The English High Court has dismissed an application made under s.24(1)(d)(i) of the Arbitration Act challenging an LCIA decision not to remove the arbitrators on the grounds of improper delegation of functions by the Tribunal to the Tribunal secretary and by c0-arbitrators to the chairman, and provided some guidance on best practise for arbitrators and secretaries in performing their respective functions.
The Court also refused a related application for correspondence between the Tribunal and the secretary to be disclosed. The Court applied a strict test of necessity to the application for disclosure and emphasised the desire to minimise court intrusion in arbitral proceedings.
The LCIA arbitration concerned a joint venture framework agreement and a shareholders agreement. The two co-arbitrators and the chairman were experienced international arbitrators. The secretary of the tribunal, whose selection was agreed between the parties, was an associate with a large US law firm.
The Claimant filed a challenge with the LCIA Court seeking to have all three Tribunal members removed for failing properly to conduct proceedings. The Claimant argued: 1) that the Tribunal had improperly delegated its role to the Tribunal secretary; 2) that the co-arbitrators had not sufficiently participated in the arbitration proceedings; and 3) that the Tribunal Chairman had breached duties of confidentiality and impartiality.
The first ground was based on an email from the Chairman of the Tribunal intended for the Tribunal secretary which was accidentally misdirected to one of the Claimant's lawyers' paralegals. The email read "Your reaction to this latest from [Claimant]?" referring to an email from the paralegal regarding the Claimant's compliance with a decision on document production. The Claimant alleged in its application that the Chairman, by seeking the views of a person not a member of the Tribunal on substantive procedural issues, had breached his duty not to delegate his functions and brought his independence into question.
In relation to the second ground, the Claimant relied on comparative evidence of the amount of time spent working on the arbitration by the members of the Tribunal and the secretary – the latter's hours being considerably more extensive than either co-arbitrator's – to argue that that the co-arbitrators had not sufficiently participated in proceedings.
The LCIA rejected the Claimant's challenge on the first two grounds, stating that the manner in which the Tribunal had operated in the case had been "entirely in keeping with the way in which arbitral tribunals function" 1. However, the LCIA did allow the Claimant's application to remove the Chairman on the third ground although little information is given in the judgment on the precise reason for his removal.
The Claimant subsequently brought an application before the High Court under s24 of the Arbitration Act 1996 2 to remove the co-arbitrators on the first and second grounds described above. The Court dismissed the Claimant's application. On the first ground, the Court found that it was perfectly possible that an adjudicator might seek the views of the secretary without surrendering any part of his own decision making role 3. On the second, the Court held that it reasonable and proper that the Chairman and the secretary should prepare drafts of the decisions for the co-arbitrators to review, which explained the discrepancy in time spent on the case 4.
The Court acknowledged the "considerable and understandable anxiety in the arbitration community that the use of tribunal secretaries risks them becoming, in effect "fourth arbitrators"" 5. In response to this anxiety the Court suggested that "best practise is therefore to avoid involving a tribunal secretary in anything which could be characterised as expressing a view on the substance of that which the tribunal is called upon to decide." 6
For future guidance, the Court gave examples of conduct which was not necessarily improper 7:
- he use of the secretary to analyse submissions and to draft procedural orders;
- Soliciting the secretary's views on the merits of procedural decisions;
- The chairman working "cheek by jowl" with the secretary, where such work is in a supervisory role;
- The use of the secretary to draft those parts of the decisions which recite parties' submissions and the procedural background to the case.
In a related application on the same case, the Claimant sought an order for disclosure of the following categories of documents:
- instructions, requests, queries or comments from the co-arbitrators (or from the chairman to which the co-arbitrators were copied) to the secretary;
- all responses from the secretary to those emails; and
- all communications sent or received by the co-arbitrators which related to either the role of the secretary or the tasks delegated to the secretary.
Applying the principle set down in Locabail 8 - that "there can be no question of cross-examining or seeking disclosure from the judge" in a challenge to the judge's impartiality – the Court chose strongly to protect the sanctity of the adjudicator's decision-making process.
Bringing the category of documents concerned, even if seemingly administrative in nature, within the ambit of the "process of [the Tribunal's] deliberations" 9, the Court also considered that the parties had contracted out of the High Court's jurisdiction to grant disclosure. In this regard, Article 30.2 of the 1998 LCIA Rules 10 provides that the deliberations of the Arbitral Tribunal are confidential to its members. The Court concluded that it will only be "in the very rarest of cases, if ever, that arbitrators will be required to give disclosure of documents; it would require the most compelling reasons and exceptional circumstances for such an order to be made, if ever."