London Court Of International Arbitration (LCIA) Rules Update 2020: Tribunal Secretaries
The Gist with DRC!
Chidimma Ifeoma Onyiaorah
The LCIA Updated Rules came in to force on 1st October 2020 and particular made explicit provisions in Article14a addressing Tribunal Secretaries and their roles.
During an interview with Professor Luc Raicati di Brozolo, a Vice President of London Court of International Arbitration, he discussed the topic of tribunal secretaries, and the explicit provisions addressing their role in the updates to the LCIA Rules 2020.
As a background, the Rules follows the introduction of a section of secretaries in the 2017 guidance note for arbitrators which coincided with the English High Court Decision in P v Q  EWHC 148 (Comm.) and  EWHC 194 (Comm.).
This was a very important case that upheld the decision of a division of LCIA court that rejected a challenge to an arbitral tribunal centered on the role of a tribunal secretary in high profile cases.
According to Professor Luc, today the use of Arbitral secretary in international arbitration is widespread and is generally accepted.
“In my experience as counsel and as arbitrator, I have never seen a challenge of tribunal secretaries whether as to their appointment or their roles. Cases require a tremendous amount of case management and because of this and obvious imbalance between tribunal and council, they were assisted by Tribunal Secretaries and most arbitration will be unmanageable by tribunals without assistance.”
What are their roles? Where do you draw the line?
The range of tasks for Tribunal Secretaries are quite broad from basic roles (Administrative) i.e. organizing meetings, proof reading, etc and the task that requires greater intellectual input which involves attending hearings, research, summarizing submissions, doing research on authorities, procedural awards etc
This tasks requiring greater intellectual input is the one that is more debated but it is also the one that emerged in the decided P v. Q case and according to Professor Luc, this may be a tactical move to achieve the removal of the tribunal. The case of P v. Q arose out of a misdirected email in which the Chairman of the Tribunal asked the Secretary for his thoughts on letter received by one of the parties.
Anybody who is involved in international arbitration is aware that delegating substantive task to the Secretaries is useful and essential. Secretaries can bring significant value because they can increase efficiency, allow tribunals to be more reactive, help tribunals digest large amount of information, allow tribunal benefit from extremely detailed record, contribute useful ideas and bring to the attention of the tribunals, details that might have ordinarily escaped them.
Prof. Luc in his interview was of the view that the argument that secretaries can take over the roles of the tribunal which is deciding the case is totally misplaced as it is clear that tribunals cannot delegate their decision-making function to a secretary or to anybody else for that matter. What they may do is to rely on the secretary to carry out certain tasks, even substantive ones without this amounting to a delegation of power.
He noted that the court in P v. Q clarified that an arbitrator may be assisted by a secretary without this preventing him from reaching an independent judgement; An arbitrator who receives the view of the secretary does not for this reason alone lose his or her ability to exercise full and independent judgement and there is nothing offensive in receiving the views of others.
“The point is that the tribunal may listen to the Secretary, rely on him and delegate some functions but will only use that input to form his own judgement. The problem is not the use of the secretaries but the question boils down to the arbitrators. I believe an arbitrator should know how to make the best use of a Secretary and the arbitrator will at all times exercise supervision and discretion to ensure that any decision is his own. On the other hand, any good secretary should know how to make the work of the arbitrator easier.”
Significant changes to the new LCIA Rules
The new Rules deals with the subject very effectively and pragmatically. The new rules allows total freedom as to the use of Secretaries and it does not contain a list of permissible tasks. The note makes it clear that these tasks can even include drafting of the award.
The Secretary’s tasks will depend on a case by case basis on the agreement of the tribunal and the parties. As what the LCIA Rules focuses on is transparency therefore the Tribunal has to seek agreement not only on the use of secretary but on the task that will be delegated. The Rules are not unduly restricted and they contribute in eliminating the hypocrisy from the debate and they encourage a useful and constructive use of secretaries and these secretaries are a very useful tool for efficient conduct of arbitration.