrators per hour or per day spent on the case. If they pay a tribunal secretary, who carries out some of the tasks at a significantly lower hourly rate, the overall amount of time the arbitrator must spend, and thus the overall costs, decrease. While the tribunal secretary may not be as efficient as the arbitrator in some regards and thus use more hours on a task than the arbitrator would, the significantly lower hourly rate still means that the parties save costs.⁵²

2.16 As we have seen, the costs thus saved are dwarfed by those incurred by legal counsel.⁵³ Yet, even in that regard, the appointment of a tribunal secretary may contribute to a decrease. It stands to reason that ‘[t]ime is the most important cost factor’.⁵⁴ Longer proceedings mean longer hours for the participating legal counsel and thus higher bills. If the involvement of a tribunal secretary leads to a decrease in the overall duration of the proceedings, the costs for party representation decrease as well.

3. Quality

2.17 Finally, tribunal secretaries also serve to increase quality. The quality of an arbitration is measured by the quality of its work-product, ie the award,⁵⁵ as well as the procedure that has been followed along the way. This requires ‘a reasonably correct result combined with a sense that the process has been just’.⁵⁶ Only then will the parties have the product they (p. 59) bargained for, namely a final and binding decision on their dispute that both parties accept. Thus, any method to improve efficiency must be measured against the impact of this method on the final award in terms of correctness, persuasiveness, and enforceability.

2.18 With the increase in cost and time efficiency, which the use of tribunal secretaries entails, arise concerns that their involvement leads to a decrease in quality. Indeed, several commentators observe that some awards which have been prepared with the involvement of tribunal secretaries do not live up to the quality standards required in international arbitration.⁵⁷ Certainly, such a development must be averted. In fact, properly employed secretaries have three advantages that are beneficial to the arbitration’s quality. Their main advantage is that the arbitrator can concentrate on the core issues at stake, thus being able to review them more carefully.⁵⁸ A thoroughly considered decision is necessarily of higher quality than one that is characterized by the arbitrator’s tight schedule and lack of sufficient preparation.

2.19 A second advantage is that the secretary’s review of exhibits and briefs may serve as a backup for the arbitrator’s analysis. It is not seldom the case that ‘the complexity of the dispute or the size of the file, coupled with the procedural timetable, ma[k]e it unlikely for each and every arbitrator to be able to look thoroughly enough into all the aspects of each party’s case’.⁵⁹ This means that there may be instances in which arbitrators overlook certain details or a party’s argument.⁶⁰ In such a case, the co-arbitrators may be able to draw their colleague’s attention to said detail or argument. In any case, however, the quality of the tribunal’s decision is increased if the secretary has reviewed the documents as well and is able to indicate important portions to the arbitrators.⁶¹ After all, four heads are better than three and eight eyes see more than six.

2.20 Third, as far as the drafting of the award goes, tribunal secretaries may carry out a scrutiny function.⁶² Many parties consider the scrutiny process arbitral institutions such as the ICC or SIAC provide an important quality safeguard.⁶³ Where such a scrutiny process is not in (p. 60) place under the applicable rules, tribunal secretaries sometimes carry out similar functions and can thus indicate certain procedural or substantive issues to the arbitrators (provided they are sufficiently trained).⁶⁴ Such scrutiny increases the award’s quality both in regard to the reasoning which is important for the parties’ compliance with the award and its integrity when it comes to set-aside or enforcement proceedings.⁶⁵ After all, many parties may be more interested in a well-argued and well-considered award than in an award which has only ever been read by the arbitrator.

2.21 In light of these advantages, tribunal secretaries can be considered a useful ‘extra guarantee for an efficient arbitration and an enforceable award’.⁶⁶ If employed properly, they improve the final work-product. This efficiency improvement aspect of tribunal secretaries is reversed where they are used improperly. Part III will address the circumstances under which the award will suffer because the use of a tribunal secretary turns from increasing quality to becoming a liability for the enforcement.⁶⁷

B. The arbitrator’s perspective: Tribunal secretaries as assets

2.22 A core difference between arbitration and state court litigation is the lack of a registry or court office in international arbitral proceedings.⁶⁸ In the litigation context, such a registry is in charge of handling all administrative aspects of the case, thus considerably disburdening the judge. In international arbitration, arbitral institutions may take over similar functions. Yet, an institution’s involvement is often more limited than that of a court registry and in ad hoc cases does not exist at all. This has led one practitioner to observe that

[n]o arbitrator can (extreme cases excluded) fulfil each and every task connected to an international arbitrator himself. This applies to the filing and reproducing of incoming briefs as well as to sometimes comprehensive research in unusual factual and legal areas.⁶⁹

2.23 As a response to this structural imbalance, arbitrators have devised different ways of receiving back-office support nonetheless. Those who are practising lawyers simply access the resources of their law firm and its administrative organs. This option is not as readily available to sole practitioners like retired judges, academics, or QCs. Some of them have created a back office themselves by opening ‘boutique’ law firms and hiring associates as permanent tribunal secretaries.⁷⁰ These boutiques are made up of ‘qualified arbitration specialists well familiar with the arbitrators for whom they work in an almost symbiotic (p. 61) manner’.⁷¹ They effectively act as personal assistants or ‘Sherpas’ to the arbitrator, supporting her not only in a multitude of proceedings but also in any other function, such as publishing articles and writing speeches. These secretaries are also constantly available for parties’ enquiries as the arbitrator may be difficult to reach while travelling.⁷² As the resources available to international arbitrators thus ‘vary dramatically’,⁷³ there is a considerable structural need for the support of tribunal secretaries.

2.24 For some arbitrators, recourse to tribunal secretaries is also crucial in light of the developments surrounding the digitization of the twenty-first century.⁷⁴ The need for assistance in ensuring the efficiency of proceedings and quality of the award rises as the ‘grand old men’ of arbitration become ever-more deserving of their name.⁷⁵ This does not only apply to the ‘ailing arbitrator’, who is impacted by her health,⁷⁶ but also to any arbitrator who considers it inefficient to constantly educate herself about the latest development in case management software and cybersecurity.⁷⁷ For those arbitrators, tribunal secretaries can provide valuable support in a multitude of ways to ensure the arbitrator can concentrate on the core issues at stake.⁷⁸

2.25 The reverse scenario, in which a seasoned tribunal secretary is appointed alongside a newcomer arbitrator, is less common. Still, some suggest that institutions should appoint experienced lawyers as secretaries to help first-time arbitrators in conducting the arbitration, including ‘more than mere administrative assistance and procedural guidance’.⁷⁹ This proposal is dangerous. It strays into the territory of an impermissible take-over of arbitral authority.⁸⁰ If a young, first-time arbitrator is appointed, this arbitrator nonetheless needs to fulfil her mandate to decide the case personally.⁸¹ Ideally, at this point, the young arbitrator has accumulated enough experience as arbitration counsel or tribunal secretary to be able to professionally conduct the arbitration without support by an experienced tribunal secretary. She should take the time necessary to familiarize herself with all aspects of her new role and not defer to a more experienced secretary.

(p. 62) 2.26 In all of these cases, the need for support ultimately stems from the simple fact that as service providers arbitrators are ‘exposed to the same market pressures as anyone who sells a service’.⁸² Many arbitrators consider tribunal secretaries the only reasonable way to accept the cases which parties, arbitral institutions, or any other appointing authority ask them to take. If they can accept more appointments and provide higher quality service through the use of tribunal secretaries, this increases their market value and may give them the required competitive edge. The obvious concern with that approach is the risk of arbitrators accepting so many cases that they can only handle them by excessively relying on an armada of tribunal secretaries.⁸³ While in most cases parties benefit from the involvement of an experienced tribunal secretary and arbitrators have a sufficient self-interest to review the work-product they provide,⁸⁴ there remains a case for saying ‘no’ to appointments and leaving the field to younger arbitrators once in a while.⁸⁵

C. The systemic perspective: Tribunal secretaries as apprentices

2.27 Many arbitrators have acquired the skills needed for their position by acting as tribunal secretaries themselves. That educational aspect of the secretary position touches upon another core difference between international arbitration and state court litigation: there is no formal training to become an arbitrator. Where national judiciaries meticulously regulate the prerequisites to become a judge,⁸⁶ the nature of international arbitration as a consensual dispute resolution method means that effectively it is up to the parties to decide who is an arbitrator—by the mere fact that they appoint the individual.⁸⁷ While this freedom to choose an arbitrator is one of the cornerstones of arbitration,⁸⁸ it also means that there is no strict regulation of who can sit as an arbitrator. Rather, as we will see, one of the key reasons for parties to choose an arbitrator is the individual’s experience in conducting international arbitrations.⁸⁹

2.28 Naturally, this leads to a ‘Catch-22’ situation:⁹⁰ an individual will only be appointed as arbitrator if she has sufficient experience on the arbitrator’s side of the table; but in order (p. 63) to gain that experience, the individual must first be appointed. One way of escaping this vicious circle is to collect experience as a tribunal secretary. This apprenticeship aspect is relevant both for individual arbitrators (Section I.C.1) and for arbitral institutions (Section I.C.2).

1. The arbitrator’s apprentice

2.29 There are few scholarly contributions dealing with the secretary position which do not emphasize the educational benefits it entails.⁹¹ As one experienced practitioner puts it, ‘[i]t is from the actual practice of arbitration that one is able to gain the most valuable knowledge’.⁹² Accordingly, many consider the secretary position a ‘unique opportunity to train the next generation of potential arbitrators’.⁹³ The truth to that statement becomes evident when considering that some of the most famous arbitrators have acted as tribunal secretaries at the outset of their careers.⁹⁴

2.30 In terms of practical training, tribunal secretaries learn first-hand and ‘on the job’ how an international arbitration is conducted. The unique opportunity of their role is that they can observe the conduct of the arbitration from its very outset to the rendering of the final award. They can be involved in every procedural step of the process and observe how the tribunal administers the dispute, deals with the parties’ procedural requests, conducts the oral hearing, and finally arrives at a decision on the dispute. Throughout all of these stages, the secretary takes over different tasks and often receives feedback and explanations from the arbitrator. As is the case with any profession, such practical insights are an invaluable asset for understanding the trade the apprentice endeavours to enter.

2.31 Beyond the training of future arbitrators, the secretary position entails several other benefits. First, the educational aspect not only applies to the arbitrator position but also to that of counsel. The secretary will read through counsel’s written submissions and experience them at the oral hearing. This provides for a unique insight into high-quality advocacy. (p. 64) But what may be even more important is the change of perspective the tribunal secretary will be exposed to. Sitting as an arbitrator is an important experience for any arbitration advocate as the perspective shifts from the role of counsel to that of the decision-maker. It is only then that one fully realizes what tribunals require to make their decision and how they perceive certain procedural conduct by counsel.⁹⁵ Acting as a tribunal secretary where sitting as an arbitrator is not yet an option is an excellent way to experience this shift of perspective early on in one’s career.

2.32 Second, by nature of their tasks, tribunal secretaries acquire a useful network. This certainly applies to the arbitrator the tribunal secretary works for, with whom sometimes ‘a strong personal relationship’ develops.⁹⁶ It is also true for all other actors in the arbitration, including the co-arbitrators, counsel, and experts with whom the secretary communicates throughout the proceedings.⁹⁷ The automatic circulation of one’s name in the arbitration community can be an important incentive for individuals to act as tribunal secretaries.⁹⁸

2.33 Third, experience as a tribunal secretary is usually regarded positively when applying for future positions. By way of comparison, having served as a clerk to a US Supreme Court justice or as a judicial assistant at the UK’s highest courts is widely considered a unique selling point on any candidate’s CV.⁹⁹ The highly competitive positions are assigned to the very best graduates of each term and carry tremendous repute.¹⁰⁰ This career-building function has also been observed in the context of tribunal secretaries,¹⁰¹ some of whom carry out veritable ‘arbitration clerkships’.¹⁰² While the position of a tribunal secretary may not (yet) be as competitive as that for the position of a clerk in the US federal judiciary, having worked for the most in-demand international arbitrators often features prominently on candidates’ CVs.¹⁰³

(p. 65) 2.34 In this regard, a problematic issue is the position of undisclosed tribunal secretaries.¹⁰⁴ If the secretary is not formally appointed as such, it becomes difficult to advertise the corresponding experience in required detail. If the secretary then nevertheless mentions detailed pertinent experience, the prospective employer may be surprised to learn that the secretary was substantially involved in a case in which the parties were never made aware of her existence. Such incidents are not fictional, as one arbitrator and counsel reports.¹⁰⁵ If a tribunal secretary was formally appointed, it is easier for the individual to publicly refer to prior experience as a tribunal secretary.¹⁰⁶ If career-building is to be accepted as one aspect of the tribunal secretary position, this would be an argument for the institutionalization of the secretary position and for corresponding transparency.¹⁰⁷

2.35 Finally, the apprenticeship function of tribunal secretaries also serves as a way to increase diversity on international arbitral tribunals. The fact that most arbitral appointments are still handled by a rather small group of arbitrators with similar backgrounds has inspired an interest group to implement The Pledge.¹⁰⁸ One proposal in regard to this initiative has been to support the appointment of more tribunal secretaries in order to arrive at a diverse number of potential future arbitrators.¹⁰⁹

2.36 Despite all of these benefits, having served as secretary is not sufficient in and of itself to become an arbitrator or successful advocate. Rather, experience as a tribunal secretary will always be only one building block of an aspiring arbitrator’s or counsel’s profile.¹¹⁰ Anecdotal evidence suggests that what may be termed ‘career secretaries’ are sometimes unable to secure arbitrator appointments at all. These individuals have developed a name for themselves as tribunal secretaries, but are only ever seen as such. In line with their restricted experience, the market does not consider them suitable to serve as arbitrators.

2. The institution’s apprentice

2.37 A related aspect to the training of future arbitrators can be observed in institutional settings which heavily rely on tribunal secretaries in their administration of disputes. In these situations, the institutionalized position of a tribunal secretary is often used to train the future generation of arbitrators at that institution. At the ICAC, one of the main reasons for the large role allotted to reporters is to train them to eventually become ICAC or MAC arbitrators.¹¹¹ Similarly, in one instance, the degree of familiarity with the process at the IUSCT enabled a legal assistant to be appointed as arbitrator due to a backlog of cases.¹¹² Thus, where arbitral institutions have an own interest in providing suitable future arbitrators, they use the role of a tribunal secretary to achieve that task.

(p. 66) 3. Concerns

2.38 Despite all these positive aspects, understanding the secretary’s position as that of an apprentice also bears some risks. As we have seen, the essence of the secretary’s apprenticeship is characterized by the idea of ‘learning-by-doing’.¹¹³ The more tasks a secretary carries out independently, the greater will be the educational benefit of her position. Moreover, it is the nature of any apprenticeship that as the apprentice becomes more familiar with the process and more skilled in her craft, the master will delegate more meaningful tasks to her. It might even be the apprentice who actively strives for more responsibilities in the quest to enhance her personal skills. In the context of the relationship between a tribunal secretary and ‘her’ arbitrator, this development is dangerous. Even if an arbitrator has worked with the same tribunal secretary for years, she should not start to allocate larger tasks to her without obtaining the appropriate amount of party consent.¹¹⁴ Neither should the secretary assume tasks not instructed to her. Otherwise, the risk of impermissible delegation of the arbitrator’s personal mandate increases.¹¹⁵

2.39 In fact, the secretary’s apprentice role may have a dangerous self-perpetuating effect. If the secretary acquires her skills by performing eminently personal arbitrator tasks, that vocational training may later influence the individual’s own attitude towards delegation. It is not unlikely that a secretary-turned-arbitrator will replicate the way she has experienced the arbitrator’s role and in turn delegate far-reaching tasks to her secretaries.¹¹⁶ Over time, the eminently personal core of the arbitrator’s mission could thus become diluted.

2.40 In addition, it is difficult to explain to parties why they should bear the financial burden of training future arbitrators. International arbitration remains a process entirely ‘belonging’ to the parties.¹¹⁷ It is their arbitration and they are paying the arbitrators to resolve only their dispute. In light of this piecemeal nature of international arbitration, arbitrators have no overarching mandate to educate and train their successors. Parties to a specific arbitration are likely uninterested in paying for the training of individuals who will only act as arbitrators in some unrelated future proceedings.¹¹⁸ Accordingly, the educational aspect of acting as a tribunal secretary (eg tutoring and feedback on performance) must not be billed as costs of the arbitration to the parties.¹¹⁹

(p. 67) D. Limits to the need for tribunal secretaries

2.41 Despite the strong practical need for secretaries in many arbitrations, that need does not exist universally. Rather, it is important to assess on a case-by-case basis whether a secretary would disburden the tribunal rather than adding to the proceedings’ overhead and whether the appointment is compatible with the parties’ interests. That assessment should be carried out particularly diligently in administered, highly confidential and small- to medium-scale proceedings.

1. Necessity in administered arbitration

2.42 In ad hoc arbitrations, tribunal secretaries often provide administrative services otherwise rendered by an arbitral institution.¹²⁰ Some therefore raise the question whether tribunal secretaries are needed if the arbitration is administered by an arbitral institution.¹²¹ Yet, ‘[e]ven in an administered arbitration, many detailed arrangements still fall to be made by the arbitral tribunal itself and the assistance of a secretary is extremely valuable in this regard’.¹²² Thus, in practice, many arbitral tribunals appoint tribunal secretaries also in administered arbitrations.¹²³ In fact, some are convinced that the need for tribunal secretaries in administered arbitrations is so great that prohibiting their appointment would lead to an increase of ad hoc arbitrations.¹²⁴

2.43 Others suggest that tribunal secretaries could lighten the administrative load of an arbitral institution by taking over all administrative aspects of the case, thus allowing the institution to ‘focus on tasks that cannot be delegated, such as customer care, the drafting of publications, statistics and other promotional activities of the center’.¹²⁵ In terms of regular institutions, that suggestion should quickly be discarded. It is not the purpose of tribunal secretaries to take over the main raison d’être of arbitral institutions, namely offering administrative support for the conduct of an arbitration. Rather, the need for tribunal secretaries to also participate in administered arbitrations stems from the fact they are needed as support that goes beyond the purely administrative.¹²⁶

(p. 68) 2.44 In conclusion, while some of the secretary’s administrative functions, such as booking hearing rooms or handling the financial aspects of the case,¹²⁷ may be taken over by an arbitral institution in administered arbitration, there is still a need for secretaries in regard to more substantive tasks. These are tasks from which secretaries derive their efficiency-enhancing functions.¹²⁸ Still, it must be ensured that tasks are not duplicated between secretary and institution so as not to unnecessarily burden the parties with costs.¹²⁹

2. Necessity in disputes concerning highly confidential information

2.45 There are certain cases in which confidentiality is of even more importance than is usually the case in commercial arbitration. They include disputes concerning business secrets, patents, and other highly sensitive intellectual property. In those cases, the parties may wish to involve as few individuals as possible in the resolution of the dispute. This may go as far as opting for ad hoc arbitration so as not to involve the staff of an arbitral institution. Though these cases may be as complex, time intensive, and document heavy as any other international arbitration, there is good reason to ask whether a tribunal secretary should be appointed. While secretaries are under the same obligation to keep the proceedings secret as the arbitrators,¹³⁰ they do constitute an additional actor who inevitably becomes familiar with the case file and may thus be frowned upon by the parties.

