Securing the role of an Arbitral Secretary in International Commercial Arbitration

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The growth and development of arbitration specifically in Africa has led to the emergence of opportunities for young legal practitioners to participate in the field of International Commercial Arbitration.

However, most young legal practitioners find it difficult securing opportunities to participate in International Commercial Arbitration mostly because the arbitral community is populated with middle aged or fairly old legal practitioners. Most opportunities are afforded to young practitioners working in fairly large or large law firm where International Arbitration cases are dealt with on a regular basis. One of the recommended ways by which a young legal practitioner interested in International Commercial Arbitration can secure an opportunity to participate is by securing a role as an Arbitral Secretary.

Who is an Arbitral Secretary?

There is generally no clear or universal definition as to who an arbitral secretary is, however, different arbitral institutions have provided guidelines on the role of an arbitral secretary. An example being the International Chamber of Commerce (“ICC”) Notes to parties and Arbitral Tribunals on the Conduct of the Arbitration (“the ICC Notes”). This guideline defines the role of the Arbitral Secretary to include; transmitting of documents; organizing the tribunal’s file and locating documents; organizing hearings, attending meetings, hearings and deliberations; taking notes; conducting research; proofreading orders and awards and correcting typos.[1]

As a result of no universal or uniform guideline outlining the roles of an arbitral secretary, the roles of an arbitral secretary vary across different arbitral institutions, with some guidelines focusing more on an administrative role and others focusing on an a more expansive role to include legal roles.[2] To avoid any issues during the arbitral process, it is usually advised that the arbitrators disclose to the parties and the secretary, the specific role/roles to be carried out by the secretary.[3]

Procedure

The usual practice as stated in the ICC Notes is for the Arbitrator to inform the parties of its intention to appoint an arbitral secretary. Thereafter the Arbitrator is expected to forward the proposed Secretary’s Curriculum Vitae along with a declaration of independence and impartiality of the secretary to the parties. The parties have a right to either object or accept the proposal. It should be noted that there is generally no qualifications for an administrative secretary under any of the arbitral institution’s guidelines.

Remuneration

There is no general consensus as to the method of remuneration of the Arbitral Secretary. The determining factor will be what is stated in the Arbitral Institution’s guidelines administering the arbitration or the decision reached by the arbitrators and parties in ad-hoc arbitration. Generally, there seems to be a divide as to whether the arbitral tribunal should bear the cost or the parties. The ICC Notes provides that the Secretary’s fees should be paid by the Arbitral tribunal out of funds available for the fees of all arbitrators. [4]The London Court of International Arbitration provides that an hourly rate ranging from £50 to £150 per hour and those secretary’s fees paid out of the deposit lodged by the parties.[5]

The important thing is that a remunerative scheme must be made clear to the parties in a disclosure or fee agreement and the tribunal should obtain the parties’ consent.

How can young lawyers secure a role as an Arbitral Secretary?

It has been suggested that the two major ways by which a young legal practitioner can secure a role as an arbitral secretary is by (a) registering as an Arbitral Secretary under an Arbitral Institution and (b) networking with the major players in the field of arbitration.

With respect to registering under an Arbitral Institution, there are certain Arbitral Institutions that offer trainings for arbitral secretaries, which subsequently lead to registration under the Arbitral Institution as an Arbitral Secretary. This means that upon successful completion of the training course the candidate’s name will be registered under the list of Arbitral Secretaries under the Institution. To this end, when arbitrators involved in an arbitration governed by an institution require the services of an arbitral secretary, the names of the secretaries listed under that particular arbitral institution will be considered. An example is the Chartered institute of Arbitrators, UK (Nigerian Branch) training on Arbitral Secretaries.[6]

The other major way to secure an appointment is to network at arbitral conferences and events especially with the renowned arbitrators in the field telling them your experiences and qualifications; they might just remember you when they require the services of an arbitral secretary.

After securing the role of an arbitral secretary, one has the responsibility to prove oneself as diligent, effective and efficient which could gain one further access into the arbitral community by recommendation and referrals.

It should however be noted that young legal practitioners should ensure that their roles are clearly defined to avoid any objections in the future to their appointments. Also young legal practitioners should avoid undertaking any tasks that involve decision making i.e. drafting parts of the award, which can result in the emergence of a “fourth arbitrator”. In the controversial case of Veteran Petroleum Limited (Cyprus) v the Russian Federation[7], the Russian Federation challenged the arbitral award on the grounds that the Secretary appointed by the chairman exercised too much influence over the tribunal’s decision and as such the award should be set aside.  Although the award was set-aside in 2016, the Court failed to address the challenge to the award on the grounds that the Secretary had significantly influenced the Tribunal’s decision.

Considering the recent Yukos decision and the lack of a uniform set of guidelines governing the   administration of arbitral secretaries in international commercial arbitration, it is advised that the following procedures should be adopted to minimize the risks of a challenge which could possibly lead to a setting aside of the award; (i) arbitral secretaries should ensure that their roles are clearly defined, (ii) arbitrators and parties and the arbitral secretary agree on the remuneration scheme, (iii) parties should be informed before appointment of secretary and given opportunity to respond and (iv) secretary must sign to confirm confidentiality, independence and impartiality.

[1] The International Chamber of Commerce Notes to Parties and Arbitral tribunals on the conduct of the Arbitration.

[2] An example being the drafting of parts of an award usually the introductory part.

[3] JAMS Guidelines provides that an arbitrator must disclose to the parties what types of tasks will be carried out by the secretary.

[4] Article 151 of the ICC Notes

[5] Article 8(72) London Court of International Arbitration Notes for Arbitrators

[6] The Inaugural event of this was held in May 2017. It is expected that there will be subsequent events of its kind held at least once a year in Lagos, Abuja and Port Harcourt.

[7] PCA Case NO. AA 228

Ibukunoluwa Owa studied law at the University of Dundee, Scotland, UK. She obtained her masters in International Commercial and Maritime Law from Swansea University, Wales, UK.

She currently works as an associate with Aluko & Oyebode, Lagos in the Litigation, Arbitration and ADR practice. She specializes in commercial litigation and arbitration including that pertaining to oil and gas, finance and banking, insolvency, commercial law transactions and general litigation.

She is an Event Director with the Lagos Court of Arbitration-Young Arbitrators’ Network where she organizes and plans events on International Commercial Arbitration with the aim of raising awareness and participation of young legal practitioners in International Commercial Arbitration. She is also an Associate Member of the Chartered Institute of Arbitrators, UK.

She spends her free time listening to music, exercising, reading a book or hanging out with friends.

 

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