The use of arbitral secretaries has recently attracted particular interest within the arbitration community as a number of arbitral institutions implemented rules, guidelines and/or notes addressing their use and remit. The Arbitration Institute of the Stockholm Chamber of Commerce's (the "SCC") recent inclusion of an express provision in the draft Arbitration Rules 2017 (the "2017 draft SCC Arbitration Rules") follows this trend.
Arbitral institutions take differing approaches, if any at all, on the appointment, duties, compensation, and/or objections of arbitral secretaries. We consider some of these approaches below.
Appointment and Objections
The 2017 draft SCC Arbitration Rules codify the position on appointment of arbitral secretaries found in the SCC's Arbitrator's Guidelines 2014, which provide:
"If the arbitral tribunal wishes to appoint an administrative secretary, the SCC should be informed of whom the arbitral tribunal wishes to appoint. The SCC will then proceed to ask the parties whether they agree to the appointment. If any party disagrees, the arbitral tribunal may not appoint the suggested individual as secretary."
Article 24(1) of the 2017 draft SCC Arbitration Rules now provides:
"The Arbitral Tribunal may submit to the SCC a proposal for the appointment of an administrative secretary at any time during the arbitration. The appointment is subject to the approval of the parties."
Three important points can be drawn from these provisions:
- The SCC acts as an intermediary between the tribunal and the parties for the proposed appointment of an administrative secretary, but to what extent the SCC has any discretion remains unclear;
- a proposal by the tribunal can be made at any time during the arbitration; and
- the appointment remains subject to the approval of the parties.
To put the 2017 draft SCC Arbitration Rules into context, we consider the Arbitration Rules of the Finland Chamber of Commerce 2013 (the "FAI Rules") and the Note on the Use of a Secretary (the "FAI Note"), which provide by contrast that:
- The tribunal can consult with the parties on the appointment of an arbitral secretary without having to first submit a proposal to the Arbitration Institute of the Finland Chamber of Commerce;
- the arbitral secretary may be appointed at any stage of the arbitration (i.e. "when deemed appropriate" by the tribunal); and
- although the tribunal must first consult with the parties, it does not need their approval to proceed with the appointment if any party objects in circumstances where the tribunal is convinced "that this will benefit all parties by saving time and costs."
In its Note on the Appointment, Duties and Remuneration of Administrative Secretaries 2012 (the "ICC Note"), the International Chamber of Commerce (the "ICC") takes a similar approach to the 2017 draft SCC Arbitration Rules, making clear that an administrative secretary will not be appointed if a party has raised an objection.
By comparison, the Hong Kong International Arbitration Centre Administered Arbitration Rules 2013 (the "HKIAC Rules") and Guidelines on the Use of a Secretary to the Arbitral Tribunal 2014 (the "HKIAC Guidelines") take the same approach as the FAI Rules by deferring the power to appoint a secretary to the tribunal, notwithstanding an objection by the parties.
These two contrasting approaches potentially raise different issues for counsel. For example, will counsel be more hesitant to object to the use of an arbitral secretary under the FAI Rules and HKIAC Guidelines because the tribunal makes the final determination whether to proceed with the appointment of an arbitral secretary? Should the appointment of a secretary be considered by counsel when selecting arbitrators and is it best to permit the appointment of a secretary at any time during the arbitration?
It is noteworthy that the 2017 draft SCC Arbitration Rules are silent as to the duties of the administrative secretary.
Unlike other arbitral institutions, such as the FAI, ICC and HKIAC, the SCC has so far chosen not to set out any prescriptive or non-exhaustive list of duties, or to limit the role of an administrative secretary. While this does not prevent the tribunal from setting out these duties itself, it may be helpful for the SCC to provide a clearer indication of the type of duties it would permit.
For instance, the FAI Note makes allowance for the performing of "administrative tasks" by the secretary, "such as transmitting documents and communications on behalf of the arbitral tribunal, organising meetings and hearings, taking notes or minutes of meetings, and recording witness testimonies at a hearing." The FAI Note also envisages the "limited assistance" of the secretary in the tribunal's decision-making process, including tasks such as proofreading and correcting of clerical, typographical or computational errors found in draft procedural orders and awards, as well as conducting legal research and preparing memoranda summarising the parties' respective submissions and evidence.
Similarly, the HKIAC Guidelines refer to "organisational and administrative tasks" that may be performed by the tribunal secretary. The HKIAC Guidelines also permit under certain conditions tasks such as attending the tribunal's deliberations and preparing drafts of "non-substantive parts of the tribunal's orders, decisions and awards".
The ICC Note also provides that an administrative secretary "may perform organizational and administrative tasks" such as conducting legal research, attending hearings and attending deliberations.
Given the opportunity by representatives of the SCC Rules Revision Committee to comment on the 2017 draft SCC Arbitration Rules, one proposal is to consider the inclusion either in the rules or revised guidelines, of provisions on the duties of an arbitral secretary.
Stipulating the nature of what arbitral secretaries can and cannot do would not only have the potential of providing further certainty as to the precise role of arbitral secretaries, but could also reduce the possibility and frequency of challenges in the future.
*Joshua Fellenbaum co-authored the Young ICCA Guide on Arbitral Secretaries, which set out to codify best practices for the appointment and use of arbitral secretaries. He has participated on panels discussing the topic in London, Paphos and Cambridge. He is also a faculty member of the HKIAC Tribunal Secretary Accreditation Programme.