Jump to Content Jump to Main Navigation
Tribunal Secretaries in International Arbitration by Jensen, J Ole

Introduction

J. Ole Jensen

From: Tribunal Secretaries in International Arbitration

J Ole Jensen

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 16 June 2019

Subject(s):
ae59d542-6d71-1014-90bf-c1927c3ed365 — Arbitral tribunal — 9a8e3470-27be-49e8-b18f-a69dfbb7387d — ae5eedb7-6d71-1014-90bf-c1927c3ed365

(p. 1) Introduction

All trades, crafts, and arts have gained by the division of labour, namely when one person does not do everything but each limits himself to a certain task that differs markedly from others in the way it is to be handled, so as to be able to perform it most perfectly and with greater facility.

Immanuel Kant, Groundwork for the Metaphysics of Morals, 17851

I.  The Division of Labour in International Arbitration

0.01  In today’s highly specialized world, the division of labour is a given. We do not question the collaboration of craftsman and apprentice just as we take modern mass-production for granted. The same applies to intellectual tasks. In all walks of life, individuals endowed with the task to make complex decisions are supported by staff, assistants, and other aids that facilitate the process of decision-making. This is as true for politicians and government officials as it is for physicians and managers of companies. The judicial system is no exception either. Judges are supported by clerks, registrars, and other staff making up the judicial apparatus. This type of system design is simply based on the quest for judicial efficiency. It is no surprise, then, that the concept of division of labour has also reached the realm of international arbitration.

0.02  When conducting international arbitrations, many arbitrators obtain support from staff at all stages of the arbitration. The wealth of tasks to be supported ranges from administrative matters concerning the logistics of the arbitration, to procedural and case management issues, and even extends to the substantive resolution of the parties’ dispute. Individuals that support an arbitral tribunal in all or some of these tasks are commonly referred to as secretaries to the arbitral tribunal. A tribunal secretary may either be formally appointed with the consent of the parties or remain in the background and support the arbitral (p. 2) tribunal without the parties’ knowledge. This occasionally secretive role, coupled with the nature of international arbitration as a confidential dispute resolution mechanism, makes it difficult to determine how often tribunal secretaries actually take part in arbitral proceedings.

0.03  It is clear that their participation is more common in some jurisdictions than in others. While Switzerland, for instance, has a rich history of participation of tribunal secretaries, other jurisdictions are only gradually experiencing their involvement. Across the world, however, a clear trend is visible. The on-going proliferation and growth of international arbitration as a dispute resolution mechanism inevitably entails a demand for the division of labour in order to meet the users’ need for speed, cost efficiency, and quality. As cases expand—both in terms of the amount in dispute and the size of the case file—the involvement of tribunal secretaries is becoming the norm rather than the exception. Yet, their role is regarded with much suspicion.

II.  Perceived Lack of Legitimacy

0.04  The reason why parties and arbitral institutions are suspicious of the involvement of tribunal secretaries is their intrinsic relationship with the arbitral tribunal. One can find colourful ways of expressing that relationship. The tribunal secretary has been described as the ‘sorcerer’s apprentice’,2 ‘what Hermes was to Zeus’,3 and ‘somewhere between Miss Moneypenny and d’Artagnan’.4 These metaphors hint at the breadth of possible support a tribunal secretary may lend to an arbitral tribunal. As that support approximates the arbitrator’s core function of deciding the parties’ dispute, some stakeholders become concerned that the secretary usurps the arbitrator’s mandate.

0.05  The eminently personal nature of that mandate is what may distinguish an international arbitrator from most other decision-makers. One of the hallmarks of international arbitration is the parties’ right to choose their adjudicators. If the arbitrator were to let the secretary decide in her stead, the entire purpose of the parties’ choice of arbitrator would be frustrated—or so the argument goes. It is that fear of the over-delegating arbitrator that makes the topic of tribunal secretaries a ‘taboo’,5 an ‘enormously grey area’,6 and generally ‘not an easy subject’.7 The uneasiness tribunal secretaries cause is intensified by the fact that (p. 3) arbitral decision-making largely occurs in a ‘black box’.8 Due to the secrecy of the tribunal’s deliberations, neither parties nor arbitral institutions become aware of how exactly an arbitral tribunal reaches its decision and what other players are involved in the process. It is a common human reaction that we do not trust what we cannot see.