2.46 In such a scenario, the tribunal should discuss with the parties whether its need for a secretary can be reconciled with the parties’ interest in the involvement of as few individuals as possible. It should also emphasize the secretary’s confidentiality obligation to alleviate the parties’ concerns. When in doubt, the tribunal should refrain from appointing a secretary.

3. Necessity in small- and medium-scale proceedings

2.47 Most considerations regarding an increase of efficiency provided by tribunal secretaries apply to large proceedings with considerable overheads.¹³¹ This begs the question whether the same considerations also apply to smaller proceedings. To answer it is necessary to first determine what makes a case ‘large’ or ‘small’. Often, this determination is made in light of the amount in dispute.¹³² However, there are cases in which parties argue about only a few thousand dollars but which entail highly complex factual and legal questions; and there are cases amounting to hundreds of millions of dollars which are straightforward (p. 69) and turn on one specific issue.¹³³ The amount in dispute can thus not be the only factor to determine the size of a dispute.¹³⁴ What is also decisive—in particular in order to determine whether arbitrators require the support of secretaries—is whether the issues they have to tackle are complex, how many parties and how much documentation the case involves, and not least the quality of the parties’ (expected) submissions. After all, where the submissions are of inferior quality, this results in considerably more work for the arbitrators.

2.48 A ‘small’ case in that sense would be characterized by the absence of big volumes of paperwork or overly complicated legal or factual circumstances. In such cases, some of the tasks usually assigned to tribunal secretaries do not arise or else these tasks can easily be handled by the arbitrator. Thus, the need for a tribunal secretary does in fact decrease in small proceedings.¹³⁵ In terms of cost-saving, the amount in dispute is decisive. Burdening the parties with additional costs for tribunal secretaries in proceedings, where the costs for the arbitration are not very different from the value of the entire claim, is difficult to justify.¹³⁶ Still, particularly in small proceedings, some parties may expect the arbitrator to appoint a tribunal secretary. This scenario often arises where the parties opt for famous arbitrators for whom the case is only financially attractive if they can rely on their tribunal secretary throughout the arbitration.¹³⁷

2.49 At the same time, small-scale proceedings without high stakes serve as welcome opportunities for newcomer arbitrators. Most parties believe that they will get a ‘hands-on arbitrator’ who does everything by herself if that person is just starting out as an arbitrator.¹³⁸ Serving as an arbitrator in smaller proceedings is often the second step on the career path to becoming well established after having gained experience as a tribunal secretary. If such a newcomer arbitrator herself appoints a tribunal secretary, this is more likely to frustrate the parties’ or institution’s expectations of the appointment.¹³⁹

(p. 70) 2.50 In conclusion, there is no ‘one size fits all’ approach to whether tribunal secretaries are needed in ‘smaller’ proceedings. Rather, the answer to that question is subject to the principle of proportionality. If in light of the value of the claim, the size and complexity of the dispute, and the nature of factual and legal issues at stake the appointment of a tribunal secretary will contribute to an increase of efficiency, she should be appointed. If that is not the case, the parties’ interests are usually best served if the arbitration is conducted without a tribunal secretary.¹⁴⁰

II. The Legal Admissibility of Tribunal Secretaries

2.51 Having established the practical need for tribunal secretaries, the next question is what legal bases provide for their admissibility. In other words, it must be determined where the tribunal’s power to make use of secretaries derives from.¹⁴¹ Some national arbitration laws, institutional rules, and soft law instruments contain express provisions to that effect (Section II.A). Others at least imply that tribunal secretaries may be appointed (Section II.B). In the absence of any reference to tribunal secretaries, potential bases for the appointment include an analogy to the legal bases for judicial assistants in other fora (Section II.C), the tribunal’s duty to conduct the proceedings efficiently (Section II.D), its general procedural discretion (Section II.E) and party autonomy (Section II.F).

A. Express legal bases

2.52 The participation of tribunal secretaries is uncontroversial where the applicable lex arbitri or arbitration rules contain a legal basis for their appointment. In order to identify such express legal bases, fifty-eight arbitration laws and forty-seven sets of arbitration rules have been reviewed. While they do not prohibit the appointment of a secretary, most of them do not address the issue at all.¹⁴² Only some contain an express legal basis empowering the tribunal to appoint a secretary. More commonly, such a basis is contained in institutional guidelines and similar soft law instruments.

(p. 71) 1. National arbitration legislation

2.53 The arbitration laws of Argentina,¹⁴³ Brazil,¹⁴⁴ Colombia,¹⁴⁵ Ecuador,¹⁴⁶ El Salvador,¹⁴⁷ India,¹⁴⁸ Scotland,¹⁴⁹ and Uruguay¹⁵⁰ expressly state that the arbitral tribunal may—and in some cases even must—appoint a secretary. Indeed, several Latin American jurisdictions provide for the mandatory participation of tribunal secretaries.¹⁵¹ The purpose of these mandatory secretaries is to ‘witness the proceedings and certify the authenticity of all acts by the arbitrator’.¹⁵² The rule traces back to the participation of similar actors in ordinary judicial procedures in these jurisdictions.¹⁵³ It is also the result of a certain hostility and (p. 72) mistrust towards arbitration which had developed in Latin America in the first half of the twentieth century, in part motivated by the Calvo Doctrine.¹⁵⁴ In light of this mistrust, the participation of tribunal secretaries as certification authorities, testifying to the fact that the arbitral tribunal has exercised its functions properly, serves as a safeguard diffident legislators have put into place to oversee the arbitral proceedings.¹⁵⁵ While any structural hostility has since evaporated and the arbitration laws of most Latin American countries modernized, the mandatory participation of tribunal secretaries has remained a remnant of those earlier times. As a result, tribunal secretaries are today still most commonly appointed in Latin American arbitrations.¹⁵⁶ Yet, the mandatory nature of their participation is widely regarded as an unnecessary inconvenience for parties and arbitrators.¹⁵⁷

2.54 Several jurisdictions divide their arbitration regime into legislation on domestic and on international arbitration. In the cases of Switzerland and Chile, the domestic arbitration laws contain legal bases for the appointment of tribunal secretaries,¹⁵⁸ while their international counterparts do not. There are various reasons for such discrepancies. Often, discrepancies are caused by the legislator’s desire to more meticulously regulate arbitrations between domestic parties, while affording foreign parties the freedom to flexibly tailor their proceedings. As a result, international arbitration laws tend to be considerably shorter in length than their domestic counterparts.¹⁵⁹ This concise nature of international arbitration legislation means that peripheral issues regarding the arbitral process remain unregulated. In light of this, the omission of tribunal secretaries from international arbitration legislation should not be taken as a sign of the legislator’s intention to prohibit their appointment. Rather, the issue of tribunal secretaries may have been considered too marginal to regulate. This is confirmed by the Swiss Federal Tribunal, which has held that despite the Swiss international arbitration law’s silence, it is ‘generally accepted’ that secretaries may also be appointed in international arbitrations seated in Switzerland.¹⁶⁰ This result is in line with Swiss and Chilean legal doctrine.¹⁶¹ Accordingly, where only the domestic arbitration (p. 73) law provides for the appointment of tribunal secretaries, this legal basis may be applied by analogy to international cases.

2. Arbitration rules

2.55 There is an increasing tendency to regulate the role of tribunal secretaries in institutional arbitration rules, thus providing a legal basis for their appointment. The institutions that have followed this trend include the CAS,¹⁶² CEA,¹⁶³ FAI,¹⁶⁴ HKIAC,¹⁶⁵ Nordic Arbitration Centre at the Chamber of Commerce in Iceland,¹⁶⁶ SCC,¹⁶⁷ and the Swiss Chambers Arbitration Institution.¹⁶⁸ As we have seen, several other institutions provide for the participation of their own staff or other individuals as institutional secretaries to the tribunal.¹⁶⁹ Where the arbitral tribunal is constituted under any of those rules, the participation of a tribunal secretary is uncontroversial. The only condition is that the tribunal adheres to a certain appointment process when engaging the tribunal secretary.¹⁷⁰

(p. 74) 3. Soft law instruments

2.56 While the lex arbitri and arbitral rules chosen by the parties have direct legitimacy as ‘hard law’, institutional guidelines, and best practice standards play a less tangible role in the arbitral process. The arbitration community has increasingly promulgated such ‘soft law’ instruments in an effort to improve various areas of the arbitral process.¹⁷¹ They are intended to regulate the previously unregulated,¹⁷² as a means to interpret ‘hard law’,¹⁷³ to stipulate what the formulating agency considers a best practice,¹⁷⁴ and to help arbitrators exercise their procedural discretion¹⁷⁵.¹⁷⁶ Some institutions have chosen soft law instruments as a means to regulate or specify the use of tribunal secretaries.

a. Non-binding character of soft law instruments

2.57 It is important to emphasize that soft law instruments are not binding upon the parties or the arbitral tribunal. In default, they are nothing but best-practice restatements or well-meant advice.¹⁷⁷ Nevertheless, their continued use has in some areas led to a general acceptance within the arbitration community so that, in effect, they have a similar persuasive force as black letter law.¹⁷⁸ Beyond that, there are three scenarios in which soft law instruments become fully binding upon the parties and the arbitral tribunal.

2.58 First, the parties may agree to be bound by the soft law instrument. In that case, the contents of the instrument become part of their arbitration agreement,¹⁷⁹ and must therefore be followed by the arbitral tribunal.¹⁸⁰

2.59 Second, the arbitral tribunal may adopt the instrument into its Terms of Reference, Procedural Orders, or similar case management directives. This is the approach the Young ICCA Guide (p. 75) 2014 adopts by offering a ‘model plug-in’ for arbitral tribunals.¹⁸¹ The basis for such an adoption is the tribunal’s far-reaching discretion to conduct the arbitral proceedings.¹⁸² In both scenarios, soft law hardens into binding rules.

2.60 Third, some arbitral rules endow the administering institution with the power to promulgate institutional guidelines on certain topics. In the case of tribunal secretaries, such an ‘enabling statute’ is contained in Article 25.5 of the FAI Rules 2013¹⁸³ and—more broadly—in Article 5(2) of Appendix II to the ICC Rules 2017.¹⁸⁴ If corresponding institutional guidelines have already been promulgated when the parties conclude their arbitration agreement and they have an opportunity to access them, the guidelines must be seen as an extension of the arbitration rules and therefore a part of the parties’ agreement.¹⁸⁵ However, if there are no guidelines at that point and they are only promulgated subsequently,¹⁸⁶ the question arises whether such subsequent guidelines also form part of the parties’ agreement.¹⁸⁷

2.61 This situation may be compared to that of a temporal conflict between arbitral rules.¹⁸⁸ If, at the time of the commencement of arbitration, the arbitral rules in force differ from the version in force when the parties concluded their arbitration agreement, it must be determined which of the two sets of rules applies. Absent any explicit language to the contrary, it is now generally understood that the users’ interest in efficient proceedings requires a ‘dynamic’ interpretation of their arbitration agreement, meaning that the parties are deemed to have selected whatever version of rules is in force when they commence arbitration.¹⁸⁹ This is a result of the parties’ implicit trust that the institution will revise its rules in their interest. This trust is also manifest when they endow the arbitral institution with the power to regulate the involvement of tribunal secretaries through the promulgation of institutional guidelines. Such guidelines thus become part of the parties’ agreement.¹⁹⁰ However, (p. 76) if the parties do not have any chance to access the institutional guidelines (either because they do not exist yet or because they are confidential, as used to be the case with the ICAC Reporters Rules),¹⁹¹ they do not become part of their agreement. Parties cannot be deemed to blindly trust an institution’s approach to tribunal secretaries without any possibility for review and, potentially, derogation.

2.62 From a different perspective, some question whether institutional guidelines can bind the arbitral tribunal.¹⁹² After all, guidelines on the appropriate use of tribunal secretaries usually infringe upon the tribunal’s discretion on how to conduct the proceedings, limiting its recourse to the secretary.¹⁹³ In that regard it is important to distinguish legal relationships. In the arbitrator’s contract with the arbitral institution,¹⁹⁴ the arbitrator’s agreement to act under the institution’s rules must be interpreted as also comprising any institutional guidelines and practices the institution has developed and made the arbitrator aware of. In regard to the relationship between the arbitrator and the parties, however, the institutional guidelines are in default neither binding by contract or as the applicable procedural rules.

2.63 Where any of the three scenarios applies, institutional guidelines must be followed to the same extent as the applicable rules.¹⁹⁵ But even if the guidelines are not formally binding, there is a strong incentive for arbitrators to nevertheless follow them. Non-compliance with institutional guidelines may lead to the institution declining to administer the dispute¹⁹⁶ and not re-appointing the arbitrators in question.¹⁹⁷ Therefore, arbitral tribunals are well advised to follow institutional guidelines on tribunal secretaries regardless of whether they take the form of soft or hard law.¹⁹⁸

b. Institutional guidelines providing for the appointment of tribunal secretaries

2.64 Having established the legal relevance of soft law instruments, there are three specific types of guidelines applicable to tribunal secretaries. First, there are institutional guidelines that further specify the role of a tribunal secretary which is already based in the institution’s rules. These guidelines include those of ACICA,¹⁹⁹ FAI,²⁰⁰ HKIAC,²⁰¹ SCC,²⁰² SIAC,²⁰³ (p. 77) and the Swiss Chambers.²⁰⁴ In that case, the legal basis for the appointment of the secretary is already contained in the relevant institutional rules.²⁰⁵

2.65 Second, there are institutions that only regulate tribunal secretaries in institutional guidelines without addressing them in their arbitral rules. For example, Canon VI.B sentence 2 of the AAA Code of Ethics for Arbitrators in Commercial Disputes 2004 provides that ‘[a]n arbitrator may obtain help from an associate, a research assistant or other persons in connection with reaching his or her decision if the arbitrator informs the parties of the use of such assistance and such persons agree to be bound by the provisions of this Canon.’ While this provision thus entitles the tribunal to appoint secretaries in principle, their appointment in any given case is subject to the agreement of the parties. Similarly, s 144 of ICC Note 2017 provides that ‘Administrative Secretaries can be appointed at any time during an arbitration’.²⁰⁶ The ICC Rules 2017 themselves, however, do not address tribunal secretaries. Other institutions with the same approach are JAMS²⁰⁷ and the LCIA.²⁰⁸ In those cases, the relevant institutional guidelines are an extension of the parties’ agreement to arbitrate under the institution’s auspices and thus serve as a legal basis for the secretary’s appointment.²⁰⁹

2.66 Finally, several professional bodies which are not arbitral institutions have also started to address tribunal secretaries. They include the IBA,²¹⁰ UNCITRAL,²¹¹ CIArb,²¹² and ICCA. The Young ICCA Guide 2014 is promulgated by the ICCA group for young practitioners.²¹³ The aim of the Young ICCA Guide 2014 is to ‘examine the use of arbitral secretaries and advance a more transparent and robust approach to the role of secretaries in arbitration’.²¹⁴ It provides for the appointment of tribunal secretaries with the knowledge and consent of the parties in Article 1(1) and (2) of the Young ICCA Guide 2014. However, the arbitral tribunal may only appoint a secretary based on that provision if either it or the parties have formally adopted the Young ICCA Guide as applicable in their arbitration.²¹⁵

(p. 78) B. Implicit legal bases

2.67 Several arbitration laws and rules contain what may be referred to as implicit legal bases for the appointment of tribunal secretaries. While they do not expressly state that the tribunal may appoint a secretary, there are clear indications that it has the power to do so. This is either because secretaries are directly referred to in the law or rules (Section II.B.1) or because the law’s legislative materials and history lead to that conclusion (Section II.B.2). Though some deduce the same from indirect references to tribunal secretaries, such provisions do not serve as implicit legal bases (Section II.B.3).

1. Reference to tribunal secretaries in arbitration legislation and rules

2.68 Direct references to tribunal secretaries are contained in the arbitration legislation of Canada,²¹⁶ Greece,²¹⁷ Indonesia,²¹⁸ Peru,²¹⁹ Romania,²²⁰ and the Netherlands;²²¹ the arbitration rules of the ADCCAC,²²² BVI IAC,²²³ CRCICA,²²⁴ SIAC,²²⁵ and (p. 79) TRAC;²²⁶ as well as the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union and its Member States 2014.²²⁷ These provisions regulate some aspects of tribunal secretaries, such as their remuneration or their confidentiality obligation, but do not expressly state that the tribunal may appoint them. Yet, as these provisions unequivocally envisage the participation of a secretary, the tribunal must have the power to appoint them. As the most immediate reflection of the legislator’s or drafter’s will that tribunal secretaries participate in the arbitration, these provisions serve as implicit bases for their appointment.

2. Reference to tribunal secretaries in legislative history and materials

2.69 In some instances, that will is reflected in the legislative materials of the relevant arbitration law. While the law itself is silent, its travaux préparatoires provide for the tribunal’s power to appoint tribunal secretaries. An example is the Swedish Arbitration Act 1999 (Lag (1999:116) om skiljeförfarande), whose travaux state that it is ‘permissible to appoint a legally trained secretary if the parties’ consent is obtained’.²²⁸ Not only in Sweden—where a law’s preparatory materials (förarbeten) have a strong impact on its interpretation²²⁹—but also in other jurisdictions with similar legislative materials, the tribunal may appoint a secretary based on the legislator’s unequivocal will that the tribunal has the power to do so.

