The arbitrator’s role is based on trust. Arbitrators are obliged to hear and decide cases personally. Arbitrators cannot delegate their essential duties to other persons. But it is possible and sometimes desirable to entrust supporting activities to another person, known as an administrative secretary. Delegating certain tasks to a secretary can contribute to the arbitration by helping the process go more smoothly, saving time and money, thus furthering the interests of the parties.
This article aims at presenting the role of the administrative secretary in arbitral proceedings under the ICC Rules (the Rules of Arbitration of the International Chamber of Commerce in Paris).
The ICC Rules do not contain provisions on administrative secretaries, and the scope of their tasks has been debated among arbitration practitioners and institutions for some time. Recently the secretary’s role and tasks in arbitrations under the ICC Rules were identified in the Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of 1 March 2017.
These guidelines and practical tips for applying them were examined at an ICC training event for administrative secretaries in April 2017.
What is an administrative secretary?
The secretary is not a member of the arbitral tribunal and does not take any decisions. The secretary’s role is to support the tribunal—in practice, most often the presiding arbitrator—in the efficient organisation and administration of the proceeding. In practice this means that the secretary may, for example, review exhibits for completeness, maintain the case file, prepare drafts of documents, analyse the facts or conduct legal research, thus helping the arbitrators perform their duties.
The tasks entrusted to the administrative secretary are auxiliary to the work of the tribunal, but frequently require knowledge of the law and the specifics of arbitration. Therefore, although there are no guidelines on the qualifications of secretaries, most practitioners agree that the secretary should have legal training. Typically, administrative secretaries are lawyers with less professional experience than the arbitrators themselves.
Do the parties influence the appointment of the secretary?
Under the ICC Rules, the tribunal must communicate to the parties that it will be assisted by an administrative secretary. To ensure transparency, the tribunal will provide the parties with essential information about the candidate, including the candidate’s CV and declaration of impartiality and independence. The parties may object to the proposed candidate.
When should a secretary be appointed?
Appointment of a secretary is not obligatory. Nor are there any rules for the types of cases where a secretary can or should be appointed. Whether or not to appoint a secretary should not directly depend on the amount in dispute or the legal complexity of the case. Even in cases with a relatively small amount in dispute, the parties may submit extensive evidence and lengthy written submissions, or numerous procedural applications requiring a response from the tribunal. In such cases, administrative and organisational support from a secretary may be called for. A secretary may prove indispensable even in a case heard by a single arbitrator. Conversely, proceedings with a great amount in dispute and involving complex legal issues may not generate organisational and administrative tasks justifying the appointment of a secretary.
Thus, under the ICC Rules, the tribunal is under no obligation to appoint a secretary. But if it intends to do so, it must consider whether it is called for in the specific case. In taking this decision, the tribunal should primarily consider whether appointing a secretary will streamline the proceeding, saving time and expense.
An administrative secretary may be appointed at any stage of the arbitration. The flexibility provided by the ICC Rules in this respect enable the arbitrators to manage the proceedings efficiently and respond appropriately as the case develops.
Secretary’s rights and obligations
First and foremost, administrative secretaries act according to the tribunal’s instructions and under its strict supervision. They cannot take any substantive decisions. In practice, some doubts may arise as to the exact range of the secretary’s tasks. This will depend on the expectations of the members of the tribunal and the nature of the case.
The ICC’s Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration gives examples of tasks that can be entrusted to secretaries, e.g. maintaining the case file, organising and taking part in meetings and hearings, communicating and forwarding documents on behalf of the tribunal, and conducting legal research for the purposes of the proceeding.
Secretaries are allowed to attend the hearings and deliberations of the arbitral tribunal, but must not take part in any discussion of the merits. Secretaries will sometimes draft documents of an organisational nature, such as procedural orders, based on the tribunal’s instructions. But it is the tribunal that takes the decisions; the secretary only assists the arbitrators in tasks that do not require their personal involvement.
In short, the role of an administrative secretary is to assist the tribunal. The secretary’s actions must be transparent. This is a fundamental principle marking the bounds of the secretary’s tasks. If there are any doubts as to the nature of the secretary’s tasks in a particular case, the tribunal or the secretary should consult with the ICC Secretariat.
Karolina Przygoda, Marta Kozłowska, Dispute Resolution & Arbitration practice, Wardyński & Partners