0.06  It is equally common that we are intrigued by scandals. A particularly dramatic one has brought tribunal secretaries to the attention of the arbitral public. In its application to have the largest ever arbitral awards—rendered in the Yukos arbitrations and exceeding USD 50 billion9—set aside, the Russian Federation has asserted that the tribunal’s assistant had acted as the ‘fourth arbitrator’ and thus impermissibly decided the dispute alongside the arbitral tribunal.10 Regardless of the merit of that assertion, the Yukos awards have now become ‘best known for bringing the cameras in for a close-up on the issue of the use and alleged abuse of the role of a tribunal secretary’.11 That close-up may, eventually, have the positive effect of leading the tribunal secretary out of the shadows and providing legal certainty. At the moment, however, clear guidance on many issues concerning tribunal secretaries, particularly how specifically a tribunal may make use of them, is lacking.

III.  The Purpose of the Book

0.07  The present book is intended to fill that gap. As international arbitrations become ever-more complex and tribunal secretaries are increasingly being employed, many questions arise that have been either not answered at all or insufficiently considered. This book hopes to shed light on the use of tribunal secretaries and to offer suggestions on how they may be used when and to the extent that they are needed. In times in which the legitimacy of international arbitration as a dispute resolution mechanism has increasingly been questioned,12 there is good reason to dispense with any distrust vis-à-vis both its protagonists and supporting cast.13 After all,

the success of international arbitration should be considered an issue of general welfare because it is critical to international trade. Protecting and enhancing its legitimacy is central to its continuing success.14

(p. 4) 0.08  To that end, any discussion of tribunal secretaries must deal with the tension between their perceived lack of legitimacy and the practical need for a division of labour. To reconcile these opposing forces, it is paramount to demonstrate that there is, in fact, no reason to doubt the legitimacy of tribunal secretaries if they are properly employed. That demonstration requires a considerable amount of transparency in both the appointment and the use of tribunal secretaries. It is the thesis of the present book that the best way to achieve such transparency is to move towards an institutionalization of the position of the tribunal secretary, ie a position in the arbitral process that is both recognized and clearly defined. If institutionalized, all stakeholders in an international arbitration know what to expect from a tribunal secretary and how to discuss her involvement with the arbitral tribunal. The main components of such an institutionalization must be a formal appointment process and legal certainty in regard to the secretary’s scope of tasks. The present book develops universally applicable guidelines on both issues.15

0.09  As a matter of course, such an institutionalization must not have the ‘inadvertent effect of aggrandizing the secretary by suggesting a role that is independent of that of the arbitrator’.16 Tribunal secretaries will always remain but aids, assistants, and subordinates of the arbitrator. Yet, their role and potential should not be underestimated. Indeed, in line with the Kantian ideal of the division of labour, the use of tribunal secretaries should not be undervalued as a mere shortcut for the lazy or unwilling arbitrator, looking to rid herself of work. Rather, tribunal secretaries can enhance the efficiency and quality of the entire arbitral process, up to the rendering of the arbitral award. In that spirit, tribunal secretaries are employed without any concerns or feelings of uneasiness in many cases already today.

0.10  In all other cases, it is past time to dispense with the spectre of the opaque decision-maker who delegates her entire mandate to an unknown individual in the shadows. The purpose of the present book is to thoroughly explore the position of the secretary to the arbitral tribunal and to improve its legtimacy. The reader can trace back the secretary’s involvement to a robust legal footing and is provided with guidance on practical questions that may arise in the course of an international arbitration.