2.70 Similarly, sometimes prior versions of the law indicate that tribunal secretaries may be appointed. The old version of the Spanish Arbitration Law contained an express legal basis for the appointment of tribunal secretaries.²³⁰ While this was a first in Spanish arbitration legislation,²³¹ the provision was again deleted in the course of the 2003 revision of the Spanish Arbitration Law, which adopted the Model Law.²³² Yet, this change must not be understood as an implied prohibition of the appointment of tribunal secretaries. The omission was due to the simple fact that the Model Law does not contain a provision on tribunal secretaries. In addition, the omission reflects that their use is now commonplace and fully accepted in Spanish arbitrations, which made codification unnecessary.²³³

(p. 80) 3. Indirect references to tribunal secretaries

2.71 Other laws and rules do not spell out the term ‘tribunal secretary’ (or any synonym thereof),²³⁴ but still contain language that some consider a sufficient basis for the secretary’s appointment. The UNCITRAL Arbitration Rules serve as an example in this regard. Neither their 1976 nor 2010 edition contains any reference to tribunal secretaries. In the revision process leading up to the Rules’ 2010 recast, it was discussed whether an express basis for the appointment of secretaries should be included. In their (unofficial) Report on the Revision of the UNCITRAL Arbitration Rules, Paulsson and Petrochilos propose ‘that the Rules codify the tribunal’s power to designate a secretary’.²³⁵ While this proposal was eventually abandoned,²³⁶ the UNCITRAL Arbitration Rules 2010 contain three provisions that are considered to ‘accommodat[e] the use of secretaries’.²³⁷

a. Reference to ‘the parties’ right to be assisted’

2.72 Some invoke Article 5 sentence 1 UNCITRAL Arbitration Rules 2010 as a legal basis for the appointment of tribunal secretaries.²³⁸ This provision states that ‘[e]ach party may be represented or assisted by persons chosen by it’. Allegedly, ‘[i]t is understood and accepted that, in this context, the reference to “assistance” is intended to accommodate assistance sought by the arbitral tribunal of a secretary’.²³⁹ Yet, that interpretation is irreconcilable with the provision’s wording, which refers to the parties, not the arbitral tribunal. Considering the arbitral tribunal a ‘party to the arbitration’ goes beyond the usual understanding of the term ‘parties’. Neither do the travaux préparatoires of the UNCITRAL Arbitration Rules 2010 support this reading.²⁴⁰ Therefore, Article 5 UNCITRAL Arbitration Rules 2010 does not serve as a legal basis for the appointment of tribunal secretaries.²⁴¹

(p. 81) b. Reference to ‘persons appointed by the arbitral tribunal’

2.73 Article 16 UNCITRAL Arbitration Rules 2010 and several similar provisions afford immunity to ‘persons appointed by the arbitral tribunal’.²⁴² By their mere wording, these provisions comprise tribunal secretaries as appointees of the tribunal.²⁴³ Accordingly, several commentators accept this reference as an implied basis for the appointment of tribunal secretaries.²⁴⁴ Yet, Article 16 of the UNCITRAL Arbitration Rules 2010 does not conclusively refer to tribunal secretaries. The drafters’ will that tribunal secretaries participate in the arbitration is not as clear as when the rules specifically mention the secretary. After all, the definition of a ‘person appointed by the arbitral tribunal’ also applies to any other form of third-party support, such as tribunal-appointed experts. As Article 29(1) UNCITRAL Arbitration Rules 2010 specifically provides for the appointment of such experts, Article 16 UNCITRAL Arbitration Rules 2010 may simply refer to them. Accordingly, Article 16 UNCITRAL Arbitration Rules 2010 and similar provisions do not in and of themselves provide an implied basis for the appointment of tribunal secretaries.

c. Reference to ‘other assistance required by the arbitral tribunal’

2.74 The reference to ‘expert advice and other assistance required by the Arbitral Tribunal’,²⁴⁵ which is contained in Article 40(2)(c) UNCITRAL Arbitration Rules 2010 and some other arbitration laws and rules, does not constitute an implied basis for the appointment of secretaries either.²⁴⁶ In contrast to the provisions discussed before, that provision explicitly refers to other assistance than tribunal-appointed experts and therefore excludes the possibility that only experts are comprised. Yet, this still does not mean that it refers conclusively to tribunal secretaries, as the assistance of court reporters, translators, and similar support also constitutes ‘assistance required by the arbitral tribunal’.²⁴⁷ In fact, there is an argument that contrary to that type of support, the support provided by secretaries is not strictly required by the arbitral tribunal, as tribunal secretaries do not provide any special expertise the arbitral tribunal does not otherwise possess.²⁴⁸ Accordingly, contrary to a widely held opinion,²⁴⁹ a reference to ‘other assistance required by the arbitral tribunal’ in the applicable law or rules does not serve as an implicit basis for the appointment of tribunal secretaries.

(p. 82) d. Reference to an ‘employee or agent of the tribunal’

2.75 Finally, several arbitration laws within the English legal tradition make reference to an ‘employee or agent’ of the tribunal being exempt from liability.²⁵⁰ Some understand this as an indirect reference to tribunal secretaries and thus as a legal basis for their appointment.²⁵¹ Under an arbitration law containing that reference, the Lagos Court of Appeal has acknowledged that tribunal secretaries may take part in arbitrations seated in the State of Lagos.²⁵² It is certainly true that secretaries may be considered ‘employees’ or ‘agents’ of the tribunal.²⁵³ Yet, those terms do not conclusively refer to tribunal secretaries either. That would only be the case if there was unequivocal proof that the legislators meant for tribunal secretaries to be comprised by such provisions.

2.76 The DAC Report, which contains the travaux préparatoires of the English Arbitration Act 1996,²⁵⁴ does not specify who such employees or agents are. Depending on the contractual relationship between the arbitrators and the tribunal secretary, the wording ‘employee’ may apply to tribunal secretaries.²⁵⁵ This is in line with the purpose of the provisions, which is to protect the arbitrator and her third-party support in conducting the arbitration and rendering the arbitral award.²⁵⁶ Tribunal secretaries can be as worthy and in need of protection as arbitrators.²⁵⁷ Thus, tribunal secretaries are included under the provisions in question. However, the provisions cannot be understood as a conclusive reference to tribunal secretaries, since ‘employees or agents’ may also be tribunal-appointed experts, assessors, legal advisers, translators, and any other third-party support. Section 29(2) of the English Arbitration Act 1996, and other similar provisions, therefore do not serve as an implicit legal basis for the appointment of tribunal secretaries.²⁵⁸

2.77 In conclusion, provisions that by their broad wording comprise tribunal secretaries, but do not mention them expressly, do not serve as implicit legal bases for their appointment. In those cases—and in the many instances in which third-party support other than experts is not referred to in the applicable laws and rules at all—we must consider alternative bases for the appointment of tribunal secretaries.

(p. 83) C. Analogy to the legal bases for judicial assistants in other fora

2.78 One of these potential bases is an analogy to the legal bases for the appointment of judicial assistants in other fora. Indeed, several commentators base the appointment of tribunal secretaries on the fact that state courts and international tribunals also make use of legal assistants.²⁵⁹ Their argument is that if recourse to legal assistants is permissible in virtually any other system of dispute resolution, there is no reason that international arbitration should be an exception. What is a legitimate form of the division of labour in the highest domestic and international courts must surely be suitable for the arbitral process.

2.79 It is true that there is hardly any judicial body handling politically sensitive and other high-stakes cases that does not employ legal assistants. This applies to international courts and tribunals such as the International Court of Justice,²⁶⁰ the International Criminal Court,²⁶¹ the Court of Justice of the European Union,²⁶² the European Court of Human Rights,²⁶³ the United Nations Claims Commission,²⁶⁴ and the Dispute Settlement Body (p. 84) of the World Trade Organization,²⁶⁵ just as it does to courts on a domestic level. Many of the highest domestic courts, too, make substantial use of clerks and similar assistants. This includes the US federal courts and Supreme Court,²⁶⁶ the English Court of Appeal and Supreme Court,²⁶⁷ the German Federal Courts and Federal Constitutional Court,²⁶⁸ the Swiss Federal Tribunal,²⁶⁹ and many others.²⁷⁰ All of these legal assistants can be traced back to an express legal basis in the organizing statutes of the respective judicial body.²⁷¹

(p. 85) 2.80 An analogous application of these legal bases to tribunal secretaries, however, is not permissible. Such an application would require that state court assistants and tribunal secretaries are sufficiently comparable. At first glance, that comparability does not seem too far-fetched.²⁷² In terms of their political and social relevance as well as their size, many cases handled by arbitral tribunals are not dissimilar to those pending before the courts and tribunals in question. The tasks state court assistants usually carry out are at least as comprehensive as those of tribunal secretaries.²⁷³ Both aspects would suggest that the two legal institutions are in fact comparable. Still, there are two distinguishing features which make international arbitration unique in regard to third-party support and that exclude an analogous application of the relevant legal bases.

2.81 First, the structural necessity for state court assistants and the reason why they have been created does, by its nature, not exist in international arbitration. Judicial assistants date back to the realization that the relevant judicial decision-makers were overburdened by their caseloads.²⁷⁴ For a jurisdiction or international organization with budgetary restrictions, the appointment of additional judges to handle increased workloads is often impossible. The only means of handling that caseload is to create the institution of a legal assistant that supports the judge in various ways. In other words, the primary need for state court assistants derives from the restricted number of judges paired with the unrestricted number of incoming cases. For international arbitration, the opposite is the case. At least in theory, there is an unrestricted number of international arbitrators and a restricted number of new cases, as any arbitrator may decline appointment if her docket is ‘full’. This structural distinction is not levelled off by the fact that, in reality, a quite similar need for third-party support exists in international arbitration.²⁷⁵ While it is true that parties tend to opt for the same overburdened individuals,²⁷⁶ relief by fellow arbitrators is more readily available than in the state court context. Indeed, if recourse to tribunal secretaries was not available, the market would likely self-regulate by forcing parties to take their cases to a more diverse number of arbitrators.²⁷⁷

2.82 Second, one of the core distinguishing features of international arbitration as a dispute resolution method is the parties’ freedom to choose the decision-maker that they trust.²⁷⁸ (p. 86) A similar freedom to appoint judges does not exist in the context of litigation. While most legal systems allow for choice of court agreements, party autonomy never extends so far that parties may designate a specific judge to hear their dispute. Accordingly, the trust they afford the judiciary when they opt for state court litigation is always an institutional trust, comprising the entire judicial apparatus including any legal assistants and similar support. The same cannot be said of international arbitration. By default, the parties’ trust applies only to the individual they appoint and not to any third-party support that individual makes use of in the discharge of her mandate.

2.83 These reasons make tribunal secretaries succinctly different from legal assistants in other fora. As the two institutions are not sufficiently comparable, the legal bases for the appointment of legal assistants may not be applied by analogy to the arbitral context. We must therefore continue to consider other legal bases.

D. The tribunal’s duty to conduct the proceedings efficiently

2.84 Another potential basis for the appointment of secretaries is the arbitral tribunal’s duty to conduct the proceedings in an efficient manner. It has been considered incompatible with that duty and ‘absurd to force arbitrators to do work that others could do just as well—and for a lower fee’.²⁷⁹ Accordingly, some suggest that arbitral institutions should ‘encourage arbitrators to formally appoint as administrative secretaries persons that will assist them by performing tasks that go beyond purely administrative secretarial services’.²⁸⁰ If those statements are accurate, a tribunal secretary may—or even must—be appointed where this would improve the efficiency of the case.

2.85 Several arbitration laws and rules specifically provide for an arbitral duty to procedural economy. Article 14.4(ii) LCIA Arbitration Rules 2014, for instance, imposes upon the arbitral tribunal ‘a duty to adopt procedures suitable to the circumstances of the arbitration, avoiding unnecessary delay and expense, so as to provide a fair, efficient, and expeditious means for the final resolution of the parties’ dispute’.²⁸¹ But even where such explicit language does not exist are arbitrators held to act in the spirit of procedural economy.²⁸² So why not appoint a tribunal secretary who contributes significantly to the efficiency of the proceedings?

2.86 ‘Because the need for a tribunal secretary is only due to the failure to properly organize the proceedings’, the English Commercial Court might reply. At least that is the reasoning it has relied on to deny that the tribunal’s duty to efficiency serves as a basis for the appointment of a ‘draftsman’, in charge of drafting the reasoning of the award.²⁸³ According to the Court, arbitral tribunals do not require the assistance of ‘draftsmen’ if they follow their ‘duty under s. 33 [English Arbitration Act 1996] to adopt procedures to avoid unnecessary delay and expense; it is for them to make sure that submissions are made economically and in a manner proportionate to the issues and sums at stake’.²⁸⁴

(p. 87) 2.87 Regardless of whether that position is convincing when it comes to the unusual position of a ‘draftsman’, it certainly does not apply to tribunal secretaries. The need for a secretary arises independently of the arbitrator’s case management style and is usually inevitable in large cases.²⁸⁵ In those cases, the quest for procedural efficiency does justify the appointment of a secretary. Yet, the relevant rules still do not serve as an independent legal basis for that appointment. They do not constitute a formal ‘legal obligation to make arbitration more efficient’,²⁸⁶ but must be understood as an instruction to the tribunal on how to exercise its general procedural discretion. This makes it necessary to determine whether that general procedural discretion serves as a legal basis for the appointment of tribunal secretaries.

E. The tribunal’s discretion to conduct the proceedings

2.88 To the extent that the parties have not agreed on procedural specificities, the power to determine these issues shifts to the arbitral tribunal.²⁸⁷ This general procedural discretion is considered ‘one of the foundational elements of the international arbitral process’.²⁸⁸ It exists to ensure the efficient conduct of the proceedings and is an emanation of the juridical part of the arbitrator’s mandate.²⁸⁹ Where the parties have not voiced their opinion on the appointment of a tribunal secretary,²⁹⁰ we must consider whether the arbitral tribunal may base that appointment on its procedural discretion.

2.89 Some do not believe that the arbitral tribunal may use its procedural discretion as a basis for the appointment of a secretary. According to them, that appointment is always pre-conditioned upon obtaining all parties’ positive consent.²⁹¹ They believe that unless all parties consent to the appointment, the tribunal secretary may not be appointed.²⁹² Others are convinced of the opposite. They consider that the tribunal may appoint a secretary under its procedural discretion if the parties have remained silent on the issue,²⁹³ or have at least not jointly agreed against the appointment.²⁹⁴

(p. 88) 2.90 In France, where the arbitration law does not address tribunal secretaries, the Paris cour d’appel has held that an arbitral tribunal ‘is entitled to appoint a tribunal secretary’.²⁹⁵ This may be understood as an acknowledgement that such an appointment is possible under the tribunal’s general procedural discretion.²⁹⁶ There are similar decisions regarding ad hoc legal consultants. Courts and scholars have repeatedly acknowledged the tribunal’s power to appoint such third-party support under its general procedural discretion.²⁹⁷ As a less intrusive type of support, this must all the more apply to tribunal secretaries. Yet, one German court has made reservations regarding the time of the appointment. It has held that, under the relevant provision of the German arbitration law in force at the time, the tribunal’s procedural discretion only extended to matters ‘before’ the arbitral tribunal, not to matters ‘of’ it, such as its internal organization and deliberations.²⁹⁸ According to that court, the parties’ consent is not required for the consultant’s legal admissibility if she is to appear ‘before’ the tribunal, ie during hearings.²⁹⁹ Only if the tribunal employs the consultant after closing of the hearing must it obtain the parties’ consent.³⁰⁰

2.91 While that distinction might prima facie appear as a mere technicality, there is merit to its result. If the legal consultant appears ‘before’ the arbitral tribunal the parties become immediately aware of her participation, allowing them to object. They then have the opportunity to jointly agree against her participation. If, however, the consultant is only appointed subsequently, the parties are likely to never learn about her existence. As the tribunal’s procedural discretion only derives from the absence of a party agreement on the relevant procedural issue, the parties should generally be afforded the opportunity to conclude such an agreement.³⁰¹

2.92 This applies not only to the old version of the German arbitration law, but generally to all provisions affording the tribunal procedural discretion. While the appointment of a secretary is in principle permissible under its broad procedural discretion, the tribunal must afford the parties the opportunity to express their views on the appointment. If the parties agree one way or the other, that procedural agreement must be followed and excludes the tribunal’s power to appoint a secretary under its procedural discretion.³⁰²

(p. 89) F. Party autonomy

2.93 It follows that the parties’ autonomy to decide on how they wish to conduct the arbitration is the ideal basis for the appointment of a tribunal secretary.³⁰³ Though it is unlikely that the parties endow the tribunal with the power to appoint a secretary in their arbitration agreement,³⁰⁴ there is every reason for the arbitral tribunal to obtain their consent as early in the arbitration as possible.³⁰⁵ That consent can also be provided in the receptum arbitri,³⁰⁶ if it is executed in writing. The delicate, and practically relevant question is whether the parties can be deemed to have impliedly agreed to the use of a tribunal secretary. This question will be addressed in the chapter dealing with the formal appointment of the tribunal secretary.³⁰⁷

G. Result: General legal admissibility of tribunal secretaries

2.94 As we have seen, there is a legal basis for the appointment of tribunal secretaries under virtually all arbitration regimes. Some arbitration laws and rules contain express or implicit legal bases for that appointment. Where that is not the case, the secretary’s appointment may always be based on the parties’ joint agreement or the tribunal’s procedural discretion. Yet, all of these bases differ in regard to the degree of party consent they require. How specifically the parties must be involved in the appointment process will be the subject of Chapter 4. For the present purposes, it suffices to note the general legal admissibility of tribunal secretaries.

III. The Legal Status of Tribunal Secretaries

2.95 While it is thus clear that tribunal secretaries may participate in the arbitral process, there remains confusion about which legal status they assume upon their appointment. Like many unclear aspects in regard to the secretary’s role, that confusion stems from differing concepts of what tasks secretaries should carry out.

(p. 90) 2.96 The initial area of confusion is whether the tribunal secretary is part of the arbitral tribunal or not. Some state that this is the case,³⁰⁸ or that she at least ‘belongs’ to the tribunal.³⁰⁹ The Swiss Rules support this understanding by stating that ‘[t]he fees of the arbitral tribunal [must be] stated separately as to each arbitrator and any secretary’.³¹⁰ In a similar vein, the secretary is sometimes considered an ‘extension’ of the arbitral tribunal.³¹¹ According to the opposing view, ‘[t]he appointment of a person to assist the arbitral tribunal does not affect the composition of the arbitral tribunal’.³¹² The proponents of that view consider it ‘important to understand that tribunal secretaries are not members of the arbitral tribunal’,³¹³ and that ‘[t]he secretary does not form part of the arbitral tribunal’.³¹⁴

2.97 That is certainly the preferable approach. Article 2(b) of the Model Law defines an arbitral tribunal as ‘a sole arbitrator or panel of arbitrators’. Thus, an ‘arbitral tribunal’ is composed only of arbitrators. Whoever is not an arbitrator, is not part of the arbitral tribunal. Tribunal secretaries are not arbitrators.³¹⁵ Rather, tribunal secretaries must be acknowledged as sui generis actors in the arbitral process. That independent legal status reflects the institutionalization of the secretary position which the present book advocates. It follows that tribunal secretaries are neither members, part of, belonging to, or an extension of the arbitral tribunal.³¹⁶ Instead, tribunal secretaries belong to the category of ‘third-party support to the arbitral tribunal’,³¹⁷ and are thus ‘similar’ to tribunal-appointed experts.³¹⁸ Hence, contrary to what some propose,³¹⁹ they also do not have the same legal status as arbitrators. Rather, the secretary’s legal status depends on the legal basis upon which she is appointed, the contents of her contract,³²⁰ and the tasks she carries out.³²¹

(p. 91) IV. Conclusion

2.98 The on-going evolution and increasing complexities of international arbitrations make it necessary in many cases to appoint tribunal secretaries as third-party support. This need has been recognized by some jurisdictions and arbitral institutions which provide express or implicit legal bases for their appointment. Yet, such specific legal bases are not essential. Where they do not exist, the parties’ autonomy to tailor the proceedings always serves as a fall-back legal basis for the appointment of tribunal secretaries. Under which circumstances an appointment is also possible without all parties’ consent will be discussed in Chapter 4. Once appointed, tribunal secretaries assume an independent legal status in the arbitration which classifies as that of third-party support to the arbitral tribunal.

