This special issue of the International Journal for Court Administration is devoted to judicial assistants. Throughout the issue, it has become clear that judicial assistants support judges in many courts around the globe, be they domestic or international, first instance or supreme courts. Similarly, it has become clear that these assistants take over a variety of tasks that go well beyond purely administrative support. In fact, some of the assistants at the world’s top courts are directly involved in judicial decision-making – sometimes selecting which cases the judges will eventually decide and sometimes being afforded ‘advisory votes’.1
Such tasks raise the question which role judicial assistants may legitimately have without unduly encroaching upon judicial decision-making. Identical questions have been raised in the context of the support arbitral tribunals enlist to conduct international arbitrations – and parties have attempted to attack arbitrators and arbitral awards in challenge proceedings for the tribunals’ allegedly impermissible use of assistance.2
International arbitration is not dissimilar to the courts and tribunals analyzed in this journal. It is a quasi-judicial dispute resolution method rooted in party autonomy. The awards rendered by arbitral tribunals are enforceable around the world and can only be attacked based on limited grounds related to due process and public policy.3 The arbitrators rendering these awards thus carry profound responsibilities. Parties and appointing authorities, such as arbitral institutions, carefully select individuals to act as arbitrators based on the candidate’s experience, knowledge, skills and reputation.
This choice based on personal traits implies that international arbitrators are expected to discharge their duties personally. However, the personal nature of the arbitrator’s mandate is not absolute and does not require international arbitrators to discharge their duties without any recourse to assistants. Such arbitral assistants are usually referred to as secretaries of arbitral tribunals (‘tribunal secretaries’). Section 2 introduces their role and compares tribunal secretaries to judicial assistants in the state court context. It is suggested that there are at least two fundamental distinctions between tribunal secretaries and judicial assistants which prevents simply equating tribunal secretaries with judicial assistants: the structural need for assistance and the legal bases upon which they are appointed.
Rather, an independent approach as to the desired role of tribunal secretaries in international arbitrations must be developed. This is what Section 3 is concerned with. It is suggested that the role of assistance is intrinsically connected to the role of the arbitrator and how he or she discharges his or her mandate. What tasks a tribunal secretary may carry out depends on what tasks an arbitrator may delegate or receive support in. This makes it necessary to analyze how personal the arbitrator’s role actually is. This question is answered from the perspective of the juridical and contractual nature of the arbitrator’s mandate.
From the results of this analysis, Section 4 develops a proposal of how secretaries should be employed in arbitral proceedings. It is the proposition of this article that because international arbitration is a dispute resolution method rooted in party autonomy, the support of arbitral tribunals by tribunal secretaries should be guided by transparency, consent and trust.
2. Tribunal secretaries and judicial assistants: similarities and differences
The first similarity between judicial assistants and tribunal secretaries is their background. Just like judicial assistants, tribunal secretaries usually have a legal education and support arbitrators in their adjudicative work.4 Often, arbitrators are practicing lawyers who appoint their colleagues as tribunal secretary (e.g. law firm partners appointing their associates). Similarly, law professors who sit as arbitrators may appoint their research assistants or PhD students. In the context of investor-state arbitration, the administering institutions usually appoint a member of their secretariats as tribunal secretary, while arbitrators may appoint their personal assistants in addition.
A second similarity is the role fulfilled by judicial assistants and tribunal secretaries. Tribunal secretaries support international arbitrators in their administrative duties (e.g. by providing logistical support and keeping the case file in order, tasks which would otherwise be conducted by court registries) and with procedural case management (e.g. by assisting in rendering procedural decisions and ensuring compliance with them). Yet, it remains a highly contested question which precise role a tribunal secretary may have when it comes to attending the arbitral tribunal’s deliberations, rendering the tribunal’s decision, and drafting the arbitral award – tasks in which judicial assistants are frequently involved.5
These similarities have led many to readily compare tribunal secretaries to judicial assistants.6 Indeed, state courts in Switzerland and England have made that comparison when ruling on the permissible use of tribunal secretaries in arbitration.7 The idea is that since recourse to legal assistants is permissible in virtually all other systems of dispute resolution, there is no reason why international arbitration should be treated differently. What is a legitimate form of the division of labor in the highest domestic and international courts must surely be suitable for the arbitral process.8 This would suggest that the rules on the appropriate role of judicial assistants may simply be applied to tribunal secretaries by analogy. Yet, there at least two important distinctions between judicial assistants and tribunal secretaries which prohibit such an analogous treatment for lack of sufficient comparability.
