Worldwide: Out Of The Shadows

Last Updated: 2 March 2015
Article by Khaled Moyeed

Russia's challenge to the Yukos awards has made the appropriate use of arbitral secretaries the issue of the day. An event in London convened by six young arbitration groups shone a light on the role they do and should play. Khaled Moyeed of Clyde & Co in London reports. Out of the shadows

Held at the London offices of Freshfields Bruckhaus Deringer, the packed event brought together over 100 international arbitration practitioners who joined in the lively debate. Among them were several who had participated in the drafting of the Young ICCA Guide on Arbitral Secretaries, which was launched at the ICCA Conference in Miami last year, and performed the role of secretary themselves.

Audience members participated enthusiastically in the discussion and highlighted that although there is broad acceptance of the use of secretaries, there are also many concerns about their roles.

These include whether there is party consent to their appointment, whether there has been appropriate opportunity to object to their use and the extent to which they are bound by obligations such as confidentiality that bind the tribunal members.

By coincidence, the event coincided with the launch of new guidance on the subject – the Singapore International Arbitration Centre's Practice Note on the Appointment of Administrative Secretaries – which provided a talking point.

The event also coincided with Russia's publication of one of its writs for the setaside of the Yukos awards – which relies on the allegedly excessive role played by Canadian lawyer Martin Valasek, as assistant to the tribunal (a tribunal secretary equivalent).

Broad acceptance

Joshua Fellenbaum, senior associate at Clyde & Co in London and co-author of the Young ICCA Guide chaired the discussion and began by setting out the context for the guide. It was premised on a survey carried out in 2012 to 2013 seeking the views of 200 members of the international arbitration community, he said.

Of those surveyed, 95 per cent approved the use of arbitral secretaries, so the evening's discussion assumed the arbitration community's acceptance of their use.

In recent years, institutions such as the Hong Kong International Arbitration Centre, the ICC International Court of Arbitration , the Finland Chamber of Commerce and now the Singapore International Arbitration Centre have weighed in, publishing notes and guidelines on the use of tribunal secretaries, he said.

Fellenbaum presented a number of issues that have emerged in relation to the use and appointment of arbitral secretaries. He said that while the discussion would focus on the underlying themes of transparency, qualification, and compensation, "the aim of the evening is to raise a number of practical scenarios to see if we can define what in fact is 'proper' and 'best practice'".

Perpetuating problems?

Panellist Lucy Reed, the Singapore-based global co-head of international arbitration at Freshfields Bruckhaus Deringer, began by congratulating Young ICCA for its Guide on Arbitral Secretaries.

However, Reed was of the view that we should not use arbitral secretaries to perpetuate problems that persist in international arbitration, for example, the production of records that are too voluminous and awards that are too long.

Arbitral secretaries often tend to be used to draft overly long sections setting out the procedural history and the parties' legal positions, she noted.

Reed was generally in favour of the arbitral secretary being a qualified lawyer, for reasons of efficiency. For example, a qualified lawyer would understand why a case might need to be bifurcated and therefore schedule a timetable accordingly, which could not be done as efficiently by a non-lawyer secretary, she said.

A novel approach

Reed ended her presentation by highlighting a novel approach in SIAC's Practice Note on the Appointment of Administrative Secretaries, which was published that same day.

The note states that administrative secretaries may be appointed in appropriate cases. However, parties will not bear the fees of an administrative secretary if the amount in dispute is under S$15 million whereas the parties will bear such fees if the amount in dispute is S$15 million or more.

Be humble

Per Runeland, senior counsel at Setterwalls in Stockholm, talked about the desirable characteristics of an arbitral secretary. He drew a comparison between the use of reporters in Moscow tribunals [constituted under the rules of the International Commercial Arbitration Court at the Russian Federation's Chamber of Commerce and Industry] and arbitral secretaries.

A Moscow tribunal could not function without the use of a reporter, who might be a graduate or a PhD student and work extremely hard to gain experience and eventually become an arbitrator, he said.

Similarly, Runeland said that arbitral secretaries would benefit from taking a long perspective and learning the art of arbitration while essentially being invisible in the background. This requires true humility, which is an important trait for any arbitral secretary, he stated.

To view full article click here.

Previously published on Global Arbitration Review online news, 13 February 2015

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Khaled Moyeed
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