Chapter 15 - Secretaries- Handbook on International Commercial Arbitration - Second Edition
The use by members of the tribunal of a secretary is now common and does much to promote the smooth and efficient functioning of the tribunal. Broad statements about the role of secretaries are relatively easy to frame but, at the margins, it becomes more difficult. For example, it is uncontroverted that a secretary should not be involved in the decision-making process; however, it is less clear is where that process begins and ends. Equally, it is uncontroverted that the secretary should undertake clerical tasks such as maintaining a master file or record; however, functions such as summarising the parties’ submissions or research are sometimes controversial. For these reasons, the tribunal should be at pains to ensure there is the highest degree of clarity of the role that the secretary will fulfill for the tribunal in order that the parties give an informed consent to the appointment and function of the secretary.
Institutional rules generally make no comment on the appointment of a secretary. Exceptions, however, appears to be Article 15(5) of the Swiss Rules and Article 13.4 HKIAC Rules both of which provide that “The arbitral tribunal may, after consulting with the parties, appoint a secretary.”
The ICC has issued a Note containing guidance on the appointment of secretaries. The Note provides that:
The duties of the administrative secretary must be strictly limited to administrative tasks . . . Such person must not influence in any manner whatsoever the decisions of the Arbitral Tribunal.
In particular, the administrative secretary must not assume the functions of an arbitrator, notably by becoming involved in the decision making process of the Tribunal or expressing opinions or conclusions with respect to the issues in dispute.
The UNCITRAL Rules are similarly silent but the UNCITRAL Notes on Organizing Arbitral Proceedings do have some very sound