Footnotes:

¹ Douglas Thomson, ‘Does Your Arbitrator Prefer Puppies or Kittens?’ (GAR News, 14 April 2016) reports of an English QC who ‘thought the use of tribunal secretaries is inappropriate’; cf also Niuscha Bassiri and others, Young ICCA Guide on Arbitral Secretaries (ICCA 2014) 55 reproducing the Young ICCA Survey 2012, according to which 5 per cent of survey participants do not ‘approve of the use/appointment of secretaries’; Andrea Meier, ‘Assistance to the Tribunal: An Overview’ in Bernhard Berger and Michael E Schneider (eds), Inside the Black Box: How Arbitral Tribunals Operate and Reach Their Decisions (Juris 2014) 81: ‘[S]ome practitioners seem to deeply mistrust this form of assistance.’ What role specifically they may play is a matter of much controversy. We will turn to that question in Chapter 5.

² Queen Mary University and White & Case, ‘2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process’ 11 (‘Some are firmly against tribunal secretaries, believing that all duties should rest with the tribunal members alone’). On the personal nature of the arbitrator’s mandate, see paras 5.05ff.

³ Clemmie Spalton, ‘Are Tribunal Secretaries Writing Awards?’ (GAR News, 9 November 2012) citing ‘a continental practitioner [who] asked whether it is time “to face reality” [. . .] rather than pretending the practice does not exist or will go away’.

⁴ Klaus Peter Berger, Private Dispute Resolution in International Business: Negotiation, Mediation, Arbitration (3rd edn, Kluwer 2015) para 27–9 (Berger, PDR); cf Gary B Born, International Commercial Arbitration (2nd edn, Kluwer 2014) 2043; Constantine Partasides and others, ‘The Use of Arbitral Secretaries under the New UNCITRAL Rules and Otherwise: Opportunities and Pitfalls’ in Albert Jan van den Berg (ed), International Arbitration: The Coming of a New Age? (Kluwer 2013) 327.

⁵ cf Jan Paulsson, The Idea of Arbitration (OUP 2013) 155 considering that such approaches ‘may [be] realism, but reality is sometimes unacceptable’.

⁶ See paras 5.49ff.

⁷ Pierre Lalive, ‘Secrétaire de tribunaux arbitraux: le bon sens l’emporte’ (1989) 7 ASA Bull 1, 5; Gerald Aksen and others, ‘The Art of Arbitrating: Act IV. The Hearing on the Merits’ (2007) 23 Arb Intl 229, 244; Elisabeth Leimbacher, ‘Efficiency Under the New ICC Rules of Arbitration of 2012: First Glimpse at the New Practice’ (2013) 31 ASA Bull 298, 302; Doug Jones, ‘Ethical Implications of Using Paralegals and Tribunal Secretaries’ (2014) Special Volume 17 Comparative LJ of the Pacific 251, 253; Berger, PDR (n 4) para 27-9.

⁸ Nigel Blackaby and others, Redfern and Hunter on International Arbitration (6th edn, OUP 2015) para 4.197. cf Michael Schneider, ‘The Paper Tsunami in International Arbitration: Problems, Risks for the Arbitrators’ Decision Making and Possible Solutions’ in Teresa Giovannini and Alexis Mourre (eds), Written Evidence and Discovery in International Arbitration: New Issues and Tendencies (ICC 2009) 371: ‘Requiring that all activities must be performed exclusively by the arbitrators leads to an inefficient use of the arbitrator’s skills.’

⁹ See paras 1.31ff.

¹⁰ Thomas Schultz and Robert Kovacs, ‘The Rise of a Third Generation of Arbitrators? Fifteen Years after Dezalay and Garth’ (2012) 28 Arb Intl 161, 170; Alan Redfern, ‘The Changing World of Arbitration’ in David D Caron and others (eds), Practising Virtue: Inside International Arbitration (OUP 2015) 45.

¹¹ Charles N Brower, ‘Introduction’ in Richard B Lillich and Charles N Brower (eds), International Arbitration in the 21st Century: Towards ‘Judicialization’ and Uniformity? (Transnational Publishers 1994) ix; cf Catherine A Rogers, ‘Fit and Function in Legal Ethics: Developing a Code of Conduct for International Arbitration’ (2001) 23 Mich J Intl L 341, 350–54; Eric Bergsten, ‘The Americanization of International Arbitration: An Address at the International Law Students Association Conference at Pace Law School—October 27–29, 2005’ (2006) 18 Pace Intl L Rev 289, 301; Charles N Brower, ‘W(h)Ither International Commercial Arbitration?: The Goff Lecture 2007’ (2008) 24 Arb Intl 181, 183; Klaus Peter Berger, ‘The International Arbitrator’s Dilemma: Transnational Procedure versus Home Jurisdiction—A German Perspective’ (2009) 25 Arb Intl 217, 219; William W Park, ‘Arbitrators and Accuracy’ (2010) 1 J Intl Disp Sett 25, 29; Berger, PDR (n 4) para 16-29; Redfern (n 10) 46.

¹² Pierre Tercier, ‘The Role of the Secretary to the Arbitral Tribunal’ in Lawrence W Newman and Richard D Hill (eds), Leading Arbitrators’ Guide to International Arbitration (3rd edn, Juris 2014) 543; cf Berger, PDR (n 4) para 16-29.

¹³ Gabrielle Kaufmann-Kohler and Antonio Rigozzi, International Arbitration: Law and Practice in Switzerland (OUP 2015) para 7.156: ‘[As] arbitration has changed [. . .] it is only natural that the means to handle arbitration also evolve.’

¹⁴ Queen Mary University and PriceWaterhouseCoopers, ‘2006 International Arbitration Study: Corporate Attitudes and Practices’ 6–7; Queen Mary University and PriceWaterhouseCoopers, ‘2008 International Arbitration Study: Corporate Attitudes and Practices: Recognition and Enforcement of Foreign Awards’ 5; Queen Mary University and White & Case, ‘2010 International Arbitration Survey: Choices in International Arbitration’ 32; Queen Mary University and White & Case, ‘2012 Survey’ (n 2) 13; Queen Mary University and White & Case, ‘2013 International Arbitration Survey: Corporate Choices in International Arbitration: Industry Perspectives’ 9; Queen Mary University and White & Case, ‘2015 International Arbitration Survey: Improvements and Innovations in International Arbitration’ 7.

¹⁵ Michael McIlwrath and Roland Schroeder, ‘The View from an International Arbitration Customer: In Dire Need of Early Resolution’ (2008) 74 Arb 3, 6–7; Paul Hobeck, Volker Mahnken and Max Koebke, ‘Time for Woolf Reforms in International Construction Arbitration’ (2008) 11 Intl ALR 84, 85–86; Park (n 11) 28–32; Ema Vidak-Gojkovic, Lucy Greenwood, and Michael McIlwrath, ‘Puppies or Kittens? How To Better Match Arbitrators to Party Expectations’ in Christian Klausegger and others (eds), Austrian Yearbook on International Arbitration 2016 (Manz 2016) 61.

¹⁶ Michael McIlwrath, ‘Foreword’ in Michael Leathes, Negotiation: Things Corporate Counsel Need to Know but Were Not Taught (Kluwer 2017) xii. cf also the seasonal warnings by William W Park, ‘Arbitration in Autumn’ (2011) 2 J Intl Disp Sett 287; and Neil Kaplan, ‘Winter of Discontent’ (2017) 34 J Intl Arb 373.

¹⁷ cf Irene Welser, ‘Efficiency—Today’s Challenge in Arbitration Proceedings’ in Christian Klausegger and others (eds), Austrian Yearbook on International Arbitration 2014 (Manz 2014) 151–52; Klaus Peter Berger and J Ole Jensen, ‘It Takes Pressure to Form Diamonds: The Changing Landscape of Dispute Resolution and Its Implications for International Arbitration’ (Kluwer Arbitration Blog, 23 May 2016).

¹⁸ cf Ulrike Gantenberg, ‘Methods of Reducing Costs in International Commercial Arbitration’ [2012] SchiedsVZ 17, 17.

¹⁹ Park (n 11) 33; Welser (n 17) 152–53; Jennifer Kirby, ‘Efficiency in International Arbitration: Whose Duty Is It?’ (2015) 32 J Intl Arb 689, 689.

²⁰ On the question of which tasks belong to which category, see paras 5.49ff.

²¹ Karl-Heinz Böckstiegel, ‘The Role of the Arbitrators in Investment Treaty Arbitration’ in Albert Jan van den Berg (ed), International Commercial Arbitration: Important Contemporary Questions (Kluwer 2003) 371; Pierre Lalive, ‘Un post-scriptum et quelques citations’ (1996) 14 ASA Bull 35, 40; cf Clyde C Pearce and Jack Coe Jr, ‘Arbitration Under NAFTA Chapter Eleven: Some Pragmatic Reflections Upon the First Case Filed Against Mexico’ (1999) 23 Hastings Intl & Comp L Rev 311, 321.

²² Lalive, ‘Un post-scriptum’ (n 21) 40 quoting an ‘English judge, member of the House of Lords’.

²³ See paras 4.120ff.

²⁴ cf Lalive, ‘Un post-scriptum’ (n 21) 42–43.

²⁵ How specifically the secretary may be employed to save time in the administrative aspects of the case is discussed at paras 5.137ff.

²⁶ ICC Commission on Arbitration and ADR, Techniques for Controlling Time and Costs in Arbitration (2nd edn, ICC 2012) 9.

²⁷ New York City Bar Association, ‘Secretaries to International Arbitration Tribunals: Joint Report of the International Commercial Disputes Committee and the Committee on Arbitration of the New York City Bar Association’ (2006) 17 Am Rev Intl Arb 575, 590 on the previous edition of the Report.

²⁸ Schneider, ‘Paper Tsunami’ (n 8) 367.

²⁹ cf Aksen and others (n 7) 244; Schneider, ‘Paper Tsunami’ (n 8) 366; Leimbacher (n 7) 303; Zachary Douglas, ‘The Secretary of the Arbitral Tribunal’ in Bernhard Berger and Michael E Schneider (eds), Inside the Black Box: How Arbitral Tribunals Operate and Reach Their Decisions (Juris 2014) 88.

³⁰ Karl-Heinz Böckstiegel, ‘Zur Vertragsgestaltung und Schiedsgerichtsbarkeit bei Infrastrukturprojekten’ in Klaus Peter Berger and others (eds), Festschrift für Otto Sandrock zum 70. Geburtstag (Recht und Wirtschaft 2000) 109 (‘many thousands of pages’); Lucy Reed, ‘The 2013 Hong Kong International Arbitration Centre Kaplan Lecture: Arbitral Decision-Making: Art, Science or Sport?’ (2013) 30 J Intl Arb 85, 97 (‘records with 500-page memorials, scores of witness statements and expert reports, and thousands of exhibits’); James Menz, ‘The Fourth Arbitrator? Die Rolle des Administrative Secretary im Schiedsverfahren’ [2015] SchiedsVZ 210, 212 (‘thousands of pages’).

³¹ Albert Jan van den Berg, ‘Organizing an International Arbitration: Practice Pointers’ in Lawrence W Newman and Richard D Hill (eds), Leading Arbitrators’ Guide to International Arbitration (3rd edn, Juris 2014) 426; cf Menz (n 30) 212 (‘several gigabytes’).

³² cf Douglas (n 29) 88 who offers as an example one of his current cases, in which it would take 292 days to read all documents, assuming three minutes per page and a twelve-hour working day; and Dimitar Ganev, ‘Problematics of Tribunal Secretaries’ (CDR Magazine, 16 August 2017) quoting J Walker with a similar example.

³³ Tercier (n 12) 544; cf Olivia Staines, ‘A Comment on the Use of Administrative Secretaries in Arbitration: The Fourth Arbitrator No More?’ [2013] In Touch (August 2013) 7, 7; Johannes Stürner, ‘Hilfspersonen im Schiedsverfahren nach deutschem Recht’ [2013] SchiedsVZ 322, 322.

³⁴ Michael E Schneider, ‘Assistance to the Tribunal: Options, Advantages and Dangers’ in Bernhard Berger and Michael E Schneider (eds), Inside the Black Box: How Arbitral Tribunals Operate and Reach Their Decisions (Juris 2014) 74; cf Neil Kaplan, ‘ “Let’s Not Get Hung up on Time Limits”: A View from the Other Side of the Arbitral Table’ (GAR News, 7 March 2016): ‘In light of all this is it not just a bit rich, or a bit of a chutzpah, to expect a tribunal of three arbitrators without access to an army of helpers to sort this all out in three months?’

³⁵ cf also Murray L Smith, ‘Reliance Document Management’ in Albert Jan van den Berg (ed), Legitimacy: Myths, Realities, Challenges (Kluwer 2015) 201:

Another device that may assist in document-heavy cases is the use of a secretary to the tribunal. The extra cost is immediately ameliorated by the time saved by a three member tribunal attempting to coordinate or organize massive volumes. Even with a sole arbitrator, who may not be very expert in managing the flow of electronic filings, there can be significant costs savings by the arbitrator employing a skilled assistant.

³⁶ For the circumstances under which these tasks may be carried out, see paras 5.154ff and 5.178ff.

³⁷ On this specific task, see para 5.240.

³⁸ The origin of this maxim is unclear. Versions of it date back as far as the Jewish Mishnah of 217 ce. It is often referred to in the context of international arbitration to indicate the parties’ interest in a quick decision of their dispute, cf Klaus Peter Berger, International Economic Arbitration (Kluwer 1993) 399; McIlwrath and Schroeder (n 15) 6; Franz T Schwarz and Christian W Konrad, The Vienna Rules: A Commentary on International Arbitration in Austria (Kluwer 2009) para 7-059; Douglas (n 29) 89.

³⁹ A survey by Berwin Leighton Paisner, ‘Research Based Report on Perceived Delay in the Arbitration Process’ (2012) Intl Arb Survey 4, 14 has found that most international commercial arbitrations take 12–18 months to get to the closing of the proceedings and that it takes almost the same amount of time for the final award to be rendered; Geoffrey Senogles, ‘The United Nations Compensation Commission’s Utilisation of Experts’ in Bernhard Berger and Michael E Schneider (eds), Inside the Black Box: How Arbitral Tribunals Operate and Reach Their Decisions (Juris 2014) 106 quoting D Hacking who notes that in investment arbitration, it takes fifteen months on average for the award to be rendered; Douglas Thomson, ‘Rivkin’s “Clarion Call” for Arbitration’ (2015) 10 GAR 23, 23 quotes D Rivkin who is waiting for several awards eighteen months after the final hearing has ended.

⁴⁰ Pierre A Karrer, Introduction to International Arbitration Practice: 1001 Questions and Answers (Kluwer 2014) para 767.

⁴¹ cf ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration of 30 October 2017 ss 91–95 (ICC Note 2017). According to those provisions, tripartite tribunals must usually render their awards within three months after the last substantive hearing. The arbitrators’ fees may be reduced by 20 per cent or more, depending on the amount of delay in issuing the award.

⁴² Arthur W Rovine, ‘Cost Concerns in the Drafting of Arbitral Awards—An Issue of Ethics’ in Arthur W Rovine (ed), Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2009 (Martinus Nijhoff 2010) 139; cf Aksen and others (n 7) 244; Günther J Horvath, ‘The Angelic Arbitrator Versus the Rogue Arbitrator: What Should an Arbitrator Strive to Be?’ in Patricia Shaughnessy and Sherlin Tung (eds), The Powers and Duties of an Arbitrator: Liber Amicorum Pierre A. Karrer (Kluwer 2017) 149.

⁴³ See paras 5.248ff.

⁴⁴ Gantenberg (n 18) 17.

⁴⁵ ICC Commission on Arbitration and ADR, Techniques for Controlling Time and Costs in Arbitration (ICC 2007) 6; ICC Commission on Arbitration and ADR, ‘Decisions on Costs in International Arbitration’ [2015] ICC Disp Res Bull 1, 3.

⁴⁶ ICC Commission on Arbitration and ADR, ‘Decisions on Costs’ (n 45) 3; with similar observations Pierre A Karrer, ‘Naives Sparen birgt Gefahren—Kostenfragen aus Sicht der Parteien und des Schiedsgerichts—’ [2006] SchiedsVZ 113, 115; Rovine (n 42) 134.

⁴⁷ This method has, for example, been adopted by the ICC and the DIS. The ICC, however, takes into account more factors than merely the amount in dispute, cf Rules of Arbitration of the International Chamber of Commerce 2017, Appendix III art 2(2) (ICC Rules 2017).

⁴⁸ This method is used for example in LCIA, ICSID, ICDR, and UNCITRAL arbitrations.

⁴⁹ For alternative remuneration models, see paras 6.44ff.

⁵⁰ But see para 6.53 for a suggestion as to how institutions could take this into account when assessing fees for the tribunal.

⁵¹ See para 6.01.

⁵² A simple example by Constantine Partasides, ‘The Fourth Arbitrator? The Role of Secretaries to Tribunals in International Arbitration’ (2002) 18 Arb Intl 147, 161 illustrates this point:

Arbitrator A does not appoint a secretary and spends 100 hours at an hourly rate [of] £250, thereby costing the parties £25,000. Arbitrator B has the same hourly rate as Arbitrator A, but chooses to appoint a secretary whose hourly rate is significantly lower at £125. Arbitrator B spends only 70 hours while his secretary spends 40 hours. As a consequence of appointing a secretary, the total cost to the parties is lower at £23,750 (even though more hours have been spent on the file). Taking the costs of the use of a secretary out of the arbitrator’s fees in these circumstances would hardly be reasonable. Why should Arbitrator B be penalized for having achieved a saving for the parties?

⁵³ See para 2.12. cf also Partasides and others (n 4) 335.

⁵⁴ Karrer (n 40) para 624.

⁵⁵ Senogles (n 39) 102 quoting E Schäfer.

⁵⁶ Park (n 16) 310; cf Park (n 11) 27; Jennifer Kirby, ‘What Is an Award, Anyway?’ (2014) 31 J Intl Arb 475, 483; Kirby (n 19) 692; Veit Öhlberger and Jarred Pinkston, ‘Iura Novit Curia and the Non-Passive Arbitrator: A Question of Efficiency, Cultural Blinders and Misplaced Concerns About Impartiality’ in Christian Klausegger and others (eds), Austrian Yearbook on International Arbitration 2016 (Manz 2016) 117.

⁵⁷ Kyriaki Karadelis, ‘The Role of the Tribunal Secretary’ (GAR News, 21 December 2011) quoting a conference attendee who stated that ‘[t]he use of tribunal secretaries can lead to awards that are “part Enid Blyton, part Tolstoy” ’; Khaled Moyeed, ‘London: Out of the Shadows’ (2015) 10 GAR 44, 45 quoting J Feris who ‘stated that another time the ICC encounters problems is at the review stage of draft final awards, when it may appear that an arbitral secretary was too heavily involved in the drafting of the award. This can result in a draft award that is not of the necessary quality to be approved by the ICC and cause delay to the issuance of the final award.’; cf Samuel V Goekjian, ‘ICC Arbitration from a Practitioner’s Perspective’ (1980) 14 J Intl L & Econ 407, 428.

