THE USE OF TRIBUNAL SECRETARY IN INTERNATIONAL ARBITRATION : IS PARTICIPATION IN LEGAL REASONING AND WRITING OF AN AWARD JUSTIFIABLE GROUND FOR CHALLENGE?

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THE USE OF TRIBUNAL SECRETARY IN

INTERNATIONAL ARBITRATION: IS

PARTICIPATION IN LEGAL REASONING AND

WRITING OF AN AWARD JUSTIFIABLE

GROUND FOR CHALLENGE?

Dano Brossmann

University of Amsterdam

LLM Thesis

Supervised by Mr. Onno Hennis

2017/2018

Submitted on: 25 July 2018

ABSTRACT

The purpose of this paper is two-fold. Part I aims to elaborate the current status quo surrounding the role of tribunal secretaries in international arbitration in conjunction with the roles of law clerks in domestic courts and assess whether there exists a red-line surrounding accepted tasks of arbitral tribunal secretaries beyond which no tribunal shall go. Part II aims to define the legal categories under which annulment of

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an award may be sought on the basis of secretary's extensive involvement in the arbitral process both before the ICSID Annulment committee and before domestic courts. The methodology is explained in the introductory part to each section.

STATEMENT OF ORIGINALITY

This document is written by Student Dano Brossmann who declares to take full responsibility for the contents of this document.

I declare that the text and the work presented in this document are original and that no sources other than those mentioned in the text and its references have been used in creating it.

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INTRODUCTION

The ability to select arbitrators, the individuals who are empowered to render a binding decision between parties is traditionally listed among the main advantages of international arbitration.1_{Contrary to national courts, where the selection of judges is} outside of the parties' power, in international arbitration, party autonomy to appoint arbitrators ensures both trust2_{and expertise.}3

As a rule of thumb, most arbitral rules prescribe one or three arbitrators.4_In exceptional situations five or more arbitrators may be appointed.5_{According to a} survey conducted by the Queen Mary University in London (QMUL), in which 710 counsels, arbitrators, academics and practitioners were approached, 35% of arbitral tribunals across all fields of arbitration use secretaries who are sometimes referred to as assistants.6_{In addition, 95% of leading experts in the field approve their use,} according to a research conducted by the Young International Council for Commercial Arbitration (Young ICCA).7_{The main advantage of having a secretary} on the tribunal is time efficiency and arguably cost efficiency.8_{On the other hand, if} secretaries are used extensively, chances are that he or she will become a fourth arbitrator not intended to be not chosen by the parties.9

1Charles L. Barnheimer, 'The Advantages of Arbitration Procedure' (1926) 124 The Annals of American Academy of Political and Social Science, p. 99

2 Queen Mary University International Arbitration Survey (2012), p. 5. [hereinafter: QMUL Survey

2012]; Steven Finizio and Claudio Salas, "WilmerHale Expert View: It's My Party Conference

Preview' (2012) Commercial Dispute Resolution, pp. 28-29 3 QMUL Survey 2012, p.5

4 ICSID Convention (Article 37); UNCITRAL Model Law (Article 10); ICC Arbitration Rules (Article 12); Arbitration Rules of the Stockholm Chamber of Commerce (Article 16) [hereinafter: SCC

Arbitration Rules]

5 PCA Arbitration Rules (2012) Introduction (iii.c); South China Sea Arbitration, Philippines v China, Award, PCA Case No 2013-19, ICGJ 495 (PCA 2016), 12th July 2016, Permanent Court of Arbitration [PCA]; ILC Model Rules on Arbitral Procedure, article 3(3)

6 “The secretary to the arbitral tribunal: the fourth arbitrator?” (3 November 2016) The Danish

Institute of Arbitration, accessed on 23 April 2018

https://voldgiftsinstituttet.dk/en/the-secretary-to-the-arbitral-tribunal-the-fourth-arbitrator/

7 Young ICCA Guide on Arbitral Secretaries, International Council for Commercial Arbitration,

2014, Reports No. 1, p. 2 [hereinafter Young ICCA Guide] 8 Young ICCA Guide, p. 13

9 Constantine Partasides QC, 'The Fourth Arbitrator? The Role of Secretaries to Tribunals in International Arbitration' (2002), 18 International Arbitration, pp. 147-164 [hereinafter Partasides,

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In recent years, a number of situations have arisen before domestic courts in which the unsuccessful party sought annulment of arbitral award.10_{For instance in the case} of P v. Q and others, the claimant sought removal of two co-arbitrators by the English High Court in a LCIA arbitration, arguendo that the arbitrators failed to properly conduct their roles by delegating duties to a secretary.11_{On equally interesting} grounds, in the Yukos v. Russia PCA arbitration, the Respondent brought a claim to the Hague District Court seeking annulment by contending that a tribunal-appointed secretary had overstepped his roles. The litigation by Russia's counsel Professor Jan van den Berg revealed that the secretary Mr. Martin Valasek had been involved in award drafting and had spent an excessive amount of hours on the case.12_The underlying argument in these cases is that the secretary had practically become the fourth arbitrator, although he, or she was not given the mandate by either of the sides. If such situation arises, the opposing party as a rule of thumb tries to either replace the delinquent arbitrator or set aside the award, in case the facts become known only after the award's issuance.

The underlying problem related to the two mentioned cases is that the judges in domestic courts did either not address those claims regarding the role of secretaries or limited their reasoning only to a basic conclusion. Thus, one can say that these two recent decisions have not significantly contributed to clarify the problem. As a result, the exact sources of law on the role of tribunal secretary and the delimitation of secretary’s tasks remain to be disputed.

Contentious nature of this topic is moreover demonstrated by the fact that the issue of arbitral secretary founds its way into the 2018 Philip C. Jessup Moot Court problem. Mr. Orvindari was a tribunal assistant appointed by the arbitrators without disclosure to the State parties. After the award's issuance, information appeared in a report by one NGO that he had spent ten times more hours on the case than the three arbitrators 10 Total Support Management (Pty) Ltd and Another v Diversified Health Systems (South Africa) (Pty)

Ltd and Another (457/2000) [2002] ZASCA 14, South African Supreme Court (25 March 2002) [hereinafter Total v Diversified Health Systems]; The Russian Federation v. Veteran Petroleum Limited C/09/477160 / HA ZA 15-1, The Hague District Court (20 April 2016) [hereinafter The Yukos case, Hague DC judgment]; P v Q and others, Case No: CL-2016-617 English High Court (2017) [hereinafter P v Q and others]; Sacheri v Robotto, Corte di Cassazione XVI YBCA 156, Italian

Supreme Court (1991) [hereinafter Sacheri v Robotto] 11 P v. Q and others, para. 20

12 "On writs filed by the Russian Federation seeking to annul the awards issued by an international arbitral tribunal.” Press Release, 6 February 2015, Ministry of Finance of the Russian Federation, official website, accessed 9 April 2018 http://old.minfin.ru/en/news/index.php?id_4=24358; The Yukos

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each. Mr. Orvindari was officially billed for "summarizing parties' arguments and evidence; attending tribunal deliberations and drafting award".13_{However, it was} soon revealed that the draft award was identical to the final version, with information leakage revealing a message between an arbitrator and the tribunal's President stating "I have reviewed Mr. Orvindari's draft. I'm prepared to sign off on it, and I have nothing to add."14

Consequent litigation before a fictional bench of the ICJ on this point by hundreds of students around the world, including the author of this paper, revealed a lack of consensus on the scope of secretary's tasks. As is often the case in international arbitration, the arbitral clause in the Treaty was silent on the roles of arbitral tribunal assistant, also referred to as a secretary. The accepted standard across multiple arbitral rules, national arbitration acts and guidelines is that arbitrators remain impartial and arbitrate personally. Most of these sources do not specify if delegation of legal reasoning and drafting of an award to a secretary hampers arbitrators' duties to arbitrate personally and impartially. Due to rising popularity of international arbitration, national courts as well as annulment committees of arbitral tribunals increasingly find themselves to address questions within "an enormously grey zone"15 of international arbitration.

