Can Eken[1]
The use of tribunal secretaries provides numerous benefits if it is used efficiently. Otherwise, certain concerns might raise. This Blog post explains the role and appointment of tribunal secretaries in international arbitration cases. It further explains the benefits and concerns regarding the appointment of tribunal secretaries and measures taken to address those concerns.
Benefits
If tribunal secretaries are used properly, the costs of arbitration proceedings could see a reduction since the secretaries would undertake administrative duties for arbitration tribunals. Communicating with the parties to settle a date for the hearings, for instance, can sometimes take a considerable amount of arbitrators’ time. Considering the hourly rate of arbitrators, similar administrative and mundane tasks can be undertaken by tribunal secretaries who are paid much less than arbitrators.
Tribunal secretaries will also reduce the time that arbitrators spend on deciding in a case. The main role of an arbitrator is to arrive at a decision on the case and write an enforceable arbitration award. Anything that assists arbitrators in conducting their duties efficiently serves to advance the process of arbitration. High-quality secretaries not only work to reduce the amount of work arbitrators commit to deciding on a case, but they also inevitably reduce the chargeable hours of arbitrators. Thus, a tribunal secretary — by conducting research for arbitrators, summarising parties’ positions clearly, organising exhibits and files for arbitrators to analyse, communicating with parties, arranging and checking the facilities in a hearing centre, etc. — will offer considerable help to arbitrators. In essence, they help arbitrators with important tasks, substantially reducing working hours of arbitrators and therefore serving both parties as a cost-saving factor.
Concerns
There are also concerns for the use of tribunal secretaries. First, if a tribunal secretary is not qualified to conduct research work, or if they fail to summarise the parties’ submissions properly and omit certain important arguments, arbitrators might return with a decision that might be inadequately completely informed. Thus, tribunal secretaries must be qualified for the duties they undertake. Second, it would be highly problematic if arbitrators assign duties to their secretaries which should be conducted by themselves. For example, a secretary writing a considerable amount of the award, especially the analysis and decision sections, would be a grave concern[2].
What measures have been taken to address concerns?
ICC has published a note to parties and arbitral tribunals[3], HKIAC[4] and ACICA[5] have published guidelines. Moreover, ICCA created a comprehensive report on Arbitral Secretaries[6]. These guidelines and notes are to tackle with some of these concerns and ensure the efficient use of tribunal secretaries. Such guidelines illustrate the best practice for the use of tribunal secretaries in arbitration. There is also generally a declaration that tribunal secretaries need to submit attesting their availability, impartiality, and independence.
Conclusion
In conclusion, tribunal secretaries undertake important duties and assist arbitration tribunals with administrative, research and other non-decision-making duties, yielding a reduction in arbitrators’ workload. Tribunal secretaries must be competent and be assigned proper tasks according to their abilities. Possible concerns that might arise from the use of tribunal secretaries can be overcome by reference to useful guidelines available.
[1] PhD Candidate at the Faculty of Law of The Chinese University of Hong Kong. Admitted to practise law in California and Turkey. Fellow of the Chartered Institute of Arbitrators (CIArb) and on the panel of arbitrators at the Shanghai International Arbitration Centre and Thailand Arbitration Centre. Executive Secretariat of the Asia Pacific FDI Network. [2] See High Court of Justice Queen's Bench Division Commercial Court, Case No: CL-2016-617. Available at: https://www.judiciary.uk/wp-content/uploads/2017/03/p-v-q-and-ors-2017-ewhc-194-comm-20170209.pdf. Access: 15.09.2021. [3] Available at: https://iccwbo.org/content/uploads/sites/3/2020/12/icc-note-to-parties-and-arbitral-tribunals-on-the-conduct-of-arbitration-english-2021.pdf. Access: 15.09.2021. [4] Available at: https://www.hkiac.org/images/stories/arbitration/HKIAC%20Guidelines%20on%20Use%20of%20Secretary%20to%20Arbitral%20Tribunal%20-%20Final.pdf. Access: 15.09.2021. [5] Available at: https://acica.org.au/wp-content/uploads/2017/01/ACICA-Tribunal-Secretary-Guideline.pdf. Access: 15.09.2021. [6] Available at: https://cdn.arbitration-icca.org/s3fs-public/document/media_document/aa_arbitral_sec_guide_composite_10_feb_2015.pdf. Access: 15.09.2021.