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Hong Kong, United Kingdom November 21 2017
In October 2017 the LCIA updated its guidelines on the use of tribunal secretaries. This is part of a continuing trend by arbitral institutions to put procedures in place surrounding the use of the tribunal secretary in international arbitration, in particular to clarify their role and the scope of their remit.
The start of this trend can be traced back to 2010 when the SCC introduced the role of ‘administrative secretary’ in their Arbitrator Guidelines. In 2012 the ICC published a revised Note on the Appointment, Duties and Remuneration of Administrative Secretaries. A Young ICCA Guide on Arbitral Secretaries (the Guide) followed in 2014. The Guide sought to codify existing best practices focusing on transparency, party consent and cost efficiency in the use of tribunal secretaries. In 2014 the HKIAC issued its own guidelines followed by the SIAC, both taking a similar approach to the Guide.
This is a welcome development. In the past, improper delegation by tribunals of tasks to a tribunal secretary has led to awards being challenged1, or applications made to remove Tribunal members for failing to properly conduct proceedings. Our Arbitration SpeedRead “The English Court rules on the role of Tribunal Secretaries and protects confidentiality of Tribunal deliberations” considered one such application to the English High Court which challenged an LCIA decision not to remove the arbitrators on the grounds of improper delegation of functions by the Tribunal to the tribunal secretary. The application was unsuccessful and the Court upheld the LCIA’s decision to reject the application. In so doing, the Court gave examples of conduct which it did not consider was necessarily improper2. This included using the secretary to draft procedural orders.
Following such well-publicised cases, in October 2017 the LCIA updated its guidelines following recommendations by an internal LCIA committee.
The guidelines seek to clarify the tribunal secretary’s role and to promote communication and consent between the parties and the Tribunal with regard to it. For example, arbitrators are required to seek consent from the parties in relation to individual aspects of the tribunal secretary’s role. Whilst the LCIA does not endorse any particular tasks as necessarily being appropriate for the tribunal secretary to carry out, in the Notes for Arbitrators, clause 8 lists some of the tasks an Arbitral Tribunal may wish to propose3. These range from simple administrative tasks, to attending meetings, hearings and deliberations and extend to summarising submissions, reviewing authorities and preparing first drafts of awards, although all tasks must be carried out on behalf of, and under supervision of the Arbitral Tribunal. In addition the Arbitral Tribunal cannot delegate its decision-making function4.
In a further change to the previous guidelines and to mirror the process of conflict checking carried out with arbitrators, tribunal secretaries must now complete a Statement of Independence and Consent to Appointment to ensure that the proposed tribunal secretary has no relevant conflicts. This must be provided to the parties prior to any appointment. In addition, a tribunal secretary’s disclosure obligation is on-going5.
As regards fees, the Note suggests an hourly rate of between £50 to £150 for tribunal secretaries. The tribunal is required to propose an appropriate fee rate to the parties, to which the parties must expressly consent.
It is clear that the tribunal secretary can play an important role in the administration of an arbitration, significantly easing the administrative burden on the Tribunal and therefore saving both costs and time in the long run. The LCIA Guidelines seek to address the on-going concerns surrounding tribunal secretaries and is intended to ensure that the role of any tribunal secretary is transparent, clearly defined and agreed by the parties.
