This article is written by Priyanka Kumar. The article explains and elaborates on the concept and parameters of the practice of Tribunal secretaries in the Indian arbitration system upon study of it in the international arena. The author here has made an attempt to create an exhaustive literature about the subject, covering various controversies involved in and around the practice of Tribunal Secretaries and its way forward in the Indian arbitral system. 

Introduction 

The beauty of arbitration is that it is a modern method of dispute settlement that has the same effect as that of the traditional courts. The decision of an arbitrator, i.e., an arbitral award, ultimately comes out as a legal and binding one, which conveys the seriousness of the arbitral award. With changing times, there have emerged many new factors contributing to aiding the arbitrator/ arbitral tribunal in passing the awards, since despite not being actual courts, arbitral tribunals are performing the function of dispute resolution. These new factors have been introduced time and again so as to deal with the challenges faced, mostly in international arbitrations, such as handling hefty documents, communicating with parties situated in different locations, and providing one platform which acts as a neutral forum for parties of different nations. One such factor introduced to lessen the burden of the arbitral tribunal is of ‘tribunal secretaries’. 

When faced with arbitration, the tribunal experiences various challenges, including the emergence of multiple interim proceedings, applications seeking various technical authorisation and sanctions, introduction of multiple documents, submissions of counsels, etc. All these scenarios tend to escalate the work of the arbitral tribunal leading to more reading, organising and passing of several interim and procedural orders until the final award can be derived at. This additional work increases the likelihood of the arbitral tribunal in hiring administrative assistance, also known as, tribunal secretaries. 

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The concept of ‘tribunal secretaries’ primarily emerged in the practice of international arbitration as a means of providing administrative assistance to the tribunal. Taking a cue from the international practice, it is now also being adopted in domestic arbitrations, worldwide, including in India. Through this article, the author intends to comprehend the concept of ‘tribunal secretaries’ in international arbitration, its origin, practice and limitations. The author then narrows the practice of tribunal secretaries in light of Indian arbitration proceedings. By making a comparative study of different international arbitral institutional rules, the author formulates the conclusion on the way forward for tribunal secretaries in Indian arbitration. 

Meaning of tribunal secretary 

As compared to the traditional form of dispute resolution, arbitration proceedings are rather time-bound, and therefore, widely preferred in commercial disputes. More often than ever, it has also been seen that arbitration proceedings include bulky and heavy documents, including but not limited to lengthy contracts, correspondence, addendums, etc. It is for this reason that the concept of tribunal secretaries was coined so as to assist the arbitrator/ arbitral tribunal in better organisation and management of the arbitration proceedings. This nature of assistance provided by tribunal secretaries can be broadly termed as ‘administrative’. 

The term tribunal secretary does not find a fixed definition given anywhere, it is a creation of practice seen in international arbitration. Additionally, all arbitrations practised around the world, whether domestic or international, ad-hoc or institutional, abide by specific arbitration rules, whether institutional or national arbitration laws. It is as long as these rules provide for tribunal secretaries to assist the arbitral tribunal, that the practice of having tribunal secretaries in arbitration proceedings is supposed to prevail. 

Not to be confused with an “expert” in arbitration proceeding

When understanding who should be a tribunal secretary, it is important to not confuse the term with that of an “expert” in an arbitration. An expert is a person who is appointed, usually in special circumstances, to understand a concept or seek his/her opinion on a certain subject that the arbitrators are not well-versed with and which will, in turn, help them in the decision making. On the other hand, a tribunal secretary is a rather permanent part of the arbitration, who is appointed especially to assist the tribunal in its work, in everything except for decision making. A tribunal secretary cannot and should not give an opinion on a subject, whether related to the issue involved in arbitration or remotely close to it, whereas, an expert is called for sharing their expertise in a particular field. These two positions are to be understood in completely different scenarios which nowhere to be overlapped. 

Understanding a tribunal secretary

Role and functions of tribunal secretary 

It’s quite insufficient for one to describe the nature of a tribunal secretary’s work as ‘administrative’ and get an exact understanding about the role and duties of the tribunal secretary in an arbitration proceeding. In a nutshell, a tribunal secretary’s function is to help the arbitrator(s) organise and manage the case in a better manner by providing assistance in, including but not limited to, preparing the schedule of hearings, arranging and categorising documents, drafting the minutes of the hearings, corresponding with the parties about the hearings and changes, if any, researching on aspects entrusted by the arbitral tribunal, etc. A tribunal secretary is also referred to as an administrative secretary or an arbitral secretary or tribunal assistant in different jurisdictions. 