2.1. Structural necessity for assistance
First, the structural necessity for judicial assistants and the reason why their role has been created does, by its nature, not exist in international arbitration. The existences of judicial assistants dates back to the realization that the relevant judicial decision-makers were overburdened by their caseloads.9 For a jurisdiction or international organization with budgetary restrictions, the appointment of additional judges to handle increased workloads is often impossible. The only means of handling that caseload is to create the institution of a judicial assistant who supports the judge in various ways. In other words, the primary need for judicial assistants derives from the restricted number of judges paired with the unrestricted number of incoming cases. For international arbitration, the opposite is true. At least in theory, there is an unrestricted number of international arbitrators (because there are hardly any formal qualification requirements for arbitrators) and a restricted number of new cases (as any arbitrator may decline appointment if his or her docket is ‘full’). This structural difference is not levelled off by the fact that, in reality, a quite similar need for assistance exists in international arbitration: Parties tend to opt for the same overburdened individuals, as they are looking for the best-qualified individuals with the most experience – or, in the case of an opportunistic respondent, intend to slow down proceedings.10 This means that the number of international arbitrators selected for high-caliber cases is still relatively small, and their ‘dockets’ relatively full.11
Still, relief by other arbitrators is more readily available than in the state court context, all the more because important diversification efforts are under way.12 Indeed, if assistance by tribunal secretaries was not available, the market would likely self-regulate by forcing parties to take their cases to a more diverse group of arbitrators.13 As has been well documented, a diversification of arbitral tribunals would not only increase efficiency as less overburdened individuals would have more time to devote to individual cases; but there is also reason to believe that this would increase the quality of decision-making as a broader ranger of experiences and perspectives can contribute to a more balanced decision.14
2.2. Legal bases for assistance
The second distinction between judicial assistants and tribunal secretaries relates to the legal bases for their participation in the judicial and arbitral process, respectively. Virtually all judicial assistants can be traced back to an express legal basis in the organizing statutes of the respective judicial body.15 In Croatia, judicial assistants are even mentioned in the constitution.16
Tribunal secretaries, in contrast, are not mentioned in most of the organizing statutes for international arbitration. The 1958 New York Convention and the UNCITRAL Model Law on International Commercial Arbitration are both silent on assistance to arbitral tribunals generally and tribunal secretaries specifically. The same applies to most national arbitration laws. There are only a few exceptions. Some Latin American jurisdictions provide for the mandatory participation of tribunal secretaries in arbitrations seated in those jurisdictions.17 The purpose of such ‘mandatory secretaries’ is to serve as a certifying authority by ‘witness[ing] the proceedings and certify[ing] the authenticity of all acts by the arbitrator’.18 This is an unusual task for tribunal secretaries who are otherwise entirely subject to the arbitral tribunal’s directions and do not fulfil an independent supervisory purpose. More traditional tribunal secretaries are mentioned in other arbitration laws, including those of Switzerland and the Netherlands.19
Increasingly, arbitral institutions have started regulating tribunal secretaries in their arbitration rules and procedural guidelines. These rules apply to international arbitrations by virtue of the parties’ agreement to conduct their arbitration under the auspices of the relevant institution. Widely used arbitral institutions such as the Court of Arbitration of the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), and the Arbitration Institute at the Stockholm Chamber of Commerce (SCC) now acknowledge that arbitral tribunals may be supported by tribunal secretaries.20 Recently, the International Centre for Settlement of Investment Disputes (ICSID) and United Nations Commission on International Trade Law (UNCITRAL) have also addressed assistance to arbitral tribunals in their 2020 Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement.21
Still, these legal bases are not attributable to the will of a legislator but are rooted in the parties’ choice of the relevant arbitration rules. Crucially, many of these rules do not specify how exactly an arbitral tribunal may be supported by tribunal secretaries. It is therefore suggested that the exact scope of the tribunal secretary’s duties depends on the degree to which international arbitrators must carry out their mandate personally. The following section addresses this question.
