Introduction

In the context of an arbitral reference, a Registrar can be said to be a person or institution that administers, facilitates or coordinates the conduct of the arbitral reference. It could also be the secretary of the arbitral tribunal.  A distinction must be drawn from a Registrar who administers the Arbitration as a representative of an arbitral tribunal. This paper considers the role of a Registrar acting as an assistant to the arbitral tribunal, also referred to as the Tribunal Secretary. The same issues would typically arise whilst considering the role of a registrar acting as an assistant to an arbitral tribunal, whether the proceeding is ad hoc, institutional, in public or private international arbitration or in specialised disputes as in maritime arbitration.

The appointment of secretaries, often younger practitioners, to assist the tribunal in complex international arbitration is indeed commonplace. A survey conducted as part of the 2012 International Council for Commercial Arbitration Congress in Singapore (‘2012 ICCA Survey’) – which surveyed 106 institutional representatives, arbitrators, counsel, lawyers who work as secretaries, and commercial users of the arbitral process – reports that 95 per cent of respondents approve of the use of tribunal secretaries.

There is now the prevalence of the use of tribunal Registrars within the international arbitration community, although there is a debate as to their proper role. Whilst it is generally accepted that tribunal secretaries may handle administrative tasks, such as coordinating logistics and secretarial services, the more contentious areas include research, attendance at deliberations and drafting procedural orders and portions of awards.

A typical illustration can be gleaned from the case of Sonatrach v Statoil [22014] EWHC 875 (Comm) (2 April 2014), paras 46-50. Algeria’s Sonatrach had applied to set aside an International Chamber of Commerce award worth US$536m in favour of Norwegian state oil company Statoil on the basis that the ICC tribunal had impermissibly allowed the secretary to participate in deliberations. However, the High Court of Justice of England and Wales ultimately dismissed Sonatrach’s application.

Rules Defining The Role Of Tribunal Registrars

The International Chamber of Commerce (ICC) based in Paris, France is a foremost institution in administering international commercial arbitrations. The ICC Arbitration Rules are silent on the duties of the tribunal secretary. The secretariat of the ICC however publishes ‘Notes on the Appointment, Duties and Remuneration of Administrative Secretaries’.Tthe latest, published in 2012, specifies the role of the tribunal Registrar to include basic responsibilities of transmitting communications on behalf of the tribunal, organising hearings  & meetings and maintaining the tribunal’s files. Permissible ‘organisational and administrative tasks’ as provided by this note include: attending deliberations, performing legal research, and proofreading procedural orders and awards.

The London Court of International Arbitration (LCIA) is another foremost international arbitration institution is the LCIA based in London, England. Its Rules are silent on the role of the tribunal secretary. A publication on LCIA’s website provides that the secretary must be agreed to by the parties, ‘subject to the usual conflicts check. Further, that the duties of the administrative secretary should not constitute any delegation of the Tribunal’s authority but allows ‘organising papers for the Tribunal, highlighting relevant legal authorities, maintaining factual chronologies, and keeping the Tribunal’s time sheets amongst other things.

The International Centre for Settlement of Investment Dispute (ICSID) is an independent international institution based in Washington, D.C., in the United States. The ICSID Arbitration Rules stipulates that Tribunal Secretaries are not expected to attend deliberations of the tribunal except with the consent of the tribunal. In Compañía de Aguas v Argentina ICSID Case No ARB/97/3 (Annulment Proceeding) Professor Jan Hendrik Dalhuisen gave a strong opinion that criticised the expanded role of tribunal secretaries in ICSID arbitrations. Professor Dalhuisen emphasised that the role of the secretary was one of ‘administration and support’ and that the secretary is ‘not the fourth member of ICSID Tribunals or ad hoc Committees.’ He maintained that the key facts and relevant arguments and how they should be presented in the final decision or award is for the Arbitrators or ad hoc Committee Members to select and decide.

United Nations Commission on Trade Law (UNCITRAL) in its 1996 ‘Notes on Organizing Arbitral Proceedings’ provides that to the extent the tasks of the secretary are purely organisational this is usually not controversial. Differences in views may arise if the tasks include legal research and other professional assistance to the arbitral tribunal (eg, collecting case law or published commentaries on legal issues defined by the arbitral tribunal, preparing summaries from case law and publications, and sometimes also preparing drafts of procedural decisions or drafts of certain parts of the award, in particular those concerning the facts of the case). It notes the importance of ensuring that the secretary does not perform any decision-making function of the arbitral tribunal.’

