By Benson Lim (Berwin Leighton Paisner LLP)

On 4 and 5 December 2015, the Hong Kong International Arbitration Centre (HKIAC) held its inaugural and the world’s first tribunal secretary accreditation programme. Once a participant has been accredited and appointed to HKIAC’s panel of tribunal secretaries, he or she will be eligible for appointment in any ad-hoc or institutional arbitration.

Background

Much ink has been spilled on the role and relevance of tribunal secretaries in international arbitration.

Tribunal secretaries are generally seen by tribunals as valuable assistants with the non-decision making functions of the tribunal, allowing the tribunal to focus more on dealing with the complexities of the disputes. Tribunal secretaries are also valued by arbitration users as a dedicated tool to move the arbitration proceedings along smoothly and efficiently, thereby saving time and costs.

As the survey developed by Constantine Partasides, Niuscha Bassiri, and Ulrike Gantenberg in conjunction with the 2012 International Council for Commercial Arbitration Congress in Singapore (ICCA Survey) showed, both arbitration practitioners and users overwhelmingly support the use of tribunal secretaries in international arbitration with about 95.0% of the ICCA Survey’s participants expressing support.[1]

Tribunals similarly support the use of tribunal secretaries in international arbitration. In Berwin Leighton Paisner LLP’s 2015 survey on the use of tribunal secretaries in international commercial arbitration (BLP Survey), 63% of the BLP Survey’s respondents who are arbitrators considered the improvement in organisation and procedural efficiency as an important advantage from the appointment of a tribunal secretary[2].

 

Concerns about tribunal secretaries

Arbitration users have raised concerns about the appointment and use of tribunal secretaries, which remain an informal practice with few clear guidelines. The practical consequences of this debate on tribunal secretaries were starkly highlighted in January 2015 when Russia sought to set aside the Yukos awards, alleging, amongst others, that the tribunal secretary improperly assumed the mandate of the tribunal to decide the disputes.

HKIAC is one of the few arbitral institutions that has published detailed guidelines on the use of a secretary to the arbitral tribunal (HKIAC’s Guidelines) for parties’ adoption in any arbitration. The HKIAC’s Guidelines set out the provisions on the appointment and removal, the duties, and the remuneration of a tribunal secretary. These Guidelines are valuable, given that about 57.4% of the ICCA Survey’s participants considered regulation of the role and duties of tribunal secretaries to be beneficial to the arbitral process.

HKIAC intends to put together a panel of professionally accredited tribunal secretaries through its tribunal secretary accreditation programme. Coupled with the HKIAC’s Guidelines, such a panel of tribunal secretaries available for parties’ appointment is intended to directly address arbitration users’ recent concerns about tribunal secretaries potentially acting improperly as the “fourth arbitrator”.

 

Programme faculty and participants

Dr Nicolas Wiegand of CMS Hasche Sigle and Dr Romesh Weeramantry of Clifford Chance taught the inaugural tribunal secretary accreditation programme to the first group of 22 participants. Both Dr Wiegand and Dr Weeramantry have previously been tribunal secretaries, including the latter’s appointment as one in McKenzie v Vietnam with a prominent arbitral tribunal comprised of Neil Kaplan, Campbell McLachlan, and John Gotanda.

The participants came from a diverse spread of backgrounds and were based in a number of countries. They included a quantum dispute resolution expert, a university lecturer, in-house counsel, barristers, chamber clerks, and secretariat staff of HKIAC.

What united all the participants was their prior experience in international arbitration and a number of them had also been previously appointed by arbitral tribunals as tribunal secretaries.

 

What the programme involved

The accreditation programme was taught through a series of lectures, group discussions on case studies, and a debate with participants taking on the roles of tribunal secretaries.

The lectures were tailored to thoroughly educate the participants on the potential conflicts of interests, explore arbitration users’ views on the scope of the duties of the tribunal secretaries, and teach various aspects of arbitration practice which are relevant to tribunal secretaries. These lectures also delved into the typical steps in international arbitration and the document drafting skills required of a tribunal secretary.

The case studies focused on the aspects of appointment, communication and case management skills related to tribunal secretaries. The discussion between participants aimed to highlight to participants the present issues surrounding the role of tribunal secretaries in international arbitration.

The programme also involved education on the practical skills required. The group exercises on drafting the terms of appointment, procedural orders, and awards were designed to educate the participants on how tribunal secretaries can assist in the efficient and smooth progress of the arbitral process.

Finally, a debate was organised before Dr Wiegand and Dr Weeramantry on whether the tribunal secretary is and should be the “fourth arbitrator” in reality. 2 teams of 2 participants were appointed as the speakers while another 2 teams of 3 participants sat in their roles as tribunal secretaries for the judging panel. The tribunal secretaries in the debate were subsequently asked to share their summary of the main points from the debate and their experience as tribunal secretaries in the debate.

At this present time, the participants have been invited to take a written examination and those who pass the written exam will subsequently be invited to an oral examination conducted by a member of the HKIAC Tribunal Secretary Senior Advisory Board. The board currently includes Neil Kaplan QC, Henri Alvarez QC, Doug Jones AC, Michael Hwang SC and Gabrielle Kaufmann Kohler.

 

Will the programme address concerns with tribunal secretaries?

The main and often cited concern is tribunals’ improper delegation of duties to tribunal secretaries thus affecting the enforceability of any award. No programme or measure can comprehensively address this and every other concern of the arbitration users with tribunal secretaries because the arbitral tribunal is ultimately responsible for ensuring the non-delegation of the tribunal’s decision-making mandate.

However, HKIAC’s tribunal secretary accreditation programme and its panel of tribunal secretary are significant steps towards instilling confidence among arbitration users on the appointment and use of tribunal secretaries.

HKIAC’s tribunal secretary accreditation programme brings esteemed arbitration practitioners and potential tribunal secretaries together for intensive seminars and intellectual discourse on the role and standards expected of a tribunal secretary. In addition to the theory lessons, the group discussions on case studies in the context of applicable international guidelines, together with practical lessons on drafting various documents relevant to a typical arbitration, are valuable in training a competent tribunal secretary.

As discussed above, there is widespread recognition and approval of tribunal secretaries. Proper accreditation of tribunal secretaries—and not an indiscriminate ban on the use of tribunal secretaries—is the key to addressing any concerns on the use of tribunal secretaries in international arbitration. 

In this regard, HKIAC’s world’s first tribunal secretary accreditation programme, together with HKIAC’s Guidelines, may well be the best answer to date.

[1]         White & Case LLP and Queen Mary University of London, “2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process”.

[2]         Berwin Leighton Paisner LLP, “International Arbitration – Research based report on the use of tribunal secretaries in international commercial arbitration”, <http://www.blplaw.com/litigation-corporate-risk/international-arbitration?view=survey>.

HKIAC pioneers accreditation of tribunal secretaries

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