For this reason, the Thesis sets a two-fold objective. Part I aims to analyse the current status quo related to the tasks that may be legitimately performed by tribunal secretaries, with a comparative outlook on the functions of law clerks in domestic courts. The paper argues that there exists a “red line’’ that no tribunal shall cross, namely legal reasoning on behalf of the secretary. Proving the existence of legal reasoning is nonetheless not made with ease and it shall not be thought that the secretary performed legal reasoning solely on the basis of evidence that he or she engaged in drafting of an award.

Part II assesses the legal category under which replacement of an arbitrator may be sought, or annulment of an award be litigated if it is found that the arbitrators delegated extensive competencies to their assistants. Attention will be given to the ICSID Annulment procedure and setting aside proceedings under national arbitral acts 13 Case Concerning the Egart and the Ibra, The 2018 Jessup Compromis, ILSA, para. 32 [hereinafter:

Jessup Compromis, 2018]

14 Jessup Compromis, 2018, para. 33

15 Michael Polkinghore, 'Different Strokes for Different Folks? The Role of the Tribunal Secretary,'

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in domestic courts. The primary argument I make is that pursuing challenge under the ICSID Convention in relation to secretary's extensive involvement is most likely to be successful under the category of “serious departure from a fundamental rule of procedure."16_{Successful annulment is likely to be established provided that the} appellant succeeds to demonstrate that i.) the duty not to delegate decision-making functions is a fundamental rule of procedure and that ii.) the breach is serious. Secondly, it will be demonstrated that the category for pursuing annulment in non-ICSID awards before domestic courts is largely framed by formulation of the given jurisdiction's arbitral act. Irrespective of the circumstances for annulment across various jurisdictions, a party will likely succeed with annulment if it effectively proves that improper involvement of a secretary impeded justice in the proceedings. Nonetheless, the evidentiary standard remains high and domestic courts have been reluctant to annul an award on the basis of improper involvement of tribunal secretaries.

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PART I. - STATUS QUO ON THE USE OF SECRETARIES

Before challenge of an arbitrator or the validity of entire award can be considered, the applicable sources of law must be established.

Sub-part (1.1) therefore elaborates the respective provisions related to the role of arbitral tribunal secretaries found across the rules of the most prominent arbitral institutions. While original arbitral rules did not define the scope of assistant’s tasks, numerous institutions have recently published Notes and Guidelines, which aim to clarify this issue. The underlying finding is that there still exists a significant disparity in the scope of tribunal assistant’s tasks across various guidelines and arbitral rules. The award drafting function is under significant controversy, with some arguing that delegating award drafting responsibilities to assistants is “wholly inappropriate’’17 while others claim that preparing the first draft in its entirety is “a common practice.’’18

The next sub-part (1.2) compares roles of arbitral tribunal secretaries with tasks of judicial clerks across six different jurisdictions that serve as the most frequent seats for international arbitrations. It will be shown that disparities exist in the practical responsibilities of judicial clerks in domestic courts across examined jurisdictions. I argue that comparison with judicial clerks is desirable, but has its limits that ought not to be omitted.

17 Compañía de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Argentine Republic (ICSID Case No. ARB/97/3), Additional Opinion of Professor JH Dalhuisen under Article 48(4) of the ICSID Convention, para. 7 [hereinafter: Compañía de Aguas v Argentina]

18 L. Newman and D. Zaslowsky, "The fourth arbitrator: contrasting guidelines on use of law secretaries’" New York Law Journal (29 November, 2012)

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REVIEW OF RULES (1.1)

ICSID

The ICSID framework is elaborated first and separately, because awards rendered by ICSID tribunals are final, shall be regarded as decisions of the highest domestic court and are not subject to setting aside by national courts.19_{ICSID awards operate} autonomously from national courts during the setting-aside procedure, withal under Article 52 of the ICSID Convention, either party may request annulment of an award by specially-constituted ICSID Annulment Committee. The use of tribunal secretaries is a widespread practice in ICSID proceedings.20_{Before addressing these grounds and} framing possible categories along which awards could be challenged on the basis of over-delegation of duties to an assistant, as I will do in Part II, we shall first address the use of tribunal assistants under the ICSID framework.

The ICSID Convention and the Arbitration Rules provide detailed criteria that must be met by appointed arbitrators. Among these are for example nationality requirements specific to each case and relevant nationality of the parties.21_{Rule 6} provides detailed pleas of impartiality and independence. Prior to their appointment, arbitrators are obliged to sign a declaration that they are not in personal, professional or other relationship with either of the parties, and are exempted from other circumstances which can have an impact on their independent decision making.22_If any relationship arises during the proceeding, arbitrator is required to inform the Secretary General and failure to sign the declaration results into resignation.

Under Article 11 of the ICSID Convention, The Secretary-General shall be the legal representative and the chief officer of the Centre and "shall be responsible for its administration, including the appointment of staff, in accordance with the provisions 19 ICSID Convention, Article 54(1)

20 Bernhard von Pezold and Others v. Republic of Zimbabwe, (ICSID Case No. ARB/10/15), Award, 28 Jul 2015; Metal-Tech Ltd. v. Republic of Uzbekistan, (ICSID Case No. ARB/10/3), Award, October 2013; see also Abaclat v Argentina

21 ICSID Convention, Article 37(2) 22ICSID Arbitration Rule 6 paras. a-b

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of this Convention and the rules adopted."23_{Christopher Schreuer’s observations} indicate that despite little discussion of Secretary General’s powers, all drafts of the ICSID Convention refer to Secretary General’s powers as administrative and organisational to appoint staff. "His role was described as administrative and advisory rather than judicial," writes Schreuer.24_{In greater detail, Secretary General’s functions} "may be conveniently described in terms of representation and administration of the Centre, the keeping of records, the function of registrar in proceedings, administrative support in proceedings and public information."25

ICSID Convention and Rules also operate with the term ‘’secretariat’’. The Staff of the secretariat is responsible for administrative support, such as translations, interpretation and duplication of documents.26_{The Staff in particular proceedings} keep minutes and draft procedural orders.27_{Such person is referred to as the tribunal} secretary. Proponents of their use claim that they are ‘’invaluable to the process’’28 and that both counsels and arbitrators benefit from their use. On the other side, as arbitrator Jan H. Dalhuisen noted in Compañía de Aguas del Aconquija v. Argentina, "It is clear that the [ICSID] Secretariat wants to obtain greater role for itself [...] and also wants to involve itself in the drafting of the decision."29

The Secretary-General shall not be confused with tribunal secretary. ICSID tribunal secretaries are full-time staff with legal education selected by the Secretary-General. In words of the current Secretary-General Meg Kinnear, "their role is to assist both the parties and the tribunal,"30_{by attending hearings and drafting procedural rulings} on the basis of instructions from the arbitrators. Despite Kinnear’s statement, neither the ICSID Convention, nor the ICSID Rules define the tasks that can be performed by 23 ICSID Convention, Article 11

