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Overview
Following debate within the arbitration community regarding the proper scope of the role of a tribunal secretary and a series of challenges to arbitral awards based on the alleged improper exercise of that role, the London Court of International Arbitration (“LCIA“) recently updated its Notes for Arbitrators, with a particular focus on implementing new guidelines on the use of tribunal secretaries (cf. short note on ICC’s and LCIA’s Revised Practice Notes).
These changes primarily focus on greater transparency between the tribunal and the parties regarding the specific tasks any tribunal secretary will be asked to perform in each individual arbitration as well as obtaining informed consent from the parties as to scope of the role to be performed. The LCIA intend such guidance to encourage productive discussions between parties and arbitrators regarding the role of the tribunal secretary and in turn reduce the risk of challenges or other issues arising in arbitration proceedings as a result of the use of tribunal secretaries.
Background
The use of tribunal secretaries in international arbitrations to assist the tribunal has become common practice and often helps to ensure that arbitrations are conducted in the most efficient and effective manner possible, with tribunal secretaries removing much of the administrative burden from tribunals. The role of tribunal secretary also provides more inexperienced arbitration practitioners with the opportunity to become familiar with the workings of an arbitral tribunal before becoming arbitrators themselves.
However, there is no clear consensus amongst arbitration practitioners as to what are the proper limits of the scope of the role of the tribunal secretary and at what point the tribunal is effectively improperly delegating tasks that some arbitration users and practitioners consider ought to be carried out by the tribunal exclusively. Differing legal and cultural backgrounds partly explains this lack of consensus, but it is also due to differing individual opinions as to the extent to which the insight, understanding or analysis of a dispute might be lost from the tribunal if certain tasks are performed by the tribunal secretary (such as summarising submissions or preparing first drafts of award or sections of awards).
The LCIA previously addressed what tasks a tribunal secretary should be entitled to carry out by providing a list of limited activities. This list has now been updated such that it considers the tasks that tribunals “may wish to propose” and therefore can be used as a starting point between tribunals and parties, following which parties can then specifically express their consent. The LCIA’s main objective from these changes is to ensure that parties have the opportunity to provide informed consent to the different aspects of the tribunal secretary role such that all arbitrators and parties are comfortable from the outset. These changes should enable arbitrators to respond to any concerns raised by the parties prior to any appointment and decrease the risk of challenges to the award (assuming that the tribunal secretary does not stray beyond the agreed role).
Guidance
The LCIA’s updated guidance emphasises “communication and consent” as crucial elements in maintaining the flexibility of LCIA arbitration, clarifying the tribunal secretary role, and strengthening the existing elements of the LCIA’s approach.
The LCIA have made clear that assistance provided by a tribunal secretary must never amount to a delegation of the fundamental decision-making functions of an arbitral tribunal and does not relieve any tribunal member from their personal responsibility to ensure that all tasks are performed to the standard required by the LCIA Rules and guidance. The LCIA does not endorse any particular task as appropriate for a tribunal secretary to carry out; however, section 8 of the updated Notes for Arbitrators[1], does list a range of tasks that an arbitral tribunal may wish to propose in full or in part. Such tasks may include simple administrative matters such as organising documents and proofreading as well as more substantive tasks such as summarising submissions, reviewing authorities and preparing first drafts of awards. All tasks must be carried out on behalf of, and under the supervision of the arbitral tribunal.
Tribunal secretaries must only carry out tasks that have been agreed by the parties and must not provide assistance until approval has been granted. Approval is only granted once the parties have agreed:
- the tasks that may be carried out by the tribunal secretary;
- that Article 30.2 (Confidentiality) and Article 31 (Limitation of Liability) of the LCIA Rules apply to the tribunal secretary;
- whether an hourly rate and entitlement to reimbursement will be permitted, and if so how much (the LCIA suggest an hourly rate of £50 to £150); and
- to the particular person filling the role of tribunal secretary and received a completed statement of independence and consent to appointment.
Whilst tribunal secretaries were already under a requirement to complete a statement of independence and consent to appointment, the new guidelines now explicitly note that the LCIA’s practice is to provide such information to the parties prior to the appointment, allowing the parties an opportunity to approve the proposed individual. Tribunal secretaries will also have an ongoing duty to disclose conflicts of interest.
In order to ensure that parties do not obstruct the efficient conduct of proceedings by withholding their consent, parties will now be deemed to have consented if they do not object within a reasonable time set by the tribunal. In the event that parties wish to remove a secretary, they may do so by filing a challenge that will be decided by the independent LCIA court.
Comment
The new LCIA guidelines are a timely update in regulating the role of tribunal secretaries given the recent judgment of P v Q and others [2017] EWHC 194 (Comm).
This case brought attention to recent views on the delegation within tribunals and the appropriate role of a tribunal secretary. The English court was asked to consider challenges to LCIA arbitrators based on allegations of improper delegation to a tribunal secretary. The court acknowledged that there is “considerable and understandable anxiety in the international arbitration community” about tribunal secretaries becoming “fourth arbitrators.” The court suggested that tribunals refrain from giving secretaries any tasks that required them to express a view on the substantive merits of an issue or application. The key findings of this case were considered in the following article: A Stepping Stone Without Overstepping The Mark.
The role of the tribunal secretary also fell under scrutiny in the arbitration between Yukos Oil Company and the Russian Federation. In that case the Russian Federation challenged the award, amongst other things, on the basis that the tribunal secretary spent considerably more time on the matter during the merits hearing and the award drafting stage than any of the arbitrators and a writing expert had opined that large parts of the award had been drafted by the tribunal secretary.
The role of a tribunal secretary can undeniably ease the administrative burden on the tribunal and allow them to focus on the substantive merits of any dispute, saving both time and cost. Nevertheless, some arbitration users and practitioners have difficulty with the opaque nature of the role and concerns that some tasks might be improperly delegated by the tribunal to the tribunal secretary. It is anticipated that these new guidelines will increase certainty and transparency on the role and ensure that the parties will know the exact tasks to be performed by the tribunal secretary for which they are being asked to consent. That clarity and transparency is welcomed and will enable any differing expectations as to the scope of the role of the tribunal secretary to be addressed at the outset.
[1] LCIA Notes for Arbitrators