The America Arbitration Association (AAA) is a US-based arbitration institution that administers alternative dispute resolution proceedings through the International Centre for Dispute Resolution (ICDR). Its ‘Code of Ethics for Arbitrators in Commercial Disputes’ 2004 also envisions the appointment of a tribunal secretary by the arbitrator.

Cairo Regional Centre for International Commercial Arbitration (CRCICA) based in Cairo, Egypt is an internationally acclaimed dispute resolution organisation. The use of Tribunal secretaries has been recognised by the CRCICA Arbitration Rules but neither the Rules nor the CRCICA provides any guidance with respect to the roles he/she is to perform.

Judicial Arbitration and Mediation Services, Inc. (JAMS), based in the US is the largest private alternative dispute resolution provider in the world. JAMS ‘Guidelines for Use of Clerks and Tribunal Secretaries in Arbitrations’, provides for the use of Clerks or Secretaries which must be approved by the parties after disclosure. The arbitrator’s disclosure regarding the use of a Clerk or Secretary will state the types of tasks assigned to the Clerk or Secretary, e.g., research and/or drafting and that at no time can a Clerk or Secretary engage in deliberations or decision-making on behalf of an arbitrator.

The Hong Kong International Arbitration Centre (HKIAC) Guidelines allow a secretary to perform ‘organisational and administrative tasks’ such as transmitting documents and communications on behalf of the tribunal, organising and maintaining the tribunal’s files, and coordinating logistics for hearings and meetings. Also the secretary may research discrete questions relating to factual evidence and witness testimony, draft memoranda summarising the parties’ submissions and evidence, and prepare drafts of non-substantive parts of the tribunals’ orders, decisions and awards. It prohibits a tribunal from delegating any decision-making functions to a tribunal secretary, or relying on a tribunal secretary to perform any essential duties of the tribunal.

Arbitration Rules of the Arbitration Institute of the Finland Chamber of Commerce (FCC Institute) provides for the appointment of secretary under certain guidelines.

Similarly the Arbitration Rules of the Netherlands Arbitration Institute (NAI) allow for the appointment of a lawyer who is impartial and independent from the parties as the secretary of the tribunal although it does not define the role.

The Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce are silent on the appointment of a tribunal secretary. It however promulgated a revised ‘Arbitrator’s Guidelines’ which specifically allows a tribunal to appoint a secretary if the parties agree. The Guidelines do not explain the role of the secretary, but do address remuneration of the secretary.

The Swiss Rules of International Arbitration administered by the Swiss Chambers’ Arbitration Institution allow a tribunal to appoint a secretary after consulting with the parties.

The Arbitration Rules of the Nordic Arbitration Centre of the Iceland Chamber of Commerce expressly provide that a tribunal may appoint a secretary after consulting with the parties.

General Aspects Of The Role Of Tribunal Registrar

An Arbitral Tribunal must assign roles to its Registrar based on the specific rules governing that arbitral reference or the guidelines of the arbitral institution under whose auspices the arbitration is being conducted. Where on the other hand the rules are silent on the role of the Tribunal Registrar and there are no guidelines for such roles or where it is an ad hoc arbitration, the guidelines below should be considered whilst making appointment and assigning roles to Tribunal Registrars:

i. Organisational and Administrative Tasks:

The Tribunal Registrar’s role would include organisational and administrative tasks, including transmitting communications on behalf of the tribunal, organising and maintaining the tribunal’s files, and coordinating logistics and secretarial services. To be able to carry out this obligation properly, the Tribunal Registrar must be abreast with basic principles of arbitration. Thus, the Registrar should understand for instance whilst transmitting information to a party that the other party must be copied in that communication. Likewise any communication by a party to the Tribunal must be copied on the opposing party.

ii. Research:

