There is a growing trend for arbitral tribunals to enlist the services of administrative secretaries to provide support, particularly in large and complex arbitrations, sometime involving several parties. When used effectively, administrative secretaries enhance the efficiency of the proceedings and also help to save costs for the parties. In 2012, ICC issued a Note on the Appointment, Duties and Remuneration of Administrative Secretaries and JAMS issued Guidelines for Use of Clerks and Tribunal Secretaries in Arbitrations. The SIAC’s recently published Practice Note on the Appointment of Administrative Secretaries (effective on 2 February 2015) further recognises this growing trend and seeks to provide some practical guidance on issues concerning the appointment of administrative secretaries; the role that they play; and remuneration for their services.
The SIAC Practice Note provides that Arbitral tribunals may, with the consent of all parties, appoint administrative secretaries in appropriate cases. There is no formal process for such appointment except that administrative secretaries must execute a declaration of independence, impartiality and confidentiality prior to the appointment. This helps to ensure fairness in the conduct of proceedings and protect any confidentiality ascribed to the arbitration process. The SIAC Practice Note doesn’t provide any further guidance regarding the appointment. By way of comparison, the ICC Note (i) explicitly states that the arbitral tribunal must make clear to the parties that they may object to the proposal; and (ii) imposes an additional obligation on the arbitral tribunal to submit the proposed administrative secretary’s CV to the parties. Under the JAMS Guidelines, clerks or secretaries are required to complete a separate conflicts disclosure form. The JAMS Guidelines also require arbitrators to explicitly disclose their intentions to use a clerk or secretary as early as practicable in their initial disclosure to the parties on issues such as the fee agreement, engagement letter and scheduling order.
The SIAC Practice Note states that administrative secretaries may be appointed to assist arbitral tribunals in “administrative matters”. This no doubt implies that duties or tasks performed by administrative secretaries must be limited to administrative work and separate from any decision-making role which can only be performed by arbitral tribunals. The SIAC Practice Note, however, does not provide any specific guidance on what these ‘administrative’ duties or tasks might include, perhaps preferring to give arbitral tribunals the flexibility to exercise their common sense in this regard. In contrast, the ICC Note is more prescriptive in specifying the duties of administrative secretaries in greater detail and providing examples of tasks that they may perform. Likewise, the JAMS Guidelines require an arbitrator to disclose the type of tasks assigned to a clerk or a secretary. Both the ICC Note and JAMS Guidelines sensibly state that administrative secretaries must not engage in deliberations or decision making.
The SIAC Practice Note provides specific guidance on the fees for administrative secretaries. Unlike the ICC Note and the JAMS Guidelines, the SIAC Practice Note specifies that if the amount in dispute is under SGD 15 million, the parties are not to bear any fees for the use of an administrative secretary except for any reasonable expenses incurred. If the amount in dispute is SGD 15 million or above, both the administrative secretary’s fees and reasonable expenses are to be borne by the parties at an hourly rate that should be capped at SGD 250.
The issuance of the SIAC Practice Note is useful and also timely given the growing trend for arbitral tribunals to enlist the help of administrative secretaries. Moving Forward, we foresee that parties will benefit from having a better understanding and appreciation of (i) the fees that they can expect to pay for the use of such services; and (ii) the potential costs savings in using administrative secretaries rather than arbitral tribunals to perform the more administrative tasks in an arbitration.
The author is grateful for the assistance provided by Daniel Jung, Associate, Olswang Asia LLP in drafting this post.