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This chapter proposes an appropriate process for the appointment of tribunal secretaries that maintains efficiency while safeguarding the parties' right to decide on how their arbitration should be conducted. After identifying which qualifications (legal education, prior experience in international arbitration, basic information technology skills, trustful relationship with the appointing arbitrator, etc.) and which level of impartiality and independence candidates for the tribunal secretary position should possess, the chapter considers how the parties should be involved in the appointment process and how the appointment should be formalised. It also describes the frequent situation where such a formal appointment process is not carried out and third-party support participates informally without the parties' knowledge and consent.

This chapter considers whether parties can challenge and remove arbitrators and tribunal secretaries who fail to show the requisite level of impartiality and independence in the course of the arbitration, along with all other required qualities. It first examines whether parties can challenge tribunal secretaries and reviews the statutory bases for such challenges before analysing under which conditions a challenge to a secretary will be successful. It then looks at the procedure to be followed by the challenging party and the different approaches used by the competent body (state court, arbitral tribunal, arbitral institution) to make a decision on the challenge. It also describes the different approaches regarding the legal effect of a challenge, the ways in which a tribunal secretary may be removed from the arbitration, and whether arbitrators can be challenged in connection with their use of tribunal secretaries.

This chapter focuses on the fate of the award where tribunal secretaries are used impermissibly. It considers whether the ultimate threat to the efficient use of tribunal secretaries — that their participation provides grounds for an annulment of the arbitral award — has merit by reviewing different scenarios of an irregular secretary use. The chapter first examines the question of whether an ‘award’ that is entirely made by a tribunal secretary qualifies as an arbitral award at all, or whether it is a nullity, before discussing grounds for annulling the award or denying its enforcement (for example, the secretary did not possess the required impartiality and independence). It also analyses how the procedural impropriety affects the arbitral award, paying special attention to the ‘effect on the award’-requirement and forfeiture of right to rely on grounds for annulment and non-enforcement.

This book examines a variety of issues concerning the role of tribunal secretaries in international arbitration, focusing on the tension between their perceived lack of legitimacy and the practical need for a division of labour. It emphasises the importance of transparency in both the appointment and use of tribunal secretaries and argues that the best way to achieve that transparency is to move towards an institutionalisation of the position of the tribunal secretary, and that the main components of such an institutionalisation must be a formal appointment process and legal certainty in regard to the secretary's scope of tasks. Part I of the book outlines the conceptual foundations for the discussion of tribunal secretaries, Part II provides a detailed analysis of the tribunal secretary's mandate, and Part III considers the pathological case of an irregular use of tribunal secretaries as well as the available remedies.

This chapter considers the question of which permissible tasks tribunal secretaries may carry out. The tasks that a tribunal secretary may perform depends on what tasks an arbitrator may delegate or receive support in. A distinction must be made between two general categories of tasks: non-essential arbitrator duties that can be delegated entirely and essential arbitrator duties, which under certain circumstances may be supported. Before coming up with a specific list of tasks for the tribunal secretary, the chapter examines the personal nature of the arbitrator's mandate. It then describes certain functions that the arbitrator may not give up and others in which he/she may legitimately be supported. It also proposes a framework that can be used to determine under which circumstances an arbitrator may delegate or seek support in specific duties, as well as the role tribunal secretaries may legitimately play in the discharge of the arbitrator's mandate.

This chapter explains how the ‘proof conundrum’ makes it difficult to ascertain the irregular involvement of tribunal secretaries in an arbitration. It first considers the burden and required standard of proof regarding any procedural irregularity involving tribunal secretaries before discussing a variety of methods of proof as to their potential to overcome the proof conundrum. These methods include direct testimony, disclosure of documents relating to use of secretary, time sheets, and linguistic analysis of the award. The chapter shows how the secrecy of arbitral deliberations prevents most cases of an impermissible use of secretaries from ever coming to light and identifies which tools exist to nevertheless obtain information. It argues that any remedies may be available at all only if there are concrete signs of an impermissible use of tribunal secretaries.

This chapter focuses on the contractual relationship flowing from the appointment of a tribunal secretary. The term receptum secretarii describes the tribunal secretary's contract in which he/she undertakes to provide the services expected of him/her. Given the diverse background of individuals acting as tribunal secretaries, there is no uniform approach to the receptum secretarii. The chapter first clarifies the distinction between different types of secretaries' contractual and factual pre-existing relationships with the appointing arbitrator, and more specifically between internal and external secretaries. It then considers with whom and how the secretary's contract is concluded before discussing the legal nature of that contract, what law applies to it, and which rights and obligations it entails. Finally, it examines the issue of liability in case of a breach of the secretary's or arbitrator's obligations.

This chapter considers the tribunal secretary's right to receive remuneration in return for the discharge of his/her mandate. In particular, it examines the conflicting goal of the tribunal secretary's appointment to reduce the costs of the arbitration and his/her legitimate interest to be remunerated. To find out whether the perceived increase in costs is one of the main reasons for parties to reject the appointment of a tribunal secretary, the chapter examines the secretary's original claim for remuneration on the basis of contact law against the appointing arbitrator and to whom the secretary's costs may be re-allocated. More specifically, it discusses allocation of costs if the arbitral tribunal is remunerated per hour and ad valorem, along with allocation of costs independent of the arbitrator's remuneration. Finally, it explains how the secretary's fees should be determined, highlighting the proper balance of decreasing the parties' costs without unduly decreasing the arbitrators' fees.

This conclusion summarises the book's main findings with regard to the role of tribunal secretaries in international arbitration. The book has shown that the division of labour has been a part of the earliest ancestors of modern international arbitration. It has discussed the contractual implications of the tribunal secretary's appointment, the importance of transparency in all aspects of the secretary's mandate, the secretary's right to receive remuneration, which permissible tasks tribunal secretaries may carry out, and whether parties can challenge and remove arbitrators and tribunal secretaries. It has also considered the pathological case of an irregular use of tribunal secretaries as well as the available remedies, including recourse against the arbitral award. The book ends with a brief overview of future prospects for tribunal secretaries, focusing on two scenarios: they become either obsolete or they evolve into new forms of third-party support.