On 29 and 30 October 2016, Doug Jones AO led a joint CIArb-ACICA Tribunal Secretaries Course. Between Doug’s seemingly boundless knowledge of arbitration theory and his extensive experience in its practice, course participants were treated to a nuanced and realistic look into both the role of a Tribunal Secretary, and the need for them. The course was run in a moderated discussion style (with Deborah Tomkinson as moderator), and benefited from the generous input of tutors, comprised of former and current Tribunal Secretaries and experienced arbitration practitioners.
To the Australian (and New Zealand and American) tradition, a Tribunal Secretary is best thought of as arbitration’s version of a judicial clerk or associate: their role is to assist the Tribunal with the conduct of proceedings. Typically, this will involve administrative tasks, like arranging meetings and hearings between the Tribunal and the parties; and organising correspondence and materials including evidence and submissions. Naturally, a Tribunal Secretary will liaise with the arbitral institution, if any. Of perhaps great interest to arbitrators, a Tribunal Secretary might also help organising the Tribunal’s remuneration: following up payment of the deposit, and monitoring the work done against the deposit remaining.
Controversy historically surrounds the involvement of Tribunal Secretaries in tasks that may be considered less administrative in nature, like legal and factual research, summarising submissions, drafting procedural orders, note taking during deliberations, and perhaps most controversially, drafting aspects of the award. The appropriate limits to a Tribunal Secretary’s role sparked an engaging conversation that revealed cultural differences between those from jurisdictions where judicial clerks and associates are common, and those where they are not.
Having grappled with that popular controversy, the course delved into the practicalities of the Secretary role, providing first hand insight into: how to open a file; how to facilitate the first procedural hearing, and resulting procedural order and timetable; the importance of ongoing communication with any supporting institution; and the need for constant monitoring of the deposit against the work the Tribunal has completed, and is yet to complete.
The following key lessons came out of the course:
- A Tribunal Secretary has great capacity to increase an arbitration’s efficiency, and to free the Tribunal to concentrate on its substantive task.
- A central tenet in the Tribunal Secretary role must be that she or he is not to be delegated any aspect of the Tribunal’s decision making role.
- There are certain safeguards that parties, institutions, and Tribunals can put in place to protect that central tenet, which include, amongst other things, more widespread use of Tribunal Secretary guidelines.
- Formal appointment of a Tribunal Secretary increases transparency. It may be naïve in some circumstances to think that Tribunals hearing complex disputes do not seek assistance from somewhere: the formal appointment of a Secretary makes the source of that assistance known.
The role of Tribunal Secretary receives less positive press than it perhaps should. Courses like this, and similar events, are important in starting an informed conversation about how we can better support our Tribunals. They also provide a valuable educational opportunity for young practitioners to thoroughly familiarise themselves with best practice arbitration procedure.
Author: Sam Kay, Ashurst (course participant)