24 Christoph H. Schreuer, The ICSID Convention - A Commentary, (Cambridge University Press, 2001), page 43 [hereinafter: Schreuer, ICSID Commentary]

25 Schreuer, ICSID Commentary, page 44 26 Schreuer, ICSID Commentary, page 46

27 Schreuer, ICSID Commentary, page 47; see also Parra, A.R. ‘’The Role of the ICSID Secretariat in the Administration of Arbitration Proceedings under the ICSID Convention’’ 13 ICSID Review,

Foreign Investment Law Journal 85, 86/7 (1998)

28 Interview with the ICSID Secretary-General Mrs. Meg Kinnear, Thomson Reuters Arbitration Blog, accessed on 14 April 2018, http://arbitrationblog.practicallaw.com/an-interview-with-meg-kinnear-secretary-general-of-icsid-part-24-icsid-arbitration-procedure/ [hereinafter: Interview with ICSID

Secretary-General Meg Kinnear]

29 Compañía de Aguas del Aconquija SA and Vivendi Universal SA v Argentine Republic, ICSID Case No. ARB/97/3 (Annulment Proceeding), Additional Opinion of Professor Jan H. Dalhuisen under Article 48(4) of the ICSID Convention, (July 2010), para. 2.

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tribunal secretaries. Secretaries are, however, required to sign same Declaration of Independence and Impartiality Form, as the ICSID website provides.31_{The only} indicative point is Rule 15, which stipulates that no one else except for members of the tribunal can attend the deliberations. The ICSID Convention or the Rules do not explicitly state if secretaries can draft parts of the award. Formally speaking, secretaries are well aware that they may not function as the fourth arbitrator,32_but whether they behave according to this principle in practice remains to be disputed. The only safe check that parties have in this regard is Rule 15, which cannot be waived without the consent of all Committee Members.33_{The rule makes clear that} "deliberations of the Tribunal shall take place in private"34_{and that "only members of} the Tribunal shall take part in its deliberations"35_{except when the Tribunal decides} otherwise.36_{Rule 15 could be therefore said to function as a guarantee that the} deliberations and legal reasoning will be truly performed by the selected arbitrators only.

Apart from tribunal secretary, who is a full time staff of the ICSID Centre, arbitrators may use tribunal assistants, as for instance in Von Pezold v Zimbabwe.37_Tribunal assistant is an additional contractor outside of the ICSID centre whose tasks are required to be agreed by the parties.38_{Such outside assistant is also required to file} declaration of independence and impartiality.

Certain amount of confusion can arise when one compares the ICSID Convention and Rules with information published on the ICSID website. First, it is unclear which provision, or source of information overrides another and whether the information published on ICSID’s website, but missing from the official Rules and the Convention can be invoked before the tribunal. Second, it is not evident if any nationality requirements apply. Third, while the Rules limit tasks of the secretary to 31 "Tribunal assistants" ICSID information website, accessed on 30 March 2018

https://icsid.worldbank.org/en/Pages/arbitrators/TribunalAssistants.aspx

32 Ibid.

33 Compañía de Aguas v Argentina, Additional Opinion of Professor JH Dalhuisen, para. 13 34 ICSID Rule 15(1)

35 ICSID Rule 15(2) 36 ibid.

37 "Tribunal assistants", ICSID information website, ‘’In some cases, the Tribunal or Tribunal President also wish to retain an assistant for additional support to the Tribunal.’’ Accessed on 2 March 2018

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organisational and administrative, the website provides ‘’in some cases the Tribunal may wish to retain an assistant for additional support.’’39_{Such retaining is feasible if} the parties agree40_{and the parties should be provided with the proposed tasks that will} be performed by an assistant.41_{It is uncertain to what extent is it feasible, provided} that the parties agree, to assign tribunal assistant with drafting of the award.

In Compañía de Aguas v Argentina, Professor Dalhuisen argued that drafting decisions and reasoning by the Secretariat would appear ‘’wholly inappropriate’’42 even following instructions of Arbitrators. For Dalhuisen, even if the Secretariat drafted the award which would be subsequently left for approval by the arbitrators, “this would not appear to be sufficient to legitimise the text.’’43_{For Polkinghore and} Rosenberg, who interpreted the Additional Opinion by Dalhuisen in an article ‘’a tribunals secretary should not draft any portion of an award.’’44_{Whether they refer to} the award as a whole or only that part of the award in which the tribunal engages in legal analysis remains to be open. It shall be noted that in ICSID practice, those parts of awards where legal reasoning of the tribunal is developed, usually titled as ‘’tribunal’s analysis’’45_{cover between 25-35% of the award’s total text. The rest of} the text is covered by a summary of facts and most dominantly summary of each party’s position. Neither of the two parts requires substantive legal reasoning by the arbitrations, except for the possibility of secretary's shifting of facts in favour of one of the sides, which can be eliminated by ultimate check of the arbitrators.

In regards to ICSID, and basing my opinion on the relevant information, I argue that secretaries shall be excluded from drafting any portion of the award related to tribunal’s analysis. They ought to be permitted, however, to draft those parts of an award, which constitutes summary of facts and summaries of each party’s position, always checked by a final review by the arbitrators. Such practice in my opinion

39 Ibid. 40 ibid. 41 ibid. 42 ibid. para. 7

43 Compañía de Aguas v Argentina, Additional Opinion of Professor JH Dalhuisen para. 7 44 M. Polkinghore and Ch. B. Rosenberg ‘’The Role of the Tribunal Secretary in International Arbitration: A Call for a Uniform Standard’’Dispute Resolution International, Vol. 8, No. 2 (October 2014), page 115 [hereinafter: Polkinghore and Rosenberg]

45 Bernhard von Pezold and Others v. Republic of Zimbabwe, (ICSID Case No. ARB/10/15), Award, 28 Jul 2015; Metal-Tech Ltd. v. Republic of Uzbekistan; Philip Morris Sarl, Philip Morris Products

S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay, (ICSID Case No. ARB/10/7), Award,

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contributes to the decrease of costs and enables the arbitrators to focus primarily on legal analysis of both parties’ submissions.

INTERNATIONAL CHAMBER OF COMMERCE

The ICC Rules on Arbitration are silent on the duties of arbitral tribunal secretaries, in ICC's jargon “administrative secretaries.” In order to clarify this matter, the ICC issued a short Note on Appointment, Duties and Remuneration of Administrative Secretaries, most recently revised in 2012. The Note aims to explain both practice and policy of the ICC Court on secretary's duties and it is applicable to all ICC arbitrations taking place after 1 August 2012. Secretary can be appointed at any time during the arbitration, must meet the same requirements of impartiality and independence as arbitrators, to which the secretary abides by signing a declaration. If a tribunal wishes to appoint secretary, it shall inform the parties of the intention and if one of the parties objects, the secretary will not be appointed.

Secretaries act under Arbitral tribunal's “strict supervision”46_{and the tribunal is at all} times responsible for the secretary's conduct. Secretary's tasks are administrative and organisational. The ICC lists examples of secretary's works in bullet points, and apart from proofreading, organizing meetings, maintaining files or conducting legal research, secretaries are also permitted to attend hearings and make minutes during deliberations. The last task, as will be shown later, can be subject to abuse and controversy.

