Gordon Bell
Partner
Head of International Arbitration
Article
4
The London Court of International Arbitration (LCIA) has released updated Notes for Arbitrators which implement changes to clarify the role of tribunal secretary in LCIA arbitrations.
The LCIA comments that it is becoming increasingly common for arbitrators to use tribunal secretaries to manage their workloads and ensure that arbitrations are conducted in the most efficient and effective manner possible. The updated notes are designed to accommodate this preference whilst giving guidance on the LCIA's approach to the appropriate use of tribunal secretaries.
Under the revised LCIA notes:
These updated notes follow the case of P v Q and others in April this year, in which the claimant asked the High Court to remove arbitrators from an LCIA arbitration on the basis, amongst others, that they had improperly delegated the tribunal's decision making functions to a secretary. Although the High Court agreed with the finding of the LCIA Court that there had been no improper delegation, the High Court recognised the concerns of some members of the international arbitration community that the use of secretaries risks them becoming, in effect, 'fourth arbitrators'. It was, therefore, suggested that, going forward, arbitrators should take steps to circumscribe the secretary's role so that they are not involved "in anything which could be characterised as expressing a view on the substance of that which the tribunal is called upon to decide".
The revised notes clearly respond to the case of P v Q by setting out a procedure which ensures there is clear communication between the tribunal and parties on the role of the secretary and that the parties must consent in advance to the appointment and role (subject to an anti-frustration provision where consent may be deemed to have been given). The notes, quite rightly, make clear the tribunal must never delegate its decision making function.
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