LCIA implements changes to tribunal secretary processes 26 October 2017 Changes to LCIA Notes for Arbitrators emphasise communication and consent As international arbitration grows in scope and complexity, the use of tribunal secretaries has become a common way in which arbitrators manage their workloads and ensure that arbitrations are conducted in the most efficient and effective manner possible. As one of the world’s leading arbitral institutions, the LCIA continually reviews its practice in relation to all aspects of arbitration, to ensure that it accommodates the diverse preferences of users from different cultural backgrounds and, as far as possible, different working preferences of arbitrators. To this end, the LCIA recently formed a committee of LCIA Court members Professor Luca Radicati di Brozolo, Peter Rees QC, and Prof Dr Nathalie Voser, assisted by Legal Assistant to the Director General, Mathew Stone, to determine whether it was appropriate to update the LCIA’s approach to tribunal secretaries. On the recommendation of the committee, the LCIA has adopted changes to its Notes for Arbitrators. These changes maintain the flexibility of LCIA arbitration, clarify the tribunal secretary role, and strengthen the existing elements of the LCIA’s approach to tribunal secretaries. Under the LCIA system, tribunal secretaries are (like arbitrators) required to complete a Statement of Independence and Consent to Appointment, to ensure that the proposed tribunal secretary has no relevant conflicts. The new Notes for Arbitrators now make explicit the LCIA’s practice of providing the Statement of Independence to the parties prior to appointment, giving the parties an opportunity to comment on (and if necessary, veto) the proposed individual. The new Notes for Arbitrators also make it explicit that a tribunal secretary’s disclosure obligation is ongoing. The LCIA suggests hourly rate of £50 to £150 per hour for tribunal secretaries if remuneration is appropriate. The new Notes for Arbitrators explicitly requires tribunals to propose a fee rate to the parties, to which the parties must expressly consent. While previously the parties’ written agreement was required for a tribunal secretary to be appointed, arbitrators are now also entitled to set a reasonable time limit for providing approval, at the expiry of which parties are deemed to have approved. This approach retains the primacy of the parties, while ensuring that parties are not able to obstruct the efficient conduct of proceedings through silence. One of the most contentious issues regarding tribunal secretaries regards the tasks a tribunal secretary should be entitled to carry out. Previously, the LCIA has dealt with this by providing a list of activities that the tribunal secretary should limit themselves to. In light of the broad spectrum of opinions on this matter, the Notes for Arbitrators still provide a list of tribunal secretary tasks, but the list is now a list of tasks that tribunals “may wish to propose”. The list is a starting point for the discussion between tribunals and parties – parties must expressly consent to the tasks proposed, ensuring that all arbitrators and parties are comfortable with the tribunal secretary’s role at the outset. The fundamental theme underlying all of these changes is communication and consent, ensuring that parties are given the opportunity to have their say. By requiring consent in relation to individual aspects of the tribunal secretary role, arbitrators are better able to see which elements (if any) the parties have concerns about, and respond accordingly. Once parties are made fully aware of the pertinent aspects of the tribunal secretary’s role, the risk of challenges or other issues arising is greatly reduced. LCIA Court committee member Peter Rees QC welcomed the way in which the changes encourage communication between arbitrators and parties: The increasing use of tribunal secretaries in international arbitration has highlighted the need to ensure that everyone involved in the process - arbitrators, parties and the tribunal secretary – knows exactly what tasks the tribunal will entrust to the tribunal secretary. Tribunal secretaries are often used without this being made clear. The great benefit of the changes made to the LCIA Notes for Arbitrators is that, where it is proposed to use a tribunal secretary, a discussion will now take place between the parties and the arbitral tribunal which will ensure clarity for all concerned as to the role to be fulfilled by the tribunal secretary. Other important changes to the Notes for Arbitrators include: making even more explicit the prohibition on delegating the tribunal’s fundamental decision-making function, recognised in various jurisdictions’ case law; making explicit the fact that arbitrators remain responsible for the tasks carried out by a tribunal secretary, and that arbitrators must adequately supervise the tribunal secretary; and allowing parties to seek the removal of a tribunal secretary by making a challenge. As with arbitrator challenges, decisions are made by the independent LCIA Court. The LCIA is confident that the increased certainty and communication brought about by these changes will alleviate concerns regarding the use of tribunal secretaries, and bring to light the substantial cost and efficiency benefits they can provide to parties and arbitrators.