IV.  Methodology

0.11  Academic research in the field of international arbitration must reckon with the multidimensional character of its legal sources.17 On one level, this requires a comparative (p. 5) approach, taking into account the different solutions provided for in arbitration legislation, institutional arbitration rules, and soft law instruments. The harmonization of international arbitration law achieved by the UNCITRAL Model Law on International Commercial Arbitration means that many generalizations are possible. Similarly, modern arbitration rules and soft law guidelines are drafted with the solutions of other institutions in mind, thus effectively creating a harmonization of approaches.18 Still, particularly in regard to largely unregulated topics such as tribunal secretaries, nuances persist. The present book compares the approaches in a vast number of arbitration laws, rules, soft law guidelines, and case law to pinpoint those nuances and provide generally applicable conclusions.

0.12  On another level, research in international arbitration law requires a practice-oriented approach.19 International arbitration is characterized by the autonomy and flexibility it provides to parties and arbitrators. This makes the realities of arbitral practice an important aspect to consider.20 Indeed, as the entire arbitral process is decisively shaped by the parties’ agreements, there is little use in analysing only its theoretical framework if, in practice, parties regularly deviate. Such a dichotomy between theory and practice is particularly pronounced in regard of tribunal secretaries. A ‘regrettable ignorance of [arbitral] reality’ has been observed from the very outset of scholarly devotion to the topic.21 Today, there still exists what some have termed ‘hypocrisy’ concerning how tribunal secretaries are discussed in doctrine and how they are employed in practice.22

(p. 6) 0.13  Yet, due to the confidentiality of the process, hard data on the practice of international arbitration is not easily accessible.23 Any account of ‘arbitral reality’ only ever provides an approximation rather than the complete picture.24 To arrive at a reasonably accurate level of certainty, the present book takes into account different sources of empirical data. It considers empirical surveys on arbitration practice, conducted between differing numbers of practitioners.25 It also reviews practical accounts in legal literature as well as reports from conferences. Though such accounts are necessarily anecdotal in nature, certain recurring themes may be identified that indicate how tribunal secretaries are employed in practice. Finally, as an important ‘hard’ source of empirical data, published arbitral awards and procedural orders are taken into account.26 The information thus gleaned provides for the degree of practical insight necessary to appropriately discuss the topic of tribunal secretaries.27

0.14  Accordingly, the methodology underlying the present book is two-pronged. One prong reviews the theoretical aspects of tribunal secretaries, taking into account the perspective of the existing arbitration legislation (including arbitral rules and soft law guidelines) and case law. The second prong considers the practical approach to tribunal secretaries in international arbitration by drawing on the available empirical data. The extensive review of legal literature that has been carried out throughout the book applies to both prongs. It not only serves to engage in scholarly discourse, but also yields helpful insights regarding how tribunal secretaries are used in practice.

V.  The Scope and Structure of the Book

0.15  Some may consider the reference to ‘international arbitration’ in the book’s title as imprecise. After all, there are important distinctions between commercial and investment or commodity and sports arbitration. Yet, any imprecision is intended. As the division (p. 7) of labour occurs in all types of arbitration, a comprehensive approach to the topic of tribunal secretaries is warranted. Where special characteristics exist, the book provides the appropriate disclaimers. Otherwise, its conclusions apply to all forms of tribunal secretaries equally.

0.16  The book consists of three Parts. Following the present introductory chapter, Part I lays out the conceptual foundations for the discussion of tribunal secretaries. Chapter 1 disposes of terminological inconsistencies that exist in regard to actors who may collectively be referred to as third-party support to the arbitral tribunal. It analyses the evolution of the division of labour in international arbitration and provides independent terminology for the distinction of tribunal secretaries from other actors with a related role. It then portrays different emanations of tribunal secretaries that exist in practice in order to arrive at a universally applicable understanding of the book’s subject matter. Chapter 2 addresses the need for and the legal foundations of tribunal secretaries. It explores why tribunal secretaries are needed in the arbitral process and how different stakeholders benefit from their appointment. It then reviews arbitration laws, rules, and guidelines as to the legal basis for that appointment. It concludes that where an explicit legal basis is lacking, the appointment of a tribunal secretary may always be based on party autonomy or the tribunal’s discretion to conduct the proceedings. Chapter 3 is concerned with the contractual implications of the appointment of a tribunal secretary. It distinguishes tribunal secretaries that have a pre-existing relationship with at least one of the arbitrators from those that are appointed only for the particular reference. Based on that distinction, the chapter clarifies the different contractual relationships that follow the appointment of tribunal secretaries.