It is made very clear that under no circumstances may the tribunal outsource decision-making or other essential duties to the secretary. Essential duties, as deducted from the Note encompass drafting of decisions of the tribunal. What else is meant by “essential duties”47_{is not specified and any questions arising shall be addressed to the} ICC Secretariat. An experienced counsel at international law firm's Arbitration Department with a decade-long experience, who prefers to stay in anonymity, thinks that participating in deliberations, i.e. giving presentations to arbitrators on the case falls under the category of ‘’essential duties.’’48_{However, when arbitrators send their} 46 Note on the appointment, duties and remuneration of administrative secretaries, International

Chamber of Commerce, (1 August 2012) [hereinafter: ICC Note] 47ICC Note, page 2

48 The counsel wishes to remain in anonymity. Identity of the source may be revealed upon individual request and agreement with the source.

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secretary draft-awards asking for review and further commentary, this does not on its own fall under the category of essential duties.49

LONDON COURT OF INTERNATIONAL ARBITRATION

The LCIA Arbitration Rules do explain the role of assistant. LCIA's position is clarified in the updated version of LCIA Notes for Arbitrators. Section 8 contains detailed description of tribunal assistant tasks and to a large extent reflects the decision in the case of P v Q and others50_{decided by the English High Court in} 2017.51_{Based on this basis decision the newly edited LCIA Note now make clear that} “in no circumstances may an Arbitral Tribunal delegate its fundamental decision-making function.”52_{Similar clause is found in the ICC Note, the Stockholm Chamber}

of Commerce Guidelines and the Kong Kong system. Secretaries may only execute ‘’tasks that have been agreed by the parties”53_{. In addition, “the Arbitral Tribunal must}

inform the parties of the tasks that it proposes the tribunal secretary be entitled to carry out.”54_{Interestingly, the LCIA Note does not limit the scope of tasks (except for}

the requirement not to have decision-making functions). It provides a list of proposed tasks, which range from purely administrative, to semi-administrative such as attending deliberations to substantive, which may include making summaries of submissions and preparing initial drafts of award. The position not to set limits but to let the parties decide is innovative and in line with the autonomous nature of international arbitration. We have yet to see what the impact will be.

NETHERLANDS ARBITRATION INSTITUTE

The Rotterdam-based arbitral institution permits the appointment of a secretary, who is a lawyer and is bound by the same duties of independence and impartiality as the arbitrators.55_{The older version of these rules did not define scope of tasks and so does}

49 Ibid.

50 P v Q and others 51 ibid.

52 LCIA Note for Arbitrators, section 8.1, para. 68 53 LCIA Note for Arbitrators, section 8. para. 70 54 LCIA Note for Arbitrators, section 8, para. 71 55 NAI Arbitration rules, Art. 20 (2015)

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not the revised version of 2015. Secretary’s tasks may vary from case to case,56_and the arbitrators shall decide their activities.57_{In general, these tasks are carried under} supervision of the tribunal. Secretaries “will usually provide administrative and organisational assistance.”58

HONG KONG INTERNATIONAL ARBITRATION CENTRE

This key Asian arbitral institution recently issued Guidelines on the Use of a Secretary to the Arbitral Tribunal. These Guidelines ‘’may be adopted”59_{and are thus} not a requirement. Similarly to several other Guidelines, prior their appointment, secretaries are required to sign a declaration of impartiality and independence.60 Interestingly, the Guidelines expressly state that where parties agree61_{, secretaries can} attend the deliberations and prepare drafts of award, but these parts are strictly limited to non-substantive matters.62_{Among the non-substantive tasks are listed making} chronologies of events and procedural histories.63

STOCKHOLM CHAMBER OF COMMERCE

The January 2017 Arbitrator's Guidelines, which are not intended to be treated as additional rules64_{and serve as practical source of information of arbitrators, transfer} the competence to decide on the parties to an arbitration. “Subject to any agreement of the parties to the contrary, the administrative secretary’s duties shall be limited to organizational, clerical and administrative functions.”65_{The parties can transfer waive} these limits and provide the secretary with wider competencies, if the wish, however, 56 Bommel van der Bend et al. A Guide to the NAI Arbitration Rules (Kluwer Woltes, 2009), pp. 173-177; Polkinghore and Rosenberg

57 Secretary, Nederlands Arbitrage Institute information page, ‘’The division of duties is determined

by the binding advisors [arbitrators]’’ http://www.nai-nl.org/en/info.asp?id=1095, accessed on 22 April 2018

58 ibid.

59 Polkinghore and Rosenberg, page 115

60 Guidelines on the Use of a Secretary to the Arbitral Tribunal, Hong Kong International Arbitration Centre, (June 2014), para. 2.2

61 ibid, para 3.4 62 ibid.

63 ibid., see also Polkinghorne and Rosenberg, page 115

64 Arbitratitrator's Guidelines, Arbitration Institute of the Stockholm Chamber of Commerce, January 2017, page 2.

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they may not “delegate any decision-making functions to the administrative secretary.”66_{(Note the emphasis on the term 'administrative.')}

THE AUSTRALIAN CENTRE FOR INTERNATIONAL COMMERCIAL ARBITRATION This institution deviates from the majority of Guidelines. The ACICA Guideline on the Use of Arbitral Secretaries, which applies to all secretaries appointed after 1 January 2017,67_{permits secretaries to draft parts of award not only on factual but also} legal aspects of the award.68_{Guidance on the matter of drafting award is however} limited in that the tribunal secretary must not perform any decision-making functions.69

UNCITRAL ARBITRATION RULES

Under the UNCITRAL Arbitration Rules, adopted in 2013, tasks of secretaries or assistants are not defined. Article 40(2)(c) that elaborates on the definition of costs nevertheless provides that ‘’The term costs includes [costs of expert advice and any other assistance required by the arbitral tribunal.’’70_{The Commentary to UNCITRAL} Arbitration Rules written by David Caron and Lee Caplan sheds some light on what can be understood under “other assistance’’. They write that ‘’The term ‘other assistance’ includes expenditures for administrative support for the arbitral tribunal, such as the provision of secretarial support, stenographic services, and language translation, or for services requested of the appointing authority, if one has been appointed.”71_{Formally speaking, under the UNCITRAL Note on arbitral secretaries,} section 4, the tribunal may secure administrative services “The extent that tasks of the secretary are purely organizational.”72

66 Arbitratitrator's Guidelines, Arbitration Institute of the Stockholm Chamber of Commerce, (January 2017) page 7

67 Esme Shirlow, “The Australian Centre for International Commercial Arbitration's Guideline on the Use of Arbitral Secretaries”, Kluwer Arbitration Blog (23 February, 2017)

68 S. Demaurex and S. Nessi

69 ACICA Guideline on the Use of Arbitral Secretaries 70 UNCITRAL Arbitration Rules, Article 40(2)(c)

71 David Caron and Lee Caplan, The UNCITRAL Arbitration Rules, A Commentary. 2nd edition, (Oxford University Press, 2012), page 844 [hereinafter: Caron and Caplan]

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The scope of “other special assistance” can be furthermore derived from US-Iran Claims Tribunal decisions in which the Tribunal held that it includes linguistic services.73_{Although paragraph 2(c) of Article 40 encompasses also tribunal} secretaries, as Caron and Caplan note74_{their exact tasks are not well defined in the} official rules or in the Commentary. This conclusion can be derived from Working Group debates on the revision of UNCITRAL Rules, where there was wide agreement that Article 40(2)(c) covers costs of arbitral secretaries.”75

THE PERMANENT COURT OF ARBITRATION RULES

It remains unclear whether arbitral tribunal secretaries to the PCA can draft the awards or attend the deliberations. Nonetheless, there are cases in which they have.76 Under the PCA Optional Rules for Arbitrating Disputes in Which Only One Party is a State (1993), the International Bureau shall be in charge of archives, and upon request of the parties77_{may act as a channel of communication, additionally providing} organizational and stenographic support during hearings.78_{Drafting of awards or} participating in deliberations is excluded, but the International Bureau of the PCA shall not be confused with assistants or secretaries to arbitrators, as was, most notably Mr. Martin Valasek in the well-known PCA Arbitration between Yukos and the Russian Federation. While assistants directly serve the arbitrators and are practically members of the tribunal, the International Bureau functions as support staff providing ‘’secretariat and registrar services’’79_{of the PCA. The PCA Arbitration rules may be} applied in conjunction with the International Law Commission Model Arbitral Rules in settling inter-state disputes. The ILC Model Rules do not elaborate procedural aspects of tribunal secretary use.

