By Niuscha Bassiri (Partner, Hanotiau & van den Berg), Christopher Bloch (Associate, Michael Hwang Chambers) and Joshua Fellenbaum (Associate, Debevoise & Plimpton LLP)
We are all part of the Task Force on the Young ICCA project regarding the Young ICCA Guide on Arbitral Secretaries.
A debate had developed about the proper role for the use of arbitral secretaries at the occasion of the ICCA Congress in Singapore 2012, and Young ICCA, through the formation of the Young ICCA Task Force on the Appointment and Use of Arbitral Secretaries (the “Task Force”), has come to the forefront of the discussion in creating the Young ICCA Guide on Arbitral Secretaries, the first publication to lay out best practices for the appointment and use of arbitral secretaries. The purpose of the Guide is to better represent the international arbitration community’s views on arbitral secretaries and how arbitral secretaries can best be utilized by arbitral tribunals in a more transparent and efficient manner. The Guide on Arbitral Secretaries is the first in a new series of ICCA publications, the ICCA Reports, that will be launched at the 2014 ICCA Congress in Miami this April.
When used properly, arbitral secretaries can support arbitral tribunals in performing their mandate with greater efficiency and effectiveness. However, when used improperly (e.g., without the consent or knowledge of the parties, or the appropriate supervision of the arbitral tribunal), the use of arbitral secretaries can undermine the legitimacy of the arbitral process.
In light of this, the Task Force was formed to examine the use of arbitral secretaries and advance a more transparent and robust approach to the role of secretaries in arbitration. Selected with an eye towards diversity, both geographical and experiential, the members of the Task Force come from both civil and common law jurisdictions, have practiced in North America, Europe and the Asia-Pacific regions, have collectively served as arbitral secretary in more than 90 arbitrations under the rules of almost a dozen institutions, and have worked in law firms, arbitrators’ chambers and arbitral institutions.
During the course of its research, the Task Force revealed that while there is overwhelming support for the use of arbitral secretaries, there is still yet to be universal agreement on every principle. By way of example, while it is uncontroversial to utilize an arbitral secretary to organize meetings and hearings (a task classified as more administrative), there were varying degrees of acceptance as the tasks became more analytical (e.g., performing legal research, drafting procedural orders and analyzing the parties submissions or evidence). However, when analyzing the results of the Task Force’s two surveys in conjunction with its research into modern practice, it was clear that a balance must be struck between the added efficiencies that an arbitral secretary can bring and the need for a transparent process where the arbitrator’s mandate is kept firmly with the arbitrator.
Striking such a balance was exactly what the Task Force aimed to do, recommending in its Best Practices that:
- an arbitral secretary may be appointed to support an arbitral tribunal where it considers, based on the circumstances of the case, that such appointment will assist it in resolving the dispute effectively and efficiently;
- an arbitral secretary may only be appointed with the knowledge and consent of the parties;
- it shall be the responsibility of each arbitrator not to delegate any part of his or her personal mandate to any other person, including an arbitral secretary; and
- as a general principle, the use of an arbitral secretary should reduce rather than increase the overall costs of the arbitration.
While these are only just a few of the principles recommended, the Task Force is confident that the international arbitral community will review the Guide with interest and proceed with the appointment and use of arbitral secretaries in a way that is consistent with the principles of efficiency, transparency and integrity.
 The members of the Task Force are: Niuscha Bassiri, Hanotiau & van den Berg, Partner; Christopher Bloch, Michael Hwang Chambers, Associate; Leilah Bruton, Freshfields Bruckhaus Deringer LLP, Senior Associate; Joshua Fellenbaum, Debevoise & Plimpton LLP, Associate; Ulrike Gantenberg, Heuking Kühn Lüer Wojtek, Partner; L Andrew S. Riccio, Assouline & Berlowe, P.A., Associate; and Garth Schofield, Permanent Court of Arbitration, Legal Counsel. All members of the Task Force participated in their personal capacity, and the views expressed in the Guide on Arbitral Secretaries do not necessarily represent the views of the institutions and law firms with which they are affiliated.