BLP announces results of 2016 International Arbitration Survey
International law firm Berwin Leighton Paisner (BLP) has today (7 January 2016) released its annual International Arbitration survey, this year focusing on the role of tribunal secretaries in international commercial arbitration. The report, which had respondents from across Africa, APAC, Europe, the Middle East and both North and South America, looked at a number of different issues in relation to the use of tribunal secretaries. The survey confirmed that tribunal secretaries are widely used.
The key topic practitioners are interested in is the issue of ‘the Fourth Arbitrator’ – should the work done by a tribunal secretary be permitted to influence outcome and what can be done to guard against this.
The survey therefore looked at where practitioners thought the line should be drawn between what it is acceptable for a tribunal secretary to do and what a tribunal secretary should not do. The desirability of using a tribunals secretary was found to be linked to the nature of the role that the secretary would perform. The survey results demonstrated a clear demarcation line between tasks facilitating the arbitration process and those that trespass on the exercise of the tribunal’s duties to the parties.
Most respondents were happy that the tribunal secretary should perform purely administrative tasks (organising files, communications on behalf of the tribunal, hearing arrangements, dealing with invoicing etc.) but 90% of respondents felt that tasks such as writing substantive parts of the award or participating in the tribunal’s deliberations was inappropriate.
78% said that there should be complete transparency for the parties about how the tribunal secretary spent his/her time.
A spate of recent cases (most recently the Yukos arbitrations) have put this issue out in the open. Regardless of what steps are taken to ensure that appropriate safeguards are built into institutional rules, it is something that arbitrators and parties alike will ignore at their peril.
Parties and their legal advisers should take an informed and active part in the appointment of secretaries, and defining the role that they will perform. Arbitrators should ensure that there is full transparency on what is being done by a tribunal secretary or, at the very least, ensure that nothing is being done that they would be embarrassed to reveal to the parties in the event a question is raised.
Other findings relating to the appointment, qualifications and payment of tribunal secretaries included the following:
- 86% of respondents felt that nominee secretaries should be asked to provide a certificate of independence and impartiality
- 74% felt that a tribunal secretary should be a lawyer or legally qualified.
- 76% felt that all party consent should be a requirement for the appointment of a tribunal secretary
- Over three quarters of respondents (76%) agreed that all party consent should be a requirement when appointing a tribunal secretary to cases.
- 33% felt that the tribunal should pay for the tribunal secretary
Kent Phillips, Head of International Arbitration, BLP, commented: “Whilst the appointment of tribunal secretaries is nothing new, the results of our survey make for interesting reading. There seems to be a large measure of consensus around what a tribunal secretary should and should not do. With this in mind there needs to be far greater monitoring and transparency around the work done by tribunal secretaries so as to ensure any basis for challenge to the award, real or imagined is avoided. “
BLP’s International Arbitration Group has conducted a number of surveys over the last few years looking at some of the key issues affecting the arbitration process. In 2012 it focused on delays, 2013 on document production and then 2014 looked at choice of seat. For further information on these reports, please visit BLP’s website: http://www.blplaw.com/litigation-corporate-risk/international-arbitration?view=survey