Originally from Soft Law in International Arbitration, Second Edition

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Foreword by Guillermo Aguilar-Alvarez

[...]  The Guide reflects the careful effort of young practitioners to codify existing best practices. Supported by two surveys conducted by the Young ICCA Task Force in 2012 and 2013, the Guide and its Commentary also neatly display areas of consensus and controversy.

As it should, the Guide focuses on transparency, party consent and cost efficiency. There is no controversy that a properly appointed, supervised and diligent arbitral secretary will contribute to keeping the arbitral proceedings organized and on schedule. It is also true that cost savings achieved through appropriate use of an independent arbitral secretary are beneficial to the parties.

Unsurprisingly, the major area of disagreement lies in the nature of the tasks properly assigned to arbitral secretaries. Largely based on the results of surveys performed in 2012 and 2013, Article 3 of the Guide provides that “with appropriate direction and supervision” by the arbitrators, the role of an administrative secretary “may legitimately go beyond the purely administrative”. Paragraph 2 of Article 3 then proceeds to list the kinds of activities that an arbitral secretary may perform. The list travels the spectrum, from purely “administrative matters” to “drafting appropriate parts of the award”. Predictably, the most controverted duties are factual research1 (Article 3(2)(f)); “reviewing the parties’ submissions and evidence, and drafting factual chronologies and memoranda summarizing the parties’ submissions and evidence”2 (Article 3(2)(h)); and “drafting appropriate parts of the award” (Article 3(2)(j)). The Commentary, however, immediately provides useful clarification: the arbitrator should not rely solely on the secretary’s factual research (Commentary to Article 3(2)(f)) and the tribunal should of course not relinquish review of the parties’ pleadings and evidence (Commentary to Article 3(2)(h)). As to awards, although the Guide does not expressly embrace restraint, caution militates in favor of interpreting the Commentary to Article 3(2)(j) to limit the secretary’s role to preparing a first draft of the award’s procedural/factual background and description of the parties’ positions. So applied, the Guide’s Commentary may contribute to realizing the benefits of meaningful administrative support without compromising the integrity of the arbitral function.

As with other examples of soft law, a debate will no doubt emerge as to the vitality of the Young ICCA Guide on Arbitral Secretaries where the arbitration is governed by institutional rules and practice. Publication of the Guide should nonetheless be applauded for one additional important reason. Young ICCA’s association with this project underscores the need to recognize the importance of secretarial appointments as an invaluable training tool. Like judicial clerkships, secretarial appointments provide young lawyers with a unique opportunity to discern where advocacy meets persuasion.