⁵⁸ See para 2.3.

⁵⁹ Alfonso Gómez-Acebo, Party-Appointed Arbitrators in International Commercial Arbitration (Kluwer 2016) para 5-26.

⁶⁰ Leimbacher (n 7) 303 (‘It is possible, even for highly experienced arbitrators to overlook various points in light of the deluge of documents with which they are faced.’); Menz (n 30) 213.

⁶¹ On the requirements for that task to be carried out by tribunal secretaries, see para 5.235ff.

⁶² See paras 5.250ff.

⁶³ Goekjian (n 57) 432–33; Jan Paulsson, ‘Vicarious Hypochondria and Institutional Arbitration’ (1990) 6 Arb Intl 226, 230–31; W Laurence Craig, William W Park, and Jan Paulsson, International Chamber of Commerce Arbitration (3rd edn, Oceana 2000) 179; Karrer (n 40) para 38; Kirby (n 56) 180–81; Hamid G Gharavi, ‘The Advantages of the ICC Over ICSID Investment Arbitrations’ in Andrea Carlevaris and others (eds), International Arbitration Under Review: Essays in Honour of John Beechey (ICC 2015) 147; Berger, PDR (n 4) para 17-14; Blackaby and others (n 8) para 1.152; Jan Heiner Nedden and Johanna Büstgens, ‘Die Beratung des Schiedsgerichts—Konfliktpotential und Lösungswege’ [2015] SchiedsVZ 169, 177. cf also Queen Mary University and White & Case, ‘2015 Survey’ (n 14) 19 finding that the scrutiny of the award is the ‘fourth most important reasons why certain institutions are preferred’.

⁶⁴ See paras 5.249ff.

⁶⁵ On the importance of the reasoning of an arbitral award, see paras 5.85ff.

⁶⁶ MPJ Smakman, ‘De rol van de secretaris van het scheidsgerecht belicht’ [2007] TvA 2, 3 (author’s translation).

⁶⁷ See Part III.

⁶⁸ Andreas Reiner, Handbuch der ICC-Schiedsgerichtsbarkeit (Manz 1989) 139.

⁶⁹ Stürner (n 33) 322 (author’s translation).

⁷⁰ Pierre Lalive, ‘Mission et démission des arbitres internationaux’ in Marcelo Kohen, Robert Kolb, and Djacoba Liva Tehindrazanarivelo (eds), Perspectives of International Law in the 21st Century: Liber Amicorum Professor Christian Dominicé (Martinus Nijhoff 2012) 269–70; Julie A Maupin, ‘Transparency in International Investment Law: The Good, the Bad and the Murky’ in Andrea Bianchi and Anne Peters (eds), Transparency in International Law (CUP 2013) 163; Toby Landau, ‘Dysfunctional Deliberations and Effective Advocacy’ in Andrea Menaker (ed), International Arbitration and the Rule of Law: Contribution and Conformity (Kluwer 2017) 296; cf Karrer (n 40) para 960.

⁷¹ Michael E Schneider, ‘President’s Message: A Taxonomy of Arbitrators and the New Species of Arbiter Compositus’ (2013) 31 ASA Bull 237, 239.

⁷² cf P v Q [2017] EWHC 194 (Comm), para 47.

⁷³ Yves Derains and Eric A Schwartz, A Guide to the ICC Rules of Arbitration (2nd edn, Kluwer 2005) 363.

⁷⁴ Pedro J Saghy Cadenas, ‘El Secretario del Tribunal Arbitral—The Secretary of the Arbitral Tribunal’ [2013] VenAmCham Business 14, 16; cf already Eric A Schwartz, ‘The Rights and Duties of ICC Arbitrators’ in ICC (ed), The Status of the Arbitrator (ICC 1995) 77.

⁷⁵ cf Stephan Wilske, ‘Der kränkelnde Schiedsrichter—Eine subtile Guerilla-Taktik mittels eines absichtslos handelnden Werkzeugs—’ in Christian Cascante, Andreas Spahlinger, and Stephan Wilske (eds), Global Wisdom on Business Transactions, International Law and Dispute Resolution: Festschrift für Gerhard Wegen (CH Beck 2015) 804.

⁷⁶ cf Stephan Wilske, ‘The Ailing Arbitrator—Identification, Abuse and Prevention of a Potentially Dangerous Delaying and Obstruction Tool’ (2014) 7 Contemp Asia Arb J 279, 283; Wilske (n 75) 793.

⁷⁷ On these aspects of the secretary’s scope of tasks, see paras 5.138ff.

⁷⁸ cf Katia Contos, ‘London: Secretary Perspectives’ (2015) 10 GAR 39, 39 quoting S Nappert who ‘pointed out in this regard that the combined age of the arbitrators in the Yukos case [. . .] is about 200 years and that the task of the arbitrator is nothing if not exhausting. Perhaps it is unsurprising then that they required assistance with drafting the award and the parties who agreed to a tribunal of that seniority have little grounds to object.’

⁷⁹ Nassib G Ziadé, ‘Achieving Efficiency in Arbitration: The Role of the Institutions’ (2008) 25 News from ICSID 3, 4–5.

⁸⁰ See paras 5.133 and 5.229ff.

⁸¹ On the personal nature of the arbitrator’s mandate, see paras 5.05ff.

⁸² Robert D Cooter, ‘The Objectives of Private and Public Judges’ (1983) 41 Public Choice 107, 107; cf Thomas Schultz, ‘Arbitral Decision-Making: Legal Realism and Law & Economics’ (2015) 6 J Intl Disp Sett 231, 241. cf also Karrer (n 40) para 273 on ‘arbitrator marketing’.

⁸³ See para 10.16.

⁸⁴ cf Jens Gal, Die Haftung des Schiedsrichters in der internationalen Handelsschiedsgerichtsbarkeit (Mohr Siebeck 2009) 304.

⁸⁵ See para 10.16.

⁸⁶ See Giuseppe Di Federico (ed), Recruitment, Professional Evaluation and Career of Judges and Prosecutors in Europe: Austria, France, Germany, Italy, the Netherlands and Spain (Lo Scarabeo 2005) on the requirements for becoming a judge in those jurisdictions.

⁸⁷ This is, of course, an oversimplification as many factors depend on the parties’ trust that a particular individual will be right to arbitrate their dispute. See in detail paras 5.15ff.

⁸⁸ On the importance of that right, see paras 5.10ff.

⁸⁹ See para 5.17.

⁹⁰ Joseph Heller, Catch-22 (Simon & Schuster 1961) 46:

There was only one catch and that was Catch-22, which specified that a concern for one’s own safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane then he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.

⁹¹ See eg Lalive, ‘Secrétaire de tribunaux arbitraux’ (n 7) 5; Reiner (n 68) 140; Partasides (n 52) 148; Thomas Clay, ‘Le secrétaire arbitral’ (2005) 2005 Rev de l’Arb 931, 956; Emilia Onyema, ‘The Role of the International Arbitral Tribunal Secretary’ (2005) 9 VJ 99, 107; Schwarz and Konrad (n 38) para 7-152; Marcel Fontaine, ‘L’arbitre et ses collaborateurs’ (2013) 2 b-Arbitra 23, 32; Michael Hwang, ‘Musings on International Arbitration’ in Michael Hwang, Eunice Chan, and Elaine Lim (eds), Selected Essays on International Arbitration (Academy Publishing 2013) 18–19; Venus Valentina Wong, ‘Administrative Secretaries to Arbitral Tribunals: A Note from a Practitioner’s Perspective’ (2013) 2 Slovenian Arb Rev 14, 14; van den Berg (n 31) 434; Tercier (n 12) 554; Berger, PDR (n 4) para 27-9; Blackaby and others (n 8) paras 4.68–4.71; Moyeed (n 57) 45 quoting P Runeland, D Caron, and Lacey Yong, ‘HKIAC Offers Training for Tribunal Secretaries’ (GAR News, 10 November 2015) quoting D Jones and Hilary Heilbron, ‘Keynote Address: Positivity, Perseverance and Empowerment—the Road to Equality and Diversity’ [2016] Arbitral Women Newsletter (April 2016) 9, 12.

⁹² Claude Reymond, ‘The President of the Arbitral Tribunal’ (1994) 9 ICSID Rev 1, 3; cf Rachel Bendayan, ‘Interview with a Leading International Arbitrator: L Yves Fortier’ (2013) 18 IBA Arb News 16, 17 quoting LY Fortier.

⁹³ Queen Mary University and White & Case, ‘2015 Survey’ (n 14) 42.

⁹⁴ Yves Dezalay and Bryant G Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (University of Chicago Press 1996) 20–22, 27, 40 refer to famous arbitrators like P Lalive and G Lagergren as well as two unidentified Swiss practitioners; cf also Bendayan (n 92) 17 quoting LY Fortier; Patrik Schöldström, ‘The Arbitrators’ in Ulf Franke and others (eds), International Arbitration in Sweden: A Practitioner’s Guide (Kluwer 2013) para 99; Karrer (n 40) para 261; Michael E Schneider, ‘The Uncertain Future of the Interactive Arbitrator: Proposals, Good Intentions and the Effect of Conflicting Views on the Role of the Arbitrator’ in Stavros L Brekoulakis, Julian DM Lew, and Loukas A Mistelis (eds), The Evolution and Future of International Arbitration (Kluwer 2016) para 25.2.

⁹⁵ See Joshua Karton, The Culture of International Arbitration and the Evolution of Contract Law (OUP 2013) 50 n 57 reporting on a French practitioner who regularly acts in both capacities: ‘I think sitting as an arbitrator helps me a lot be effective as a lawyer addressing an arbitration tribunal or even a state court. [. . .] Because it helps me realize that only clear, important, convincing arguments are of any use and that all of the little legal discussions you advance in argument [. . .] will not convince anybody.’ cf also Wong (n 91) 18.

⁹⁶ Hwang (n 91) 18–19.

⁹⁷ cf Wong (n 91) 18.

⁹⁸ See para 6.50.

⁹⁹ cf Nina Holvast, ‘The Power of the Judicial Assistant/Law Clerk: Looking Behind the Scenes at Courts in the United States, England and Wales, and the Netherlands’ (2016) 7 Intl J Ct Admin 10, 19.

¹⁰⁰ cf Edward Lazarus, Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court (Times Books 1998) 18: ‘[C]lerkships [. . .] serve as door openers, jobs of sufficient prestige to launch promising careers’; The Law Society Gazette, ‘Courting Appeal—for Budding Lawyers a Spell at the Court of Appeal Is an Unrivalled Way to Learn Court Procedure’ (Law Society Gazette, 25 January 2001): ‘One of the best weapons to have on a CV is a stint as a judicial assistant at the [English] Court of Appeal’; cf Nina Holvast, In the Shadow of the Judge: The Involvement of Judicial Assistants in Dutch District Courts (Eleven 2017) 67. In the United States, the position of a law clerk is so well known that it has entered the realm of pop-culture, serving as the basis for novels (Brad Meltzer, The Tenth Justice (Rob Weisbach Books 1997); David Lat, Supreme Ambitions (ABA Publishing 2015)); and television series (Netflix Originals, ‘Chapter 38’, House of Cards (2015) 00:04:15: Heather Dunbar: ‘Your dissent on Godfrey v Kent was brilliant, by the way.’ Supreme Court Justice Robert Jacobs: ‘My clerks—they wrote it, every word.’).

¹⁰¹ Heilbron (n 91) 12–13.

¹⁰² Zain Jinnah, ‘Careers in International Arbitration: Taking the Institutional Route’ (GAR News, 2 November 2017) reporting of S Blanchard’s ‘private international arbitration law clerk[ship]’ with CN Brower; cf also Hwang (n 91) 19 reporting of his ‘MH Alumni’ all of whom have acted as his tribunal secretaries for an extended amount of time.

¹⁰³ cf Douglas (n 29) 87.

¹⁰⁴ On such undisclosed or ‘shadow secretaries’, see paras 4.117ff.

¹⁰⁵ Douglas (n 29) 87–88.

¹⁰⁶ cf Menz (n 30) 214: ‘Undisclosed secretaries [. . .] will be less known than their officially appointed colleagues’ (author’s translation).

¹⁰⁷ See paras 2.29ff.

¹⁰⁸ See para 5.14.

¹⁰⁹ Heilbron (n 91) 12–13; John Gaffney, ‘The Equal Representation in Arbitration Pledge: Two Comments on Its Scope of Application’, Columbia FDI Perspectives No 196 (2017) 2.

¹¹⁰ cf Dezalay and Garth (n 94) 47; Wong (n 91) 18.

¹¹¹ Moyeed (n 57) 45 quoting P Runeland. On the role of reporters at ICAC, see paras 1.74ff.

¹¹² Introduction to Iran–US Claims Tribunal Section (1986) XI Ybk Comm Arb 257, 259.

¹¹³ Also cf Partasides (n 52) 149.

¹¹⁴ See paras 5.132ff. The advice by Mark Herrmann, ‘The Retirement Dream: How to Become an Arbitrator’ (Above the Law, 12 April 2017) that aspiring arbitrators should ‘[a]sk the arbitrators if they need ghostwriting help’ certainly goes too far.

¹¹⁵ On that risk, see paras 5.102ff.

¹¹⁶ Lalive, ‘Mission et démission’ (n 70) 274.

¹¹⁷ Karton (n 95) 43; Klaus Peter Berger and J Ole Jensen, ‘Due Process Paranoia and the Procedural Judgment Rule: A Safe Harbour for Procedural Management Decisions by International Arbitrators’ (2016) 32 Arb Intl 415, 418; cf VV Veeder, ‘Whose Arbitration Is It Anyway—The Parties’ or the Arbitration Tribunal’s?’ in Lawrence W Newman and Richard D Hill (eds), Leading Arbitrators’ Guide to International Arbitration (3rd edn, Juris 2014) 87.

¹¹⁸ cf FD von Hombracht-Brinkman, ‘Er zijn secretarissen en secretarissen!’ [2008] TvA 53, 54; Bassiri and others (n 1) 47. cf also a counsel’s quote from a 2009 discussion on the Oil-Gas-Energy-Mining-Infrastructure Dispute Management (OGEMID) List Serve, which operates under Chatham House Rule. The discussion is archived at <https://www.transnational-dispute-management.com/members/ogemid/>: ‘Secretaries may go learn how to draft an arbitral award and go playing arbitrator elsewhere, not with my case.’

¹¹⁹ See para 6.63.

¹²⁰ Harry L Arkin, ‘International Ad Hoc Arbitration: A Practical Alternative’ (1987) 15 International Business Lawyer 5, 5; Pierre Lalive, ‘Avantages et inconvénients de l’arbitrage “ad hoc” ’, Etudes offertes à Pierre Bellet (Litec 1991) 211; Pieter Sanders, ‘Has the Moment Come to Revise the UNCITRAL Arbitration Rules?’ (2004) 20 Arb Intl 243, 266; Michael McIlwrath and John Savage, International Arbitration and Mediation: A Practical Guide (Kluwer 2010) para 3-079; Roger Enock and Alexandra Melia, ‘Ad Hoc Arbitrations’ in Julian DM Lew and others (eds), Arbitration in England with Chapters on Scotland and Ireland (Kluwer 2013) para 6-7; Anne Véronique Schlaepfer and Angelina M Petti, ‘Institutional versus Ad Hoc Arbitration’ in Elliott Geisinger, Nathalie Voser, and Angelina M Petti (eds), International Arbitration in Switzerland: A Handbook for Practitioners (2nd edn, Kluwer 2013) 16; Smakman (n 66) 4; Bassiri and others (n 1) 12 (Commentary on the Young ICCA Guide on Arbitral Secretaries 2014 art 3(2)(a) (Young ICCA Guide 2014)); Remy Gerbay, The Functions of Arbitral Institutions (Kluwer 2016) 35–36; Sundra Rajoo, Law, Practice, and Procedure of Arbitration (2nd edn, LexisNexis 2017) 398.

¹²¹ cf Clay (n 91) 949; Karadelis (n 57); Rajoo (n 120) 398.

¹²² Blackaby and others (n 8) para 4.196.

¹²³ cf Goekjian (n 57) 410 n 5; Ben Rigby, ‘Assume the Position’ (CDR News, 11 March 2015).

¹²⁴ Lalive, ‘Secrétaire de tribunaux arbitraux’ (n 7) 4.

¹²⁵ Saghy Cadenas (n 74) 15.

¹²⁶ See paras 2.05ff.

¹²⁷ For other purely administrative tasks, see paras 5.137ff.

¹²⁸ See paras 2.05ff.

¹²⁹ Rules of Arbitration of the Bahrain Chamber for Dispute Resolution 2017 art 13.1(d); HKIAC Guidelines on the Use of a Secretary to the Arbitral Tribunal of 1 June 2014 s 3.3(g) (HKIAC Guidelines 2014); LCIA Notes for Arbitrators of 26 October 2017 s 70(c) (LCIA Notes 2017); New York City Bar Association (n 27) 590; Peter Leaver, ‘Reciprocal Duties of Institutions and Arbitrators’ in Bernard Hanotiau and Alexis Mourre (eds), Players’ Interaction in International Arbitration (ICC 2012) 109; Jacomijn J van Haersolte-van Hof, ‘Challenges and Responsibilities of Arbitral Institutions’ in Andrea Carlevaris and others (eds), International Arbitration Under Review: Essays in Honour of John Beechey (ICC 2015) 180.

¹³⁰ See paras 3.54ff.

¹³¹ See para 5.284.

¹³² That is the assumption many institutional schedules of fees take when they determine the arbitrator’s remuneration based on the amount in dispute, see paras 6.21ff.

¹³³ Schwarz and Konrad (n 38) para 14-027; cf Born (n 4) 2127; Wilske (n 75) 793; Rajoo (n 120) 459.

¹³⁴ cf Jason Fry, Simon Greenberg, and Francesca Mazza, The Secretariat’s Guide to ICC Arbitration (ICC 2012) para 3-1453; Blackaby and others (n 8) para 4.206.

¹³⁵ Menz (n 30) 212. See also the Chartered Institute of Arbitrators International Arbitration Practice Guideline on Managing Arbitrations and Procedural Orders (CIArb Practice Guideline on Managing Arbitrations and Procedural Orders; Commentary on Article 2.1):

Before deciding whether to appoint an arbitral secretary, arbitrators should take into account (1) the number of parties to the arbitration; (2) the nature and complexity of the case; (3) the likely volume of documentary evidence, submissions, witness statements and expert reports; (4) whether the use of secretary will contribute to the overall efficiency of proceedings; and (5) any other relevant matters.

¹³⁶ cf Agrimex Ltd v Tradigrain SA [2003] EWHC 1656 (Comm), para 34(i) on the appointment of a ‘draftsman’; cf also Enock and Melia (n 120] para 6-38: ‘[T]he level of administration would likely not justify the costs’; Joaquim T de Paiva Muniz and Ana Tereza Palhares Basílio, Arbitration Law of Brazil: Practice and Procedure (2nd edn, Juris 2016) 81.

