Tribunal Secretaries in International Arbitration - Chapter 8 - Soft Law in International Arbitration - Second Edition
MARIKE PAULSSON is a Senior Advisor at ASG, where she draws on her extensive experience in public international law, international arbitration, human rights, and cross-border litigation to advise clients on resolution of investment and commercial disputes with states through global strategy and commercial diplomacy. A professor of international law, Ms. Paulsson is a leading expert on treaty compliance by states and the 1958 U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). She often briefs judges and policy makers around the world on the treaty through constructive dialogues.
Ms. Paulsson is the Vice President for North America of the Global Legal Institute for Peace and Conflict Resolution Centre of the University of São Paolo. She is also an appointed member of the Court of the Mauritius Arbitration and Mediation Centre, a member of the Judiciary Committee of the International Council for Commercial Arbitration, and a member of the jury for the Princess Sabeeqa Bint Ebrahim Al Khalifa Global Award for Women’s Empowerment, which is awarded by United Nations Women and Bahrain.
Earlier in her career, Ms. Paulsson served as Counsel at Hanotiau & van den Berg in Brussels and held Associate positions at Freshfields Bruckhaus Deringer and Allen & Overy in Amsterdam. Ms. Paulsson graduated from Leiden University School of Law, holds an L.L.M in International Law from the University of Miami School of Law, and has a diploma from Sciences Po, Paris, where she studied political science. She speaks five languages and is a member and past member of the Dutch, Bahraini, and Belgian bar associations.
Originally from Soft Law in International Arbitration, Second Edition
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Introduction
The Tribunal Secretary assists the arbitral tribunal. This would be the unadorned and accurate way to describe the Tribunal Secretary to the uninitiated outsider. Choices are made between calling this person an Administrative Secretary or the Secretary to the tribunal or the Tribunal Secretary. Dropping the qualifying “administrative” would allow for the Secretary’s mandate to go beyond the purely administrative. Perhaps the role of the Secretary is not as old and common as that of the arbitrator. Perhaps the creation of a secretary’s mandate was at its inception the result of an organic process. A professor or very experienced specialist, sitting at his (rarely her at the time) office at home might have found himself in need of help. For a time, however, and whilst the pool of international arbitrators was still a select group, nicknamed the Mafia or the Formula 1 arbitrators, arbitral secretaries were employed on a structural basis. The Secretary would be and often still is an associate working at the arbitrator’s firm, typically that of the presiding arbitrator. With the Americanization of international arbitration and the introduction of lengthy filings, exhibits and lengthy hearings, employing a Secretary has become indispensable. In today’s practice, the role of the Secretary is not purely administrative and that is where the shoe pinches: even if the users accept a secretary, what should the Secretary’s scope of work be? How to avoid caustic references to “the fourth arbitrator”?
In response, institutions and organizations developed soft law: guidelines, notes, rules, statements of best practices, model texts, etc. These will be discussed in this chapter. An overview of the soft law as it is available today may help secretaries, arbitral tribunals and other stakeholders overcome the objections to secretaries’ broader role that have been vocalized over the last several years. The various attempts to regulate arbitral procedures through soft law can lead to the harmonization of practices; at the same time, one must be careful not to overregulate the processes of international interpretation.
Soft law does provide for some legitimacy of the arbitral process that would hopefully boost transparency and lead to arbitration’s acceptance by users: after all, it is the parties in an arbitration that must accept the modern-day role of the Tribunal Secretary. What matters is what users want.
This chapter includes an analysis of this body of soft law: what are its common denominators? What are the hurdles that remain? How far are the institutions willing to go?
The chapter concludes with a set of recommendations and addresses some of the policy questions that remain.