ARBITRAL TRIBUNAL SECRETARIES: PRACTICAL TIPS FOR FIRST TIMERS

Louise Maia de Oliveira[1]

The role of arbitral tribunal secretaries has been largely debated in the arbitral community. Practitioners often discuss the secretaries’ duties, how to prevent undue interferences, conflicts of interest and so on.[2]

However, despite their prevalence in arbitral proceedings,[3] few works focus on how secretaries may adequately perform the tasks assigned by the arbitral tribunal, and professionals facing their first appointment may have difficulties finding resources to fill their gaps in experience.[4]

Therefore, this article aims to provide some practical tips that may assist young professionals facing their first experience as secretaries.

(i) Communication

As mentioned, there is no consensus on the arbitral community as to what the secretary’s duties should be. Of the ten most relevant Brazilian arbitral institutions,[5] only the ICC has regulated the issue, specifying which duties may be performed by a secretary.[6]–[7]

Considering the absence of regulation,[8] the first and most important tip for any secretary is establishing a good channel of communication with the arbitral tribunal. It is essential that all expectations are leveled, so that the secretary will neither extrapolate nor fail to fulfill their mandate.

Furthermore, communication is also relevant throughout the proceedings. Since the secretary is an assistant to the arbitral tribunal, every task they perform should follow the tribunal’s orientation and must be submitted for its revision and approval. In case of uncertainty, the secretary should consult the tribunal in order to obtain clear instructions. Consequently, communication between the secretary and the tribunal must be consistent and frequent.

(ii) Organization

Although there is no clear definition of the secretary’s role, it is broadly accepted that they may perform administrative tasks, such as organizing meetings and hearings, handling correspondence, organizing files and keeping track of deadlines.[9] Therefore, it is recommended that a secretary employ an organizing method. Although this is a matter of personal preference, some methods that can be used individually or separately are:

• Summary of the proceedings: the secretary may prepare a document gathering all the information about the case (e.g. name of the parties, their representatives, the secretariat, all pertinent contact information, subject matter of the dispute, description of the claims, exhibit reference of the most relevant documents, upcoming deadlines), for their own consultation and or the tribunal’s.
• Weekly follow-up: for those serving as secretary in more than one arbitration, it may be helpful to list all proceedings in one document and weekly revising each case, tracking latest events and future deadlines.
• Case file: irrespective of a institution’s case file, the tribunal’s secretary may benefit from having their own, organized according to their preference. Having a separate case file also ensures that the tribunal will have access to the complete files should the institution make a mistake.
• Administrative file: the secretary may be copied in the tribunal’s internal communications (deliberations, reports on availability, orientations to the secretary), and communications with the arbitral institution, on administrative issues. Also, the secretary may prepare and or have access to drafts of procedural orders, communications to the parties and awards. These documents will not be a part of the official case file, but they should be stored in a separate administrative file, so they can be easily accessed if necessary.

This list is not exhaustive. There are several other tools that can be used, such as calendar reminders, checklists, and timelines, and the secretary should opt for those that best serve them. These tools are useful for organizational and administrative purposes, but also to ensure that the secretary gains familiarity with the files, which is essential to carrying out their duties.

(iii) Responsibility and posture

As an assistant to the arbitral tribunal, the secretary should conduct themselves with responsibility and proper posture.

At the outset, the secretary should ensure they are independent, impartial and free of conflicts of interest, and that they remain so throughout the proceeding.[10] To do so, it may be helpful for the secretary to have a list of former and current cases and identify personal and professional relationships that could demand disclosure or result in a conflict of interest.

As the proceeding evolves, the secretary should avoid ex parte contact with the parties, consult the tribunal as to what kind of information may or may not be shared with them, and maintain neutrality during hearings and deliberations.

In sum, it is important that the secretary be mindful of their position and avoid interfering with the arbitrators’ perception of the case or the parties’ trust in their impartiality.

(iv) Proactivity

The lack of resources available to secretaries should not deter professionals from seeking improvement in their practice.

Ideally, arbitrators should (and usually do) guide their assistants as they navigate their role as secretary. Nevertheless, arbitrators are busy professionals, so they should not be one’s sole resource. In fact, those acting as secretaries should take ownership of their role and a proactive stance towards their development.

For instance, there are several local and international mentorship programs for young professionals. Mentors are seasoned practitioners who have committed to dedicating their time to guide those less experienced and can provide helpful insights into the arbitrators’ and or parties’ expectations towards a secretary.