73 Iran-US Claims Tribunal cases: Separate Opinion of Judge Holtzmann in Sylvania Technical

Systems, Inc. v. Government of the Islamic Republic of Iran, Award No. 180-64-1 (27 June 1985) “The

phrase 'other special assistance' is comprehensive and includes, inter alia, the assistance of those who make the translations required by the Tribunal.”); Starrett Housing Corporation et al. v. Government of

the Islamic Republic of Iran, Case No. 24 Chamber One, Order of December 18, 1986. 74 Caron and Caplan, page 844

75 UN Document A/CN.9/614, n 16, at p. 26, para. 131

76 Yukos Universal Limited (Isle of Man) v. The Russian Federation, UNCITRAL, PCA Case No. AA 227, Final Award, (July 2014)

77 Alternatively, the International Bureau shall inform the parties if it is willing to provide secretariat and registrar services, Article 16(1)

78 PCA Optional Rules for Arbitrating Disputes Between Two Parties of Which Only One is a State, Article 1(4) [hereinafter: PCA Optional Rules]

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GUIDELINES AND SURVEYS

Confusion can arise when parties operate with a poorly drafted arbitral clause or the clause refers to rules that do not provide needed guidance on secretary’s tasks. In those situations, recourse may be taken to the International Baw Association Guidelines, the Young International Council for Commercial Arbitration Guideline, or a survey conducted by the Queen Mary University in London. These sources are non-binding unless the parties decide otherwise.

THE IBA RULES ON ETHICS FOR INDEPENDENT ARBITRATORS and the IBA Guidelines on Conflict of Interest are not rigid rules and are binding upon parties only if they consent to be bound by these rules.80_{While they “}_{reflect internationally acceptable}

guidelines developed by practising lawyers from all continents,”81_{they cannot be}

relied on as the single ground for setting aside of an award in front of national courts.82_{The IBA Guidelines are not used by English and Welsh Courts, but are}

commonly referred to in those submissions, which seek to challenge arbitrators.83_The

IBA Guidelines operate with a three-category list of activities to help determine if specific facts or behaviour gives raise justifiable doubt about arbitrator's independence and impartiality. The guidelines do not explicitly elaborate the role of secretary, but they do list information about nexus between arbitrators and counsels to a party or to financial interest in outcome of the case.84

YOUNG ICCA GUIDE which is said to be a reflection of the existing best practice85 provides that the role of arbitral secretary with appropriate supervision by the arbitrators “may legitimately go beyond the purely administrative”86_{functions. Seven} Contributors wrote the Young ICCA Guide, four of them serve or have served as 80 IBA Rules of Ethics for Independent Arbitrators (1987), Introductory Note

81 Ibid. 82 Ibid.

83 "The challenge of challenging arbitrators: recent cases" Ashrust (21 May 2018)

https://www.ashurst.com/en/news-and-insights/legal-updates/the-challenge-of-challenging-arbitrators-recent-cases/

84 IBA Guidelines on Conflict of Interest in International Arbitration (2004), Part II - Application of the General Standards

85 Guillermo Aguilar-Alvarez, Foreword, Young ICCA Guide, page vii, 86 Young ICCA Guide, Article 3(1)

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Associates in law firms and appeared as tribunal secretaries and one of them is an active arbitrator. For that reason, it shall be kept in mind that the authors may have an inclination to favour more extensive role of tribunal secretaries, because they have either already served in this position,87_{or work as arbitrators and may have prevalence} to employ tribunal secretaries in a wider manner.88_{Apart from administrative duties,} secretaries may be assigned to draft parts of award,89_{attend deliberations,}90_research points of law91_{and summarize parties' submissions.}92_{In Foreword to this Guide,} Guillermo Aguilar-Alvarez admits that these beyond-purely administrative functions are “the most controverted duties”93_{that arbitral secretary can perform. Arguably,} beyond-administrative tasks benefit the efficiency of tribunal's work and assigning the secretary with only administrative tasks would mean that the tribunal would not make full use of the assistance.

An interesting observation is that participants in the more recent questionnaire conducted in 2013 agreed more strongly with each of the duties listed under Article 3, compared to Young ICCA survey results from the preceding year. Close to 69% of participants agreed that secretaries can be used for researching points of law in 2012 and this percentage rose to 85.7% a year later.94_{The majority agreed that legal} research is desirable, time saving and cost efficient.

The Young ICCA survey furthermore shows that arbitral secretary may be present during the deliberations, however with due care to prevent his or extensive participation. This in practice means while the secretary can record and support the arbitrators with background to the case if needed during the process of deliberating, he or she cannot give personal opinion or persuade the arbitrators to decide in a specific manner. Over of the respondents 83% rejected their active participation along the lines described in previous sentences. The commentary to Article 3(2)(i) supports such an approach.95

87 Christopter Balogh, one of the Young ICCA Report contributors worked as a tribunal secretary

http://www.siac.org.sg/2014-11-03-13-33-43/about-us/ceo-and-secretariat;

88 Niuscha Bassir is an active arbitrator under all major arbitral rules and a partner at Hontiau & van den Berg http://www.hvdb.com/niuscha-bassiri/

89 Article 3(2)(j) 90 Article 3(2)(i) 91 Article 3(2)(e) 92 Article 3(2)(h)

93 Guillermo Aguilar-Alvarez, Young ICCA Guide, page vii 94 Young ICCA Guide, page 13

95 “...arbitrators should be able to use the arbitral secretary as a resource when considering specific

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71.4% of respondents agreed that assistants can draft procedural orders, and 63.5% of respondents agreed that drafting can be extended to some parts of the award. More specifically, 84.9% agreed that assistants can draft procedural background. The majority of respondents also agreed that assistants can draft factual background96_and parts of awards which contain parties' positions,97_{but only 31.9% of the respondents} to the 2013 survey indicated that legal reasoning and potentially final analysis of the award is desirable. Drafting of an award seems to be the most contentious task, apart from participating in deliberations. Newman and Zaslowsky say that in practice it is common for secretaries “to prepare a first draft of the award in its entirety.”98_Such practice goes contrary to findings of the Young ICCA which opposes in majority practice in which secretaries draft parts containing legal reasoning.

the deliberations.” Young ICCA Guide, pages 14-15 96 69.4% agreed on factual background (2013 survey)

97 65.3% agreed on drafting sections of the award which contain parties' positions (2013 survey) 98 L. Newman and D. Zaslowsky,

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COMPARISON WITH COURT CLERKS - DESIRED AND APPROPRIATE? (1.2) It has been suggested that when counsels prepare arguments for setting-aside of an award on the basis of over-delegation of duties to an assistant, the comparison with law clerks may be appropriate,99_{and some courts have been exercising this practice.}100 Literature shows that just as there is discussion about the role of tribunal secretaries within the field of arbitration, similar and arguably longer controversy exist in classic domestic court settlement.101_{According to Nina Holvast, the influence of court clerks} over the final judgment is far-reaching, and she adds that such conclusion is remarkable, because clerks have not likely gone through the same challenging training process as judges.102_{In addition, Edward Lazarus takes what I perceive as a} far-fetched position when he claims that "immature, ideologically driven clerks"103_{tend to} abuse their power and eventually "manipulate their bosses [judges] and the institution they ostensibly serve."104_{In my view, Lazar’s perception goes contrary to the general} practice given that law clerks are commonly employed across all level of domestic courts. These include sophisticated regional bodies such as the European Court of Human Rights in Strasbourg, but detailed analysis of the dispute is beyond the scope of this paper.