To begin with, the first report was created through comprehensive surveys conducted in the years 2012 and 2013 by the Young International Council for Commercial Arbitration (ICCA) which was then detailed in its commentary called the “Young ICCA Guide on Arbitral Secretaries” published in 2014 (hereinafter referred to as “the Report”). The members of the task force behind the preparation of this report comprised people who had played the role of tribunal secretaries or in some way assisted the tribunal from within an arbitral institution. The report took into consideration ad-hoc as well as institutional arbitrations from across various jurisdictions. From the said Report, the following points could be concluded about the general practice of tribunal secretaries in arbitration-

  1. That the tribunal secretary shall be appointed to assist the arbitral tribunal;
  2. That the tribunal secretary shall be appointed with the consent of the parties and with due notice to them;
  3. That the arbitral tribunal shall not delegate their personal mandate to the secretary and shall always supervise the work done by the secretary;
  4. That, in case the arbitration proceedings were governed by any institutional arbitration rules, the rules of such institutions pertaining to the tribunal secretary shall also apply. 

In addition to the above, the Report also laid down various roles that were being performed by tribunal secretaries across the globe, including but not limited to undertaking administrative matters, communicating with the institution and parties, organising meetings/ hearings with the parties, handling and organising correspondence and documents involved in the proceedings, researching, reviewing the documents, drafting procedural orders and some appropriate portions of the final award. To make it clear, the commentary also provided that these tasks were administrative in nature, but the arbitrator could go beyond these and entrust the secretary with additional tasks, provided the same are informed and consented to by the parties to the arbitration. 

Rules of various arbitral institutions

The Report merely provided a broad understanding of the role the tribunal secretaries were given in various arbitrations. However, since at the international level, the recent trends show the inclination of parties to assign the case facilitation to ADR institutions, the functions and role of a tribunal secretary can also be understood by reviewing the rules of some arbitral institutions, as under: 

  • Singapore International Arbitration Centre (SIAC) Rules:

The SIAC Practice Notes, PN- 01/15 of 2015 to the SIAC Rules, provide guidelines in case of appointment of “administrative secretaries” in SIAC arbitrations. It specifically lays down only three points, firstly that an administrative secretary shall be appointed only when the amount in dispute is more than Singapore $15,000,000.00; secondly, that such administrative secretary shall be appointed only with the consent of the parties; and thirdly, that the secretary shall have to make a disclosure in respect of independence, impartiality and confidentiality prior to the appointment. 

  • London Centre for International Arbitration (LCIA) Rules:

Article 14A of the LCIA Arbitration Rules, 2020 deals with the scope and ambit of tribunal secretaries in a LCIA-led arbitration. It permits the arbitral tribunal to seek assistance by appointment of a tribunal secretary in matters relating to arbitration, but at the same time clarifies that under no circumstances may an arbitral tribunal delegate its “decision-making” powers. Further, these rules also make it clear that all the functions carried out by a tribunal secretary shall be within the four corners of the LCIA Rules and under the supervision of the arbitral tribunal. 

In furtherance thereto, the LCIA Guidance Notes for Parties and Arbitrators lists down the various administrative tasks that a tribunal secretary can handle, including,  organising documents, summarising submissions, reviewing authorities, and preparing the first draft of awards/ sections thereto/ procedural orders. 

  • Hong Kong International Arbitration Centre (HKIAC) Rules:

The HKIAC Administered Arbitration Rules, 2013, released the Guidelines on the Use of a Secretary to the Arbitral Tribunal in 2014, laying the entire process, right from appointment to the duties, and remuneration of a tribunal secretary appointed in a HKIAC arbitration, along with a disclosure form. Under the HKIAC set up, a tribunal secretary is supposed to act under the strict supervision of the arbitral tribunal, and the tribunal itself is to be responsible for the acts of the tribunal secretary. It also lays down that none of the decision making tasks are to be carried out by the tribunal secretary and the secretary is strictly to stick to only organisational and administrative work. Most importantly, HKIAC is the only institution in the world which explicitly lays down that a tribunal secretary shall not be responsible for any acts or omissions relating to the arbitration except those which were done dishonestly, thereby protecting the tribunal secretaries appointed under its rules. 

