Just as the increasing use of law clerks in the US court system has led to increased academic study and public discussion of their role and function, so too has the increased use of tribunal secretaries in international arbitration promoted discussion about their use and role. However, the nature of international arbitrations is such that issues regarding the use of tribunal secretaries are different from those regarding the use of judicial assistants or law clerks.
The express role of a US law clerk is to affect the behaviour of a judge. They are employed in order to make the opinion (which is ultimately the judge’s) more “accurate” by seeking to ensure that it is based on the correct facts and law. Judges accept not only that their clerks’ work may influence the outcome of a case; they characterise this as a good thing. (The results of a survey of 81 justices on 35 state high courts showed that, on average, litigants (or their legal representatives) had failed to bring the court’s attention to facts or law critical to the resolution of a case in 1/10 cases. In other words, in 1/10 cases a law clerk will discover facts or law critical to the outcome of a case. Thus a clerk may directly influence the outcome of a case, but since, “Making accurate legal decisions is generally a goal of judges… clerks who uncover outcome-changing legal authority are furthering their judges’ goals, not obstructing them.”: see Good Stewards: Law Clerk Influence in State High Courts by Rick A. Swanson and Stephen L. Wasby.)
It is also possible that an arbitral tribunal might do a better job of achieving justice if it is assisted, and even influenced by, its secretary. However, the position of an arbitral tribunal is materially different to that of a federal judge. Courts are publicly funded. Rising caseloads and decreasing judicial budgets have necessitated the use of judicial assistants / law clerks, both in the USA and in England and Wales. However, in arbitrations, the parties pay. Unlike a judge, an arbitrator can turn down an appointment if he is too busy to carry out his appointment without the use of a secretary. In the words of one ICSID arbitrator:
“During cross-examination it was asked why and questioned how some arbitrators could do so many cases. One way is to farm out the drafting to others, in the case of ICSID to the Secretariat. There appears to be much appreciation for this by busy arbitrators but it is improper.” (Compania de Aguas del Aconquija S.A. and Viviendi Universal S.A. v Argentine Republic ICSID Case No. ARB/97/3, Additional Opinion of Professor JH Dalhuisen at paragraph 8.)
However, as a general rule, the role of arbitrator is intuiti personae (because of the person). If the parties are not aware that the tribunal’s secretary will be carrying out a substantial number of tasks for their appointed tribunal, there is a real sense in which the parties have not got that for which they bargained.
The decision of Popplewell J in P v Q has made it clear that parties have very limited, if any real rights of recourse in the event that a tribunal secretary has performed a more extensive role than anticipated, even if the tribunal secretary has effectively usurped the role of the tribunal. Popplewell J saw the test for annulment to be one of “substantial injustice”. Thus, even if it could somehow be shown that the tribunal secretary made the decision and wrote the award, the parties would have to show that the arbitrators themselves would have come to a different conclusion if they wanted the court to annul the award. Further, it is hard to see the basis upon which a party could formulate, let alone quantify, a damages claim in such circumstances.
Whilst there may therefore be a limited amount a party can do in the case of unauthorised delegation (whether they can prove it or not), parties who are alive to the issue at an early stage can at least seek to anticipate the issue by clearly delineating the secretary’s role.
Parties negotiating dispute resolution agreements should be alive to the fact that different arbitral institutions adopt different restrictions on the role of tribunal secretaries; and some provide no guidance at all (a helpful overview of the rules / guidance of the major international associations can be found in a 2015 article on the IBA website by Michel Polkinghorne and Charles B Rosenberg, The Role of the Tribunal Secretary in International Arbitration: A Call for a Uniform Standard, Tuesday 5 March 2015). These differences have the potential to enhance the autonomy of the parties, who are free to include (or exclude) particular arbitration institution rules in their dispute resolution agreements. Some parties might be happy for a tribunal to rely heavily on a secretary, based on the view that this enables them to achieve substantive justice at a lower cost. Others may place greater weight on the intuiti personae nature of arbitration, and may be happy to bear the increased cost of a tribunal that uses its secretary only for the most routine of administrative tasks.
Further, different costs rules employed by different institutions are likely to influence the parties’ decision as to the scope of their agreement to the secretary’s participation.
- The ICC is the most widely used arbitration institution in the world. Under ICC Rules, the secretary’s fees (other than the justified reasonable expenses for hearings and meetings) are to be paid by the tribunal out of the total funds available for the fees of all arbitrators. Thus, the apportionment of time between the tribunal and its secretaries may not have any impact on the cost to the parties.
- The LCIA requires a tribunal intending to pay an hourly rate to the tribunal secretary to inform the parties of the same (and the parties must consent). Thus, if the tribunal’s use of a secretary is such as to make the process cheaper and more efficient, the parties will reap the costs benefit.
Given the substantial amount of costs incurred in many large international arbitrations and the increasing use of tribunal secretaries, parties may therefore benefit from paying attention to the costs rules employed by different institutions when seeking to agree the use, and limits on the use, of a tribunal’s secretary.