When Does A Tribunal Secretary Overstep The Mark?

The use of tribunal secretaries in arbitration is a hotly debated topic. For some time now, the use of a secretary has been increasing in the interests of cost and time efficiency. For some however, there is a fear that arbitrators delegate their duties and for a 'second' or 'fourth' arbitrator to be involved in the decision-making process (contrary to the very ethos of arbitration). A recent decision of the English High Court gives lessons for parties and arbitrators when considering tribunal secretary appointments.

P v Q

In P v Q [2017] EWHC 194 (Comm) (handed down in February 2017 but published in anonymised form on 3 April 2017) the Hon. Mr Justice Popplewell in the English High Court considered an application (the removal application) under s24(1)(d)(i) of the Arbitration Act 1996 (AA 1996) to remove two co-arbitrators from their positions in an ongoing LCIA arbitration. Section 24(1) (d) (i) provides that a party to arbitral proceedings may (upon notice to the other parties, to the arbitrator concerned and to any other arbitrator) apply to the court to remove an arbitrator on grounds that he has refused or failed to properly conduct the proceedings.

The application was founded on conduct in three procedural decisions made by the tribunal relating to the sharing of documents between two related arbitrations, an application for a stay and production of documents. Concerns were particularly raised when an email from the chairman intended for the tribunal secretary was mistakenly sent to a paralegal at P's solicitors containing a letter from P to the tribunal and asking for 'Your [the secretary] reaction to the latest from [P]?'.

P had previously applied to the LCIA Court (which appointed an LCIA Division to determine the matter) for the removal of all three members of the tribunal. The LCIA Division had revoked the chairman's appointment (though on different grounds relating to comments made at a conference), but refused to revoke the two co-arbitrators' appointments.

In its application to the High Court, P complained that the arbitrators had:

improperly delegated their role to the tribunal secretary by systematically entrusting the secretary with a number of tasks beyond that permissible under the LCIA Rules and LCIA Policy on the use of tribunal secretaries breached their mandate as arbitrators and their duty not to delegate by not sufficiently participating in the arbitration proceedings and the decision-making process negligently...