The Role of Arbitral Secretaries: Overregulate the Underregulated?

On 15 April 2014 the Young International Council for Commercial Arbitration released the 2-year work of its Task Force – a Guide on Arbitral Secretaries (hereinafter – “Guide”), which is available for download here.

The Guide contains 4 articles with commentaries, a model plug-in and annexes in the form of survey charts and articles on the subject. The core issues include general principles for appointment of arbitral secretaries, the procedure for appointment, the role of arbitral secretaries and the costs. All of the articles provide for multiple options, each of which options is based on the Young ICCA survey and is extensively commented in the subsequent paragraphs of the Guide. Obviously faithful to the value of party autonomy the Guide states that the costs could be borne by the tribunal or by the parties pursuant to the decision of the arbitral institution or that of the parties (article 4). In Article 3, though, the Guide lists administrative and non-administrative tasks of an arbitral secretary subjecting the choice to the will of the tribunal and completely leaving aside the parties’ view on the issue.

The ICCA Guide is not the first attempt to structure the engagement of arbitral secretaries. The International Chamber of Commerce (the ICC) had its Note on the Appointment, Duties and Remuneration of Administrative Secretaries before 2012 (revised note effective from 1 August 2012). The 2010 UNCITRAL Arbitration Rules also contain provisions on arbitral secretaries. However, as compared to the previous instruments, the new Guide suggests a way more comprehensive approach dealing with the aspects which have not received much attention before.

Indeed, the previous instruments were remarkably succinct in outlining the role of arbitral secretaries. Article 5 of 2010 UNCITRAL Rules provides for the possibility to engage “assistants”, Article 16 further mentions a “person appointed by the tribunal”, and Article 40(2)(c) lists expenses “reasonable cost […] of assistance […] required by the arbitral tribunal” while the ICC Note in four articles deals mostly with the issues of appointment, duties and remuneration of arbitral secretaries.

Notably, the foreword to the Guide advances certain concerns about the usefulness of such a detailed regulation. However, the Young ICCA survey confirms the overall appraisal of the initiative. Indeed, while the role of an arbitral secretary may be relatively insignificant in small claims and fast-track arbitrations, it is hardly possible to underestimate a secretary’s value in administering large scale disputes. Sometimes this would be the person the parties contact throughout the whole length of arbitration, or the person who counts the time during the hearing and miscalculating the time of one of the parties; sometimes this would be the person who organizes visas for witnesses invited by the tribunal in just a few hours, having juggled innumerable applications to the MFA and embassies; most interestingly, this may be the person receiving emails with a subject “tribunal deliberations”… Both the quality of performance and the character of the duties assigned matter. While domestic legal systems often provide for more than administrative tasks for court secretaries (i.e. preparing drafts of court judgments in e.g. United States of America, Ukraine) in the secretary’s involvement in the analysis of parties’ positions, deliberations, decision-making and drafting of an award may be controversial.

Depending on the specifics of the arbitration, the requirements for a secretary may vary. Languages spoken, communication skills, legal qualifications and time available for the case (e.g. for long-term arbitrations, where a sudden leave of a secretary may be undesirable) may be considered. With all the due respect to the flexibility of arbitration, its transparency and freedom of choice are of essence. The parties should definitely be aware of the person appointed as a secretary and his\her duties and are entitled to have a say in the process. With this it is desirable that regulations like the ICCA Guide are widely commented, amended and finally adopted as applicable guidelines, providing the necessary scope of discretion for the parties. There is no deadline for transforming the Guide into such applicable instrument, and no certainty as to whether this will happen at all. In the meantime, the comments to this Guide are welcome at:

Authors: Anna Kombikova, Iryna Glushchenko.