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The London Court of International Arbitration (“LCIA”) has recently implemented new guidelines concerning the use of tribunal secretaries with effect from 26 October 2017. The Yukos arbitration and recent English case law concerning an LCIA tribunal secretary has raised interest in their role and there is also an increasing trend amongst institutions to provide greater clarity and transparency of their role (of which the LCIA’s guidelines are part).
The role of tribunal secretaries in international arbitration has attracted attention recently. The Yukos arbitration (Yukos Universal Limited v Russian Federation, UNCITRAL, PCA Case No AA. 227) is one example. Russia challenged the UNCITRAL award in the Dutch courts on the basis that, inter alia, the arbitrators had not fulfilled their personal mandate due to the alleged extensive role of the tribunal’s assistant (equivalent to a tribunal secretary) in reviewing and analysing legal arguments, and ultimately drafting the award. The Dutch courts ultimately failed to rule on this issue and set aside the award on the basis of other arguments.
More recently, the English High Court in P v Q [2017] EWHC 194 (Comm) considered the delegation by arbitrators to tribunal secretaries of essential arbitral functions, allegedly beyond the scope of permissible delegation under the then-LCIA Rules and accompanying Policy. Mr Justice Popplewell found that the arbitrators had acted properly. Popplewell J placed specific emphasis on the fact the co-arbitrators had not been tasked with "anything which involve[d] expressing a view on the substantive merits of an application or issue."
More broadly, the Hong Kong International Arbitration Centre, the International Chamber of Commerce, the Singapore International Arbitration Centre, and the Australian Centre for International Commercial Arbitration have all clarified their approach to the use of tribunal secretaries. The developments at the LCIA can therefore be seen as part of a broader international trend to clarify the role of tribunal secretaries.
In this context, an LCIA Court subcommittee, composed of LCIA Court members Luca Radicati Di Brozolo, Peter Rees QC and Prof Dr Nathalie Voser, made a series of recommendations to the LCIA to update the forum’s approach to tribunal secretaries. As a consequence, the LCIA published its new Notes for Arbitrators (“Arbitrators’ Notes”) on 26 October 2017, implementing a suite of changes to the LCIA’s guidelines for the use of tribunal secretaries with immediate effect.
The 26 October 2017 changes make seven key amendments to the Arbitrators’ Notes regarding tribunal secretaries:
Statement of Independence – the LCIA’s practice of providing a tribunal secretary’s Statement of Independence to the parties prior to appointment is now codified in the Arbitrators’ Notes (and so is in line with the equivalent practice in relation to arbitrators’ Statement of Independence);
Remuneration – the Arbitrators’ Notes now require tribunals to explicitly propose a fee rate to the parties (which now requires express party consent);
Appointment timing – arbitrators can now set a reasonable time limit for parties to approve the appointment of tribunal secretaries, after which approval is deemed;
Tasks – the LCIA’s prescribed list of tribunal secretary’s activities has now become advisory: the Arbitrators’ Notes now lists the tasks as indicative of what tribunals ‘may wish to propose’;
Delegation of a tribunal’s decision-making function – the Arbitrators’ Notes now make the prohibition of delegating the tribunal’s essential decision-making function more explicit, in line with case law;
Arbitrators’ responsibility for tribunal secretaries – the responsibility of arbitrators for any tasks performed by a tribunal secretary and the requirement of supervision are made explicit; and
Tribunal secretary challenges – provision is also provided for parties to seek the removal of a tribunal secretary through a challenge in the LCIA Court.
The key theme underlying the Arbitrators’ Notes changes in relation to tribunal secretaries is ‘communication and consent’. The LCIA’s changes are designed to ensure parties understand and are comfortable with each aspect of the tribunal secretary’s role. Equally, the LCIA notes that these changes encourage communication between the tribunal and the parties to pre-emptively address concerns. The changes reflect developments in other similar international fora to codify procedures, especially in light of the recent P v Q decision, and are an important step in clarifying the role of tribunal secretaries within an LCIA context.
Thanks to Michael Smyth for his assistance in the preparation of this article.
16 January 2018
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