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( Source of the document: ICC Digital Library )
The ICC Institute of World Business Law has launched a new series of one day training aimed at explaining the roles and tasks of a tribunal secretary and the skills necessary to excel in this function. The next session is scheduled for 14 March 2018 in Sao Paulo. Alexandre Lercher, Ph.D Candidate and Lecturer at Paris Dauphine University, and Sarra Saïdi, a young legal practitioner in international arbitration, report.
Yves Derains (Founding Partner, Derains & Gharavi, Paris; Chairman, ICC Institute of World Business Law) opened the training by reminding the audience of the role of an arbitral tribunal. Its function is to take a decision. Mr Derains then explained his vision of the role of tribunal secretaries. Tribunal secretaries should assist the arbitral tribunal in its office on an administrative level, and Mr Derains insisted on that point. He also pleaded for more transparency as to the presence of tribunal secretaries. The issue of transparency is central for this matter and a lot remains to be done. In his view, acting as a tribunal secretary is the best training for becoming an arbitrator.
After an introduction on the benefits a tribunal secretary can provide to the arbitration proceedings, Laurent Jaeger (Partner at Orrick, Paris; Member, ICC Institute of World Business) discussed the controversies surrounding the role of tribunal secretaries and presented the training programme.
Laurent Jaeger referred to an interesting statistical study published by ICCA, which showed that 95 percent of the audience of that ICCA congress was favourable to the presence of a tribunal secretary during the arbitral proceedings, before specifying that the audience was only composed of arbitrators and counsels. Mr Jaeger explained that most of the users are currently not favourable to the presence of a tribunal secretary. Users are, indeed, reluctant to appoint a tribunal secretary for the arbitration as the contract concluded with their appointed arbitrator had a strong intuitu personae; users are reluctant to having someone they did not choose be involved in the award drafting or in the decision-making process.
Mr Jaeger concluded by explaining that a solution exists to convince users to accept the presence of tribunal secretaries. Mr Jaeger joins Mr Derains in acknowledging that more transparency is needed regarding the appointment and role of a tribunal secretary and that the scope of his/her tasks should be clearly defined.
This panel introduced the perspective of arbitrators, parties and ICC as to the role of the tribunal secretary and the nature of his/her tasks. For arbitration users, how is a tribunal secretary helpful and what are the main advantages for appointing a tribunal secretary?
Members of the first panel explained the perspectives of the different actors of the arbitral procedure on the tribunal secretary.
Christine Guerrier (Vice President, Dispute Resolution & Litigation, Thales France; Member of the ICC International Court of Arbitration) showed her concerns about the utility of the tribunal secretary. She explained that, for users, the presence of a tribunal secretary mainly raises problems. She explained that she expects a 100 percent dedication from her arbitrator as she feared that the presence of a tribunal secretary led to an arbitrator that may be less dedicated and may extensively rely on the tribunal secretary, including for the drafting part.
Živa Filipič (Managing Counsel, ICC International Court of Arbitration) provided the perspective of the ICC on what should be expected from a tribunal secretary. Ms. Filipič was of the view that users should not be reluctant to the presence of a tribunal secretary. In fact, she encouraged the use of a tribunal secretary, who should however follow the guidance of the ICC ‘Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration’ (the ‘ICC Note’). 1 Thomas Webster (Independent Lawyer and Arbitrator, United Kingdom) shared his experience with the audience and stated that working with a tribunal secretary allowed him to be more focused on the most important part of his function as an arbitrator that is taking a decision.
The second panel insisted on the fact that, on the issue of the appointment of tribunal secretaries, more transparency is needed. For the panel, two conditions must be fulfilled when appointing a tribunal secretary: the consent of the parties is required and the appointment process should be conducted efficiently.
Julien Fouret (Partner at Betto Seraglini, Paris; Member ICC Institute of World Business) raised three questions with the audience:
When to appoint? The ICC Note provides that tribunal secretaries can be appointed at any time during an arbitration and acknowledges that ‘Administrative Secretaries can provide a useful service to the parties and arbitral tribunals’.