Conducting research of factual and legal issues in the record are an ambit of responsibilities which a Tribunal Registrar may carry out provided it is with the detailed direction of a member of the tribunal. He/she must never research factual and legal issues outside the record. Instances of allowable research activities would include preparing sequential order of facts and recapitulating or emphasizing relevant legal authorities. Any research to be performed by the Registrar must be at the thorough guidance of a member of the tribunal. This is to ensure that the Registrar does not misrepresent key facts or law. It must be noted that the Registrar’s role remains secondary to the Tribunal’s duty to know the file. It must be stressed that the Registrar is not the fourth Arbitrator but an assistant.

iii. Attendance at deliberations:

If all members of the tribunal are in agreement the Tribunal Registrar may attend deliberations. It has been noted that it can be very useful and time and cost efficient for a Tribunal Secretary to attend deliberations, particularly if the secretary will prepare drafts of procedural orders. Also proponents of this view believe that it is in the tribunal’s interest to have quick and efficient access to relevant case files during deliberations, which can greatly be facilitated by the assistance of a secretary. This is usually not a contentious area in the role of Tribunal Registrars so long as it is premised on the consent of all members of the tribunal, because deliberations generally are secret to ensure the free and unhindered exchange of views. The Registrar’s presence must not impair the frankness of the discussions to the detriment of the decision- making process. Also in handling the case file it is has been noted that the Tribunal Registrar’s role in deliberations must be strictly limited to taking minutes and writing the tribunal’s reasoning and decisions. The Tribunal Registrar must not participate howsoever in the deliberations leading to the award.

iv.  Drafting of Procedural Orders:

The Tribunal Registrar may prepare draft procedural orders if the tribunal supplies thorough direction to the Registrar prior to drafting and the draft is properly examined by the Tribunal before the final draft is released as the tribunal is responsible for the contents of all procedural orders. Proponents of this role for the tribunal registrar reason that it is not time-efficient or cost-efficient (when the tribunal is paid based on an hourly rate) for the tribunal to draft every single word of every single procedural order. This also is relatively non-controversial. Although it has elsewhere been suggested that the Registrar may draft non-substantive portions of awards, it is here submitted that such responsibility should be left strictly to the arbitrator. Again it is stressed here that the Registrar is not to be seen as the 4th Arbitrator but an assistant.

Personal Qualities of the Tribunal Registrar

The personal qualities of the Tribunal Registrar would as of necessity include Impartiality and Independence. The Tribunal Registrar must identify impermissible conflicts of interest and provide the parties with a reasonable opportunity to object. He must disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. Further, the Tribunal Registrar once appointed remains under a continuing obligation to disclose any such circumstances. The fact that the Tribunal Registrar’s tasks may in many cases be menial and hence not much on the merits is irrelevant. The aim is to engender confidence in the entire arbitral process.

Importance Of The Role Of Tribunal Registrars 

The role of the Registrar is important in that it saves the parties a lot more money. It is not cost-efficient for the Tribunal to draft every single procedural order especially when the Tribunal is paid based on an hourly rate. The performance of administrative and organisational tasks by registrars before and during deliberations allows arbitrators focus on deliberating the merits and render awards faster. It is also time efficient for the secretary to research certain factual and legal issues in the record rather than the arbitrators spending hours wading through pools of documents, given the often voluminous documents involved in complex international arbitrations. The use of Tribunal Registrar also precludes the parties and their counsel from communicating directly with the Tribunal. Also for the young practitioner, acting as a Registrar in arbitral proceedings provides the required access for learning due to the private nature of proceedings; there is no better way for a young practitioner who has taken relevant courses in arbitration to learn the practical aspects other than by participating.

Conclusion

The role of the Tribunal Registrar in ensuring a hitch free arbitral proceeding cannot be overemphasized. Most arbitral institutions have rules and guidelines that specify the role of Tribunal Registrars in arbitration as have been identified above. Where the arbitration is ad hoc or where the arbitration institution do not provide any guideline, an arbitral tribunal handling complex proceedings would do well to appoint a registrar and assign them roles from the ones discussed herein, as may be best suited to ensure that proceedings are carried out in fair and justiciable manner. It is however fundamental that the tribunal secures the agreement of parties on the use of the registrar and the roles they are to perform in the arbitral reference.

Being an abridged version of a paper delivered recently in Lagos at a Workshop organised by the Maritime Arbitrators Association of Nigeria

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