¹³⁷ For accounts from CAS and ICAC practice, see paras 1.72 and 1.78. cf also paras 5.20ff.

¹³⁸ Menz (n 30) 217; cf Remy Gerbay, ‘How Does a New Arbitrator Get Their First Appointment?’ (LexisPSL, 18 August 2014): ‘[T]he statistics published by the leading arbitral institutions confirm that there are hundreds upon hundreds of relatively small international disputes referred to arbitration each year. Parties and institutions need to have access to a pool of qualified and reliable young arbitrators willing to give to these smaller disputes the time and attention they deserve.’

¹³⁹ On parties’ and institutions’ expectations of the arbitrators they appoint, see paras 5.11ff.

¹⁴⁰ On the importance of transparency in that regard, see paras 4.80ff.

¹⁴¹ cf Rajoo (n 120) 398: ‘The arbitral tribunal has no automatic entitlement to an arbitral secretary’; cf also McIlwrath and Savage (n 120) para 5-106; Mauro Rubino-Sammartano, International Arbitration Law and Practice (3rd edn, Juris 2014) 536; Tercier (n 12) 542–43, 545.

¹⁴² Arbitration legislation without reference to tribunal secretaries exists in Austria, Australia, Belgium, China, Costa Rica, Czech Republic, Denmark, Egypt, Finland, France, Germany, Hungary, Italy, Japan, Lebanon, Lithuania, Malaysia, New Zealand, Poland, Portugal, Russia, Saudi Arabia, Singapore, South Africa, South Korea, Sweden, Thailand, Ukraine, the UAE, the US, Venezuela, and Vietnam. Arbitral rules without reference to tribunal secretaries are the AAA Commercial Arbitration Rules 2013, AIAC Arbitration Rules 2018, Camera Arbitrale di Milano Arbitration Rules 2010, CEPANI Arbitration Rules 2013, DIFC-LCIA Arbitration Rules 2016, DIAC Arbitration Rules 2007, DIS-Arbitration Rules 2018 (DIS Rules 2018), ICC Rules 2017, ICDR Dispute Resolution Rules 2014, JAMS International Arbitration Rules & Procedures 2016, LCIA Arbitration Rules 2014, and Vienna International Arbitral Centre Rules of Arbitration 2018 (Vienna Rules 2018).

¹⁴³ Argentine National Code of Civil and Commercial Procedure (Law No 17,454 of 19 September 1967) art 749(1): ‘The arbitral proceedings shall be held in the presence of a secretary who shall be qualified for the position and have full legal capacity and exercise of his civil rights.’ This provision means that ‘the appointment of a secretary of the arbitral tribunal is mandatory in any arbitration case’, cf Horacio A Grigera Naón, ‘Observations—Cour suprême de justice de la République argentine 11 November 1997—Yacimientos Carboniferos Fiscales y Otros v. Constitucion des Tribunal Arbitral’ [1999] Rev de l’Arb 655, 656 (author’s translation).

¹⁴⁴ Brazilian Arbitration Law 2015 (Law No 13.129 of 26 May 2015, amending Law 9.307 of 23 September 1996) art 13(5): ‘The sole arbitrator or the President of the arbitral tribunal, if he deems it necessary, may designate a secretary, who could also be one of the other arbitrators.’ For details, see de Paiva Muniz and Palhares Basílio (n 136) 81.

¹⁴⁵ Colombian Arbitration Law 2012 (Law No 1563 of 12 July 2012) art 9: ‘The arbitrators shall appoint a secretary [. . .]’. Several other provisions in the Law also address the tribunal secretary, inter alia, in regard to her scope of duties (arts 10(3), 27(2)), the scope of required disclosure (arts 15, 55), grounds for challenge of the secretary (arts 16, 55), her maximum amount of remuneration (art 26(3)) as well as post-award involvement (art 40). Arbitral institutions are required to maintain lists of tribunal secretaries (art 51). For details, see Eduardo Zuleta Jaramillo, ‘National Report for Colombia (2018)’ in Jan Paulsson and Lise Bosman (eds), ICCA International Handbook on Commercial Arbitration (Supplement No 98, March 2018, Kluwer 1984) ch 3 s 2.a.

¹⁴⁶ The Ecuadorian Arbitration Law 2006 (Law No 14 of 14 December 2006 (Arbitration and Mediation Law)) addresses tribunal secretaries in several regards. Article 17 foresees that both in institutional arbitrations (art 17(2) and (3)) and in ad hoc arbitrations (art 17(4)) a tribunal secretary takes part. This makes the appointment of a secretary mandatory: see Javier Robalino Orellana and others, ‘Arbitration Guide of the IBA Arbitration Committee: Ecuador (January 2018)’ (IBA 2018) 15. Arbitral institutions are required to train tribunal secretaries (art 39(3)), maintain lists of them (art 40(a)), determine their fees (art 40(b)), and provide a code of ethics for their use (art 40(e)).

¹⁴⁷ El Salvadorian Arbitration Act 2002 (Ley de Mediación, Conciliación y Arbitraje of 11 July 2002) art 44(3) (Mediation, Conciliation and Arbitration Act) provides that the arbitral tribunal may appoint a tribunal secretary, if it considers it appropriate.

¹⁴⁸ Indian Arbitration and Conciliation Act 1996 art 6: ‘In order to facilitate the conduct of the arbitral proceedings, the parties, or the arbitral tribunal with the consent of the parties, may arrange for administrative assistance by a suitable institution or person.’ This provision is not affected by the far-reaching amendments to the 1996 Act through the Indian Arbitration and Conciliation Ordinance of 23 October 2015, cf Sumeet Kachwaha, ‘Arbitration Guide of the IBA Arbitration Committee: India (January 2017)’ (IBA 2017) 18.

¹⁴⁹ Scottish Arbitration Rules (Arbitration (Scotland) Act 2010, Schedule 1) r 32(1) provides that ‘[t]he tribunal may appoint a clerk (and such other agents, employees or other persons it thinks fit) to assist it in conducting the arbitration.’ This rule refers to tribunal secretaries. See Hew R Dundas, ‘Arbitration in Scotland’ in Julian DM Lew and others (eds), Arbitration in England with Chapters on Scotland and Ireland (Kluwer 2013) para 27-74; Brandon J Malone, ‘Arbitration Guide of the IBA Arbitration Committee: Scotland (January 2018)’ (IBA 2018) 15.

¹⁵⁰ Uruguayan Law on Arbitration and other Alternative Dispute Resolution Procedures (Law No 15982 of 1988) art 481(1): ‘Once the arbitrators have been appointed, the parties may appoint a secretary, leave the appointment to the Arbitral Tribunal or order them to act without a secretary.’

¹⁵¹ See nn 143, 145, and 146. For an ‘opt out’ model regarding the mandatory participation of a secretary, see n 149.

¹⁵² Jan Kleinheisterkamp, International Commercial Arbitration in Latin America (Oceana 2005) 208.

¹⁵³ cf ibid 207.

¹⁵⁴ Horacio A Grigera Naón, ‘Arbitration and Latin America: Progress and Setbacks—2004 Freshfields Lecture’ (2005) 21 Arb Intl 127, 131; cf Kleinheisterkamp (n 152) 1; Born (n 4) 60–61.

¹⁵⁵ On these duties, see paras 5.276ff.

¹⁵⁶ cf Queen Mary University and White & Case, ‘2012 Survey’ (n 2) 11.

¹⁵⁷ See Kleinheisterkamp (n 152) 208 with further references.

¹⁵⁸ For Switzerland, see Swiss Code of Civil Procedure art 365(1): ‘The arbitral tribunal may appoint a secretary.’ cf also its predecessor, Swiss Inter-Cantonal Concordat on Arbitration of 27 March 1969 art 15: ‘The arbitral tribunal, with the agreement of the parties, may designate a secretary.’ For Chile, see Chilean Code of Civil Procedure (Law No 1552, as amended up to Law No 20.217 of November 12, 2007) art 632(1) (Chilean CCP) which requires the arbitrator to appoint a ‘certifying authority’, who must be present and certify all procedural actions by the arbitral tribunal. If such a ‘certifying authority’ is challenged or not available at the place of arbitration, the tribunal may appoint a tribunal secretary. Chilean CCP art 632(2) provides that there may be a different ‘certifying authority’ or secretary, if certain acts are conducted at a different place than the seat of the arbitration. In case the arbitrator is tasked to decide as amiable compositeur it is up to her discretion whether she appoints a ‘certifying authority’ or tribunal secretary, Chilean CCP art 639(1). If the parties want to question witnesses they must do so through the arbitrator, though in practice the tribunal secretary often takes over this task.

¹⁵⁹ cf Blackaby and others (n 8) para 3.44.

¹⁶⁰ SFT, Judgment of 21 May 2015 (2015) 33(4) ASA Bull 879, 885 (author’s translation) on ch 12 of the Swiss Federal Statute on Private International Law (Bundesgesetz über das Internationale Privatrecht; PILS).

¹⁶¹ On Swiss law, see Eugen Bucher, ‘Die Schweiz als Sitzort internationaler Schiedsgerichte’ in Karl-Heinz Böckstiegel and Eugen Bucher (eds), Die internationale Schiedsgerichtsbarkeit in der Schweiz (II) (Heymanns 1989) 139; Thomas Rüede and Reimer Hadenfeldt, Schweizerisches Schiedsgerichtsrecht: nach Konkordat und IPRG (2nd edn, Schulthess 1993) 192; Nathalie Voser, ‘New Rules on Domestic Arbitration in Switzerland: Overview of Most Important Changes to the Concordat and Comparison with Chapter 12 PILA’ (2010) 28 ASA Bull 753, 762; Philipp Habegger, ‘Art. 365 ZPO’ in Karl Spühler and Luca Tenchio (eds), Basler Kommentar: Schweizerische Zivilprozessordnung (2nd edn, Helbing Lichtenhahn 2013) para 1; Tarkan Göksu, Schiedsgerichtsbarkeit (Dike 2014) para 883 (using the domestic arbitration law as a ‘gap filler’ in the PILS); Bernhard Berger and Franz Kellerhals, International and Domestic Arbitration in Switzerland (3rd edn, Stämpfli 2015) para 1008; Kaufmann-Kohler and Rigozzi (n 13) para 4.189; Matthias Scherer, ‘Arbitration Guide of the IBA Arbitration Committee: Switzerland (January 2018)’ (IBA 2018) 16. On Chilean law, see Andrés Jana, ‘Arbitration Guide of the IBA Arbitration Committee: Chile (April 2012)’ (IBA 2012) 18.

¹⁶² CAS Code of Sports-related Arbitration 2017 arts R40.3 and R54.4: ‘An ad hoc clerk independent of the parties may be appointed to assist the Panel.’ While the CAS Court Office may spark the appointment process, the decision to appoint ultimately rests with the arbitral tribunal. See paras 1.67ff.

¹⁶³ The previous (2011) version of the Arbitration Rules of the European Court of Arbitration provided in art 15(3) that ‘[i]n the absence of a secretary having been appointed, as necessary, the Chairman of the Arbitral Tribunal shall designate, at the commencement of the hearing, the person responsible for this function for the remaining proceedings.’ This made it mandatory to appoint a tribunal secretary in every arbitration, cf Rubino-Sammartano (n 141) 536–37. The new version of Arbitration Rules of the European Court of Arbitration 2015 art 15.3 (CEA Rules 2015) does not explicitly refer to tribunal secretaries: ‘A written record of proceedings will be taken at the hearings. The Chairperson of the Arbitral Tribunal shall designate, at the commencement of the hearing, the person responsible for this function for the remaining proceedings.’ However, CEA Rules 2015 art 23.4 indicates that such a ‘person responsible for this function’ can still be a tribunal secretary as it recognizes CEA Rules 2015 art 15.3 as the legal basis for the appointment of a tribunal secretary by referring to ‘any secretary appointed under Art. 15(3)’. Still, the appointment of a secretary has ceased to be mandatory, as the function under CEA Rules 2015 art 15.3 could also be carried out by one of the arbitrators. Accordingly, several provisions only refer to the ‘Secretary of the Arbitral Tribunal, if appointed’ (CEA Rules 2015 arts 15.2, 17.6; emphasis added).

¹⁶⁴ Arbitration Rules of the Finland Chamber of Commerce 2013 art 25.5 sentence 1 (FAI Rules 2013): ‘The arbitral tribunal may, after consulting with the parties, appoint a secretary when deemed appropriate.’

¹⁶⁵ HKIAC Administered Arbitration Rules 2013 art 13.4: ‘The arbitral tribunal may, after consulting with the parties, appoint a secretary.’

¹⁶⁶ Rules of the Nordic Arbitration Centre of the Iceland Chamber of Commerce 2013 arts 21(3): ‘The arbitral tribunal may, after consulting with the parties, appoint a secretary.’

¹⁶⁷ Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce 2017 art 24(1) (SCC Rules 2017): ‘The Arbitral Tribunal may submit to the SCC a proposal for the appointment of an administrative secretary at any time during the arbitration. The appointment is subject to the approval of the parties.’

¹⁶⁸ Swiss Rules 2012 arts 15(5) sentence 1: ‘The arbitral tribunal may, after consulting with the parties, appoint a secretary.’

¹⁶⁹ See paras 1.42ff.

¹⁷⁰ See paras 4.73ff.

¹⁷¹ Such soft law instruments are also referred to as ‘para-regulatory texts’ and include institutional ‘Guidelines’, ‘Notes’, ‘Best Practices’, etc.

¹⁷² See eg the IBA Guidelines on Conflicts of Interest in International Arbitration of 23 October 2014 (IBA Conflicts Guidelines 2014); IBA Guidelines on Party Representation in International Arbitration of 25 May 2013.

¹⁷³ See eg Chartered Institute of Arbitrators Practice Guideline 10: Guidelines on the Use of Tribunal-Appointed Experts, Legal Advisers and Assessors.

¹⁷⁴ See eg the IBA Guidelines on Drafting International Arbitration Clauses of 7 October 2010.

¹⁷⁵ A famous example are the IBA Rules on the Taking of Evidence in International Arbitration of 29 May 2010 (IBA Rules of Evidence 2010); see also the UNCITRAL Notes on Organizing Arbitral Proceedings 2016 (UNCITRAL Notes 2016).

¹⁷⁶ Berger, PDR (n 4) para 16-38.

¹⁷⁷ This non-binding character of soft law is easily forgotten in light of its pre-formulated and rule-like appearance. This is criticized by Michael E Schneider, ‘The Essential Guidelines for the Preparation of Guidelines, Directives, Notes, Protocols and Other Methods Intended to Help International Arbitration Practitioners to Avoid the Need for Independent Thinking and to Promote the Transformation of Errors into “Best Practices” ’ in Laurent Lévy and Yves Derains (eds), Liber Amicorum en l’honneur de Serge Lazareff (Éditions Pedone 2011) 563–67; Ugo Draetta, ‘The Transnational Procedural Rules for Arbitration and the Risks of Overregulation and Bureaucratization’ (2015) 33 ASA Bull 327, 333–41; and Tom Jones, ‘ “Killing Me Softly”: Is International Arbitration Being Stifled by Soft Law?’ (GAR News, 1 March 2016).

¹⁷⁸ The IBA Rules of Evidence 2010 are an example for such texts as they are widely considered ‘an internationally applicable standard’, Reto Marghitola, Document Production in International Arbitration (Kluwer 2015) 33; cf Railroad Development Corp v Guatemala, ICSID ARB/07/23, Decision on Provisional Measures of 15 October 2008, para 32; Born (n 4) 2212; Kaufmann-Kohler and Rigozzi (n 13) para 1.78.

¹⁷⁹ Some institutional guidelines envisage that the parties adopt them as a party agreement, cf HKIAC Guidelines 2014 s 1.1. Others, like ICC Note 2017 s 147, require that both the tribunal secretary and the arbitral tribunal sign an undertaking to comply with the Note (on the legal significance of such an undertaking, see paras 3.19ff).

¹⁸⁰ On party autonomy as a legal basis for the appointment of tribunal secretaries, see para 2.93.

¹⁸¹ Bassiri and others (n 1) 18; See Michael Feit and Chloé Terrapon Chassot, ‘The Swiss Federal Supreme Court Provides Guidance on the Proper Use of Arbitral Secretaries and Arbitrator Consultants under the Swiss Lex Arbitri: Case Note on DFC 4A_709/2014 Dated 21 May 2015’ (2015) 33 ASA Bull 897, 913 with the observation that this approach is regularly followed in practice.

¹⁸² On the tribunal’s procedural discretion as a legal basis for the appointment of tribunal secretaries, see paras 2.88ff.

¹⁸³ FAI Rules 2013 art 25.5 sentence 3: ‘The Institute may separately issue further instructions on the appointment, duties and remuneration of a tribunal-appointed secretary.’

¹⁸⁴ ICC Rules 2017 Appendix II art 5(2): ‘The Secretariat may, with the approval of the Court, issue notes and other documents for the information of the parties and the arbitrators, or as necessary for the proper conduct of the arbitral proceedings.’ Strictly speaking, appendices are themselves not part of arbitral rules. Nevertheless, some state that this Appendix ‘explicitly authorizes’ the Secretariat to promulgate notes and guidelines, see Derains and Schwartz (n 73) 14 n 4.

¹⁸⁵ cf ICC Rules 2017 art 30, making this understanding explicit in terms of the ‘Expedited Procedure Provisions’ appended to the ICC Rules 2017. But see Feit and Terrapon Chassot (n 181) 912 for the opposite opinion that the guidelines do not form part of the parties’ agreement.

¹⁸⁶ Or if they are substantially changed after the parties’ agreement on a specific set of procedural rules.

¹⁸⁷ cf Feit and Terrapon Chassot (n 181) 912–13.

¹⁸⁸ cf Simon Greenberg and Flavia Mange, ‘Institutional and Ad Hoc Perspectives on the Temporal Conflict of Arbitral Rules’ (2010) 27 J Intl Arb 199, 199.

¹⁸⁹ See eg ICC Case No 5622, Final Award of 1992 (1997) 8(1) ICC Ct Bull 52–53; SFT, Judgment of 14 June 1990 (1994) 12(2) ASA Bull 226, 228–29; Craig, Park and Paulsson (n 63) 145; Greenberg and Mange (n 188) 207. Institutional rules often contain explicit rules to that effect, cf DIS Rules 2018 art 1.2; ICC Rules 2017 art 6(1); Preamble of LCIA Arbitration Rules 2014; UNCITRAL Arbitration Rules 2010 art 1(2); Vienna Rules 2018 art 1(2).

¹⁹⁰ As a matter of course, the parties can always opt out of such guidelines if they are unhappy with their content. An exception may be the ICC’s rule that tribunal secretaries may not be remunerated by the parties, see paras 5.115ff and 6.40ff.

¹⁹¹ See para 1.77.

¹⁹² Habegger (n 161) para 1b; cf Lalive, ‘Secrétaire de tribunaux arbitraux’ (n 7) 41.