3. The personal nature of the arbitrator’s mandate
Today, it is largely undisputed that the arbitrator’s mandate is hybrid in nature.22 On the one hand, the mandate has a juridical dimension. Arbitrators perform a ‘quasi-judicial’ function as foreseen in the applicable arbitration law (lex arbitri).23 As such, they are vested with adjudicatory powers and carry out a genuine judicial role. On the other hand, the mandate is defined by the parties’ contract with the arbitrator (receptum arbitri) in which they are free to shape the arbitrator’s mandate in any way they see fit.24 In that sense, the arbitrator is a service provider to the parties.
It follows that any attempt to define the arbitrator’s mandate must take into account its juridical and contractual dimensions. Specifically, the arbitrator’s mandate is shaped by the lex arbitri, the applicable arbitration rules and the parties’ procedural and contractual agreements. In addition, general principles of international arbitration law must be taken into account.25
3.1. The parties’ intuitu personae-choice of the arbitrator
One of the core distinguishing features of international arbitration as a dispute resolution method is the parties’ freedom to choose the decision-maker that they trust.26 This right is considered a ‘cardinal feature’ of international arbitration27 and remains one of the core reasons why parties choose arbitration to resolve their disputes.28 Accordingly, the parties’ right to select specific arbitrators has always been safeguarded29 and is today acknowledged by legislators30 and state courts alike.31
The exercise of the right to choose an arbitrator can have important consequences. The selection of the ‘right’ arbitrator for one’s case is a key element to a successful outcome.32 Conversely, in light of the limited recourse parties have against an arbitral award, the choice of the ‘wrong’ arbitrator can frustrate their entire access to justice. Indeed, as ‘arbitration is only as good as its arbitrators’,33 many parties spend considerable efforts and resources on identifying the best fit for their case.34 As a natural consequence of these efforts, arbitrators are assumed to have been appointed because of their specific qualities or intuitu personae (‘with regard to the person’).35 The contemporary conclusion drawn from this choice and appointment is that the parties are entitled to an arbitral procedure that is not fundamentally different from what they were entitled to expect ex ante.36
As a matter of course, the arbitral procedure and final outcome of the case is not exclusively determined by the arbitrator the relevant party nominates. Arbitral tribunals usually consist of three arbitrators, one appointed by the other side and the presiding arbitrator appointed by (usually) the co-arbitrators or appointing authority. But it remains a fundamental right of parties to influence the composition of the arbitral tribunal by nomination of at least one arbitrator of their own choosing.
A similar freedom to appoint judges does not exist in the context of litigation. While most legal systems allow for choice of court agreements, party autonomy usually does not extend so far that parties may designate a specific judge to hear their dispute. Accordingly, the trust they afford the judiciary when they opt for state court litigation is always an institutional trust, comprising the entire judicial apparatus including any legal assistants and similar support. The same cannot be said of international arbitration. By default, the parties’ trust applies only to the individual they appoint and not to any third-party support that individual makes use of in the discharge of his or her mandate.
The scope of the personal nature of the arbitrator’s mandate is directly defined by this trust and the expectations of how the arbitrator will handle the dispute. To determine to what extent parties may legitimately trust in personal discharge and what tasks the arbitrator may delegate or receive support in, it is necessary to consider what impact the parties’ reasons for appointment have on the juridical and the contractual dimensions of the arbitrator’s mandate. Even if an arbitrator is juridically entitled to delegate a certain aspect of his or her mandate, he or she may not be able to do so under his or her contractual obligations and vice versa.
3.2. Consequences for the arbitrator’s juridical mandate
As a consequence of the parties’ expectations when choosing their arbitrator, domestic legal orders accept that the arbitrator’s juridical mandate is eminently personal.37 This personal nature prevents the arbitrator from delegating his or her mission to another person.38 In the words of the English High Court:
‘No one has heard of an Arbitrator who has been agreed upon between the parties to a dispute being allowed to appoint someone to act in his place, because it is of the very essence of his office that he himself is the person who has to deal with the dispute referred to him.’39
Yet it is unclear how far this prohibition of delegation extends. What is clear is that the arbitrator may not refer his entire mandate to a third person, having that person conduct and decide the case in his or her stead.40 It is equally clear that the arbitrator may receive support in the discharge of certain ‘acts of a [m]inisterial character’,41 even though they are part of his or her mandate. Hence, there are some parts of the arbitrator’s juridical mandate that are ‘more personal’ than others.