Limitations of tribunal secretaries

As stated above, the role of tribunal secretaries is highly administrative, which means that as a tribunal secretary, one can provide administrative assistance to the tribunal but not to the extent that he/she ends up playing a role in the decision making. A tribunal secretary can go as far as organising documents, compiling them, preparing a compendium, summarising details of the documents and even listing them down for the tribunal’s review. However, the one limitation strictly applicable to the function of a tribunal secretary is that they cannot influence the decision making and/or prepare the substantive portion of an arbitral award. In some jurisdictions, a tribunal secretary can even draft the award, however, only at the instructions of the arbitral tribunal and to the extent that it does not showcase the application of mind by the secretary in the palace of the arbitrators. 

The justification for this kind of restriction on the tribunal secretaries is done because, the appointment of a tribunal secretary is strictly upon the consent of the parties, making it clear exactly the kind of role he/she will be playing in the proceedings, going beyond this would mean breaching the faith and consent of the parties. Over and above that, if the tribunal secretaries start to draft the substantive portion of the award, they will be acting beyond their powers and stepping in the shoes of the arbitrators, which is not the reason why they have been appointed in the proceedings.

It is also pertinent to note that all the work done by the tribunal secretaries is ultimately reviewed by the Arbitral Tribunal, pursuant to which only the work can bear the signature of the arbitrators and is delivered as an order/ award, final or interim or procedural. Needless to say, if a document prepared by a tribunal secretary proceeds as an order/ award, without the final sanction of the arbitrators, then it does not pass for a document prepared or authenticated by the Arbitral Tribunal. The essence here is that every order or award in the arbitration proceedings needs to show that the mind applied in it was that of the arbitrators and not anyone else’s, for the parties have assigned the task of decision making to the arbitrators.  

Process of appointment of tribunal secretary

arbitration

The process of appointment of a tribunal secretary can become as important as the appointment of the arbitral tribunal itself, as the assistance of the tribunal secretary can become important in shaping the final result of the arbitration. As seen above, along with organisational functions, a tribunal secretary can also be entrusted with drafting of procedural rules and conducting research, as instructed by the arbitral tribunal. This way, despite not expressly being a part of the arbitral tribunal, a tribunal secretary does form part of the team, to the extent of its small contribution and assistance. 

There is no uniform process for the appointment of a tribunal secretary, whether in institutional or ad-hoc arbitrations. The only uniformity in the appointment process is the unanimous approval of both parties involved. Thus, even though a tribunal secretary may be appointed for the assistance of the arbitral tribunal, in the absence of parties’ approvals he/she cannot hold the position. In the absence of uniform rules, the rules and practice notes provided under various arbitral institutions provide help in understanding the process of appointment of a tribunal secretary in an arbitration. 

  • As per the LCIA Rules and the LCIA Guidance Notes for Parties and Arbitrators, the arbitral tribunal may seek the assistance of a tribunal secretary subject to the approval of the parties to the arbitration. In order to give approval, the Parties must have known and agreed to the tasks decided to be carried out by the tribunal secretary, payment of the hourly rates and reimbursement costs, and a declaration as to the impartiality and inefficiency of the person being proposed for the post. The arbitral tribunal is also required to send a Curriculum Vitae of the proposed tribunal secretary to the parties. Beyond these, if any other task is to be entrusted to the tribunal secretary, the same needs the approval of the parties first. 
  • In a similar manner, the Young ICCA Guidelines provide for the nomination of the candidate for tribunal secretary to be made by the arbitral tribunal, at their discretion, by disclosing the educational background of the candidate, and the appointment to be made, pursuant to the approval of the parties. 

Controversies pertaining to tribunal secretaries and how they have been dealt with 

This is one of those rare concepts in the field of international arbitration that has started with a controversy and has never, till date, been able to establish a firm ground. Nonetheless, the practice of tribunal secretaries in arbitration is a much sought-after one. In ad-hoc arbitrations, the parties and arbitrators are free to set the functions of a tribunal secretary, so long as they are in consonance with the local arbitration laws. The problem arises when disputes are to be governed by arbitral institutions and their rules. However, there have been instances to show that in both, ad-hoc as well as institutional arbitrations, parties have not shied away from challenging the arbitral award in view of the involvement of tribunal secretaries. The blur boundaries of tribunal secretaries in arbitration have led to rising concerns. 

