Research On The Authority Of The Tribunal Secretary In International Commercial Arbitration

Most international commercial arbitration cases involve complex legal relationships and huge amounts of money.Should arbitrators need to do everything themselves,the arbitrator’s energy will be trapped in complex procedural matters and cannot focus on the actual trial of the case,leading to drops of efficiency and slowing down of the arbitration progress.Therefore,the secretary system of the arbitration tribunal came into being.The tribunal secretary refers to an arbitration professional who assists the arbitration tribunal and mainly deals with procedural matters.Their appearance can free arbitrators from procedural matters,help improve arbitration efficiency and speed up the progress of arbitration.However,the disadvantages of this system also exist.This thesis attempts to use a combination of case analysis,text analysis of regulatory documents of arbitration institutions,and analysis of arbitration theory to summarize the issues related to the arbitral tribunal secretary system,especially the division of authority and responsibilities,and give suggestions.In addition to the introduction and conclusion,this thesis mainly includes the following five chapters:Chapter Ⅰ provides a general overview of the secretary of the arbitration tribunal,including the meaning and source of authority of the secretary,and possible problems.The secretary of an arbitration tribunal refers to an arbitration professional who serves arbitrators and arbitration tribunals and assists in handling non-core affairs that are not exclusive to arbitrators.Its authority comes from the second delegation of the arbitrator and the consent of the parties.In terms of advantages,appointing the secretary can improve the efficiency of arbitration,reduce the cost of arbitration,and guide the parties and arbitrators in terms of procedures.The problems that may arise are mainly divided into the following three points: First,the division of authority is vague,and the secretary may interfere with the substantive award,making the arbitration award actually made by two or four "arbitrators";second,the consequences of ultra vires are unclear,the responsible party is unknown;the third is the lack of consent of the parties and effective information disclosure.Chapter Ⅱ firstly summarizes the normative documents of the arbitration tribunal secretarial system of arbitration institutions and associations.Those associations are UNCITRAL and Young ICCA.The UNCITRAL statement "only confirms that,except for certain specialized forms of arbitration,"the secretary does not participate in the decision-making of the arbitration tribunal",while the Young ICCA guidelines take a very loose position on the division of the arbitral tribunal secretary’s scope of responsibility.The relevant regulations of arbitration institutions are more detailed,but at the same time more complicated.For example,there are inconsistent regulations on whether the arbitration tribunal secretary’s authority requires the consent of the parties and the specific delineation of the arbitral tribunal secretary’s authority.However,domestic arbitration institutions pay more attention to the establishment of the institutional secretariat and has neglected the arbitration tribunal secretarial system itself.Then it summarizes and studies several cases on the authority and responsibility of secretaries.In the "Yukos" case,the Russian Federation’s claim that the secretary was ultra vires did not receive a positive response from the court.The mere use of time as a basis for judgment without providing other supporting evidence also made the argument a little weak,but its claims,however,provides a new way to claim that the arbitration process is illegal and request revocation;in the A.SA v.B.Sàrl case,the Swiss Federal Supreme Court clearly emphasized that the decision-making function is the exclusive core function of the arbitrator and cannot be delegated to the secretary of the arbitration tribunal.In the Sonatrach v Statoil case,the judge believed that the arbitral tribunal’s refusal to produce explanations on the grounds of confidentiality of the arbitration deliberations was not improper.The refusal to produce explanations could not deduce the conclusion that the secretary of the arbitration tribunal must have participated in the arbitration deliberations.The claim lacks direct evidence to support it;in the P v.Q and Ors case,the claimant party relied on the time records of the secretary of the arbitration tribunal to support the allegation of improper authorization,and the plaintiff’s claim was ultimately not supported by the court.Chapter Ⅲ discusses theoretically the authority and responsibility of the secretary of the arbitration tribunal.The first discussion is about the parties’ participation,consent and right to know.This thesis believes that although the selection of the secretary of the arbitration tribunal and the division of authority and responsibilities should be led by the arbitration tribunal to ensure the efficiency of the arbitration,the autonomy of the parties should not be ignored and instead should be implemented.Secondly,this thesis discusses the specific scope and division of authority and responsibilities of the secretary.After comparing the two different modes of selecting and appointing the secretary of the arbitration tribunal and drawing the conclusion that regarding the division of authority and responsibilities,these two modes should be discussed together as one.Chapter IV then gives the following suggestions: First,attach importance to the autonomy of the parties;Second,ensuring that whether the secretary participates in an arbitration award is the only criterion for judging ultra vires;Third,establish an accountability mechanism for arbitral tribunal secretaries ultra vires;Fourth,improve the transparency of the work of arbitral tribunal secretaries;Fifth,strengthen the arbitrator’s supervision and guidance of secretarial work;Sixth,strengthen the awareness building of each performing its own duties.