Authors: Abhijnan Jha* and Urvashi Misra***
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INTRODUCTION
It is not easy to conduct an arbitration. There may be complex matters of factual, technical, and legal issues. There may also be multiple parties across multiple jurisdictions as well as multiple contracts. Complicated issues of procedure may also arise during the arbitration.
Arbitral tribunals have wisened up to this reality and frequently take administrative staff’s assistance to conduct arbitrations. While internationally, such individuals are formally recognized and appointed as Tribunal secretaries, the situation is starkly different in India-seated arbitrations (especially, ad-hoc arbitrations).
In the Indian context, such individuals mostly work behind the scenes, with parties rarely being aware of the extent of their involvement. Instead, parties merely hear references of such individuals with whom they are directed to share pleadings, coordinate regarding hearing dates, share the appearance list for preparation of the procedural order, etc. Issues of confidentiality aside, concerns particularly arise when such individuals start participating in the actual adjudicatory process.
In this article, we discuss the concept of a Tribunal secretary, their role, and the boundaries within which they ought to act. We further consider the efficacy of formally appointing a Tribunal Secretary, particularly in ad-hoc arbitrations.
OPTION TO APPOINT TRIBUNAL SECRETARIES
Recognizing the benefit of arbitrators seeking administrative assistance, the United Nations Commission on International Trade Law highlighted the option to appoint a secretary in its October 2016 notes on organizing arbitral proceedings (“UNCITRAL Notes”)[1]. However, the UNCITRAL cautioned that such individuals should work under the Tribunal’s direction.[2] Further, such appointment ought to be disclosed to parties, along with the (a) proposed secretary’s identity, (b) nature of tasks, and (c) proposed remuneration, if any.[3]
Several arbitration institutions, including the Singapore International Arbitration Centre[4] (“SIAC”), London Court of International Arbitration[5] (“LCIA”), and International Court of Arbitration[6] (“ICC”) also provide this option, subject to the parties’ consent, in their guidelines/ notes.
In India, this option can be traced to Section 6 of the Arbitration and Conciliation Act, 1996, which provides that “In order to facilitate the conduct of the arbitral proceedings, the parties, or the arbitral tribunal with the consent of the parties, may arrange for administrative assistance by a suitable institution or person.”
Thus, both internationally and domestically, party consent is a pre-requisite for availing any administrative assistance. However, in India, we rarely come across such requests. Instead, arbitrators routinely seek such assistance without even notifying the parties, let alone securing their consent.
ROLE OF A TRIBUNAL SECRETARY
Notes issued by ICC[7], LCIA,[8] and Hong Kong International Arbitration Centre,[9] amongst others, provide an indicative list of tasks that Tribunal secretaries may perform. These include communications or document transmission on the Tribunal’s behalf, organizing and maintaining their files, correcting typographical/ grammatical/ calculation errors, and checking citations, dates, cross-references, etc.
The ICC note on the conduct of the arbitration also permits secretaries to prepare, subject to the Tribunal’s review, drafts of procedural orders and factual portions of an award (proceedings summary, chronology of facts, and summary of the parties’ positions).[10]
LCIA notes set out certain restrictions, including the bar on secretaries from engaging in any unilateral contact with any party or with any party’s representative concerning the arbitration/ parties’ dispute.[11] It further warns arbitrator(s) against delegating fundamental decision-making functions to secretaries.[12] On the other hand, the SIAC refrains from providing such guidance, giving the arbitrators and parties the discretion to determine a secretary’s role.
Indian arbitration institutions do not per se specifically make a provision for Tribunal secretaries. The only comparable concept is found in the Delhi International Arbitration Centre (“DIAC”), which provides arbitrators with the assistance of “DIAC Counsels.”[13] However, these Counsels are essentially a part of DIAC’s administrative machinery (similar to an SIAC case management team), instead of being a dedicated secretary to one Tribunal.
TRIBUNAL SECRETARIES: AN EASY TARGET FOR MOUNTING A CHALLENGE?