In light of this, in this section of the article, the author intends to explore the controversies pertaining to tribunal secretaries and explore some cases whereby the topic of tribunal secretaries has been discussed. 

Tribunal secretary acts as the “fourth arbitrator” 

There is a very thin line between appropriate delegation and excessive delegation. When a tribunal secretary is directed to draft the award, a part of it or be actively involved in the deliberations and decision making of the tribunal, so much that the substantive portion of the award is to be commented on by the tribunal secretary, appropriate delegation turns into excessive delegation, and the tribunal secretary becomes the “fourth arbitrator”. Basically, when adjudicative functions exceed to become administrative functions, the likelihood of challenging the role of tribunal secretary in arbitration increases. The point of controversy naturally then becomes the lack of exercise of the functions of the arbitrators, for which they were appointed and the excess exercise of the functions of the tribunal secretary, to which they were not assigned. 

The controversy of the tribunal secretary acting as the “fourth arbitrator” began in the year 1990, when the arbitration proceedings of Campagine Honeywell Bull SA vs. Computation Bull de Venexuela CA (1990), came to be challenged in an appeal before the Paris Court of Appeal (PCA). Honeywell raised an objection that the tribunal secretary had interfered with the two-day hearing of the case. However, despite the claims, the Paris Court of Appeal refused to entertain the claim since Campagine had failed to fully prove the involvement of the secretary. 

Again, in the case of Sonatrach vs. Statoil (2014), an ICC arbitration, the notes shared by the tribunal secretary became an issue indicating the involvement of the tribunal secretary in the making of the award. In this case, the parties to the arbitration proceedings had agreed to the scope of work of the tribunal secretary. Sonatrach raised an objection that the tribunal secretary had exceeded her agreed scope of work by producing three notes for the arbitral tribunal, which were on substantive matters. When asked, the arbitral tribunal refused to produce the three notes to Sonatrach on the ground that to do so would amount to a violation of the secrecy of the tribunal’s deliberations in passing the award. This aggravated to the claim of Sonatrach that the tribunal secretary had actively participated in the tribunal’s deliberations and thus, exceeded her agreed remit. The Ld. Judge, ultimately, dismissed the claim on the ground that the arbitral tribunal had merely made the notes of the secretary a part of the deliberations and nothing beyond. 

After the allegation of ‘excessive delegation’ to the tribunal secretary was rejected in the above cases, the case of Yukos Universal vs. Russia (2011), took its course wherein the same challenge was highlighted in much heavier light. In this case, the allegations made by Russia were that –

  • Arbitrators had delegated their mandate and their adjudicative functions to the ‘assistant to the Tribunal’ instead of performing it themselves;
  • The assistant had unreasonable billing hours, which could only suggest that he had been a part of the substantive work and deliberations;
  • The assistant was brought on board by the Chairman of the Permanent Court of Arbitration (PCA) without the permission of Russia. 

While the District Court of Hague agreed to the challenge of Russia and set aside the award, the Court of Appeal turned around the order and mainly held that the act of the arbitral tribunal failing to inform the nature and extent of work of the assistant to the tribunal, did not amount to a major procedural violation. 

Appointed by Arbitrator but requires consent of parties of arbitration

Tribunal secretaries have emerged as a matter of providing administrative assistance to the arbitral tribunal and the appointment cannot go through without the consent of the parties. The primary reason for this is that the pay of the tribunal secretaries is finally to be made by the parties. But, going by this logic, the tribunal secretaries are then supposed to be rather loyal and answerable to the parties over the arbitrators. So also, the demarcation of right and wrong in a tribunal secretary’s conduct is to be administered by the parties instead of the institutions. In the event, that one of the arbitrators nominates a candidate for tribunal secretary, even though the other arbitrators consent to it, the parties may object to a lack of siding with one arbitrator. 

In practice, as seen above, in the case of Yukos vs. Russia, one of the grounds for Russia to challenge the arbitral award was that the Chairman of PCA had appointed the secretary without the consent of Russia. Not only was the practice not stopped at the relevant stage, but even the Court of Appeal refused to take Russia’s objection seriously, making it unclear whether the consent of parties is actually essential or not. 