0.17  Part II forms the heart of the book. It contains the main contribution to the institutionalization of tribunal secretaries by providing a detailed analysis of the tribunal secretary’s mandate. As a first step, Chapter 4 concerns the appointment of tribunal secretaries. It advocates a transparent process in which the parties are involved from the outset of the proceedings.28 It also considers the requirements any tribunal secretary candidate must possess in order to be eligible to participate in the arbitration, the most important of which being the candidate’s impartiality and independence. Chapter 5 addresses the core question surrounding tribunal secretaries, namely which tasks they may carry out. To arrive at a specific list of tasks, the chapter sets out by analysing the personal nature of the arbitrator’s mandate. That analysis yields certain functions that the arbitrator may not give up and others in which she may legitimately be supported. Based on these functions, the last part of the chapter addresses each task tribunal secretaries may be endowed with and attributes a certain degree of party consent to that task. The result is a Traffic Light Scale of Permissible Tribunal Secretary Tasks that may be consulted by arbitrators, parties, institutions, secretaries, and state courts alike.29 Chapter 6 concerns an important practical question, namely the remuneration of the tribunal secretary. It deals with the conflicting goal of the secretary’s appointment to reduce the costs of the arbitration and her legitimate interest to be remunerated.

0.18  Lastly, Part III addresses the pathological case of an irregular use of tribunal secretaries and considers the available remedies. Chapter 7 explores under which circumstances the (p. 8) arbitrator who has appointed the tribunal secretary may be challenged for using the secretary impermissibly. It also examines whether tribunal secretaries themselves may be challenged if they do not possess the requisite level of impartiality and independence. Chapter 8 is concerned with the fate of the award where tribunal secretaries are used impermissibly. It reviews several grounds for setting aside awards or denying their enforcement under the premise of an impermissible use of the secretary. It concludes that while a considerable number of grounds apply to an irregular secretary involvement in theory, awards are unlikely to be set aside in practice. This is partly due to the ‘proof conundrum’ addressed in Chapter 9. Indeed, there is a considerable difficulty even in detecting an impermissible secretary use. Accordingly, that chapter points out how the secrecy of arbitral deliberations prevents most cases of an impermissible use of secretaries from ever coming to light and which tools exist to nevertheless obtain information. Only if there are concrete signs of an impermissible use of tribunal secretaries, may any remedies be available at all.

0.19  In its conclusion, the book provides an overview of the results of the preceding chapters and takes a short outlook as to the relevance of tribunal secretaries and similar third-party support to arbitral tribunals in the future.

Footnotes:

1  Immanuel Kant, Grundlegung zur Metaphysik der Sitten (Johann Friedrich Hartknoch 1785) 4:388. Translation by Mary J Gregor (ed), Practical Philosophy (The Cambridge Edition of the Works of Immanuel Kant) (CUP 1996) 44.

2  Michael McIlwrath and John Savage, International Arbitration and Mediation: A Practical Guide (Kluwer 2010) para 5-104; as well as Sundra Rajoo, Law, Practice, and Procedure of Arbitration (2nd edn, LexisNexis 2017) 399, both referring to JW Goethe’s eponymous 1797 poem.

3  Thomas Clay, L’arbitre (Dalloz 2001) para 420.

4  James Menz and Anya George, ‘Miss Moneypenny vs. the Fourth Musketeer: The Role of Arbitral Secretaries’ (Kluwer Arbitration Blog, 9 July 2013); with the same metaphor Michael Hammes and Gulnara Kalmbach, ‘Miss Moneypenny oder d’Artagnan: Der Sekretär des Schiedsgerichts—Verwaltungsgehilfe oder vierter Schiedsrichter?’ [2016] Dispute Resolution 11, 11.