This general distinction between essential and non-essential parts of the arbitral mandate is acknowledged by arbitration rules, case law, and commentators. However, they all find different ways of describing the non-delegable parts of the arbitrator’s mandate. For instance, Article 24(2) of the 2017 SCC Arbitration Rules provides that the arbitral tribunal ‘may not delegate any decision-making authority’.42 Similarly, courts across different jurisdictions have held that an arbitral tribunal is required to ‘exercise its own discretion’,43 its ‘own judgment’,44 and that an arbitrator must ‘make his own decision’45. The resulting award ‘shall be [the arbitrator’s] award’ and ‘the act of his own mind’.46 In other words, an arbitrator ‘must not substitute the opinion of another for his own’.47 This requires the arbitrator ‘to bring his own personal and independent judgment to bear on the decision in question, taking account of the rival submissions of the parties; and to exercise reasonable diligence in going about discharging that function’.48 Commentators concur, stating that an arbitral tribunal may not delegate ‘its decision-making function’,49 must retain the ‘ultimate authority over the decision-making process’,50 and must personally carry out ‘the act of judging’.51 These sources thus focus on the arbitrator’s substantive decision as the core of what he or she owes to the parties.52
Based on this understanding of the arbitrator’s juridical mandate some draw rather progressive conclusions. The English High Court has acknowledged that as arbitration practice evolves, the concept of the arbitrator’s mandate may undergo changes as well.53 Schultz and Kovacs consider that in light of the findings of a survey they conducted amongst ‘lawyers and arbitrators engaged in international arbitration’ and their idea of the arbitrator as a ‘manager’, the arbitrator’s mandate has undergone a dramatic change in the advent of a new generation of arbitrators:
‘Sixty-five per cent of participants responded that they did not mind if an arbitrator delegated the arbitrator’s preparation for hearings, issuing procedural orders and even writing the award. Brutally simplified, this seems to be an indication that arbitrators are seen as managers today, only responsible for the product, with no mandate to do the work themselves. The theory about the mission of arbitrators, then, if it intends to be descriptive and not prescriptive, may have to be adapted.’54
In light of the expectations parties attach to their arbitrator selection, it is doubtful whether Schultz and Kovac’s findings really justify an adaption of the arbitrator’s juridical mandate to the extent that arbitrators are ‘only responsible for the product, with no mandate to do the work themselves’. A core reason for parties’ choice of one arbitrator over another is that they can predict what product they will get. If parties cannot rely on who contributes to the making of that product, they lose the basis for their assessment and their legitimate expectations are frustrated. After all, the concrete form of the product they receive, i.e. the arbitral award, is decisively influenced by the procedure leading to its making. Indeed, where ‘writing’ the award refers to an intellectual process requiring the exercise of judgment (rather than the mechanical ‘typing up’ of a pre-determined decision), it is doubtful that parties are only interested in the final product.
A wider understanding of the eminently personal core of the arbitrator’s juridical mandate is therefore warranted. Delegation is not only prohibited in terms of substantive decision-making, but, more comprehensively, of all ‘functions of a juridical nature’,55 ‘adjudicative function[s] and responsibilities’,56 and ‘core juridical activities’.57 Accordingly, the arbitrator must remain ‘master of the proceedings’,58 and ‘control the[m] in their entirety’.59 He or she must at all times ‘keep the intellectual control over the arbitration, that is both the conduct of the proceedings and the outcome of the dispute’.60
Thus, from a juridical point of view, the personal nature of the arbitrator’s mandate not only comprises the making of the substantive decision, but also the conduct of the arbitral proceedings leading up to that decision.