Why is a tribunal secretary needed for administrative work in the presence of the case being managed by an arbitral institution? 

The ongoing trends give an understanding that the concept of tribunal secretary is broadly being used in arbitrations involving arbitral institutions. Tracing back to the usefulness of arbitral institutions, one can remember that arbitral institutions were formed in order to administer and facilitate the proceedings referred to under the rules of such institutions. The task of these institutions, even today, is to take care of the organisation, facilitation, and communications involved in the proceedings. How then can one justify the appointment of another team member in the form of a secretary to the tribunal to be brought on board for the same purpose? What is then the purpose of the arbitral institution if its job is being assigned to the secretary? It wouldn’t be wrong to argue that this practice is an additional financial burden on the parties to the proceedings who have to bear the expenses of the tribunal secretary, despite having agreed to assign the same tasks to the arbitral institution. 

When tribunal secretaries are appointed in institutional arbitration proceedings, it leaves a room for discussion as to who actually manages the day-to-day affairs of the proceedings and therefore, who should take the responsibility for the overall facilitation and management of the case. Along with laying a clear demarcation of a tribunal secretary’s powers as against that of the arbitrators, it has also become notably essential to carve out the distinction between the role of a tribunal secretary as against the arbitral institutions. 

Appointed by Arbitrator, but functions as per institutional rules

Another area of ambiguity becomes the appointment of a tribunal secretary, at the behest of and for the assistance of the arbitral tribunal, however, by following the appointment procedure as that of the institution facilitating the arbitration. It is quite reasonably understood now that the various institutional rules provide for the powers, rules and functions of the tribunal secretary. It is also quite clear that the appointment of a secretary can happen only and only with the consent of the parties to the proceedings. Therefore, one can conclude that for the appointment of a tribunal secretary there must be:

  1. A demand for assistance raised by the arbitral tribunal;
  2. Consent of the parties to the proceedings;
  3. Adherence to the institution’s rules for appointment and code of conduct. 

In other words, for example, if in an institutional arbitration, say in a LCIA-managed arbitration, a three member arbitral tribunal desires to appoint a tribunal secretary for administrative assistance to them, the secretary’s scope of work will have to be defined by the arbitral tribunal which will have to be forwarded to the parties for their respective consents, and once agreed by the parties, the same will have to be communicated to the LCIA. The LCIA will then, by following the provision of Article 14A of the LCIA Arbitration Rules, 2020, appoint the prospective tribunal secretary. Evidently, appointment of a tribunal secretary requires the involvement of all three parties, whereas its functions remain to be limited to assisting the arbitral tribunal only. To further add to this, a tribunal secretary works on the basis of the instructions given by the arbitral tribunal, however, the secretary’s functions are always required to be in accordance with the institutional rules, while at the same time, the remuneration/ reimbursements of the tribunal secretary are paid by the parties.  

More than a controversy, this appears to be an aspect likely to cause confusion with respect to the party/ authority that will ultimately accept responsibility for the actions of the tribunal secretary. Till date, this confusion remains to be unspoken of. 

Blooming practice with a lack of uniform framework 

It is no surprise that the practice of tribunal secretaries is growing by the day and yet, there is no universal statute/ statutory provision enacted to comprehend the concept of tribunal secretaries in arbitrations. Nevertheless, the lack of judicial enactments has not discouraged the practice worldwide. 

The point of controversy then becomes that in the light of the growing practice and absence of judicial enactments, the lacuna will always remain leading to more arbitral awards being challenged. Arbitration being a product of party autonomy and party consent, it, as it is, opens doors for challenge on multiple grounds; to top that, the position of tribunal secretaries will now be under the radar. So also, with there being no uniform framework, the practice of international arbitration may suffer for, one jurisdiction may be well ahead on the concept while the other may be completely behind. 

To give it another perspective, youngsters who may want to associate with any arbitration proceedings may also want to become tribunal secretaries, however, the void created with this lack of interpretation may instil an uncertainty in their minds. The Hong Kong International Arbitration Centre (HKIAC) has been organising tribunal secretary training programs, providing training to youngsters and gearing them up for the role of tribunal secretary. However, in the absence of a concrete law on the subject, one may otherwise be certain in stating that such training is in line with the law. 

Be that as it may, the concept of ‘‘tribunal secretaries” has mainly arisen from the term “administrative assistance”, which is a universally accepted provision in all arbitration laws. It is for this reason that the practice of tribunal secretaries is still on and blooming. 

