ICDR 2021: The Role of the Tribunal Secretary

A new Article in the updated ICDR Rules introduces what for many common law lawyers and domestic arbitrators is a curious character: the tribunal secretary. A tribunal secretary, much more common in the realm of international arbitration, is a junior associate who assists the tribunal in limited, non-decisionmaking roles.

Exactly what those roles are, however, is and has been the subject of much discussion. Generally, there is consensus that a tribunal secretary can provide administrative assistance–and especially in larger and more complex arbitrations, there is certainly value and efficiency in having those tasks handled at a lower billing rate.

Although not termed a “tribunal secretary,” this type of support is also contemplated for domestic arbitrations:

An arbitrator may obtain help from an associate, a research assistant or other persons in connection with reaching his or her decision if the arbitrator informs the parties of the use of such assistance and such persons agree to be bound by the provisions of this Canon. Canon VI.B.

There is also consensus, and indeed, an ethical barrier, to any participation of the tribunal secretary in deliberations. That duty is for the arbitrator, and for the arbitrator alone. As expressed in Canon V.C. of the joint AAA-ABA Code of Ethics for Arbitrators in Commercial Disputes, “An arbitrator should not delegate the duty to decide to any other person.”

In between, there is a continuum: the tribunal secretary might attend hearings and take notes; conduct legal research at the direction of the arbitrator; and might, in the view of some, permissibly draft limited portions of an award.

The new ICDR Article 17, which is quite brief, does not address the role or resolve any controversy; it just provides express authority to the tribunal to utilize a secretary, so long as the parties consent:

The tribunal may, with the consent of the parties, appoint an arbitral tribunal secretary, who will serve in accordance with ICDR guidelines.

The consent aspect is an important one, because of the potential influence of a tribunal secretary. The concern, and the reason that views on the use of tribunal secretaries diverge, is that the parties have selected the individual arbitrators to make their decision. When an associate provides input of any sort, the potential always exists for some degree of influence on the decisionmaking process, no matter if the input is a series of notes from the hearing, or the arrangement or summary of legal research. Thus, if a secretary is used, the parties should have an opportunity to consider the matter and determine whether to consent.

My own experience has been that most arbitrators in U.S.-based arbitrations are not raising the issue or suggesting use of an associate or anyone else in a tribunal secretary-like capacity. That probably reflects both less familiarity with the concept and less need.

But it behooves practitioners to be aware of the concept, whether they are arbitrating under the ICDR rules or another rule set — and also to know that there is no consensus across arbitral organizations on the nature of the role. Helping to address the competing views and bring some uniformity to standards for the use of tribunal secretaries will be a worthwhile undertaking as more, and more complex, commercial disputes continue to be addressed in arbitration.

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