On 1 January 2017, the Australian Centre for International Commercial Arbitration (ACICA) announced the launch of a panel of tribunal secretaries which will serve as a resource for tribunals and parties undertaking arbitration in Australia and the region. ACICA also published the ACICA Guideline on the use of tribunal secretaries to provide guidance.
This is a welcome initiative as the use of tribunal secretaries in ACICA arbitrations has been somewhat of a grey area. The Guideline should provide parties with clarity as to the procedure for appointment and removal of tribunal secretaries, their duties and their remuneration.
Appointment and removal of tribunal secretaries
Appointment of tribunal secretaries can occur at any stage of the arbitration. However, the arbitral tribunal can only appoint (or change) a secretary subject to agreement between the parties.
The arbitrator challenge procedure under the relevant rules (eg the ACICA or UNCITRAL Arbitration Rules) applies to tribunal secretaries as well. However, tribunal secretaries are entitled to the same level of immunity as a tribunal member.
Duties of tribunal secretaries
Pursuant to the Guideline, tribunal secretaries must act under the direction of the tribunal, and are forbidden from performing any decision-making functions. They have the same obligations of independence and impartiality as tribunal members.
Tribunal secretaries are also subject to the same confidentiality obligations as the tribunal and the parties.
Remuneration of tribunal secretaries
Tribunal secretary remuneration depends on the method of remuneration for the tribunal:
- where the tribunal is remunerated on the basis of the amount in dispute, secretary fees will form part of the overall tribunal fees.
- where the tribunal is paid on an hourly rate basis, the tribunal secretary’s fees will be charged separately and paid by the parties in addition to the tribunal’s fees.
In either case, the tribunal and the parties will decide on secretary remuneration in consultation. Parties should be aware that in cases of disagreement between them as to secretary remuneration, the Guideline confers sole discretion on the tribunal to resolve the dispute.