When making comparisons between tribunal secretaries in arbitration and law clerks in domestic courts, it shall be kept in mind that even the tasks of judicial clerks differ across multiple jurisdictions. Moreover, although some argue that arbitrators are in no different position from national judges,105_{it is crucial to keep in mind that several} key differences exist between international arbitration and traditional dispute settlement before domestic courts. Firstly, parties before domestic court have no autonomy to select the judge assigned to their case. Secondly, in arbitrations not the 99 P v Q and others, para. 27 - parallel between judge and arbitrator

100 Total Support Management v. Diversified Health Systems, para. 3.2.2.

101 Anthony Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession. (Belknap Press, Harvard 1993) pages 325-331; Nina Holvast 'The Power of Judicial Assistants' vol. 7 International

Journal for Court Assistants, (2016), page 10 [hereinafter: Holvast - The Power of Judicial Assistants] 102 Holvast - The Power of Judicial Assistants, page 10

103 Edward Lazarus, Closed Chambers: The Rise, Fall, and Future of die Modern Supreme Court, (Penguin, 1999); also cited in Partasides ‘’The Fourth Arbitrator’’ at page 6

104 Ibid.

105 P v Q and others, para. 62 Sir Nicholas Browne-Wilkinson in K/S Norjarl A/S v Hyundai Heavy Industries Co Ltd [1992] 1 QB 863, para. 885, Queen's Bench Division (Commercial Court) “By

accepting appointment, the arbitrator assumes the status of a quasi-judicial adjudicator, together with all the duties and disabilities inherent in that status.”

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State, but parties to the case take responsibility for covering the costs of arbitrators. Third, arbitrators tend to have a desire to be re-elected, whereas judges are often appointed either for life-long term, or a series of years. Lastly, arbitration is based on the consent of parties, who define the powers of the tribunal and have the competence to modify that power by further agreement.106

Regardless of these differences, parallels between law clerks and arbitral secretaries have been drawn and for that reason the following list of countries reflects the most common seats of international arbitrations.107_{It aims to offer an insight into the} practice by domestic courts, which may become of relevance if parties to arbitration find themselves in front domestic courts for setting-aside procedure.

ENGLAND AND WALES

Due to increasing amount of cases at the Court of Appeal, the English judiciary adopted an approach in which assistants are called to assist the judges with writing bench memoranda, carrying out research and summarising or simplifying submissions.108_{They are usually young trainee solicitors or barristers who perform the}

function for a temporary period. At the Supreme Court, they can be assigned with writing press releases for the public, and giving judges case summaries. In recent years, according to Tetyana Nesterchuk, judicial assistants have been invited to attend private hearing of Supreme Judges, where they are sometimes asked to share their legal view. Such practice is present in Court of Appeal.109_{Nesterchuk notes that in}

two studied cases, Supreme Judges have changed their view based on presentations given by judicial assistants, but such situations are sporadic.110_{Legal contribution of}

judicial assistants to decisions making does not end with discussions behind the closed door. Several judges have said they send draft-decisions to their assistants to ask for review and further commentary, writes Alan Peterson.111

106 Total Support Management v. Diversified Health Systems para. 25; see also Section 3(1) of South African Arbitration Act

107 2015 QMUL survey found Paris, Hong Kong, London and Geneva to be the most popular destinations

108 Partasides - The Fourth Arbitrator (2002)

109 Holvast - The Power of Judicial Assistants, page 20

110 Tetyana Nesterchuk, The View from Behind the Bench, in: A. Burrows, D. Johnston & R. Zimmermann (eds.), Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry, (Oxford University Press, 2013) page 106

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THE NETHERLANDS

In The Netherlands, judicial assistants (griffiers) are assigned to cases, not to specific judges. Court managers rather than judges most commonly recruit them.112_Dutch

judicial assistants frequently take responsibility over recording of hearings, administrative tasks and preparing bench memo that contains summaries of the facts, legislation and legal questions.113_{Under the mentorship of a judge, judicial assistants}

in the Dutch system are entitled to make preliminary procedural decisions. These include determining whether a case will go to panel of judges or a sole judge, and whether a case is to be dealt with purely in writing, or hearings are needed. The Netherlands gives judicial secretaries wide duties that are not limited solely to administrative functions. “Their memos frequently include a section in which the judicial assistant delivers his or her views on the case.”114_{Judicial assistants are also}

attending deliberations and their memos serve as starting points for the judges from which consequent discussion evolves. Depending on the type of court division, after deliberations are over, judicial assistants may be assigned to write parts of the judgment, which are later edited by the judges.115

SWEDEN

In Sweden, the seat of the Arbitration Institute of the Stockholm Chamber of Commerce, court clerks are often young professional trainees, who are assigned with the preparation of memoranda, cases and record keeping.116_{While these are their}

usual tasks, "they could also make decision in matters and adjudicate in certain simple cases, such as cases involving fines."117_{Apart from law clerks and assistant judges,}

who are involved in judicial functions, Swedish courts also employ administrative staff in charge of organisation and finance, as in other countries. At the Court of Appeal level, functions of court clerks are more limited due to the seriousness of the

111Alan Peterson, Final judgment: The Last Law Lords and the Supreme Court, (Hart Publishing , Oxford, 2013) page 252

112 Nina Holvast, In the Shadow of the Judge: The Involvement of Judicial Assistants in Dutch

District Courts, (Sweet & Maxwell, 2017) pages 49-50 113 Holvast - The Power of Judicial Assistants, page 16 114 Ibid.

115 ibid, page 17

116 "The Swedish National Courts Administration" Stockholm Institute for Scandinavian Law, (2010) page 637, http://www.scandinavianlaw.se/pdf/51-31.pdf

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cases. For example, they ‘’keep records of proceedings’’118_{and ‘’conduct legal}

investigations.’’119

FRANCE

Judicial clerks called ‘’assistants de justice’’ in the French legal system are usually recent law graduates of high qualify who often taken on the role of assistants to judges (magistrats) for a period of two years. The judges delegate a number of preparatory and drafting duties to the assistants, ‘’in order to increase the quality and efficiency of the judicial activity.’’120

Among the more specific tasks are legal research writing of case briefs and drafting of decisions on the basis of instructions from the judges. The French Ministry of Justice is very clear in that judicial assistants act under the authority and responsibility of the judges. ‘’They do not take any decision: they have no jurisdictional power.’’121

Assistants de justice are found across all instances of the court system. Prior to taking their position, they are asked to take an oath.

SWITZERLAND

Competencies of law clerks in Switzerland are among the widest. They are involved not only in the hearing stage, but also in writing of an award, participate in decision-making and in some circumstances in the voting. Functions of law clerks are defined in the Federal Supreme Court Act, Article 24 (Bundesgerichtsgesetz) and in the Federal Supreme Court Regulations. Law clerks in Switzerland taken part in hearings, record oral submissions of parties and once the pleading is finished, they are entitled to write a proposal of how the court should decide. This is done both with and without supervision of the judge. To go even further, law clerks can officially be co-authors of legal reasoning within a judgement, have advisory vote during deliberations.122_The 118 Ibid.

