The Fourth Arbitrator: Contrasting Guidelines on Use of Law Secretaries - Part 5, Chapter 47 - Practice of International Litigation - 2nd Edition
Lawrence W. Newman
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Lawrence W. Newman has been a Partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of four works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
Arbitration has long had a practice of arbitrators’ doing their own work. As a result, senior lawyers from large law firms have had to adjust to organizing their own files and conducting the kind of review of records and legal sources that, in their practice, they delegate to junior lawyers. But this is not the universally followed practice, particularly in continental Europe, where persons known as “law secretaries” are not infrequently used to assist arbitral tribunals. Recent guidelines issued by two institutions that administer arbitrations—the International Chamber of Commerce and JAMS—have dealt with the issues raised by the use of law secretaries, and do so in markedly different ways.
The most recent White & Case/Queen Mary College survey of arbitration users and practitioners confirms what was generally understood through anecdotal evidence: that law secretaries are fairly commonly used, especially in Continental Europe, where, according to the survey, they were used by 35 percent of the respondents, compared to much lower percentages in the United States and Asia. The law secretary is frequently a young lawyer who is retained by the tribunal, usually the chairman of a three-person panel, to assist in various ways in the conduct of an arbitration and the preparation of the award.
But there can be troubling consequences of the use of law secretaries. For example, one of us fell into a conversation at an arbitration conference with a young man who spoke knowledgably about a pending arbitration in which one of us was counsel. He indicated that he had been working with the chairman, unbeknownst to the parties. This individual’s identity, background and role had not been disclosed to the parties, nor had