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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
I have long felt that there are few aspects of the practice of international arbitration that better deserve the unwelcome moniker of "hypocrisy" than the approach to the role of the secretary to the tribunal.
For many years, I have watched people stand up at conferences and speak with great sanctimony about how the use of the secretary to the tribunal for anything more than a purely administrative role would amount to a derogation of responsibility by the arbitrator. Moreover, they would often get great rounds of applause for saying so.
Nevertheless, in real life arbitrations, I would see arbitrators-not always different arbitrators to those attending or indeed intervening in the above-mentioned conferences-who would make fuller use of secretaries to help them in the discharge of their function; sometimes officially, sometimes not.
It was for this reason that, almost exactly a decade ago (in 2002), I decided to write an article on the subject that some people remember by its shortened title "The Fourth Arbitrator".
Some people may remember the title, but very few remember the punctuation that followed it-namely a question mark. My aim was not to propose but to question the role of secretaries to tribunals in international arbitration:
- Was it appropriate?
- Within what limits?
- When does responsible delegation become irresponsible derogation?
My conclusion was as follows. In the same way as clerks to justices are used to great effect in many national judicial forums, so secretaries to arbitral tribunals, with the consent of the parties, can legitimately add to the efficiency and professionalism of a process in which increasingly one or three arbitrators now face-and must stay on top of-the voluminous output of veritable armies of legal teams that produce great heat, sometimes light, and inevitably much paper in modern arbitration practice.
The two reasons why some said that this judicial parallel should not be extended to arbitration seemed to me not to hold water. For the sake of argument, it is worth recalling what they were.
The first reason can be stated as follows. Arbitrators, unlike judges, are selected by the parties. The selection of arbitrators, unlike judges, is intuiti personae. Therefore, so the theory goes, there should be no delegation by arbitrators. However, it seems to me that this theory is surely flawed. Just because judges are not personally selected does not make their delegation of the decision-making function acceptable. Whether personally selected or not, the key is to ensure that the clerk or the secretary is used appropriately to assist-rather than replace-the decision-maker. The question for both is the same: what is the appropriate level of delegation? I see no compelling reason why that question should be answered differently for arbitrators.
The second reason, which relates to the first, can be summarized as follows. Unlike arbitrators, judges cannot say "no" to a new case that comes before their court. Unlike judges, arbitrators control their docket. For this reason, so the logic goes, arbitrators are not in the same position to justify the need for the help of a young lawyer. Arbitrators, can-and should-say no if they are not in a position to accept a voluntary appointment. Once again, such logic seems to me to miss the point. If the legitimate and proper use of secretaries can assist the efficiency of the process, why deprive an arbitrator of such a facility simply because he has consented to participate in the process.
However, my faith in the institution of secretaries was not unlimited. Searching for an appropriate dividing line between the appropriate and the inappropriate, I focused on the exercise of the drafting of the award. I concluded then that arbitrators should restrict the secretary's role in drafting actual decisions, as writing is the "ultimate safeguard of intellectual control".
Those were my views then, and over the last ten years the role of the secretary and my views on the issue have evolved.
The institution of secretaryships is stepping out of the shadows and into the light. It is also my impression that the phenomenon of the "secret secretary" is diminishing.
There is now far more open use and acceptance of secretaries. The best proof of this is the increasing, express accommodation of the use of secretaries in the main institutional rules in the field of arbitration, such as the new UNCITRAL Arbitration Rules.
The new UNCITRAL Arbitration Rules of 2010 now explicitly accommodate the provision of assistance to the arbitral tribunal. As the travaux préparatoires confirm, these rules where intended to apply to secretaries to tribunals.
Thus, article 5 of the new rules, entitled "Representation and Assistance", talks of "each party" having the facility to be represented "or assisted" by persons chosen by it. It is understood and accepted that, in this context, the reference to assistance is intended to accommodate the "assistance" of a secretary for the arbitral tribunal.
In the same way, article 16, entitled "Exclusion of Liability", extends not only to arbitrators and appointing authorities but also to "any person appointed by the Arbitral Tribunal", which again is intended to accommodate arbitral secretaries.
Finally, in the same way, article 40, entitled "Definition of Cost", explicitly includes within this definition the "reasonable costs of expert advice and of other assistance required by the Arbitral Tribunal".
This express contemplation of the appointment of secretaries is to be welcomed, but it is only the first step in addressing the legitimacy gap that focuses on the role and the cost of an arbitral secretary.