¹⁹³ Habegger (n 161) para 1b. On the tribunal’s procedural discretion as a basis for the appointment of tribunal secretaries, see paras 2.88ff.

¹⁹⁴ On the arbitrator’s contract with the arbitral institution, see Julian DM Lew, Loukas A Mistelis, and Stefan M Kröll, Comparative International Commercial Arbitration (Kluwer 2003) paras 12-7–12-9.

¹⁹⁵ cf Georg von Segesser and James Menz, ‘Internationale Schweizerische Schiedsordnung’ in Rolf A Schütze (ed), Institutionelle Schiedsgerichtsbarkeit: Kommentar (3rd edn, Heymanns 2018) art 15 para 5. But see Schwartz (n 74) 86 (‘It is, in practice, very difficult for the ICC Court to verify or otherwise ensure that the limitations laid down in its Note are strictly observed.’); Thomas J Stipanowich, ‘Soft Law in the Organization and General Conduct of Commercial Arbitration Proceedings’ in Lawrence W Newman and Michael J Radine (eds), Soft Law in International Arbitration (Juris 2014) 95 (‘not technically a part of the ICC Rules’).

¹⁹⁶ See paras 5.115ff.

¹⁹⁷ cf Tercier (n 12) 554.

¹⁹⁸ cf Erik Schäfer, Herman Verbist, and Christophe Imhoos, ICC Arbitration in Practice (2nd edn, Kluwer 2015) 151.

¹⁹⁹ ACICA Guideline on the Use of Tribunal Secretaries of 1 January 2017.

²⁰⁰ FAI Note on the Use of a Secretary of 1 June 2013.

²⁰¹ HKIAC Guidelines 2014.

²⁰² SCC Arbitrator’s Guidelines of January 2017 s 4.

²⁰³ SIAC Practice Note for Administered Cases of 2 February 2015—On the Appointment of Administrative Secretaries.

²⁰⁴ Arbitration Court of the Swiss Chambers’ Arbitration Institution Guidelines for Arbitrators of 1 August 2014 s A.2.

²⁰⁵ See paras 2.55 and 2.68.

²⁰⁶ cf Sonatrach v Statoil [2014] EWHC 875 (Comm), para 48, acknowledging that ‘it is standard practice in ICC arbitrations for administrative secretaries to be used’.

²⁰⁷ JAMS Guidelines for Use of Clerks and Tribunal Secretaries in Arbitrations of 2012 (JAMS Guidelines 2012): ‘JAMS International arbitrators may use Clerks or Secretaries’.

²⁰⁸ LCIA Notes 2017 s 68: ‘Subject to any applicable law [. . .], an Arbitral Tribunal may obtain assistance from a tribunal secretary in relation to an arbitration.’

²⁰⁹ See paras 2.60ff. On party autonomy as a legal basis for the appointment of tribunal secretaries, see para 2.93.

²¹⁰ IBA Conflicts Guidelines 2014 GSt 5(b): ‘Arbitral or administrative secretaries and assistants, to an individual arbitrator or the Arbitral Tribunal, are bound by the same duty of independence and impartiality as arbitrators.’

²¹¹ UNCITRAL Notes 2016 ss 35–38; UNCITRAL Notes on Organizing Arbitral Proceedings 1996 ss 26–27.

²¹² CIArb Practice Guideline on Managing Arbitrations and Procedural Orders (Commentary on Article 2.1).

²¹³ See <http://www.arbitration-icca.org/YoungICCA/AboutYoungICCA.html>.

²¹⁴ Bassiri and others (n 1) 1.

²¹⁵ See paras 2.58ff. On the tribunal’s procedural discretion and party autonomy as legal bases for the appointment of tribunal secretaries, see paras 2.88ff.

²¹⁶ Most provincial arbitration laws in Canada do not address tribunal secretaries. An exception is British Columbia Commercial Arbitration Act, RSBC 1996, c 55, as amended on 1 May 2011 s 26(1) (British Columbia Commercial Arbitration Act 1996) which states that the fees of ‘a clerk, secretary or reporter assisting in the arbitration must not exceed the fair value of services performed together with necessary and reasonable expenses incurred’. This serves as an implicit legal basis for the appointment of tribunal secretaries in domestic arbitrations in British Columbia. In ‘arbitrations by advocates’ under the Québec Code of Civil Procedure of 11 November 1986, as amended on 1 August 2004 (Québec CCP) there is an explicit basis for the appointment of a ‘clerk’ (Québec CCP s 384: ‘The arbitrators may appoint someone to act as their clerk.’).

²¹⁷ While the Greek International Arbitration Law 1999 (Law No 2735 of 18 August 1999) is silent on tribunal secretaries, the domestic arbitration law, located in the Greek Code of Civil Procedure (Κώδικας‎ Πολιτικής‎ ∆ικονομίας‎; Greek CCP), addresses them in a limited regard. Greek CCP art 882(3) provides that the ‘fee and costs of the arbitration’ include the tribunal secretary’s fee. This reference is understood to imply that tribunal secretaries may be appointed in Greek domestic arbitrations, cf Antonias Dimolitsa and Niki K Kerameus, ‘Arbitration Guide of the IBA Arbitration Committee: Greece (May 2016)’ (IBA 2016) 12; cf also Stelios Koussoulis, ‘Die internationale Schiedsgerichtsbarkeit in Griechenland’ in Peter Gottwald (ed), Internationale Schiedsgerichtsbarkeit—Arbitrage international—International Arbitration (Gieseking 1997) 405.

²¹⁸ Tribunal secretaries are mentioned twice in the Indonesian Arbitration Law 1999 (Law of the Republic of Indonesia No 30 of 1999 regarding Arbitration and Alternative Dispute Resolution). Article 51 requires that ‘[m]inutes of the hearings, and examination of witnesses, shall be drawn up by a secretary’, making the participation of a tribunal secretary mandatory in arbitrations seated in Indonesia. Accordingly, Article 9(3)(e) provides that a submission agreement to arbitrate after the dispute has arisen must contain the ‘full name of the secretary’. These provisions indicate that a tribunal secretary must participate in every arbitration and therefore serve as a legal basis for their appointment, cf Jan K Schäfer, ‘La nouvelle loi indonésienne sur l’arbitrage’ [2001] Rev de l’Arb 625, 629.

²¹⁹ The Peruvian Arbitration Law 2008 (Law No. 26572, amended by Arbitration Act Legislative Decree 1071 of 2008) includes references to tribunal secretaries in respect to their confidentiality obligation (art 51(1)), the costs of the arbitration (art 70(b)), and the tribunal secretary’s fees (art 71).

²²⁰ Romanian Code of Civil Procedure, enacted by Law 134/2010 of 15 July 2010 art 603(1)(g) provides that the arbitral award must contain ‘[t]he signatures of all arbitrators [. . .] and, where applicable, the signature of the secretary of the tribunal.’ On that rule, see para 5.270.

²²¹ The Dutch arbitration law makes direct reference to tribunal secretaries in Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering; Dutch CCP) art 1035a regarding the challenge of secretaries and in Dutch CCP art 1061(5) on additional awards.

²²² According to Abu Dhabi Commercial Conciliation & Arbitration Center Procedural Regulations of Arbitration 2013 art 17(1), ‘secretary charges’ are considered fees of the arbitral tribunal (cf also art 17(4)(3)). This reference is understood as an implicit legal basis for the appointment of tribunal secretaries in ADCCAC arbitrations, see Karim Nassif, ‘ADCCAC: New Rules … A Year Later!’ (2015) 7 Intl J Arab Arb 9, 17.

²²³ BVI IAC Arbitration Rules 2016 art 1(5)(l) states that the Secretariat provides ‘assistance in the appointment of administrative secretaries’.

²²⁴ CRCICA Arbitration Rules 2011 art 40(1) provides that the ‘secretary of the arbitral tribunal’ is subject to confidentiality.

²²⁵ Arbitration Rules of the Singapore International Arbitration Centre 2016 art 38.1 (SIAC Rules 2016) extends the exclusion of liability to ‘any administrative secretary’. SIAC Rules 2016 art 38.2 provides that tribunal secretaries are not under the obligation ‘to make any statement in connection with any arbitration administered by SIAC’. SIAC Rules 2016 art 39.1 and 39.2 provides for the confidentiality obligation to include tribunal secretaries.

²²⁶ TRAC Rules of Arbitration of 2005 art 4 sentence 2 provides that also ‘the Arbitral Tribunal’s appointed experts and secretaries’ are subject to a confidentiality obligation.

²²⁷ CETA differentiates between the resolution of disputes between investors and states by a ‘Tribunal’ (art 8.18ff) and the resolution of inter-state disputes by an ‘arbitration panel’ (art 29.6ff). Both the CETA Rules of Procedure for Arbitration (Annex 29-A to CETA) and the CETA Code of Conduct for Arbitrators and Mediators (Annex 29-B to CETA) contain rules on assistants to members of the arbitration panel. Similar provisions are found in other EU investment protection agreements which are currently being negotiated, such as the Investment Protection Agreement Between the European Union and Its Member States, of the One Part, and the Republic of Singapore, of the Other Part (Annexes 9 and 11).

²²⁸ SOU 1994:81, 197 (author’s translation), available at <http://regina.kb.se/sou/>.

²²⁹ cf Laura Carlson, Fundamentals of Swedish Law (Studentlitteratur 2009) 42–43.

²³⁰ Spanish Arbitration Law 1988 (Law No 36/1988 of 5 December 1988) art 20(1): ‘With the consent of the parties the arbitrators may appoint a Secretary’ (author’s translation).

²³¹ See Bernardo M Cremades (ed), Arbitration in Spain (Butterworths 1991) 57 who notes that prior Spanish arbitration laws had provided for the participation of an escribano, a court officer, whose participation was later abolished.

²³² Law No. 60/2003 of 23 December 2003. cf Clay (n 91) 933.

²³³ Fernando Mantilla-Serrano, Ley de arbitraje: Una perspectiva internacional (Justel 2005) 109; Jóse María Alonso Puig, ‘Artículo 35’ in Carlos González-Bueno (ed), Comentarios a la Ley de arbitraje (Consejo General del Notariado 2014) 715; cf Clay (n 91) 933; Laura Lozano Correa, ‘Art. 34–39’ in Carlos González-Bueno (ed), The Spanish Arbitration Act: A Commentary (Dykinson 2016) 218.

²³⁴ See paras 1.36ff.

²³⁵ Jan Paulsson and Georgios Petrochilos, ‘Revision of the UNCITRAL Arbitration Rules’ (UNCITRAL 2006) para 138; cf Sanders (n 120) 265–66.

²³⁶ The travaux préparatoires do not address the issue of an express legal basis for the appointment of tribunal secretaries. It was considered whether tribunal secretaries should be expressly excluded from liability (UN Doc A/CN.9/646, para 41) or included in the costs of the arbitral tribunal (UN Doc A/CN.9/WG.II/WP.143/Add.1, para 36). However, these proposals were eventually rejected (UN Doc A/CN.9/646, para 131).

²³⁷ Blackaby and others (n 8) para 4.193 n 215.

²³⁸ Constantine Partasides, ‘Secretaries to Arbitral Tribunals’ in Bernard Hanotiau and Alexis Mourre (eds), Players’ Interaction in International Arbitration (ICC 2012) 86; Partasides and others (n 4) 327; Anna Kombikova and Iryna Glushchenko, ‘The Role of Arbitral Secretaries: Overregulate the Underregulated?’ (arbitration-blog.com, 23 May 2014).

²³⁹ Partasides (n 238) 86; Partasides and others (n 4) 327; cf Kombikova and Glushchenko (n 238).

²⁴⁰ The statement by Partasides (n 238) 85; and Partasides and others (n 4) 327 that ‘[a]s the travaux préparatoires confirm, these rules were intended to apply to arbitral secretaries’ cannot be confirmed in terms of Art. 5 UNCITRAL Arbitration Rules 2010. cf Pierre Pic and Irène Léger, ‘Le nouveau règlement d’arbitrage de la CNUDCI (2010)’ [2011] Rev de l’Arb 99, 106.

²⁴¹ cf Nicole Conrad, Ömer Cilingir, and Barbara Baumann, ‘UNCITRAL Rules’ in Nicole Conrad, Peter Münch, and Jonathan Black-Branch (eds), International Commercial Arbitration: Standard Clauses and Forms (Helbing Lichtenhahn 2013) para 3.180: ‘The Rules do not contain provisions regarding the appointment of a secretary for the Arbitral Tribunal’; Peter Ashford, Handbook on International Commercial Arbitration (2nd edn, Juris 2014) 143:‘The UNCITRAL Rules are [. . .] silent [on tribunal secretaries]’.

²⁴² cf ICC Rules 2017 art 41.

²⁴³ cf Clyde Croft, Christopher Kee, and Jeff Waincymer, A Guide to the UNCITRAL Arbitration Rules (CUP 2013) 166; Partasides and others (n 4) 327; Bassiri and others (n 1) 10 (Commentary on Young ICCA Guide 2014 art 2(7)); Axel Benjamin Herzberg, ‘Vor Art. 11 ff. ICC-SchO’ in Jan Heiner Nedden and Axel Benjamin Herzberg (eds), ICC-SchO, DIS-SchO: Praxiskommentar zu den Schiedsgerichtsordnungen (Otto Schmidt 2014) para 14.

²⁴⁴ cf Blackaby and others (n 8) para 4.193 n 215; Tilman Niedermaier and Paolo Michele Patocchi, ‘UNCITRAL Arbitration Rules (UncitralO)’ in Rolf A Schütze (ed), Institutionelle Schiedsgerichtsbarkeit: Kommentar (3rd edn, Heymanns 2018) Art. 16 para 6.

²⁴⁵ Emphasis added.

²⁴⁶ Turkish International Arbitration Law 2001 (Law No 4686 of 21 June 2001) art 16(B)(3): ‘The term costs refers to [. . .] the fees paid to the experts, and to the other persons whose assistance is sought and who are, collectively, appointed by the arbitral tribunal’ (emphasis added); Mexican Commercial Code art 1416(IV) (Código de Comercio) defines the costs of an arbitration as, inter alia, ‘the costs of expert advice and other assistance required by the arbitral tribunal’ (emphasis added; cf also art 1456(1)); Swiss Rules 2012 art 38(c); Arbitration Rules of the Mumbai Centre for International Arbitration 2017 art 32.6(c) refers to ‘expert advice and of other assistance reasonably required by the Tribunal’; the 2013 edition of the SIAC Rules similarly refers to ‘expert advice and other assistance required by the arbitral tribunal’ in art 31.2(c).

²⁴⁷ See para 1.30.

²⁴⁸ See further para 6.11.

²⁴⁹ See para 6.11 n 28.

²⁵⁰ English Arbitration Act 1996 s 29(2) (‘Subsection (1) [on the immunity of arbitrators] applies to an employee or agent of an arbitrator as it applies to the arbitrator himself’); Irish Arbitration Act 2010 (Law No 1 of 8 June 2010) s 22(2) provides that ‘an employee, agent or advisor of an arbitrator’ is exempt from liability; Hong Kong Arbitration Ordinance 2013 (Cap 609) s 104(1)(b) provides that an arbitral tribunal is liable for any act or omission by ‘an employee or agent of the tribunal’; Lagos State Arbitration Law of 18 May 2009 art 18(2) is a verbatim adoption of English Arbitration Act 1996 s 29(2).

²⁵¹ On the English Arbitration Act 1996, see Patrik Schöldström, The Arbitrator’s Mandate (Jure 1998) 331; Partasides (n 52) 148 n 10; Onyema (n 91) 104 n 26. On the Irish Arbitration Act 2010, see Klaus Reichert, ‘Arbitration in Ireland’ in Julian DM Lew and others (eds), Arbitration in England with Chapters on Scotland and Ireland (Kluwer 2013) para 28-28 n 20. On the Hong Kong Arbitration Ordinance, see Clay (n 91) 933–34; Neil Kaplan and Robert Morgan, ‘National Report for Hong Kong (2018)’ in Jan Paulsson and Lise Bosman (eds), ICCA International Handbook on Commercial Arbitration (Supplement No 98, March 2018, Kluwer 1984) 39.

²⁵² Clement C Ebokan v Ekwenibe & Sons Trading Company [2001] 2 NWLR (Pt.696)32.

²⁵³ See paras 3.38ff.

²⁵⁴ DAC, ‘DAC Report on Arbitration Bill 1996’.

²⁵⁵ See paras 3.38ff.

²⁵⁶ DAC (n 254) 132.

²⁵⁷ See paras 3.64ff.

²⁵⁸ But, of course, tribunal secretaries may nevertheless be appointed in arbitrations seated in England, Ireland, Hong Kong, and Lagos (see paras 2.88ff) and they enjoy immunity under these provisions (see para 3.66).

²⁵⁹ Hans Jakob Maier, Handbuch der Schiedsgerichtsbarkeit (Neue Wirtschafts-Briefe 1979) para 380; Göksu (n 161) para 878; Tercier (n 12) 538–39; Contos (n 78) 39–40 quoting L Martinez; cf Jean-François Poudret and Sebastian Besson, Comparative Law of International Arbitration (2nd edn, Sweet & Maxwell 2007) para 594; Gal (n 84) 303; Felix Dasser, ‘Art. 365 ZPO’ in Paul Oberhammer, Tanja Domej, and Ulrich Haas (eds), Kurzkommentar ZPO: Schweizerische Zivilprozessordnung (2nd edn, Helbing Lichtenhahn 2014) para 1; Blackaby and others (n 8) para 4.195; Tracey Timlin, ‘The Swiss Supreme Court on the Use of Secretaries and Consultants in the Arbitral Process’ (2016) 8 YB Arb & Mediation 268, 271; Simon Maynard, ‘Laying the Fourth Arbitrator to Rest: Re-Evaluating the Regulation of Arbitral Secretaries’ (2018) 34 Arb Intl 173, 181.

²⁶⁰ Law Clerks at the ICJ are part of the Registry and are assigned to assist each of the fifteen sitting judges in the growing number of fact intensive cases. They are appointed under the Statute of the International Court of Justice art 21(2). cf Hugh Thirlway, ‘The Drafting of ICJ Decisions: Some Personal Recollections and Observations’ (2006) 5 Chinese J Intl L 15, 15–26; UN General Assembly, ‘Report of the International Court of Justice: 1 August 2016–31 July 2017’ (UN 2017) para 63.

²⁶¹ Each judge at the International Criminal Court is assigned one associate legal officer and each Chamber has an additional senior legal officer. While senior legal officers overtake substantive tasks like conducting depositions, associate legal officers will help with research, drafting of decisions, etc. They are all appointed under the Rome Statute of the International Criminal Court (UN Doc A/CONF.183/9) art 44(1) and are formally part of the Registry. cf Daryl A Mundis, ‘Practicing International Criminal Law’, Careers in International Law: A Guide to Career Paths in International Law (2007–2008 Edition) (ASIL 2008) 28–29.