Indian perspective – practice and interpretation of tribunal secretary

Provisions pertaining to tribunal secretaries under the Arbitration and Conciliation Act, 1996 (“the 1996 Act”)

It’s true that the concept of tribunal secretary is fairly new to the Indian arbitration set-up, nevertheless, it has always been a part of the 1996 Act. There is no provision in the entire 1996 Act which clearly spells out the words “tribunal secretary” and provides for its roles and duties’ but the work of a tribunal secretary being ‘administrative’ in nature, the relevant provision with respect to tribunal secretary can be found under Section 6 of the Arbitration and Conciliation Act, 1996, which provides as follows:

“In order to facilitate the conduct of the arbitral proceedings, the parties, or the arbitral tribunal with the consent of the parties, may arrange for administrative assistance by a suitable institution or person.”

Once again, the concept of administrative assistance can also be spotted under Section 68 of the 1996 Act, which provides the arrangement of administrative assistance by a suitable institution or person in order to facilitate the conduct of conciliation proceedings. 

As per the above stated provision, the arbitral tribunal is allowed to arrange for administrative assistance, with the consent of the parties involved in the arbitration proceedings, which can be a suitable institution or a person. The important aspect to notice here is the specification of a “suitable person” in the provision. It is on this basis that the niche of tribunal secretary has been carved in the Indian arbitration landscape. 

Development so far

Even though the indirect provision for the appointment of tribunal secretaries exists under the Indian law, it has barely seen the light of practical usage. We find the concept of tribunal secretary being a part of the older precedents more than of the newer ones, even though its existence was created via the 1996 Act. Moreover, considering the number of arbitral institutions that function in the country as on date, it is highly unimpressive to see that the rules of all of them remain silent on the role of tribunal secretary in arbitration proceedings. 

Case laws 

When it comes to tracing case laws and precedents on the concept of tribunal secretary in India, there are very few precedents set to comment on and elaborate on the role of these tribunal secretaries in Indian arbitration. 

Tracing it as far as 1902, in the case of Buta v. Municipal Committee of Lahore, (1902), disputes arose between the parties pertaining to a construction contract. The disputes were related to the measurements of the work done and the rate to be paid for the corresponding work done thereby. The arbitrator had assigned the work of taking some measurements to his son. The Privy Council in this case held that an arbitrator may delegate acts of ministerial character to a third person, and for this reason, the award was not set aside. Following this judgement, in the case of National Electric Supply v. State of Punjab (1962), the arbitrator had taken the assistance of a third party, by the name of Mr. S. L. Jain, for making some calculations which in turn helped him pass the award. The award was thereafter challenged on the ground that this act of the arbitrator amounted to excessive delegation. However, it was held once again that since the assistance was no more than that of ‘ministerial character’, meaning of clerical nature, it did not amount to ‘excessive delegation’ and the arbitrator was allowed in doing that. 

Taking a different view than above, in 1931, in the case of Ram Chandra Brij Lal vs Manohar Das Ram Prasad (1931), a contrary view was opined by the Allahabad High Court. In the said case, the parties were members of a body called “Cawnpore Kapra Committee” and they signed an admission form stating that they would abide by the rules of the said Committee and in case of any disputes, the same would be referred to the Committee for settlement. Disputes arose between the parties with respect to the dealings, which fell under the purview of the Committee’s adjudication. The Committee then appointed three arbitrators to decide the dispute. On the final award, one of the three arbitrators, who signed the award, gave the decision against Manohar Das Ram Prasad. The point of challenge then arose for the Defendant that the issue was never referred for adjudication by three arbitrators, and instead the same should have been decided by the Kapra Committee. It was argued by the Defendant that the Committee did not have any authority to delegate its power of deciding on an issue to an arbitral tribunal. Finally, the sum and substance of the argument of the Defendant was that in the absence of an express authority, the Kapra Committee had no power to leave matters to be decided by its members. In this case, the Allahabad High Court held that even though the delegation of ministerial acts could be made by an arbitrator, the same could be done only with express authority. In the absence of an express authority, the arbitrator is required to exercise his own independent judgement on the dispute. 

Apart from the case laws discussed above, there could be a few more that one may find, again, where the role of tribunal secretaries is vaguely commented about, in the guise of administrative help, or assistance to the tribunal. 

