The scope of duties that can be delegated by arbitrators to tribunal secretaries has been a source of numerous controversies in the arbitration environment, as well as of challenges formulated by parties with respect to arbitration proceedings and awards. A new light has been shed on this issue by the judgment of the High Court issued as a result of an application for the removal of co-arbitrators submitted under section 24 of the English Arbitration Act 1996.
The request for removal was founded i.a. on the allegation that the co-arbitrators delegated their duties to the tribunal secretary. The applicant accused the co-arbitrators of not being involved in previous activities of the tribunal, with all decisions having allegedly been made by the chairman alone. Further, as argued by the applicant, the chairman’s work was mostly done by the tribunal secretary. It is noteworthy that the application was submitted only with respect to the co-arbitrators, as the chairman had been previously removed by the London Court of International Arbitration (LCIA) as a result of comments made by him at an international conference, which gave rise to doubts as to his impartiality.
Evidence in the case included i.a. timesheets of the arbitration tribunal and of the tribunal secretary, which demonstrated that the secretary had spent the largest number of hours working on the procedural orders issued. Moreover, the applicant relied on an e-mail from the chairman asking for the secretary’s opinion with respect to one of the applicant’s submissions. The e-mail was mistakenly sent to a member of the team representing the applicant, which gave rise to doubts as to the arbitrator’s independence and autonomy of his decisions.
High Court dismissed the request and in an elaborate justification presented a number of conclusions concerning the relations between the arbitration tribunal and the tribunal secretary. Justice Popplewell contended that the mere fact of a secretary providing an arbitrator with his or her opinion could not be deemed inappropriate, as long as the arbitrator was able to reach an independent decision in a given case. It could not be assumed a priori that benefitting from observations of junior lawyers excluded the arbitrator’s ability to reach a decision unaffected by his or her co-workers’ observations.
It was further contended in the justification that instructing the tribunal secretary to analyse the parties’ positions and prepare draft procedural orders did not constitute inappropriate delegation of decision making powers, unless otherwise stipulated in the agreement between the parties. Additionally, Justice Popplewell observed that co-arbitrators were not obliged to supervise the secretary’s work, as the tribunal secretary was customarily controlled by the chairman. The court dismissed also the applicant’s allegations concerning the number of hours spent working by the secretary, since it found that the difference of a few hours between the time spent by the chairman and the secretary with respect to particular procedural orders did not mean that the presiding arbitrator had not been properly exercising his adjudicative powers.
However, High Court emphasised the sensitive character of a secretary’s involvement in the works of a tribunal, in the light of the reservations that the secretary could become “the fourth arbitrator”. It is therefore a good practice to draft secretaries’ duties in such manner that secretaries are not able to present their opinions with respect to key substantive elements of the drafted decision. However, a failure to put a secretary’s duties in line with good practices accepted in the international arbitration environment does not automatically mean a failure “properly to conduct the proceedings” within the meaning of section 24(1)(d) of the English Arbitration Act.
High Court Judgment: http://www.bailii.org/ew/cases/EWHC/Comm/2017/194.html
Prepared by: Aleksandra Orzeł-Jakubowska, associate, Kajetan Ostoja-Ciemny, Łaszczuk & Partners