Who to appoint? In most cases, tribunal secretaries are associates of the arbitrator’s firm, legal professionals or junior lawyers.
How to appoint? To be truly cost-efficient, tribunal secretaries must be approved by all parties. For instance, paragraph 148 of the ICC Note provides for this mandatory consent as follows:
The arbitral tribunal shall make clear to the parties that they may object to such proposal and an Administrative Secretary shall not be appointed if a party has raised an objection.
Trainings as this one allows to ensure the best recruitment. In this vein, the HKIAC has started a training programme for tribunal secretaries to compose a group of qualified tribunal secretaries for arbitrators.
The panel was also of the view that tribunal secretaries should be free from any kind of liability and enjoy the immunity that is attributed to the arbitrators.
Ana Paula Montans (Associate, Derains & Gharavi, Paris) focused on the tasks that the tribunal secretary must deal with; the most important tasks being scheduling the procedure and making sure that each member of the arbitral tribunal and the parties have received all e-mails and attached documents.
Ms Montans advised that the tribunal secretary should:
Tribunal secretaries also have legal tasks to perform. As an example, tribunal secretaries are often required to:
They may also draft procedural orders and some parts of the partial or final award. Tribunal secretaries should only draft factual parts; they could draft substantial parts but exclusively under the supervision of the arbitrators (the president).
In ICSID arbitration, the tribunal secretary has no contract with the parties and his/her role is clearly defined.
To conclude, the panel reminded and insisted on the fact that the tribunal secretary should be present during the deliberations, but he/she should not intervene during the discussions.
Catherine Schroeder (Counsel, Derains & Gharavi, Paris) explained that the missions of the tribunal secretary at the early stage of the procedure were the following:
This panel started by stressing that the tribunal secretary should be cautious on the requests done by the parties regarding the procedure (for example bifurcation, interim measures, provisional measures, etc…). Rahul Donde (Senior Associate, Lévy Kaufmann-Kohler, Geneva) gave the audience practical tips to follow when acting as tribunal secretaries, such as visiting the hearing room one day before the hearing to make sure that all tools are available and in working order.
During a hearing and immediately after, tribunal secretaries must:
For all the above-mentioned tasks, Mr Donde stated that the tribunal secretary should be aware of its strategic role within the procedure.
Eric Schäfer (Partner, Cohausz & Florack, Düsseldorf) reminded the audience of the importance of the use of information and communications tools (ICT) and technology. The tribunal secretary should be aware of all the free tools and software available for the creation, organization and transmission of electronic files aiming at facilitating the organization of the proceedings but also to be familiar with all aspects of e-disclosure. Mr. Schäfer reminded the audience that we all need to be cyber-security sensitive and even more so when acting as a tribunal secretary.
The last panel focused its attention on the controversial role of the tribunal secretary as to the drafting of the award. Mr Tercier distinguished the steps between ‘deciding’ and ‘drafting’. The decision made by the arbitrator precedes the drafting of the decision; therefore the tribunal secretary will never draft the decision itself but only facts or procedural parts.
According to Mr Tercier, the tribunal secretary can draft any part of the award, as long as it is dealing with facts. Mr Tercier however finds it useful to discuss the award with the secretary while drafting the first version of the award.
Mr Derains agreed on this point and added that the focal role of the tribunal secretary was to assist the president of the arbitral tribunal in deciding the case by pointing out specific issues, reminding them of facts, exhibits or procedural aspects of the case.
One of the polling questions asked live at the training was:
Do you understand that it is part of a tribunal secretary’s tasks to prepare first drafts of awards?
This question was asked twice, at the beginning and at the end of the day to evaluate any change of mind or understanding.
Voting participants initially answered:
Voting participants subsequently answered:
The audience confirmed the importance of the second option: tribunal secretaries are crucial for arbitral procedures but are not meant to replace or supersede arbitrators. Their cooperation, however, ensures a fair, cost-efficient and timely justice.
Available at https://iccwbo.org/publication/note-parties-arbitral-tribunals-conduct-arbitration/