5  cf 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) 533; James Menz, ‘The Fourth Arbitrator? Die Rolle des Administrative Secretary im Schiedsverfahren’ [2015] SchiedsVZ 210, 213.

6  Kyriaki Karadelis, ‘The Role of the Tribunal Secretary’ (GAR News, 21 December 2011); Michael Polkinghorne and Charles B Rosenberg, ‘The Role of the Tribunal Secretary in International Arbitration: A Call for a Uniform Standard’ (2014) 8 Disp Res Intl 107, 107.

7  Tercier (n 5) 531.

8  See para 5.75.

9  Hulley Enterprises Ltd (Cyprus) v The Russian Federation; Yukos Universal Limited (Isle of Man) v The Russian Federation; Veteran Petroleum Limited (Cyprus) v The Russian Federation, PCA Cases Nos AA 226, 227, 228, Final Awards of 18 July 2014. In these arbitrations, the shareholders of the former oil and gas company Yukos successfully sought compensation for an expropriation by the Russian Federation.

10  cf The Russian Federation, ‘Writ for Setting Aside Yukos Awards to the District Court of The Hague’ (D Hague 2014) paras 468–510.

11  Catherine A Rogers, ‘The World Is Not Enough’ (Kluwer Arbitration Blog, 6 November 2016).

12  See 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).

13  cf George A Bermann, ‘International Commercial Arbitration: Present Challenges and Future Prospects’ in Andrea Carlevaris and others (eds), International Arbitration Under Review: Essays in Honour of John Beechey (ICC 2015) 67: ‘Just as individual arbitration practitioners are admonished to avoid both the reality and appearance of impropriety in their practice, so too must the profession as a whole.’

14  Gilles Cuniberti, ‘Three Theories of Lex Mercatoria’ (2014) 52 Colum J Transntl L 369, 420.

15  See Chapters 4 and 5; Appendices A and E.

16  Constantine Partasides, ‘The Fourth Arbitrator? The Role of Secretaries to Tribunals in International Arbitration’ (2002) 18 Arb Intl 147, 159.

17  On the now increasingly discussed topic of research in international arbitration law, see SI Strong, Research and Practice in International Commercial Arbitration: Sources and Strategies (OUP 2009); T Schultz, ‘Arbitration as an iPhone, or Why Conduct Academic Research in Arbitration?’ (2011) 2 J Intl Disp Sett 279; Stavros Brekoulakis, ‘International Arbitration Scholarship and the Concept of Arbitration Law’ (2013) 36 Fordham Intl LJ 745; Thomas Schultz, ‘The Evolution of International Arbitration as an Academic Field’ (2015) 6 J Intl Disp Sett 229; Remy Gerbay, ‘ “Literature Review? What Literature Review?!”—the Influence of Legal Culture on Scholarship in International Arbitration’ in Stavros L Brekoulakis, Julian DM Lew, and Loukas A Mistelis (eds), The Evolution and Future of International Arbitration (Kluwer 2016); Thomas Schultz, ‘International Arbitration Scholarship: Forms, Determinants, Evolution’ in Stavros L Brekoulakis, Julian DM Lew, and Loukas A Mistelis (eds), The Evolution and Future of International Arbitration (Kluwer 2016).

18  cf Philippe Fouchard and others, Fouchard, Gaillard, Goldman on International Commercial Arbitration (Kluwer 1999) para 362.

19  Jean-Flavien Lalive, ‘Some Practical Suggestions on International Arbitration’ in René-Jean Dupuy (ed), Mélanges en l’honneur de Nicolas Valticos: Droit et justice (Pedonne 1999) 287: ‘[A]rbitration is law and practice’; Jeffrey Waincymer, Procedure and Evidence in International Arbitration (Kluwer 2012) 445.