3.3. Consequences for the arbitrator’s contractual mandate
Most domestic contract laws, too, acknowledge the time and effort parties put into arbitrator selection and that they thus choose the arbitrator intuitu personae.61 From this personal choice follows a special relationship of trust and confidence between the parties and arbitrator, prohibiting delegation of the arbitrator’s contractual mandate.62 Indeed, early US Supreme Court Justice Joseph Story noted that
‘where the work is one of art, in the execution of which the genius, talent, and skill of the particular artist may fairly be presumed to be contracted for […] he is not allowed to substitute another person without the consent of the employer.’63
This conclusion also derives from another aspect of the arbitrator’s contract. Regardless of its precise qualification,64 the receptum arbitri is essentially a contract providing for delegation. Initially, the parties have the authority to resolve their dispute by themselves – be it in the form of a negotiated settlement, relinquishment of rights, or any other agreement. When they conclude the arbitrator’s contract, they transfer that authority to the arbitrator.65 Thus, the arbitrator’s authority to resolve the parties’ dispute is a delegated authority.66 The contract laws of most legal systems provide that a delegated duty may not be re-delegated without the principal’s consent: delegatus non potest delegare.67 This is because the principal has no way of ascertaining the third person’s suitability to carry out the contractual mandate.68 Hence, under the delegatus non potest delegare-principle, arbitrators may not delegate their contractual mandate to any other person.69
Yet, this prohibition is not absolute. In contract law, even a highly personal mandate does not require the debtor to carry out all and any tasks connected to that mandate him- or herself.70 Rather, while he or she must carry out the principal obligations personally, he or she may delegate ancillary tasks. But even in the discharge of his or her principal obligations, the debtor may receive support as long as he or she does not assign independent and discretionary duties to the supporter.71 Only a substitution, i.e. a delegation of the entire mandate, is prohibited.72
This gradual nature of a personal mandate is widely accepted with regard to other contracts that are concluded strictly intuitu personae. A classic example are contracts for the provision of medical services. If a cancer patient engages a renowned brain surgeon to remove his brain tumor, the patient is entitled to expect that the surgeon will personally carry out all tasks that pertain to her special skills, expertise, and experience, i.e. the difficult and dangerous dissection and resection of the tumor.73 However, the patient cannot expect that the famous brain surgeon will prepare him for the procedure or subsequently close the wound.74 Similarly, an architect engaged to construct a house must retain the intellectual authority to conclusively decide on matters of planning, design, and site management – but will have an abundance of support from his architectural firm in the process.75 The same applies to a party’s contract with legal counsel. Though the attorney-client relationship is of a personal nature, ‘[n]obody would suggest that counsel chosen by a party must perform all of their tasks personally or write the entirety of the submissions themselves.’76
The decisive question, then, is what an arbitrator’s principal and what his or her ancillary obligations are under the receptum arbitri. First and foremost, a obligor’s duties are determined by the parties’ express agreement. Yet, it does not generally happen that the arbitrator and the parties agree on terms regarding what specifically the arbitrator’s principal obligations comprise. Where parties have failed to provide an essential term, that term must be implied into the contract based on what the parties would have provided for had they considered the problem (ergänzende Vertragsauslegung); when in doubt, what the parties would have wanted is determined by what is objectively usual in practice (Verkehrssitte).77
Different commentators have found different ways of describing arbitrators’ principal obligations based on what the parties can be presumed to have wanted under an objective standard. One author has referred to these principal obligations as ‘all tasks of an increased intellectual quality’.78 Others base their description on the arbitrators’ juridical mandate and locate their principal obligations ‘at the core of his juridical activities’.79 The content of these core juridical activities varies. In a tax matter involving the secretariat of the Claims Resolution Tribunal for Dormant Accounts in Switzerland,80 the Swiss Federal Tribunal has addressed what it considers principal and ancillary obligations of the arbitrator’s contract:
‘The arbitrators’ principal obligation is the professional assessment of often difficult legal and factual questions and the corresponding legal decision-making. This obligation is supplemented by ancillary obligations such as clerical tasks, taking minutes, drawing up invoices and so on.’81
Similarly, some authors consider the ‘actual, crucial activity of ascertaining and deciding the dispute’ the arbitrator’s principal obligation.82 According to them, it suffices if ‘the arbitral award is that of the arbitral tribunal’.83
Yet, the parties’ considerable effort in selection engenders the objective inference that they are not only interested in a personal decision but also in individualized procedure.84 Thus, the arbitrator’s principal contractual obligations are his ‘jurisdictional obligations’,85 i.e. conducting the arbitration and deciding on the merits of the case.86 In a nutshell, the arbitrator’s contract allows him to delegate all tasks that do not leave any room for discretion.87 In light of the reasons for arbitrator selection, this applies equally to procedural and substantive tasks.