Another option is benchmarking. Benchmarking is the process by which one compares their processes against those of leaders in the field. Applied to arbitration, young practitioners could seek others they recognize as effective secretaries and compare methods and experiences, to identify areas in which they may improve. This can lead to even better results than mentorships, since lower-level associates tend to have more availability and generational proximity, facilitating the exchange of experiences.

Finally, being mindful of one’s own experience and keeping track of one’s own mistakes and successes is paramount to improving one’s processes. After the first few appointments, a secretary can create their own resources, templates, checklists, which will serve as a starting point from which they can adapt and improve as their experience grows.

Conclusion

It is natural that a young professional facing their first appointment as secretary will come across challenges and doubts. However, hopefully this article is helpful to those facing their first experience in this role.

[1] LLB from the University of Sao Paulo. Associate at Eleonora Coelho Advogados.

[2] See JENSEN, Ole. Tribunal Secretaries in International Arbitration. Oxford International Arbitration Series, Oxford University Press, 2019; DE LY, Filip, DEMEYERE, Luc (eds.), Arbitral Secretaries, Kluwer Law International, 2017.

[3] “The survey reveals that the use of tribunal secretaries is common in international arbitration. An overwhelming majority (97%) of respondents are aware of the function. Moreover, 82% of respondents have directly been involved in cases involving a tribunal secretary: 53% have actually used a tribunal secretary and 29% have seen it used.” Queen Mary University of London’s 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration, p. 42. Available at: <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2015_International_Arbitration_Survey.pdf>, access in 28.jul.2021.

[4] As examples of good practical resources, the author recommends (i) LOVISCEK, Lucas. Guide for the Arbitral Secretary In: PLAZA, José, ARROYO, Carolina et. al (eds.), Surviving in the Field of International Arbitration: War Stories and Lessons Learned, Kluwer Law International, 2020; and (ii) PIERRE-FIERENS, Jean. An Arbitrator’s View on the Expected Assistance from the Arbitral Tribunal’s Secretary In: DE LY, Filip, DEMEYERE, Luc (eds.). Arbitral Secretaries, Kluwer Law International, 2017.

[5] For the purposes of this article, the ten institutions with the largest number of cases – CAM-CCBC, 8ª Câmara Arbitral, CIESP/FIESP, ICC, CAMARB, FGV, CAESP, CAM, ARBITAC and AMCHAM –, as reported by the CESA Anuário da Arbitragem no Brasil 2018, available at <http://www.cesa.org.br/media/files/Anuario2018Arbitragem.PDF>, access in 28.jul.2021.

[6] Item XX of the ICC Note to Parties and Arbitral Tribunals on the Conduct of Arbitration, available at <https://iccwbo.org/content/uploads/sites/3/2020/12/icc-note-to-parties-and-arbitral-tribunals-on-the-conduct-of-arbitration-english-2021.pdf>, access in 28.jul.2021.

[7] Although ARBITAC and AMCHAM mention that the tribunal may appoint a secretary, neither specify the duties that may be delegated to them – see (i) Clause 25, ‘c’ of the ARBITAC Arbitration Rules, available at <https://arbitac.com.br/wp-content/uploads/2021/03/Regulamento-de-Arbitragem-da-ARBITAC-5.pdf>, access in 28.jul.2021; and (ii) Clause 12 of the AMCHAM Arbitration Rules, available at <https://estatico.amcham.com.br/arquivos/2018/arbitragem-comercial-regulamento.pdf>, access in 28.jul.2021.

[8] The 2012 Survey of the Young ICCA Task Force on the Appointment and Use of Arbitral Secretaries reported that 57.4% of respondents favored greater regulation of the role and function of arbitral secretaries. Later, in the Queen Mary 2015 International Arbitration Survey, 68% of respondents indicated that the role of tribunal secretaries demanded more regulation.

See (i) International Council for Commercial Arbitration, The ICCA Reports No. 1, Young ICCA Guide on Arbitral Secretaries, available at <https://cdn.arbitration-icca.org/s3fs-public/document/media_document/aa_arbitral_sec_guide_composite_10_feb_2015.pdf>, access in 28.jul.2021; (ii) 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration, pp. 42-44.

[9] See (i) 2012 Survey of the Young ICCA Task Force on the Appointment and Use of Arbitral Secretaries; (ii) 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration; (iii) ICC Note to Parties and Arbitral Tribunals on the Conduct of Arbitration, item 224.

[10] Young ICCA Guide on Arbitral Secretaries, article 2(3); ICC Note to Parties and Arbitral Tribunals on the Conduct of Arbitration, item 219; AMCHAM Rules, clause 12.3.