Unveiling the Tribunal Secretary in India’s Arbitration Landscape

The engagement of tribunal secretaries in arbitral proceedings has piqued the curiosity of legal practitioners and arbitrators across the globe, as one of the modes to enhance procedural efficiency and sophistication of arbitrations while they become increasingly complex, time sensitive and document heavy. Recently, the Mumbai Centre of International Arbitration conducted a first-of-its-kind Training Program for Indian legal practitioners to induct the first batch of qualified tribunal secretaries on its roster. Focused on the role of tribunal secretaries and practicalities including preparation of documents, drafting of procedural orders and arbitral awards, and secretarial responsibilities and legal obligations, the Program helped draw attention on the need to revisit the role of tribunal secretaries in India, a concept which was otherwise discussed and debated only theoretically in India and not implemented in practice.

A tribunal secretary, engaged with the consent of the parties may typically be a junior lawyer or a member of the administering institute abiding the test of impartiality and independence in the arbitration, providing administrative and logistical assistance to the arbitral tribunal. As per the 2012 International Arbitration Survey by Queen Mary University of London and White & Case, tribunal secretaries were appointed in thirty-five percent of cases. Subsequently, it was noted in the 2015 iteration of the International Arbitration Survey, that around eighty-two percent of the respondents had either used tribunal secretaries or seen their usage in cases, evidencing the clear rise in their popularity internationally.

These findings were a result of a survey and interview of over 700 respondents across the international arbitration community worldwide including private practitioners, arbitrators, and academics with past experience of international arbitrations.

At the outset, tribunal secretaries are uniquely placed in the arbitration setup and to fully understand their roles and responsibilities would require delineating their role from that of a consultant or an expert, law clerk or a personal secretary. A consultant or an expert is engaged to specifically provide advice on legal matters or on specificities and complexities of the subject matter of arbitration. In legal proceedings, a law clerk assists the judge in preparing synopsis of matters and conducts research on legal issues for the preparation of judgements or for judge’s academic pursuits. In fact, in the United States, the role of a law clerk is deemed as that of supporting the judge in ‘discovering facts or law’ critical to the outcome of the case and to help ‘make the opinion’ of the judge ‘more accurate’. A personal secretary would ordinarily be engaged in pure administrative or personal time and resource management activities of the arbitrator.

Contrarily, a tribunal secretary does not provide active advice to affect the opinion of the arbitrator and at the same time, is also not restricted to administrative roles. A tribunal secretary undertakes both case management functions which are purely administrative as well as partly substantive functions, as may be specifically delegated to the tribunal secretary. Purely administrative functions include inter alia organizing meetings, handling correspondence, managing timelines, maintaining records accurately, rapporteuring, preparing first drafts of procedural orders etc. Substantive functions include assisting the arbitral tribunal in legal research and preparation of notes. Such delegation of functions allows the tribunal to focus better on the merits of the case and ensures a smooth and expeditious arbitral process.

One may turn to the rules of various international arbitration institutes to gauge the permissible extent of delegation of powers. For example, Article 3 of the International Council for Commercial Arbitration’s 2014 Guide on Arbitral Secretaries provides that under the appropriate direction and supervision of the Arbitral Tribunal, the tribunal secretary may review the parties’ submissions and evidence and draft procedural orders or ‘appropriate parts’ of the arbitral award. The guidance suggested that these portions may include first drafts of the non-substantive portions such as procedural or factual background, position of the parties, terms of reference etc as well as costs associated with engaging them.

Rules of the other institutes such as the 2018 Rules of the Hong Kong International Arbitration Centre [Article 13.4 of the 2018 Administered Arbitration Rules of the Hong Kong International Arbitration Centre read with its 2014 Guidelines on the Use of a Secretary to the Arbitral Tribunal Note], the 2020 Rules of the London Court of International Arbitration [Article 14A of the 2020 London Court of International Arbitration Rules read with Section 10 of the Guidanhowce Note for Parties and Arbitrators], or the more recent 2021 Rules of the International Chamber of Commerce [Section XX of the 2021 ICC International Court of Arbitration Note to Parties and Tribunals on the Conduct of Arbitration under the ICC Rules of Arbitration], offer similar guidance. However, it is pertinent to note that such rules categorically provide that the tribunal secretary cannot perform the essential decision-making functions of the arbitral tribunal, which the parties specifically entrust to the arbitrator/(s) by choosing them intuitu personae. Further, a request by the Arbitral Tribunal to a tribunal secretary to prepare drafts does not in any circumstance release the Tribunal from its duty to personally review the submissions and evidence, and draft substantive parts of its orders and awards.

There exists a thin line between appropriate delegation and excessive delegation of arbitral functions to the tribunal secretary. Typically, a challenge to the arbitral award arises when substantive functions which may include participating in the arbitral tribunal’s deliberations and discussions on the awards, drafting parts or a majority of the arbitral award and giving opinions or view on the controversy in question in the arbitration are undertaken by the tribunal secretary by express delegation by the arbitral tribunal or otherwise. In the past, arbitral awards have been challenged on grounds relating to the participation of tribunal secretaries in the arbitral process, particularly adjudicative functions.

