The role of the Secretary in international arbitration – practical aspects and everything that you were afraid to ask

Spring meeting of the series “Young Arbitration Says …” on March 6, 2018 under the slogan: “The role of the Secretary in international arbitration – practical aspects and everything that you were afraid to ask”

On Tuesday, March 6, 2018 at the Linklaters office in Warsaw, another spring meeting took place in the cycle “Young Arbitration says …”, this time under the slogan “Role of the Secretary in international arbitration – practical aspects and everything that you were afraid to ask” Discussion hosted Natalia Mikołajczyk, Associate at Linklaters (CV). The discussion was moderated by Anna Tujakowska, Senior Associate at the law office of Sołtysiński Kawecki & Szlęzak (CV) and Alicja Zielińska-Eisen, Managing Associate at the law firm Linklaters (CV).

We started the meeting by discussing the matter of repealing the judgment in the Yukos vs Russia case, in particular Russia’s allegations regarding the participation of the secretaries of the tribunal when writing the verdict. This allegation was mainly based on a comparison of the number of hours spent by the secretary and members of the tribunal to work on the verdict. As it turned out, the disproportion was significant (the secretary spent significantly more hours working on the sentence than members of the tribunal). Russia questioned, inter alia, the validity of the verdict on this basis, due to the fact that the arbitrators, appointed by the parties, had a mandate to resolve the dispute, not a secretary. The verdict, though, has been repealed, but for a different reason than the significant disproportion of time that the secretary devoted to the preparation of the verdict. As far as Poland is concerned, to this day the influence of the role of the secretary on the possible possibility of effective repeal of the arbitration award has not yet been examined by the court.

Another point of our meeting was the exchange of opinions on the tasks performed by court secretaries, both in commercial and investment arbitrations and on the practical implications of the ICCA guidelines for secretaries of arbitration tribunals (the guidelines have been translated into Polish and are available on the ICCA website). We talked about the influence of the secretary on the content of the judgment itself and where is the border of the secretary’s function, for example if the support of the members of the tribunal in conducting legal analysis is already a transgression of its role or not? The manner in which the secretary approaches the legal analysis of a given issue may, after all, have a bearing on how the composition will be judged. We also wondered if the participation of the secretary in the conference of arbitrators should be allowed or not?

Discussion ended with comparative considerations regarding the role of the secretary depending on the jurisdiction. For example, in Singapore the role of the secretary boils down to a purely administrative role and can not play any role in the process of writing a sentence. In Germany, the secretary prepares a draft ruling and its justification.