Both the juridical and contractual prong of the arbitrator’s mandate therefore lead to the same conclusion: While the arbitrator’s mandate is eminently personal in principle, certain parts of it may be entirely delegated and others supported. Those of the authorities – whether juridical or contractual – that identify the nondelegable parts only as those pertaining to the tribunal’s decision on the merits fall short of taking into account all reasons for the arbitrator’s appointment. It is true that parties are first and foremost interested in the arbitrator’s substantive decision. However, that decision is decisively influenced by how the arbitration is conducted until the moment of decision-making. Accordingly, parties appoint arbitrators not only for their decision on the merits but also for their procedural conduct. Thus, the arbitrator must not delegate any duty that relates to his or her procedural and substantive discretion and is coloured by his or her identity, in particular his or her skill, qualifications, and experience.
4. The Participation of Tribunal Secretaries: Transparency, Consent and Trust
How, then, can arbitrators make use of the support by tribunal secretaries? One can come up with comprehensive lists of specific tasks, assigning some tasks to the core functions of arbitrators and others to the arbitrator’s ancillary duties that may readily be delegated to tribunal secretaries.88 This article takes a different approach. On a more general level, it is suggested that the primacy of party autonomy as one of the hallmarks of international arbitration also informs the appropriate use of assistance by arbitrators. After all, ultimately, the arbitrator’s mandate is only considered personal in nature because parties and arbitral institutions choose arbitrators based on their personal characteristics. If parties provide their informed consent to the arbitrator delegating or receiving support in specific tasks, this does negatively impact but simply shape the arbitrator’s mandate.
While, in default, absent a party agreement arbitrators have the power to determine their own procedure and, arguably, their internal organization, there is good reason to take into account the parties’ expectations and preferences before resorting to assistance. At the same time, parties appoint arbitrators with the implicit trust that the arbitrator will act professionally and make use of assistance in a responsible manner that complies with his or her mandate. As a reflections of these elements, this article proposes that the participation of tribunal secretaries in international arbitration be guided by the three virtues of transparency, consent and trust.
The first proposal relates to the selection of arbitrators. Regardless of who chooses the arbitrator – the parties, the co-arbitrators or an appointing authority – the choice is always personal and entails certain expectations. The specific reasons for choosing one arbitrator over another are manifold and differ from case to case. Increasingly, one of these reasons is the arbitrator’s recourse to assistance by tribunal secretaries.
Parties and appointing authorities have different views as to the propriety of arbitrator assistance. Some consider that ‘parties aren’t appointing a team, they want you personally’,89 and that ‘when parties nominate their arbitrators they normally expect that the arbitrators will do the work themselves’.90 Others do not mind or even expect arbitrators to make use of assistance. They are of the opinion that having a qualified tribunal secretary at the arbitrator’s disposal is an important asset in arbitrator selection: ‘[P]arties are looking for candidates with a back-office, i.e. who have administrative and legal support at their disposal, not for the lone wolf’.91 Indeed, some of the most sought-after international arbitrators are also those who most heavily rely on the support of tribunal secretaries. When appointing these arbitrators, most parties trust that the arbitrator will fulfil his or her duties properly and make use of assistance in a way that does not conflict with his or her personal mandate.92
In essence, working with or without a tribunal secretary – neither option is inherently better or worse. But it should be up to the parties to decide which option they prefer. Hence, the first proposal is for arbitrators to be transparent about their general approach to assistance when they are approached regarding a potential arbitrator appointment.
The second proposal concerns the way tribunal secretaries come to participate in the proceedings. Not all arbitrators appoint tribunal secretaries. Not all arbitrators who appoint tribunal secretaries appoint them in all cases. Hence, where transparency is lacking, it is impossible for parties to assess whether a tribunal secretary is participating ‘behind the scenes’, unless they come into account with him or her throughout the proceedings. It is the proposition of this article that parties should be able to have a say in whether a tribunal secretary participates in the proceedings and which tasks he or she will be assigned.