119 Ibid.

120 "Assistant de justice", French Ministry of Justice information portal, information website, 17 October 2014, accessed on 1 May 2018, http://www.metiers.justice.gouv.fr/la-justice-hors-de-la-fonction-publique-12684/assistant-de-justice-26855.html

121 Ibid.

122 Article 24 of Federal Supreme Court Act and Article 39 of Federal Supreme Court Regulation

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role of law clerks is among the widest in the world. Minor differences are found also across different Cantons. While law clerks cannot have a vote, unless they function as substitute judges,123_{they are in some cantons of Switzerland entitled to write and}

attach dissenting opinions.124

In comparison to other countries, law clerks in Switzerland perform wider duties, have greater influence over the decision-making and provide substantial legal support to the judges. Historically many judges in Switzerland were lay judges, without legal education. They therefore needed substantive support from law clerks to help with application of law to the facts and assessment of parties’ legal arguments. Due to the assumption that Switzerland will likely become even more popular seat for arbitration after CJEU’s ruling in Achmea v. Slovakia in order to avoid CJEU's jurisdiction,125_the

scope of law clerks’ role in Switzerland shall be studied more closely in the upcoming years.

HONG KONG

Hong Kong’s judicial clerks, serve the Judges across all instances from the Court of First Instance, District Court up to the Court of Final Appeal. They attend and assist the Chambers in hearings and conduct any tasks needed, which can range from maintaining accurate records,126_{arranging hearings and ‘’approving draft orders}

drawn up by legal practitioners.’’127

PRELIMINARY CONCLUSION PART I.

Arbitral tribunal assistants help to reduce the administrative burden of arbitrators,128 and the argument could be made that they reduce the costs of arbitration by being paid less than the arbitrators. Notwithstanding this benefit, their excessive use, especially in connection with substantial tasks is prone to have an impact on the independent 123 Article 27 Cantonal Court Organizational Act (right to of law clerk to substitute an absent judge applies to the Canton of Glarus).

124 Section 124 of Cantonal Court Organizational Act ( the right to attach dissenting opinion applies to the Canton of Zurich).

125 Sebastiano Nessi and Simon Demaurex, "Swiss opportunities following Achmea" Thompson

Reuters Practical Law, 18 April 2018

126 Description of the role of judicial clerk in Hong Kong, accessed on 3 May 2018

https://www.jobable.com/government-of-the-hong-kong-s-a-r-jobs/hong-kong/judicial-clerk-139404 127 Ibid.

128 Georgia Quick and Sam Kay, “Tribunal secretaries - back in the limelight”, ADC Bulletin, (Ashrust, 2017)

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decision making of the tribunal. To better regulate the use of assistants, arbitral institutions have recently published various guidelines and notes to clarify their competencies. Guidance on this matter is however in no way unanimous and institutions differ in the scope of secretary's tasks. Codifying the nature of secretary’s tasks would certainly clarify the manner and potentially eliminate future misunderstandings, which may result into challenging the validity of an award. Irrespective of these differences, the one underlying theme behind all three approaches, supported by judicial decisions,129_{is that secretaries cannot perform} decision-making functions. The symbolic prohibition to delegate decision-making is the red line that no tribunal shall cross. What specifically constitutes decision-making is less clear and depends to a large extent on a case-by-case basis. It is a legitimate question to ask whether by drafting of the award, even upon arbitrator’s instructions the secretaries do no exercise influence over the final decision. In my view, if secretaries are assigned with drafting only those sections related to facts and summaries of parties’ arguments, which seems to be the threshold beyond which no tribunal shall go, the influence is less significant, so long as the Tribunal analysis part remains to be drafted and completed exclusively by the arbitrators. In words of Gabrielle Kaufmann-Kohler and Antonio Rigozzi, what matters in the end is that the award must be ‘’work product’’ of the tribunal.130_{This conclusion will be of particular} importance in annulment proceedings, as elaborated in Part II.

The comparison with judicial assistants, or law clerks, has been previously made.131 Based on a review of common tasks performed by law clerks in the most attractive seats for arbitration, it is argued that Switzerland is the jurisdiction, which provides judicial clerks with the widest competencies. Potentially, if in the future Swiss judges will face a request for annulment of an award based on extensive involvement of tribunal secretary, chances are they will adopt a comparative method and conclude that such as award drafting and potentially even legal reasoning is acceptable.

I will now turn to Part II of the Thesis that elaborates legal categories along which to structure alleged over-delegation of duties to tribunal secretary. Such analysis is essential in developing a case strategy to either challenge an arbitrator, or request for 129 “In no circumstances may the assistant be allowed to usurp the decision-making function of the arbitrator or act in a manner subversive of his independence.” Total Support Management v Diversified

Health Systems, para. 41

130 Gabrielle Kaufmann-Kohler and Antonio Rigozzi, International Arbitration: Law and Practice in

Switzerland (Oxford, 2015), page 405. 131 P v Q and others, para. 50

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annulment of an award either before domestic courts or an ICSID Annulment committee.

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PART 2: CHALLENGE AND ANNULMENT OF AN AWARD ON THE

BASIS OF SECRETARY'S INVOLVEMENT

PURSUING A SUCCESSFUL CHALLENGE/REPLACEMENT OF AN

ARBITRATOR ON THE BASIS OF SECRETARY'S INVOLVEMENT

While in the past challenge of an arbitrator was a sporadic matter, today, largely due to large sums of money at stake, parties engage specialist lawyers who seek to frustrate the proceeding, by challenging individual arbitrators or the validity of the entire award in order to obtain a tactical advantage on the legal battlefield.132_{In such} scenarios the mandate of arbitrator(s) may be terminated sooner than he or she completed the tasks assigned for various reasons.133_{The most common grounds for} challenge are based on financial or personal nexus with one of the parties.134

In institutional arbitration, the challenge will be established in applicable arbitral rules. In the case of UNCITRAL proceedings, the challenge is made to the appropriate institution and an appointing authority chosen by the PCA. In an ad hoc arbitration, the appellant can take direct recourse to domestic courts asking the dispute to be resolved by application of relevant national law most commonly decided by a domestic court.135_{This remedy is also offered to parties of institutional arbitration,} usually subject to exhaustion of appeal mechanisms offered by the respective arbitral institution. For example under the English Arbitration Act, section 24, the domestic court has power to remove arbitrators if the circumstances in existence give justifiable doubts as to his or her impartiality, lack of qualification or failure to properly conduct proceedings.

