The Padawan problem: once again on the question of court secretaries

Most international arbitration institutions have already adopted regulations concerning the roles of court secretaries and the scope of their functions. While this topic has not been on the radar for some time now, several upcoming court decisions are likely to reverse this trend. This article sets out some critical views on current arbitration practice, in order to clarify the role of court secretaries in arbitration and to address the Padawan problem they are creating (For those who are not Familiar with the Star Wars universe, a Padawan is a Jedi apprentice. As defined by Dictionary.com, “[i]t can also be used more generally to denote a trainee, a beginner or an inexperienced person. “).

Court Secretary vs Personal Assistant (PA)

The assumption that arbitrators write their awards cover to cover may have been a good solution a few years ago, when the typical arbitral award consisted of a few pages. Nowadays, when sentences in more complicated cases are hundreds of pages long, with the full history of the case and the arguments presented in detail, the support of a secretary in drafting the sentence is not available. not uncommon. Recent court decisions confirm this position. As long as the arbitrators do not delegate their powers to rule on the merits of the case, even the preparation of a first complete draft by a secretary of the tribunal is At first glance acceptable.1) That’s just as well, reflecting that being an arbitrator is primarily about resolving a dispute, and not just about Benedictine work and rivers of ink.

Some sets of rules provide that the secretary of the tribunal may be responsible for drafting only the non-substantial parts of the award. Classification into substantial and non-substantial parts (as used among others. at HKIAC – Hong Kong International Arbitration Center, Guidelines on the use of a secretary of the arbitral tribunal, entered into force on June 1, 2014), does not contribute much to the problem of the delegation of powers of arbitrators. By way of illustration, let’s focus on the reward device. In a situation where the arbitrator informed the secretary of the outcome of the tribunal’s deliberations with a view to drafting the operative part, the secretary undoubtedly drafted the operative part, i.e. the substantial part of the award, but he did not decide. The extent of the work entrusted to the secretary generally depends on the character of the arbitrator, his methods and the legal tradition from which he comes – some arbitrators will write the entire first draft of the award themselves, some not. will only draft selected parts, and yet some will depend entirely on the secretary. It is up to the arbitrator in this case to decide whether he can delegate the complete drafting of the award without jeopardizing his decision-making control.

Secretary of the Tribunal vs Arbitrator

For the purposes of this article, I’m assuming that the decision-making process consists of two parts: have complete knowledge of the file and participation in deliberations and formation of the intention of the court (see M. Feit, C. Terrapon Chassot, Swiss…., op. cit.). In this context, there is no problem with the sentence being drafted by the secretary as long as it fully reflects the will of the tribunal. When the parties appoint an arbitrator, they implicitly express their confidence in his integrity and their fundamental faith that their case will be resolved fairly. Seen in this light, the way or the scope of the delegation of the tasks of the arbitrators to the secretaries of the courts is nothing more than a technicality. If it is otherwise – if this confidence of the parties turns out to be misplaced – then the problem probably lies with the arbitrator as such, and not with the secretaries, as C. Partasides concluded. .2)

From this perspective, it seems obvious that the secretary should not participate in the deliberations of the arbitrators. Deliberations, it is fair to say, are the essence of decision-making. It is not for the secretary, by definition, to witness the process by which arbitrators reach their mutual conclusions, nor to hear the particular opinions expressed during that process. Such a ban is envisaged in among others CEPANI Rules (although in this case the prohibition also covers the drafting of the award). Thus, I do not agree with the Swiss Supreme Court regarding its acceptance that, if a secretary is to draft parts of the award or its entirety, he or she should also be allowed to assist the arbitrators in the phase. of deliberation of the arbitration procedure (see M. Feit, C. Terrapon Chassot, Swiss…., op. cit., p. 908).

Finally, if we all agree that the secretary is, by definition, not vested with any decision-making power, it is difficult to understand why all institutional regulations apply the same criterion of independence and impartiality. , including the protest prerequisites, only for the arbitrators themselves. This only makes sense if one wants to treat the secretary as a fourth official, which is clearly not the case. Thus, a confidentiality commitment on the part of the secretary would be perfectly sufficient.

Tribunal Secretary vs Consultant

The role of the secretary of the court cannot be confused with the role of a legal adviser, as envisaged in the judgment of the Swiss Federal Court rendered in May 2015 (4A_709 / 2014 of May 21, 2015). In the present case, the sole arbitrator, not being a lawyer but an architect, was assisted by two lawyers, E. and F., appointed respectively by the Swiss Court as counsel and secretary. This construction dispute had to be settled according to the principles ex aequo et bono. The award was rendered, in which the sole arbitrator made the following remark:

Faced with A.’s openly hostile attitude, the Arbitral Tribunal chose to be assisted by Me E. and Me F. of the law firm G. in Geneva, at its expense and only to keep the minutes. of the audience, to advise the Arbitral Tribunal during the hearing on the innumerable objections raised by A. in particular (emphasis added) and help the Arbitral Tribunal draft the award. These two lawyers kept the minutes and advised the Arbitral Tribunal so that the elementary rules of the arbitral procedure, with which the Sole Arbitrator is not necessarily perfectly familiar as a non-lawyer, are respected. In doing so, MM. E. and F. acted only at the request of the Arbitral Tribunal within the framework of art. 365 CPC without participating in the decision-making process or at the end of the award for which the Arbitral Tribunal is solely responsible, without influence or advice.

This case clearly shows what the role of the secretary is in relation to a consultant. Consultant E. advised the arbitrator on several legal matters, while secretary F. did not advise but acted only under the direction of the arbitrator. The tribunal noted that E.’s role as a consultant was very particular, in particular because he was not selected for his technical skills but because of his knowledge in the field of arbitral proceedings.

The consultant in this case could potentially have earned the additional arbitrator label, as he was advising the lay arbitrator on all legal aspects of the case, and the parties to the arbitration did not have the opportunity to comment. the consultant’s opinions. It was a very extraordinary situation; one which is very rarely found in practice and which required an individual approach and the agreement of all participants in these procedures. The consultant should have been tested for independence and impartiality in the same way as the arbitrator.

The comparison between the role of consultant, as seen in the above case, and that of court secretary, as exercised in current arbitration practice, shows the real difference. The secretary is, at most, the hands and eyes of the tribunal. If this line is crossed, the role of the court secretary is transformed into that of consultant.

Conclusion

To sum up, in modern arbitration practice there is a tendency to treat court secretaries as PAs, thus limiting their role to matters of logistics only. This position, as illustrated above, is neither founded nor sustainable. Surprisingly, court decisions tend to take a more flexible stance on this issue than arbitral institutions themselves. This state of affairs is somewhat unexpected given the very nature of arbitral institutions.

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This article first appeared on the Kluwer Arbitration Blog here. Written by Beata Gessel-Kalinowska vel Kalisz of GESSEL Lawyers solidify


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