In fact, most of the arbitral institutions administering arbitrations now require arbitrators who intend to rely on tribunal secretaries to communicate in some meaningful way with the parties regarding the intended use of assistance.93 This requirement should be understood as a chance to engage the parties and explain the role of the tribunal secretary to them. Usually, an appropriate time and place for such discussions is the initial case management conference at the beginning of the arbitration, with the arbitral tribunal providing the parties with pertinent information on the candidate beforehand (e.g. curriculum vitae).
Ideally, the appointment process is formalized in some way so all essential information on the secretary is on file. This way all participants in the arbitral proceedings are aware of the secretary’s identity and role. Depending on the circumstances of the case and the stage at which the need for a secretary becomes apparent, a step-by-step appointment process involving the parties could look like this:
- (i) As part of his or her pre-appointment disclosure, the arbitrator candidate states his or her preferences regarding the appointment and duties of tribunal secretaries.
- (ii) Upon constitution of the tribunal and a first screening of the case file, the tribunal collegially decides whether it requires the support of a secretary.
- (iii) The chairperson selects an appropriate candidate (usually a colleague or employee of the arbitrator) and confirms the individual with the co-arbitrators.
- (iv) The secretary candidate conducts a check for conflicts of interest and provides the tribunal with all relevant information.
- (V) The tribunal provides the parties with a formal appointment proposal, including the proposed tasks the secretary will be assigned, a proposed method and (if borne by parties) rate of remuneration, a declaration of impartiality and independence, curriculum vitae, and confidentiality undertaking.
- (Vi) The appointment proposal is discussed with the parties (for instance in the initial case-management conference), affording the parties a sufficient opportunity to voice their opinion on the appointment.
- (Vii) The secretary’s appointment is formalized by the issuance of a procedural order, stand-alone ‘Tribunal Secretary Terms of Reference’ or otherwise.
The final proposal relates to parties and their counsel. There are still many cases in which transparency, consent or both are lacking. This is not ideal but a reality. In these cases, some parties dissatisfied with the conduct and outcome of the arbitration have sought to remove arbitrators from cases by way of challenges and to set aside awards based on the arbitrator’s use of assistance. By and large, such challenges have remained unsuccessful.94
The core reason why parties are unlikely to be successful with any complaints about the arbitrators’ use of a tribunal secretary is the tribunal’s right to secret deliberations and decision-making.95 The secrecy of deliberations is a personal right for each arbitrator, intended to ensure that the arbitrator has a full and unrestricted possibility to state his or her convictions in the deliberations.96 As complaints about tribunal secretaries pertain to their allegedly impermissible involvement in the tribunal’s decision-making, proving the secretary’s actual involvement will constitute an insurmountable hurdle in most cases. Accordingly, it remains first and foremost a matter of trust and skill for parties to choose an arbitrator they believe will make appropriate use of third-party support. The transparency that is crucial at the outset of the secretary’s involvement is unavailable once the secretary has been appointed and, even more so, once an award has been rendered.
Judicial assistants who participate in international arbitrations are referred to as tribunal secretaries. In many ways they are similar to judicial assistants in state courts. Tribunal secretaries support arbitrators in the entire conduct of the arbitration up to the rendering of the arbitral award. The same applies to judicial assistants and judges. But there are also important differences regarding the foundation of the assistant’s participation. These differences are directly rooted in one of the main distinguishing features of arbitration from state court proceedings: flexible procedures tailored to the parties’ specific agreements and needs.
It is the proposition of this article that the proper use of tribunal secretaries by arbitral tribunals is informed by this difference and the greater degree of autonomy afforded to parties in arbitral proceedings. Hence, while state courts can legitimately regulate the participation of judicial assistants as a matter of internal court organization, the greater focus on party autonomy in international arbitration should lead international arbitrators to employ tribunal secretaries with transparency and the consent of the parties. The parties, in turn, should trust in the professionalism and integrity of the arbitrator once the secretary is appointed.