The London Court of International Arbitration (LCIA) has released updated Notes for Arbitrators which implement changes to clarify the role of tribunal secretary in LCIA arbitrations.
The LCIA comments that it is becoming increasingly common for arbitrators to use tribunal secretaries to manage their workloads and ensure that arbitrations are conducted in the most efficient and effective manner possible. The updated notes are designed to accommodate this preference whilst giving guidance on the LCIA's approach to the appropriate use of tribunal secretaries.
Under the revised LCIA notes:
- Proposed secretaries must complete a "Statement of Independence and Consent to Appointment" confirming they have no conflicts of interest. The notes now make clear that this Statement of Independence must be provided to the parties in advance of appointment for them to approve the appointment.
- Suggested remuneration for tribunal secretaries (if appropriate) is from £50 - £100 per hour, and parties must consent to the proposed fee rate.
- Parties must expressly consent to the tasks which it proposed a secretary will perform at the outset.
- Whilst the LCIA does not endorse any particular tasks as being appropriate, it notes that a tribunal may wish to propose:
- That the secretary carry out administrative tasks such as communicating on behalf of the tribunal; organising documents; proofreading; organising procedural matters and dealing with invoices;
- That the secretary attend hearings, meetings and deliberations;
- The extent, if any, to which the secretary carries out substantive tasks, such as summarising submissions, reviewing authorities and preparing first drafts of awards or procedural orders.
- Parties are deemed to have approved the appointment of the proposed secretary if they do not respond within a reasonable time limit set by the tribunal.
- Arbitrators are explicitly prohibited from delegating the tribunal's decision-making function.
- Arbitrators remain responsible for the tasks carried out by the secretary, and for supervising the secretary
- Parties can seek to remove a tribunal secretary (as they can an arbitrator) by applying to the LCIA Court
These updated notes follow the case of P v Q and others in April this year, in which the claimant asked the High Court to remove arbitrators from an LCIA arbitration on the basis, amongst others, that they had improperly delegated the tribunal's decision making functions to a secretary. Although the High Court agreed with the finding of the LCIA Court that there had been no improper delegation, the High Court recognised the concerns of some members of the international arbitration community that the use of secretaries risks them becoming, in effect, 'fourth arbitrators'. It was, therefore, suggested that, going forward, arbitrators should take steps to circumscribe the secretary's role so that they are not involved "in anything which could be characterised as expressing a view on the substance of that which the tribunal is called upon to decide".
The revised notes clearly respond to the case of P v Q by setting out a procedure which ensures there is clear communication between the tribunal and parties on the role of the secretary and that the parties must consent in advance to the appointment and role (subject to an anti-frustration provision where consent may be deemed to have been given). The notes, quite rightly, make clear the tribunal must never delegate its decision making function.