Lawrence W. Newman
David Zaslowsky
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 any conflicts of interest that might have existed been explored. In another instance, a resume of a young lawyer reflected his participation in a long list of seemingly important arbitrations (described generically), far more than a person of his tender years could have been involved in. It developed that he had served as a law secretary to a well-known arbitrator with a practice of using secretaries as (paid or unpaid) apprentices.
Issues that arise from the use of law secretaries include: (i) whether they should be used at all, (ii) the duties they perform, (iii) the disclosure of their involvement and (iv) their compensation. An informal survey of prominent arbitrators conducted by the International Commercial Dispute Committee of the New York City Bar Association conducted in 2007-2008 showed great disparity in the practices of arbitrators regarding law secretaries. Swiss arbitrators tended to appoint law secretaries more often than did arbitrators of other nationalities.
While the consent of the parties was usually requested prior to the appointment of the law secretary, this was not a universal practice, nor was disclosure of the background of the secretary. The parties were often required to pay separately for the secretaries, over and above the compensation to the arbitrators and other related costs, and the duties of the law secretaries included not only those of an administrative nature but it was also found to be common for secretaries to draft certain portions of awards. Indeed, in some cases, law secretaries prepared a first draft of the award in its entirety.1
The shifting of a portion of the arbitrator's responsibilities to others has at least two logical effects: (i) the reduction of the workload of arbitrators, thereby permitting them to take on more cases and (ii) the opportunity for young lawyers to gain experience in international arbitration. The former effect may have underlain this observation in the bar association report: "There also appears to be a widespread perception among international arbitrators that duplicity exists between the public assertions that these arbitrators disapprove of heavy reliance on law secretaries and their private approbation of them." Id at 585-86
The ICC Note on Secretaries
The International Chamber of Commerce issued, on Aug. 1, 2012, a "Note" on the "appointment, duties and remuneration of administrative secretaries." The Note superseded an earlier note on the same subject from 1995 and applies with respect to any administrative secretary appointed on or after Aug. 1, 2012. Although, as the Note observes, the ICC Rules of Arbitration are silent as to the appointment, duties and remuneration of administrative secretaries, the Note has many of the characteristics of a mandatory regulation.
The Note states that it sets out the policy and practice of the ICC International Court of Arbitration and its Secretariat regarding the engagement of administrative secretaries by arbitral tribunals and requires that any arbitral tribunal proposing to appoint an administrative secretary provide the parties with a copy of the Note. Consequently, even though the ICC rules concerning the conduct of the arbitration proceedings do not deal with the issue of secretaries, tribunals operating under those rules are obliged to comply with the Note.
Regarding whether or not an administrative law secretary may be appointed, the Note provides that such a secretary "shall not be appointed if a party has raised an objection," thereby preventing a tribunal from imposing a secretary on the parties. Any tribunal proposing the appointment of an administrative secretary must submit to the parties the individual's curriculum vitae, together with a declaration of independence and impartiality and "an undertaking on the part of the Administrative Secretary to act in accordance with the Note and an undertaking on the part of the Arbitral Tribunal to ensure that this obligation on the part of the Administrative Secretary shall be met." Thus, the Note imposes an obligation both on the tribunal and the secretary to comply with the provisions of the Note regarding the permissible duties of an administrative secretary.
The JAMS Guidelines
In contrast, JAMS issued, effective May 5, 2012, "Guidelines for Use of Clerks in Arbitrations" which are considerably looser than the provisions of the ICC Note. Although the guidelines require that "arbitration clerks" complete a separate conflicts disclosure form on a JAMS form, this form, when filled out is not "made available" to the parties until "immediately following the engagement of a clerk in the case." It would thus appear that the parties are not given the same kind of peremptory right that the ICC affords, simply to object to the appointment of any clerk. Moreover, under the JAMS Guidelines, it appears that it will be incumbent on the parties to raise objections on the basis of conflicts of interest should they wish to take this initiative. Such an application will not, realistically, be often made by any party in the face of the arbitrators' expressed desire to have a particular individual as a clerk.
The JAMS Guidelines also require that the tribunal explicitly disclose the duties of the clerk—"the types of tasks assigned to the clerks, e.g., research and/or drafting." Apart from this disclosure requirement, the JAMS Guidelines impose no limits on the arbitrators' use of clerks for any purpose whatsoever relating to the arbitration.
In contrast, the ICC Note permits the secretary to perform "organizational and administrative tasks," and lists examples of such tasks, including communicating with the parties on behalf of the tribunal, organizing meetings, maintaining files, taking notes and minutes and proofreading and checking citations in procedural orders and awards. The Note goes on to say, "under no circumstances may the Arbitral Tribunal delegate decision-making functions to an Administrative Secretary."
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