FAILURE TO PRESERVE INDEPENDENCE AND IMPARTIALITY

132 Nigel Blackbay, Redfern and Hunter On International Arbitration, Fifth edition (Oxford University Press, 2009), pages 272-273 [hereinafter: Redfern and Hunter]

133 J. Lew and L. Mistelis, Comparative International Commercial Arbitration, (Kluwer Law International, 2003), page 301 [hereinafter: Lew and Mistelis]

134 LCIA Division decision on challenge of co-arbitrators in P v Q and others 135 English Arbitration Act, section 24

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The challenge will be most commonly pursued either on the basis of the failure to remain independent or impartial.136_{These standards equally apply to national arbitral} laws and proceedings under the ICSID system.137_{Under the UNCITRAL Rules, any} doubts about arbitrator's independence or impartiality shall be justifiable. The adjective “justifiable” means that they shall be based on tangible criteria,138 determined on the basis of objective concerns,139_{in a manner that ‘’a reasonably well} informed person [would] believe that the perceived apprehension - the doubt - is justifiable.’’140_{Similar provision is found in Article 10(3) of the LCIA Rules and its} meaning is no different from the UNCITRAL context.141

With slight divergence from UNCITRAL Rules, tribunals constituted under the ICC Rules have by virtue of Article 11 greater freedom and virtually ‘’unlimited discretion’’142_{to remove an arbitrator if legitimate reasons exist. Under the ICC Rules,} challenge of arbitrators is submitted to the Secretariat. This can be done ‘’whether for an alleged lack of independence or otherwise.’’143_{The most successful challenges} were based on evidence of arbitrator’s failure to disclose professional, financial or personal relationship with one of the parties, reveal Caron and Caplan.

The pending question in relation to our problem is whether delegating essential duties to an assistant constitutes a breach of arbitrator's duty to remain independent and impartial. Under the UNCITRAL Rules, but in international arbitration including the ICSID generally,144_{impartiality relates to arbitrator’ internal disposition, and} independence to his or her independence from an outside influence.145_This interpretation is supported by UNCITRAL drafting history.146_{Independence is much} more a question of fact, whereas impartiality refers to internal state of mind and 136 UNCITRAL Arbitration Rules, Article 10(1)

137 English Arbitration Act 1996, section 24(1); Article 1033 of Netherlands Arbitration Act (as adopted in 1986), United States Federal Arbitration Act, section 10

138 Redfern and Hunter page 274

139 Caron and Caplan, page 210 ‘’[...] it is the objective reasonableness of these concerns that is ultimately determinative.’’

140 Caron and Caplan, page 210

141 Article 10(3) LCIA Rules: ‘’An arbitrator may also be challenged by any party if circumstances

exist that give rise to justifiable as to his impartiality and independence.’’ 142 Redfern and Hunter, page 274.

143 ICC Rules, Article 11

144 Maria Nicole Cleis, Chapter 1, The Independence and Impartiality of ICSID Arbitrators: Current

Case Law, Alternative Approaches, and Improvement Suggestions, (Brill, 2017); Schreuer ICSID Commentary, page 1200

145 Caron and Caplan, page 213

146 Report of the Secretary-General on the Preliminary Draft Set of Arbitration Rules, UNCITRAL, 8th Session, UN Doc A/CN.9/97 (1974) as printed in Sixth UNCITRAL Yearbook.

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potential prejudices an arbitrator may have against one of the parties. As reflected in the IBA Guidelines on Conflict of Interest as well as the UNCITRAL Commentary written by the late David Caron and Lee Caplan, tribunals have considered an array of situations that could justify doubts to arbitrators’ independence and impartiality. The following have been considered:147

a. Financial nexus with one of the parties or previous employment, including shareholding or employment status in a firm representing one of the sides b. Family and relationship with a witness or a counsel

c. Previous representation of a party

d. Making previous statements regarding the dispute which are contrary to one of the parties148

Under the IBA Guidelines on Conflict of Interest (2014), which is non-binding upon parties unless they agree, but despite that has been used by tribunals, the "Non-Waivable Red List"149_{is represented by the following situations:}

i.)The arbitrator is a legal representative or an employee with an entity that is a party

to the proceeding

ii.)The arbitrator has a controlling influence over one of the parties either through

shareholding or seat on the board of managers

iii.)The arbitrator has a significant interest in the outcome of the case iv.)The arbitrator's firm regularly advises on the parties

Provided that the arbitrator does not engage in one of the situations listed above, pursuing a challenge under the criteria of independence and impartiality exclusively on the basis of alleged over-delegation of functions to an assistant is for this reason likely to be without success for the appellant.

IMPARTIALITY AND INDEPENDENCE UNDER ICSID

147 Caron and Caplan, pages 214-215

148 URBASER S.A. v. Argentine Republic, Decision on Claimant’s Proposal to Disqualify Prof. Campbell McLachlan, ICSID Case No. ARB/07/26, (12 August 2010)

149 “The Non-Waivable Red List includes situations deriving from the overriding principle that no person can be his or her own judge. Therefore, acceptance of such a situation cannot cure the conflict.”

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Under the ICSID Convention, Article 57 and 58 deal with the disqualification of arbitrators who serve as members of an ICSID tribunal, not as members of an ad-hoc committee constituted pursuant to Article 52(3).150_{The ICSID Convention provides} that pursuit of disqualification is justifiable when the facts indicate a "manifest lack of qualities required by paragraph 1 of Article 14"151_{and when an arbitrator is "ineligible} for appointment under Section 2 of Chapter IV."152_{The ability to adjudicate} independently and the freedom from any interest in the outcome of the case are among the key qualities.153_{As the tribunal held in Abaclat v Argentina, the principle} of impartiality “refers to the absence of bias or predisposition to a party.”154_The standards for disqualifying arbitrators at ICSID are notoriously high.155_{To illustrate} with an example, when the respondent party tried to disqualify claimant-appointed arbitrator who previously decided against the respondent state in a different arbitration, no breach of the ICSID Convention of Rules was found by the tribunal that would grant reasons for disqualification.156_{There are nonetheless few cases of} successful challenge. Venezuela succeeded in challenge against arbitrator Jose Maria Alsonso, appointed by the Claimant - Blue Bank International. Mr Alonso was also a partner at Baker and McKenzie in Spain and the firm’s US office represented another claimant, Dutch investor Longreef against Venezuela in another case. The ICSID Chairman Dr Jim Yong Kim upheld that this constituted manifest lack of impartiality and independence on Mr Alonso’s side.157_{Prior to this decision, 35 out of 40} challenges have been refused,158_{confirming that the standard for breach of manifest}

150 Schreuer, ICSID Commentary, page 1196 151 ICSID Convention, Article 57

152 ICSID Convention, Article 57 153 ICSID Arbitration rules, rule 8

154 Abaclat and Others v Argentina, 2004, ICSID Case No. ARB/07/5, Decision on the Proposal to Disqualify a Majority of the Tribunal, para. 75

155 Schreuer, ICSID Commentary, page 1200; see also conclusions of tribunals in Nations Energy Inc

and others v Republic of Panama, ICSID Case No. ARB/06/19, Challenge of Dr Alexandrov, (7

September 2011) para. 65

156Suez, Sociedad General de Aguas de Barcelona, S.A.and Vivendi Universal, S.A. v. Argentine Republic, ICSID Case No. ARB/03/19 (formerly Aguas Argentinas, S.A., Suez, Sociedad General de

Aguas de Barcelona, S.A.and Vivendi Universal, S.A. v. Argentine Republic

157 Blue Bank International and Trust (Barbados) Ltd v Bolivarian Republic of Venezuela, ICSID Case No ARB/12/20, Decision of the Parties’ Proposal to Disqualify a Majority of the Tribunal (12 November 2013)

158 Baiju S Vasani and Shaun A Palmer, ‘’Challenge and Disqualification of Arbitrators at ICSID: A New Dawn?’’ ICSID Review - Foreign Investment Law Journal, Vol. 30, Issue 1, (1 February 2015) pages 194-216

THE USE OF TRIBUNAL SECRETARY IN INTERNATIONAL ARBITRATION : IS PARTICIPATION IN LEGAL REASONING AND WRITING OF AN AWARD JUSTIFIABLE GROUND FOR CHALLENGE?