²⁶² Judges and Advocates General at the Court of Justice of the European Union (CJEU) are assisted by référendaires (legal secretaries, Rechtsreferenten). Their appointment is based on the Statute of the Court of Justice of the European Union art 12. They are intended to facilitate the work of the CJEU and take over tasks at each stage of the decision-making process. cf Gerhard Grill, ‘Die Tätigkeit eines Rechtsreferenten am EuGH’ [1996] Europa-Blätter 47, 47–50; Sally J Kenney, ‘Beyond Principals and Agents Seeing Courts as Organizations by Comparing Référendaires at the European Court of Justice and Law Clerks at the U.S. Supreme Court’ (2000) 33 Comp Pol Stud 593, 605–12; Partasides (n 52) 154–55; Bertrand Wägenbaur, Court of Justice of the EU—Commentary on Statue and Rules of Procedure (CH Beck 2013) art 12 para 1.

²⁶³ Judges at the ECtHR are assisted by rapporteurs, explicitly envisaged by the European Convention on Human Rights art 24(2), effective 3 September 1953 (ECHR). cf Jens Meyer-Ladewig and Hugo Fuentes, ‘Art. 24’ in Jens Meyer-Ladewig, Martin Nettesheim, and Stefan von Raumer (eds), Europäische Menschenrechtskonvention: Handkommentar (4th edn, Nomos 2017) para 5.

²⁶⁴ At the UNCC each panel of commissioners was assisted by a team of staff, made up of lawyers and valuation personnel. They were appointed under Provisional Rules of Claims Procedure (UN Doc S/AC.26/1992/10) art 34(1). They worked closely together with the commissioners and assisted them in any way the panel required. cf John P Gaffney, ‘The United Nations Compensation Commission: A Structural and Procedural Overview’ (1999) 65 Arb 212, 213–14; Senogles (n 39) 94–96.

²⁶⁵ The WTO Secretariat employs legal officers who have many substantive responsibilities in regard to supporting panels. For instance, they prepare a paper at the beginning of the dispute, setting out the factual and legal issues the Panel should address and detailing case law. WTO legal officers are appointed under Understanding on Rules and Procedures Governing the Settlement of Disputes at the WTO, Annex 2 of the WTO Agreement (Dispute Settlement Understanding) art 27(1). cf New York City Bar Association (n 27) 582–83; Giorgio Sacerdoti, ‘From Law Professor to International Adjudicator: The WTO Appellate Body and ICSID Arbitration Compared, a Personal Account’ in David D Caron and others (eds), Practising Virtue: Inside International Arbitration (OUP 2015) 207; Gerbay (n 120) 171; François Dessemontet, ‘Dispute Resolution Proceedings in World Trade Organization and International Commercial Arbitration: A Comparison’ (2017) 6 Indian J Arb L 174, 189.

²⁶⁶ US federal justices have been assisted by clerks since the nineteenth century (see paras 1.35, 1.37, and 2.33). Their appointment is provided for in 28 USC § 752 (Title 28 of the United States Code (Judiciary and Judicial Procedure)). They continue to play an important role at all levels of the federal judiciary and perform a broad range of functions to assist their judge. cf Fredonia Broadcasting Corp v RCA Corp, 569 F.2d 251, 255–57 (5th Cir 1978); Lazarus (n 100); Partasides (n 52) 152–53; Richard A Posner, How Judges Think (Harvard University Press 2008) 221: ‘[T]oday most judicial opinions are written by law clerks, which was not true a century ago, when very few judges even had law clerks’ (emphasis in original).

²⁶⁷ In the 1990s, the English Court of Appeal has responded to the increasing number of appeals with the use of judicial assistants. Their appointment is based on the ‘Judicial Assistant Scheme’ set up by Justice Otton. The model was subsequently extended to the English Supreme Court. The judicial assistants’ tasks are to prepare bench memoranda and carry out research for the judge. cf Partasides (n 52) 155–56; Holvast (n 99) 18–20.

²⁶⁸ The German Bundesverfassungsgericht (BVerfG), Bundesgerichtshof (BGH), and all other German federal courts employ Wissenschaftliche Mitarbeiter (research fellows) under Statute organizing the German Federal Constitutional Court (Geschäftsordnung des Bundesverfassungsgerichts) s 13 and German Courts Constitution Act (Gerichtsverfassungsgesetz; GVG) s 193(1). These research fellows are lower-court judges or state attorneys who second federal courts for a certain period of time. They are mainly concerned with researching points of law and drafting judgments. They have been referred to as the BVerfG’s ‘third senate’ and the BGH’s ‘shadow senate’. For an in-depth analysis of these actors in the German judicial process, see Jürgen Bichelmeir, Der juristische Hilfsarbeiter an den obersten Deutschen Gerichten (Heymanns 1971). cf also Christoph Herz, Hans-Peter Freymann, and Stefan Vatter (eds), HIWI 2000: Die ‘einzig wahre Festschrift’ oder: Was Sie schon immer über den BGH wissen wollten. . . (Alma Mater 2000); Constantin Körner, ‘Jobprofil Wissenschaftlicher Mitarbeiter am BVerfG: Der “Dritte Senat” ’ (Legal Tribune Online, 30 October 2012); Karin Graßhof, ‘§ 93b’ in Theodor Maunz and others (eds), Bundesverfassungsgerichtsgesetz: Kommentar (53rd edn, CH Beck 2018) paras 11–13. In addition, German lower court judges are assisted by Rechtsreferendaren (trainee lawyers) who draft judgments and assist the judge in oral hearings as part of their legal training, see GVG ss 10, 193(1).

²⁶⁹ On greffiers or Gerichtsschreiber at the Swiss Federal Tribunal, see paras 1.34 and 5.246. They are appointed under BGG art 24 (Bundesgesetz über das Bundesgericht; Federal statute organizing the Swiss Federal Tribunal). They provide far-reaching support to judges in their adjudicative function and are endowed with an advisory vote. cf Peter Uebersax, ‘Die Stellung der Gerichtschreiberinnen und Gerichtsschreiber in der Gerichtsverfassung’ in Benjamin Schindler and Patrick Sutter (eds), Akteure der Gerichtsbarkeit (Dike 2007) 82–110; Peter Bieri, ‘Law Clerks in Switzerland—A Solution to Cope with the Caseload?’ (2016) 7 Intl J Ct Admin 29, 29–36; J Ole Jensen, ‘The Swiss Federal Tribunal Addresses the Role of Secretaries and “Legal Consultants” to Arbitral Tribunals’ (2016) 21 IBA Arb News 66, 67–68; James Menz and Anya George, ‘How Much Assistance Is Permissible? A Note on the Swiss Supreme Court’s Decision on Arbitral Secretaries and Consultants’ (2016) 33 J Intl Arb 311, 323.

²⁷⁰ On Rechtspraktikanten in Austria, see Schwarz and Konrad (n 38) para 7-156. On the griffier in the Netherlands, see Holvast (n 99) 15–17; Holvast (n 100). On Law Clerks at the Singapore Court of Appeal, see Hwang (n 91) 18.

²⁷¹ See nn 261–70.

²⁷² cf also P v Q [2017] EWHC 194 (Comm), para 67; SFT, Judgment of 21 May 2015 (2015) 33(4) ASA Bull 879, 885; Pierre Lalive, Jean-François Poudret, and Claude Reymond (eds), Le droit de l’arbitrage interne et international en Suisse (Payot 1989) 95; Rüede and Hadenfeldt (n 161) 194; Schwarz and Konrad (n 38) para 7-156; Schwartz (n 74) 86 n 70; Partasides (n 52) 152–56; Leimbacher (n 7) 303; Partasides and others (n 4) 334; Hwang (n 91) 18; Stürner (n 33) 324; Dasser (n 259) para 1; Kombikova and Glushchenko (n 238); Gary B Born, International Arbitration: Cases and Materials (2nd edn, Kluwer 2015) 1068; Moyeed (n 57) 46.

²⁷³ cf Lazarus (n 100) 29 describing the tasks of a clerk at the US Supreme Court: ‘drafting majority opinions, drafting dissents, drafting concurrences [. . .], writing “bench memos” (which help a Justice prepare for a case the Court is about to hear), writing post-oral argument memos [. . .], commenting on draft opinions, dissents, and concurrences circulated by other Chambers, recommending which new petitions for certiorari the Court should grant, and advising on emergency applications, often including last-minute requests for stays of execution’; Uebersax (n 269) 87–96; Jong-Lin Yu and Masood Ahmed, ‘Keeping the Invisible Hand Under Control?—Arbitrator’s Mandate and Assisting Third Parties’ (2015) 19 VJ 213, 233–39; Holvast (n 100) 133–59.

²⁷⁴ See para 1.35.

²⁷⁵ cf paras 2.03ff.

²⁷⁶ See paras 5.18ff.

²⁷⁷ See paras 10.16ff.

²⁷⁸ See paras 5.10ff. cf also Partasides (n 52) 156; Lalive, ‘Mission et démission’ (n 70) 272–73; Menz and George (n 269) 216 n 88.

²⁷⁹ Tercier (n 12) 544.

²⁸⁰ Ulrike Gantenberg and Ulrich Kopetzki, ‘The Vienna Predictability Propositions: Secretaries’ in Christian Klausegger and others (eds), Austrian Yearbook on International Arbitration 2017 (Manz 2017) 152.

²⁸¹ cf also Swedish Arbitration Act 1999 s 21: ‘The arbitrators shall handle the dispute in an impartial, practical, and speedy manner’; English Arbitration Act 1996 s 33(1)(b).

²⁸² cf Berger and Jensen (n 117) 419–20.

²⁸³ Agrimex Ltd v Tradigrain SA [2003] EWHC 1656 (Comm), para 34 iii).

²⁸⁴ ibid.

²⁸⁵ See paras 2.03ff. But see also paras 10.18ff on how ‘paper tsunamis’ may be prevented by the use of strict page limits for party submissions.

²⁸⁶ Kirby (n 19) 692.

²⁸⁷ cf UNCITRAL Model Law on International Commercial Arbitration 1985, with amendments as adopted in 2006 art 19(2) (Model Law); Dutch CCP art 1036(1); English Arbitration Act 1996 s 34(1); French Code of Civil Procedure (Code de procédure civile) art 1509; German Code of Civil Procedure (Zivilprozessordnung; German CCP) s 1042(4); PILS art 182(2).

²⁸⁸ Born (n 4) 2145; cf Berger and Jensen (n 117) 419.

²⁸⁹ On the hybrid nature of the arbitrator’s mandate, see paras 5.06ff.

²⁹⁰ On the parties’ consent as a legal basis, see paras 2.93ff.

²⁹¹ Bucher (n 161) 139.

²⁹² Albert Jan van den Berg, R van Delden, and Henricus Joseph Snijders, Netherlands Arbitration Law (Kluwer 1993) 173.

²⁹³ Habegger (n 161) para 1b; Herzberg (n 243) para 11; Petronela Proteasa, ‘Invisible Arbitrator—Real Problem or Artificial One?’ (LinkedIn Pulse, 15 October 2015); Nassim Eslami, Die Nichtöffentlichkeit des Schiedsverfahrens (Mohr Siebeck 2016) 218; Jan Paulsson and Georgios Petrochilos, UNCITRAL Arbitration (Kluwer 2017) art 17 para 7; Monica Mitrea, ‘Notion de secrétaire et de consultant du tribunal arbitral en droit suisse de l’arbitrage (arbitrage ad hoc)’ (2018) 46 Revista Română de Arbitraj 1, 7; Bianca Vogt and Lucas Wedl, ‘Repositioning Tribunals’ Secretaries’ in Christian Klausegger and others (eds), Austrian Yearbook on International Arbitration 2018 (Manz 2018) 228; cf Born (n 4) 2045: ‘[I]t is very likely that an arbitral tribunal would have the inherent power to appoint a secretary over one party’s objection.’ cf also P v Q [2017] EWHC 194 (Comm), para 50.

²⁹⁴ Paulsson and Petrochilos (n 235) paras 137–38; Herzberg (n 243) para 11; cf also the Note on Administrative Secretaries to Arbitral Tribunals of 1988 (ICC Note 1988) which based the appointment of a tribunal secretary on International Chamber of Commerce, Rules of Conciliation and Arbitration, in force from 1 January 1988 until 31 December 1997 art 11 (ICC Rules 1988) providing for the tribunal’s discretion to conduct the proceedings. On a joint agreement against the use of tribunal secretaries, see paras 4.78ff.

²⁹⁵ Compagnie Honeywell Bull SA v Computacion Bull de Venezuela CA, Cour d’appel de Paris, 21 June 1990 (1991) Rev de l’Arb 96, 100 (author’s translation).

²⁹⁶ cf Philippe Fouchard and others, Fouchard, Gaillard, Goldman on International Commercial Arbitration (Kluwer 1999) para 1250; Thomas Clay, L’arbitre (Dalloz 2001) para 420 n 1; Clay (n 91) 933.

²⁹⁷ Agrimex Ltd v Tradigrain SA [2003] EWHC 1656 (Comm), para 34; RG, Judgment of 1 February 1901 (1901) RGZ 47, 424, 426; RG, Judgment of 3 November 1916 [1917] JW 46, 47; RG, Judgment of 1 April 1921 [1921] JW 1248; BGH, Judgment of 22 May 1957 (1958) 71 ZZP 427, 435–36; SFT, Judgment of 21 May 2015 (2015) 33(4) ASA Bull 879, 885–86; H Teßmer, Das Schiedsverfahren nach deutschem Recht (Veit & Comp 1915) 181; Wilhelm Kisch, ‘Anmerkung zum Urteil des RG vom 1. April 1921’ [1921] JW 1248, 1248; Wolfgang Hiepe, Der Schiedsrichtervertrag und die Rechte und Pflichten des Schiedsrichters (Pöppinghaus 1930) 34; Karl Sieg, ‘Hilfsstellung Dritter im schiedsrichterlichen Verfahren’ [1958] JZ 719, 722; Joachim Kessler, Schiedsgerichtsvertrag und Schiedsverfahren (Goldmann 1970) 46; Stürner (n 33) 322.

²⁹⁸ OLG Hamburg, Judgment of 11 March 1933 [1934] HRR No 140. At the time of the judgment, German CCP s 1034 belonged to Part 2 of the 10th book of the German CCP: ‘Procedure before the Arbitral Tribunal’ (‘Verfahren vor dem Schiedsgericht’).

²⁹⁹ OLG Hamburg, Judgment of 11 March 1933 [1934] HRR No 140.

³⁰⁰ ibid; Franz Prager, Schiedsrecht: Recht des privaten Schiedsverfahrens (Schweitzer 1931) 20 n 18.

³⁰¹ See further paras 4.71ff.

³⁰² On the parties’ right to object, see paras 4.82ff.

³⁰³ Virtually all arbitration laws allow the parties to tailor the proceedings in any way they see fit, see the provisions cited in n 287. There is nothing to prevent them from providing for additional players to take part in the proceedings, such as any experts or tribunal secretaries. cf Paulsson (n 5) 23: ‘[T]he presumption in a free society should be that citizens may devise ways to resolve their disputes by means which they find attractive and particularly suited to their activity and temperament.’ cf also Saghy Cadenas (n 74) 15; Herzberg (n 243) para 11.

³⁰⁴ With that proposition, see Johannes Stürner, ‘Hilfspersonen im Schiedsverfahren nach deutschem Recht’ [2013] SchiedsVZ 322, 326; Timlin (n 259) 294–95. But see Vogt and Wedl (n 293) 228 who warn against regulating secretaries in the arbitration agreement, citing the risk of the clause becoming inoperable. For a famous exception, see the arbitration agreement in the Lena Goldfields Arbitration, discussed at para 1.32.

cf also Geoffrey Senogles, ‘The United Nations Compensation Commission’s Utilisation of Experts’ in Bernhard Berger and Michael E Schneider (eds), Inside the Black Box: How Arbitral Tribunals Operate and Reach Their Decisions (Juris 2014) 105 quoting W Bassler who reports of ‘a very large arbitration in which the parties’ counsel themselves offered to each of the three arbitrators a legal assistant’.

³⁰⁵ See paras 4.80ff. cf Continental Materials Corp v Gaddis Mining 306 F.2d 952, 954 (10th Cir 1962) in which the arbitrators had been contractually allowed to appoint a particular tribunal expert to calculate damages.

³⁰⁶ Gino Lörcher, Heike Lörcher, and Torsten Lörcher, Das Schiedsverfahren—national/international—nach deutschem Recht (2nd edn, CF Müller 2001) para 133.

³⁰⁷ See para 4.84.

³⁰⁸ Grigera Naón (n 143) 657; YRRR de Mul, ‘De rol van de secretaris in de bouwarbitrage’ [2004] BR 192 on tribunal secretaries in RvA arbitrations.

³⁰⁹ Bernhard F Meyer and Jonatan Baier, ‘Arbitrator Consultants—Another Way to Deal with Technical or Commercial Challenges of Arbitrations’ (2015) 33 ASA Bull 37, 41.

³¹⁰ Swiss Rules of International Arbitration 2012 art 38(a) (Swiss Rules 2012) (emphasis added).

³¹¹ Onyema (n 91) 102; Richard M Mosk, ‘Deliberations of Arbitrators’ in David D Caron and others (eds), Practising Virtue: Inside International Arbitration (OUP 2015) 495.

³¹² Maarten Draye, ‘Commentary on Part VI of the Belgian Judicial Code, Chapter III: Articles 1684–1689’ in Niuscha Bassiri and Maarten Draye (eds), Arbitration in Belgium (Kluwer 2016) art 1684 para 17.

³¹³ Berger, PDR (n 4) para 27-11; cf Pierre Jolidon, Commentaire du Concordat suisse sur l’arbitrage (Stæmpfli 1984) 242; McIlwrath and Savage (n 120) para 5-103; Philipp Peters, ‘Presiding Arbitrator, Deciding Arbitrator: Decision-Making in Arbitral Tribunals’ in Christian Klausegger and others (eds), Austrian Yearbook on International Arbitration 2011 (Manz 2011) 151; Born (n 4) 2043; Herzberg (n 243) para 13; Rajoo (n 120) 402.

³¹⁴ Bommel van der Bend, Marnix Leijten, and Marc Ynzonides (eds), A Guide to the NAI Arbitration Rules: Including a Commentary on Dutch Arbitration Law (Kluwer 2009) 175.

³¹⁵ cf Paul Rolf Meurs-Gerken, ‘Secrétaire des arbitres’ (1985) 5 AIJA—Intl Arb Gazette 224, 225; David D Caron and Lee Caplan, The UNCITRAL Arbitration Rules: A Commentary (2nd edn, OUP 2013) 201 n 118. On the question of whether a secretary can de facto assume the role of an arbitrator, see paras 8.08ff.

³¹⁶ That result only changes where the parties explicitly agree that the secretary becomes a member of the tribunal, see Rechtbank Utrecht, Judgment of 8 August 2007 (2007) NJF 501, para 2.6.

³¹⁷ See paras 1.01ff.

³¹⁸ Herzberg (n 243) para 13.

³¹⁹ Göksu (n 161) para 884.

³²⁰ See Chapter 3.

³²¹ See Chapter 5.

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