Conclusion

It is well understood that the concept of tribunal secretary is a creation of practice more than of judicial framework. There remains no definite scope and/or uniformity in the role and appointment of the tribunal secretary in arbitration. Its scope and ambit can only be understood upon making a comparative study of the rules of various jurisdictions and arbitral institutions in different parts of the world. More particularly, the regulations with respect to tribunal secretaries in arbitration have their place in the rules of many arbitration institutions instead of any country’s domestic or international regime. Accordingly, it would not be wrong to infer that the concept of tribunal secretary in international arbitration is still gaining familiarity. Nevertheless, the practice of tribunal secretaries in arbitration proceedings has enlarged so much that it cannot be overlooked. 

Today, when one looks at the practice of arbitration, the trends always start from the international arena and infuse into the domestic one. The practice of emergency arbitrator, third-party funding, anti-arbitration injunction, etc. are all concepts that originated in international arbitration and eventually moved into the Indian arbitration setup too. Suffice it to say that it is almost inevitable to separate the domestic arbitration practice from the international one. Be that as it may, the Indian Arbitration and Conciliation Act, 1996 does contain the provision with respect to tribunal secretaries, under the head of “administrative assistance”, it is only yet to be deliberated over. Even though several institutions and precedents have interpreted the concept of the tribunal secretary, in the light of every interpretation setting its own standards and boundaries, India holds a rather upper hand in giving its own parameters at this moment. 

Indian arbitration is still running behind when it comes to keeping pace with international developments. Adopting the concept of tribunal secretary strongly before most countries could mean making Indian arbitration fairly talked about. And while we are at it, to ease the process, baby steps can be taken, starting with acknowledging the inclusion of the term tribunal secretary under Sections 6 and 68 of the Indian Arbitration and Conciliation Act 1996 and thereafter accepting its practice and giving a green light to the arbitral institutions to actively adopt some rules pertaining to the practice. 

It can also be stated that in the absence of appropriate judicial interpretation, there will be one more page left to be turned for India because no sooner than later is “tribunal secretary” going to become the talking point in the Indian arbitration arena. It is very easy to suggest the introduction of a legislative framework for every upcoming concept in arbitration, however, what needs to be assessed is whether the tribunal secretary, as a concept, is as big as suggesting its inclusion in our legislature, i.e., the 1996 Act, by way of an amendment. 

As per the 2012 International Arbitration Survey, conducted by Queen Mary University, tribunal secretaries are appointed in 35% of the cases. Considering the need of the hour, an alternative suggestion comes to light which is to have practice notes published alongside the 1996 Act in order to set forth clarifications on the newer concepts arising in the arbitration world. To do this would only show how Indian arbitration is keeping pace with the international developments and accepting newer concepts like tribunal secretaries and at the same time it would also make available to the practitioners, a handbook to refer to when in need is aware of the developments with respect to the practice of tribunal secretaries.

Frequently Asked Questions (FAQs)

Can anyone become a tribunal secretary?

Ideally, the role of a tribunal secretary is assigned by the arbitral tribunal and approved by the parties to the arbitration. So, for now, with the information and developments available on the subject it can be said that anyone can become a tribunal secretary; however, some jurisdictions accept only lawyers/ law students/ persons with legal background to act as a tribunal secretary.

Is a tribunal secretary different from having an expert?

Yes, a tribunal secretary is appointed to assist the arbitral tribunal in administrative work only, whereas, an expert is appointed to give his/her viewpoint on a specific topic or subject which could be helpful to finalise the award. 

Is there any training required to act as tribunal secretary?

In the absence of it being definite as to ‘who’ exactly can act as a tribunal secretary, it can be said that no training is compulsory to become a tribunal secretary. However, the Hong Kong International Arbitration Centre (HKIAC) and the Mumbai Centre for International Arbitration (MCIA) do have training programs for tribunal secretaries, and upon clearing those, one gets selected for the respective panels. 

Why should one become a tribunal secretary?

Acting as a tribunal secretary is a roadway to becoming a good arbitrator. Since the tribunal secretary gets to spend so much time working with the arbitrators, they tend to learn the manner of conducting an arbitration, from the arbitrator’s perspective. So if someone desires to become an arbitrator, working as a tribunal secretary is a very good head start. 

References

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