Who is the Secretary to the Arbitral Tribunal ?Berk Hasan Özdem
The secretary to the arbitral tribunal/arbitral secretary is a person who works with the tribunal for the purpose of contributing to the process by carrying out the tasks entrusted to him/her by the arbitrators. While the secretaries are appointed for the advantages they provide, practice of using arbitral secretaries may also entail risks that may provoke challenges or affect the smooth running of the proceedings. After discussing the benefits and not-so-bright sides of such a practice, this paper examines the contradictory views on the permissible scope of secretaries’ activities by focusing on the discrepancies amongst the regulations of different arbitral institutions as well as on the relevant court decisions. Finally, it offers solutions for minimizing the risks that the parties may encounter.
Qui est le secrétaire du tribunal arbitral ?Berk Hasan Özdem
Le secrétaire du tribunal arbitral est une personne qui collabore et contribue à la mission du tribunal en effectuant les tâches qui lui sont confiées par les arbitres. Bien que les secrétaires soient engagés pour les avantages qu’ils procurent, le recours à des secrétaires d’arbitrage peut également comporter des risques pouvant entraîner des contestations ou nuire au bon déroulement des procédures. Après avoir discuté des avantages et des inconvénients de cette mission, le présent document examinera les points de vue contradictoires sur les activités autorisées des secrétaires, en mettant l’accent sur les divergences entre les règles des différentes institutions arbitrales ainsi que sur les décisions de justice pertinentes. Enfin, il proposera des solutions pour minimiser les risques que les parties peuvent rencontrer.
Hakem Heyeti Sekreteri Kimdir ?Berk Hasan Özdem
Hakem heyeti sekreteri/hakem sekreteri, hakemler tarafından onlara verilen görevleri yerine getirerek tahkim yargılaması sürecine katkıda bulunmak amacıyla çalışan kişilerdir. Sekreterler tahkim yargılamasına sağlayacakları katkı için tayin edilmelerine rağmen, uygulamada sekreter kullanımı red taleplerine yol açabilecek veya sürecin düzgün işleyişini etkileyecek riskleri de beraberinde getirebilmektedir. Bu makalede, sekreter kullanımının yararları ve avantajlı olmayabilecek yönleri tartışıldıktan sonra çeşitli tahkim kurumlarının düzenlemelerindeki farklılıklara ve ilgili mahkeme kararlarına odaklanılarak sekreterlerin faaliyetlerinin kapsamına ilişkin çelişen görüşler incelenmektedir. Son olarak, karşılaşabileceği riskleri en aza indirmeleri için taraflara çözümler sunulmaktadır.
Where the identity of an arbitrator is a subjectively essential element of the arbitration agreement, in other words, where the parties choose their arbitrator in view of the specific person, the mission of the arbitrator becomes one that should not be delegated to someone else. However, the “intuitu personae” character of the mission entrusted to the arbitrator does not mean that arbitrators cannot take any assistance. Particularly in large and complex international commercial arbitrations, massive resources (such as voluminous documentary evidence or memoranda) as well as the organization and the arrangement of the proceedings may involve the sole or the presiding arbitrator in an overwhelming amount of work. In view of such a workload, in some cases it may be desirable for the arbitrators to entrust some activities to another person for assistance.
The secretary to the arbitral tribunal/arbitral secretary is a person who works with the tribunal for the purpose of contributing to the process by carrying out the tasks entrusted to him/her by the arbitrators. Particularly in large commercial arbitrations, it is a common practice for the arbitrators to appoint a secretary, generally a young lawyer, to act as a link between the parties and the tribunal as well as to secure administrative arrangements. The practice of using arbitral secretaries is generally not statutorily regulated. While some arbitration laws explicitly provide for such a possibility most jurisdictions remain silent in this regard but do not prohibit the appointment of a secretary. Furthermore, uncertanities remain as to the question whether an arbitral tribunal may appoint an arbitral secretary in a manner contrary to the consent of the parties.
When entrusted with tasks such as drafting administrative and organizational procedural orders, reviewing submissions and managing documentary evidence, the appointment of an arbitral secretary may provide great advantages to the arbitral tribunal and the parties since it can provide efficiency by leaving the arbitral tribunal with more time to concentrate on the substantive matters. Furthermore, the use of a secretary may lower the overall fees, particularly in cases where the arbitrators are remunerated on an hourly basis. Undoubtedly, it also provides an excellent opportunity for young practitionners to observe the conduct of the arbitral proceedings from the perspective of the secretary.
However, there is no rose without thorns. Despite its potential benefits, the issue of arbitral secretaries have been highly controversial across the international arbitration community. Authors mention that the use of arbitral secretaries entails risks such as ex parte communications or breaches of confidentiality which may lead to situations that could affect the swiftness of the procedure, or other perceived virtues of arbitration should they are not handled properly. Such concerns particularly make sense in cases where secretaries are appointed without any formal appointment process, or, in some circumstances, without any disclosure to the parties.
In addition to these risks, many scholars have been voicing concerns in recent years that through some duties they undertake, secretaries may be inappropriately doing work that a tribunal should be doing itself; and thus, violate the intuitu personae mission of arbitrators by going beyond their position as assistants and becoming decisionmakers. Contradictory views exist on the appropriate scope of secretaries’ activities. While there are authors who are of the opinion that the tribunal’s responsibilities include carrying out all substantive tasks, no matter adjudicative or non-adjudicative, as part of its own personal mandate, for others, even if the delegation is related to a substantive task it should be permissible as long as it does not influence the tribunal’s decision-making process. In addition to the differences between the regulations of arbitral institutions, there is a paucity of case law regarding the appropriate role of the tribunal secretaries and even when the issue was considered, courts have been quite reluctant to explain the permissible functions that would not affect the decisionmaking process.
This author believes that in view of all the benefits that a secretary may provide and of all the arbitrators out there eager to fulfill their duties in the most responsible way, using arbitral secretaries should not be a practice to stay away from. However, in order to overcome, or at least to minimize, the risks entailed to such a practice, the informed consent of the parties to the appointment, the transparency about the functions of the secretary and the diligence of the arbitral tribunal from the beginning to the end of the proceedings become crucial.