Domestic courts in foreign jurisdictions have looked at such questions of excessive delegation more progressively and in effect, held that a tribunal secretary can draft the arbitral award so as long as (i) the arbitral tribunal takes responsibility for the draft prepared by the tribunal secretary and reviews it before finalizing; and (ii) there is no agreement between the parties that explicitly bars a tribunal secretary from drafting the award. The sine qua non for any challenge to delegation of functions to the tribunal secretary to succeed, must reflect that arbitrator delegated their personal and independent decision-making responsibilities. Decisions of the Brussels Supreme Court in Emek Insaat STI Ltd. v. European Union, the Court of Appeal in Hague in Yukos Universal Limited (Isle of Man) v. Russia, and the UK High Court in P v. Q are some landmark decisions in this regard which have extensively discussed on retention of powers by arbitral tribunal and role of tribunal secretaries. The present article does not revisit these cases and instead aims to shift focus to and juxtapose the judicial treatment on the question of engagement of tribunal secretaries and delegation of adjudicative functions in India.

Contrary to the progressive approach as seen internationally, courts in India have generally taken a conservative position while interpreting what constitutes as a permissible delegation of arbitral functions by the arbitral tribunal. Section 6 of the Arbitration and Conciliation Act, 1996 (“the Act”) empowers the arbitral tribunal to arrange for administrative assistance by a third party or institution with the consent of the parties, to facilitate the conduct of the arbitration proceedings. Further, Section 26 of the Act empowers the arbitral tribunal to appoint an expert to assist it on specific issues. In the context of Section 26 of the Act, courts have viewed the involvement of experts, irrespective of the form, which may have a bearing on the merits or outcome of the case, with scepticism. In 2022, the Calcutta High Court in Usha Martin v. Eastern Gases held that while the arbitrator could seek assistance from a third party under Section 26, in that case a chartered account, to quantify the damages, it could not leave the entire calculation of damages to the chartered accountant and simply direct the debtor to pay the amount arrived at by the chartered accountant.

Further, the Andhra Pradesh High Court in Gurucharan Singh Sahney and Others v. Harpreet Singh Chabbra and Others, held that the arbitrator could only delegate tasks of ‘ministerial’ nature to third parties and must exercise his/her own judgement in decision-making and discharge of arbitral functions otherwise. The arbitrator in this case had involved an advocate as an expert who would attend and assist the arbitrator during each proceeding, sign the minutes of the proceedings, ask questions, and even dictate orders. Such involvement was deemed to be excessive under Section 26 of the Act. Similarly, in Municipal Corporation of Delhi v. Fruit and Vegetable Merchants Union Regd., the Lieutenant Governor in his capacity as an arbitrator had accepted the report on findings prepared by the judicial secretary in toto and perused the same to draft his award with only stylistic modifications. The High Court of Delhi deemed the same as delegation of non-ministerial and decision-making arbitral functions, thereby amounting to arbitral misconduct.

Encouraging appointment of tribunal secretaries in no manner should be perceived as providing unbridled powers such as finalization of quantum of damages or awards without proper supervision and involvement of the tribunal. The interpretation of what constitutes as adjudicative functions should be consistent with the international practices; the roles and responsibilities of tribunal secretaries should be carved out clearly, empowering them under the watchful eye of the Arbitral Tribunal.

The outcome of the Emek, Yukos and P v. Q arbitrations in the form of acceptability of the enhanced use of tribunal secretaries should nudge Indian arbitrators and even courts to look at the advantages of having tribunal secretaries in a more favourable perspective. These include speedier resolution of disputes, efficient management of documents, evidence and correspondence, logistical ease etc.

However, these benefits cannot be reaped till arbitration institutions in India come up with their own set of written guidance to provide the necessary road map on the engagement of tribunal secretaries for both the parties and the arbitrators. In an example of academia-industry partnership, the Indian Arbitration Forum had come up with its suggestive best practices and Guidelines for Conduct of Arbitrations in 2018 with a dedicated section on tribunal secretaries for the management of hearings and pleadings (Section V).

Drawing useful lessons from the challenges to role of tribunal secretaries as discussed above, it has been suggested that a roadmap should allay concerns of sceptics by incorporating provisions such as (i) mandating consent of parties to the appointment of tribunal secretaries and to the specificities of their roles; (ii) mandating disclosure by secretaries on conflict of interest; (iii) mandating an undertaking by secretaries on independence and impartiality as well as on confidentiality; (iv) illustrating (if not defining) what constitutes  essential adjudicative functions; and (v) guidance on fee of a tribunal secretary and impact of the same on the costs of the arbitration.

Renewed focus on administrative and logistical aspects of arbitration can help India enhance its lucrativeness as a seat for international arbitration. Bettering the ease of doing arbitration in India is the need of the hour. The authors feel that involving tribunal secretaries in the arbitral process is a worthy option to leverage in that pursuit.

Payel Chatterjee is a Partner, Shuchita Choudhry is a Senior Associate, and Bharatt Goel is an Associate at Trilegal.

The authors thank Madhukeshwar Desai, Founder and CEO and Neeti Sachdeva, Secretary General and Registrar from the Mumbai Centre of International Arbitration and all faculty and facilitators for the Training Program.