What is a tribunal secretary, and what do they do?
International arbitrations are becoming increasingly large and complex. The arbitral tribunal (or sole arbitrator) is often confronted with significant administrative duties. These include organizing case files and coordinating meetings with parties or other arbitrators. Many arbitrators seek to manage this workload by appointing third parties known as “tribunal secretaries” (also known as “arbitral secretaries” or “administrative secretaries”) to carry out administrative tasks.
The role of tribunal secretaries
Tribunal secretaries are usually junior lawyers with experience in international arbitration. Practicing lawyers who sit as arbitrators often choose one of their colleagues as tribunal secretary. Arbitration law professors may appoint a research assistant or a PhD student. A tribunal secretary may support different aspects of the arbitral process based on party and tribunal preference. A secretary can assist administratively, coordinating the case file, logistics, and secretarial services. Secretaries can also support an arbitration’s procedural aspects, such as assisting in the issuance of procedural decisions.
Arbitral tribunals must ensure they do not delegate their fundamental decision-making function in any way. Thus, a tribunal secretary’s participation in tribunal deliberations, or in the drafting or issuance of the tribunal’s decision, is a much-debated subject within the international arbitration community. Advocates for broad secretarial responsibilities argue secretaries enhance the efficiency of proceedings, enabling arbitrators to focus on adjudicative work. They also save costs for parties, as secretaries bill at a lower rate than arbitrators.
Opposing voices argue that tribunal secretaries’ duties should be limited to purely administrative tasks to avoid any undue influence in arbitrators’ evaluations. They claim that choice of arbitrators is intuitu personae (“because of the person”). Consequently, appointed arbitrators are expected to fulfill all of their duties personally.
Institutional reactions to tribunal secretaries
There are no uniform international standards regulating the involvement of tribunal secretaries in international arbitrations. The Young International Council for Commercial Arbitration issued guidelines and model rules. The guide is largely based on results of two surveys that solicited feedback from arbitrators, institutional representatives, and users of the arbitral process. While the majority approved of the use of tribunal secretaries, there was less agreement on the nature of tasks assigned to tribunal secretaries. The guide aims at advancing transparency in the secretary’s role.
Article 3 of the guide provides a list of permissible secretarial duties that “may legitimately go beyond the purely administrative.” They range from purely administrative tasks (Article 3(2)(a)) to reviewing the parties’ submissions and evidence (Article 3(2)(h)), attending the arbitral tribunal’s deliberations (Article 3(2)(i)), and drafting appropriate parts of the arbitral award (Article 3(2)(j)).
Increasingly, arbitral institutions are regulating tribunal secretaries through their arbitration rules and procedural guidelines. Those rules apply if parties agree to them in their arbitration agreement. For instance, the Court of Arbitration of the International Chamber of Commerce, the London Court of International Arbitration, and the Arbitration Institute at the Stockholm Chamber of Commerce acknowledge the assistance of tribunal secretaries in arbitral proceedings. While the regulations vary, most state that arbitrators may not delegate any decision-making authority to secretaries and secretaries must remain impartial and independent.
How to appoint a tribunal secretary
It is important to obtain parties’ consent before appointing a tribunal secretary, most often done at the case management conference. If the tribunal intends to appoint a secretary, it should say so and discuss the qualifications, neutrality, duties, and compensation of the proposed secretary. A transparent appointment minimizes the risk of potential challenges to arbitral awards. Some arbitration institutions provide helpful guidance on how to appoint tribunal secretaries.
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