What the revision of the UNCITRAL Rules does not do is address the key question of the appropriate role and cost of arbitral secretaries. In so far as UNCITRAL is concerned, we are left with the UNCITRAL Notes on Organizing Arbitral Proceedings, which state the problem but do not provide an answer. Paragraph 27 of the notes states that:
"Differences in views, however, may arise if the tasks include legal research and other professional assistance to the arbitral tribunal (e.g. collecting case law or published commentaries on legal issues defined by the arbitral tribunal, preparing summaries from case law and publications, and sometimes also preparing drafts of procedural decisions or drafts of certain parts of the award, in particular those concerning the facts of the case). Views or expectations may differ especially where a task of the secretary is similar to professional functions of the arbitrators. Such a role of the secretary is in the view of some commentators inappropriate or is appropriate only under certain conditions, such as that the parties agree thereto. However, it is typically recognized that it is important to ensure that the secretary does not perform any decision-making function of the arbitral tribunal."
Those same questions are yet to be answered by other institutional guidance. This brings us to the ICC's Note on the Appointment of Administrative Secretaries by Arbitral Tribunals of 1995, which provides that:
1. arbitral tribunals themselves must verify that the prospective secretary "satisfies requirements of independence";
2. the secretary's duties are to be "limited" to administrative tasks, and the secretary will avoid becoming "involved" in decision-making, or expressing "opinions" in respect of the issues in dispute; and
3. the Costs are to be "normally" satisified from the tribunal's fees awarded by the court, soas to ensure that costs are not increased.
The Bureau of the ICC Court (its policy unit) is currently in the process of considering an update of this Note. As the work of the Bureau continues, it is my hope that the institutional position does not remain out of step with present practice and reality.
In particular, it is my hope to see an increasing recognition of the fact that many responsible arbitrators habitually delegate activities that go beyond the purely administrative to diligent secretaries without it impacting inappropriately on the full and proper discharge by the arbitrators of their decision-making function.
A refusal to recognize such present practice will compel arbitrators to continue to be less than transparent about the current reality, and so the double-speak-or hypocrisy-will continue in a way that can only be damaging to the legitimacy of the arbitral process.
Simply stated, it is my view that the new ICC Note must address this décalage and that it must do so in a way that is consistent with the present practice.
Let me take this opportunity to add my own contribution to this process by making two observations. The first concerns the appropriate scope of a secretary's duties, and the second concerns the important question of the allocation of the costs of using a secretary.
As to the appropriate role to be played by a secretary, I would suggest that there need be nothing inappropriate in an arbitrator making use of the services of a young lawyer to become better informed as to the substance of the case by helping him or her to digest the arguments and the evidence presented by the parties during the course of the proceedings. I would further suggest that there is no reason why a secretary cannot assist an arbitrator in preparing first drafts of procedural orders arrived at by the arbitral tribunal. Indeed, in the same way, I would suggest that there exists no good reason why a secretary cannot, under careful supervision, legitimately assist an arbitrator with the production of a first draft of those parts of the award that are uncontroversial (e.g., the description of the procedural history or factual background of the dispute).
Beyond this, it is for the individual arbitrator to decide whether he or she can delegate the full drafting of the award to a secretary without jeopardizing decisionmaking control. On this sensitive subject, dogmatism is unhelpful. For some people, the act of drafting is the ultimate safeguard of intellectual control. For others, the same level of control can be achieved without producing the first draft.
Ultimately, this must be a question for the arbitrator's judgment. If the arbitrator gets such a significant decision wrong, then the problem is not with the institution of secretaryship but with the choice of arbitrator.
On the important question of cost, my observation follows the same logic as above. Used properly, a secretary can assist in ensuring the quality and the efficiency of the arbitral process. If the parties are persuaded of this, then there should be no reason in principle why the parties should not pay for such a service.
However, such a general principle must be accompanied by some important constraints. First, the use of secretaries should be an efficiency, rather than lead to a duplication of costs, for the parties. Thus, for example, there is a case for not charging all of the time spent by a secretary attending an oral hearing where that time is largely if not entirely duplicated by the arbitrator's own time. Second, certain limits should be imposed on the amounts charged for a secretary's time. In order to ensure that a secretary does not usurp the role of the arbitrator, there may be a case for setting a cap on the hourly rate of secretaries that would effectively disqualify lawyers of a certain seniority from serving as secretaries.
I conclude by acknowledging that these ideas are obviously incomplete and could undoubtedly be developed. For now, their aim is simply to encourage the beginning of a process that will hopefully end with the use of secretaries being recognized and regulated in a way that accords with-rather than denies-our present reality.