Secretaries to Arbitral Tribunals: Judicial Assistants Rooted in Party Autonomy

Abstract

International arbitration is deeply rooted in party autonomy. Parties are free to decide whether they want to resolve their disputes by arbitration at all; how the arbitral proceedings should be conducted; and who their adjudicators should be. While parties to state court litigation may be able to designate a competent court (by way of a choice of court agreement) this freedom usually does not extend to the identity of the individuals who decide their cases. By contrast, it is one of the hallmarks of international arbitration that parties may determine the identity of their arbitrators. It is the proposition of this article that the exercise of this right results in an intuitu personae-choice of arbitrators and that this choice defines the degree to which international arbitrators may resort to assistance. In international arbitration, such assistance is usually referred to as the secretary of the arbitral tribunal. The article analyzes this position of a tribunal secretary, compares it to judicial assistants and suggests that the appropriate use of tribunal secretaries is defined by the parties’ express agreements and implicit expectations regarding the arbitral process.

Keywords: International arbitration, arbitrator’s mandate, decision-making, tribunal secretary