As set out above, Tribunal secretaries can carry out a wide range of tasks. Such administrative assistance aids arbitrator(s) in streamlining the proceedings. It enables them to focus their attention and energy on the most critical aspect of the arbitration, namely, the decision-making process. With arbitrator(s) becoming progressively busier with ever-increasing mandates, the appointment of a secretary helps conduct the proceedings efficiently and seamlessly.
ProblemS arise, however, when the functions of the Tribunal secretary encroach on the adjudicatory process. Across various jurisdictions, challenges have been made to Tribunal secretaries, which have ranged from an arbitrator’s inappropriacy in seeking the secretary’s ‘reaction’ to a party’s request[14] to the secretary playing a substantive role in assessing evidence, Tribunal deliberations, and preparation of the final awards.
The Yukos case is a much-publicized challenge premised on a secretary’s substantive involvement, basis the hours clocked as well as his writing style. However, the party did not succeed in its challenge. In fact, the Court concluded that even if it is presumed that the secretary made significant contributions to the drafting of certain award chapters, this would not demonstrate that the arbitrators left the decision-making to the secretary.[15]
The litmus test that emerges from these challenges is whether the Tribunal outsources the decision-making process to the administrative secretary.
CONCLUSION
With India setting its sights on being the next global arbitration hub, it is important not to overlook this fairly benign yet important administrative aspect. The formal appointment of Tribunal secretaries ensures statutory compliance and instills a sense of accountability from the perspective of the secretary and the arbitrator(s). Once a secretary is formally appointed, the arbitrator(s) also actively ensures that the secretary complies with confidentiality and independence requirements. In any event, these standards are imposed on arbitrator(s). The secretaries also ought to comply with them. Moreover, formal recognition also results in transparency and sight on the secretaries’ scope of work, with arbitrator(s) exercising caution while delegating tasks to them.
Arbitrators and legal practitioners should be sensitized about the statutory requirement for such appointments and the aforementioned benefits. They should also be made aware of the nature of tasks that can be legitimately outsourced to secretaries and the challenges that await them if these aspects are ignored.
Additionally, a framework ought to be prepared to regulate the procedure for appointing secretaries (including considering conflict of interest principles) and guidance on their functions and conduct during the arbitration.
In conclusion, it is hoped that relevant stakeholders in India, including arbitral institutions, arbitrators, and practitioners, will work towards addressing this gap, which will help curb instances of parties raising challenges, including of the nature discussed above. Meanwhile, practitioners and parties ought to be vigilant and ensure that a secretary is formally appointed in their arbitrations, if the arbitrator(s) require assistance, with their scope being ascertained and crystallized upfront in a procedural order.
* Abhijnan Jha is a Partner in the Dispute Resolution team of AZB & Partners, based out of the Firm’s New Delhi office. He specializes in international arbitration, advising and representing multinational clients in domestic/cross-border disputes. Abhijnan holds an LLM in commercial law from the University of Cambridge.
** Urvashi Misra is a Senior Associate in the Dispute Resolution team of AZB & Partners, based out of the Firm’s New Delhi office. She advises and represents multinational clients in domestic/cross-border disputes before various courts, including the Supreme Court of India, and in a variety of arbitral forums. Urvashi is a certified Tribunal Secretary.
[1] https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/arb-notes-2016-e.pdf.
[2] Para 35.
[3] Para 38.
[4] Para 3, Practice Note PN – 01/15 (February 2, 2015).
[5] Para 74, LCIA Notes for Arbitrators.
[6] Paras 218-221, Note to Parties and Arbitral Tribunals on the conduct of the arbitration under the ICC Rules of Arbitration.
[7] Para 224.
[8] Para 71.
[9] Para 3.3, Guidelines on the use of a Secretary to the Arbitral Tribunal.
[10] Para 224.
[11] Para 70.
[12] Para 68.
[13] Internal Management Rules, 2012.
[14] P and Q and Ors., 2017 EWHC 194 (Comm).
[15] https://www.italaw.com/sites/default/files/case-documents/italaw16559_0.pdf