20  See in detail Christopher R Drahozal and Richard W Naimark, ‘Empirical Perspectives of International Commercial Arbitration’ in Christopher R Drahozal and Richard W Naimark (eds), Towards a Science of International Arbitration: Collected Empirical Research (Kluwer 2005); Christopher R Drahozal, ‘The State of Empirical Research on International Commercial Arbitration: 10 Years Later’ in Stavros L Brekoulakis, Julian DM Lew, and Loukas A Mistelis (eds), The Evolution and Future of International Arbitration (Kluwer 2016); Thomas J Stipanowich and Marcio Vasconcellos, ‘The Interplay Between Empirical Studies and Commercial Arbitration Practice’ in Stavros L Brekoulakis, Julian DM Lew, and Loukas A Mistelis (eds), The Evolution and Future of International Arbitration (Kluwer 2016); Michael Waibel, ‘Empirical Research on International Arbitrators: Benefits and Challenges’ in Stavros L Brekoulakis, Julian DM Lew, and Loukas A Mistelis (eds), The Evolution and Future of International Arbitration (Kluwer 2016).

21  cf Pierre Lalive, ‘Un post-scriptum et quelques citations’ (1996) 14 ASA Bull 35, 337 (author’s translation).

22  Constantine Partasides, ‘Secretaries to Arbitral Tribunals’ in Bernard Hanotiau and Alexis Mourre (eds), Players’ Interaction in International Arbitration (ICC 2012) 84: ‘For many years, I have watched people stand up at conferences and speak with great sanctimony about how the use of the secretary to the tribunal for anything more than a purely administrative role would amount to a derogation of responsibility by the arbitrator. [. . .] Nevertheless, in real life arbitrations, I would see arbitrators—not always different arbitrators to those attending or indeed intervening in the above-mentioned conferences—who would make fuller use of secretaries to help them in the discharge of their function; sometimes officially, sometimes not.’ cf 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 (noting a ‘duplicity’ in this regard); Clemmie Spalton, ‘Are Tribunal Secretaries Writing Awards?’ (GAR News, 9 November 2012); 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) 108 quoting ME Schneider; Klaus Peter Berger, Private Dispute Resolution in International Business: Negotiation, Mediation, Arbitration (3rd edn, Kluwer 2015) para 27-13; Menz (n 5) 213. See Jan Paulsson, The Idea of Arbitration (OUP 2013) 160 with general criticism.

23  cf Alison Ross, ‘Dealing with Defensiveness: Garth Updates Views Two Decades After Seminal Book’ (GAR News, 18 November 2015) quoting J Paulsson: ‘[O]ne of the great problems of commenting on international arbitration [is] the necessary reliance on anecdotes and “methodologically dubious surveys” rather than hard facts’; 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 25.31: ‘Like most of us, I have only a limited view on what actually happens in concrete cases. For my perception of arbitration reality, I must rely on what I observe in my own practice, what I hear from my colleagues [. . .] and what I read in articles or hear at conferences when the speakers report real life experiences.’

24  Schneider (n 23) para 25.31.

25  Most notably, these are the surveys conducted by Young ICCA in 2012 and 2013 (Niuscha Bassiri and others, Young ICCA Guide on Arbitral Secretaries (ICCA 2014) 55–85); Queen Mary University and White & Case, ‘2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process’; Queen Mary University and White & Case, ‘2015 International Arbitration Survey: Improvements and Innovations in International Arbitration’; as well as Berwin Leighton Paisner, ‘Research Based Report on the Use of Tribunal Secretaries in International Commercial Arbitration’ (2016) International Arbitration Survey.

26  cf Kaj Hobér, ‘Interpreting and Understanding Arbitral Awards for Purposes of Scholarly Research’ in Stavros L Brekoulakis, Julian DM Lew, and Loukas A Mistelis (eds), The Evolution and Future of International Arbitration (Kluwer 2016).

27  Another important kind of empirical data is qualitative data, gained by conducting interviews with arbitration practitioners. Several studies have applied this approach, eg Joshua Karton, The Culture of International Arbitration and the Evolution of Contract Law (OUP 2013); Annabelle Möckesch, Attorney-Client Privilege in International Arbitration (OUP 2017). The present book is not based on such formal interviews, but does, on an informal level, take into account private discussions with practitioners.

28  For the suggested ‘Tribunal Secretary Terms of Appointment’, see Appendix C.

29  See Appendix E.