Part III The Irregular Use of Tribunal Secretaries, 9 The Proof Conundrum

Subject(s):

Appointment of arbitrator — Burden of proof — Arbitral tribunals

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.