A judgment rendered by the Court of Cassation on 24 April 2023, gave the Court an opportunity to issue a ruling on the role of arbitral tribunal secretaries. The main issue was whether the secretary of the arbitral tribunal had exceeded their mandate by assuming jurisdictional tasks that could not, by definition, be delegated by the arbitral tribunal.

The secretary of the arbitral tribunal is most often a young lawyer working in the same law firm as the chair of the arbitral tribunal. Their role is to assist the arbitral tribunal in the administrative management of the dispute.

In arbitrations conducted under the ICC Rules, the tasks of the secretary of the arbitral tribunal can include, for example, the following:

• transmitting documents and communications on behalf of the arbitral tribunal;
• organising and maintaining the arbitral tribunal’s file and locating documents;
• organising hearings and meetings and liaising with the parties in that respect;
• drafting correspondence to the parties and sending it on behalf of the arbitral tribunal;
• preparing for the arbitral tribunal’s review drafts of procedural orders as well as factual portions of an award, such as the summary of the proceedings, the chronology of facts, and the summary of the parties’ positions, provided that such procedural orders and portions of the award are subsequently reviewed by the arbitral tribunal itself;
• attending hearings, meetings and deliberations; taking notes or minutes or keeping time;
• conducting legal or similar research; and
• proof-reading and checking citations, dates and cross-references in procedural orders and awards, as well as correcting typographical, grammatical or calculation errors.

In the case brought before the Court of Cassation, a secretary was allegedly involved in drafting questions to be asked to experts and in drafting decision-making sections of the arbitral award.

The request to set aside the award had been rejected by the Court of First Instance of Brussels.

Upon hearing the appeal (in French: “pourvoi en cassation”) against this judgment, the Court of Cassation upheld the reasoning of the Court of First Instance. The Court of First Instance had decided that the prohibition on the arbitral tribunal to delegate its jurisdictional functions did not prevent the secretary from preparing notes and memoranda that, either, would become part of the award after being reviewed, corrected, and validated by the arbitral tribunal based on its personal examination of the case file, or would serve as a basis for the arbitral tribunal’s award after this same personal examination.

Gautier Matray