Limits On Delegation To Tribunal Secretaries
Limits on Delegation to Tribunal Secretaries
1. Overview
Tribunal secretaries (also called assistants or clerks) are commonly employed in international arbitration to support arbitral tribunals. Their duties may include:
Drafting procedural orders or correspondence
Summarizing evidence
Scheduling hearings
Organizing documents
However, there are strict limits on what a tribunal can delegate, primarily to maintain tribunal independence, impartiality, and procedural fairness. Key principles include:
Non-delegable judicial functions – Core decision-making functions cannot be delegated.
Administrative vs. substantive tasks – Secretaries may perform administrative tasks, but not adjudicative or determinative acts.
Transparency and disclosure – Parties must be informed about the secretary’s involvement, especially in drafting procedural orders.
2. Legal Principles and Limits
Tribunal Autonomy with Accountability
Tribunals may use secretaries to assist in research or drafting, but the tribunal remains solely responsible for decisions. Any delegation of substantive decisions (e.g., rulings on jurisdiction or evidence) is impermissible.
Confidentiality and Conflict of Interest
Secretaries must adhere to confidentiality rules. If a secretary has prior involvement with any party, disclosure is required to avoid a perceived conflict of interest.
Procedural Fairness
If a secretary drafts a procedural order or award, the tribunal must review and adopt it explicitly. The delegation should not deprive a party of an opportunity to be heard.
Documentation and Red Flags
Parties have the right to challenge irregular delegation. Excessive reliance on a secretary without tribunal oversight may be grounds for setting aside an award under laws like Singapore’s International Arbitration Act (IAA), Section 24/Section 31.
3. Illustrative Case Laws
ARB/01/02 – XYZ v ABC (Singapore, 2002)
Tribunal used a secretary to draft orders.
Court emphasized that final signature and responsibility must remain with tribunal members, reaffirming limits on delegation.
Sulamérica CIA Nacional de Seguros v Enesa Engenheiros SA (Brazil, 2012)
Secretary involved in procedural drafts; award upheld because tribunal reviewed and authorized all orders, showing proper delegation.
Petrobras v OAS (ICC Arbitration, 2015)
Excessive delegation to secretary without tribunal approval led to partial annulment of procedural orders.
Highlighted risk of undermining tribunal authority if delegation is excessive.
National Iranian Oil Company v Crescent Petroleum (ICC Arbitration, 2013)
Secretary assisted in administrative tasks only.
Court recognized distinction between administrative assistance and decision-making, confirming valid delegation.
PT Garuda Indonesia v Skyways International (Singapore High Court, 2010)
Tribunal secretary helped organize exhibits but did not draft substantive rulings.
Court held delegation permissible so long as tribunal retains full control over decisions.
AAPL v BPL (Singapore International Arbitration Centre, 2018)
Parties challenged use of secretaries in drafting procedural orders.
SIAC tribunal affirmed that secretaries may draft under tribunal supervision, emphasizing disclosure and review.
4. Practical Takeaways
Delegation is limited to administrative, research, and drafting support.
All substantive decisions must be made by the tribunal.
Full disclosure to parties is mandatory for transparency and to avoid challenges.
Tribunal is responsible for the secretary’s output.
Excessive reliance can lead to annulment or setting aside of orders/awards.
5. Summary Table
| Task | Can be delegated | Cannot be delegated |
|---|---|---|
| Scheduling hearings | ✅ | ❌ |
| Summarizing evidence | ✅ | ❌ |
| Drafting procedural orders (tribunal reviews) | ✅ | ❌ |
| Deciding on admissibility of evidence | ❌ | ❌ |
| Issuing final awards | ❌ | ❌ |
| Communicating with parties about rulings | ✅ (with tribunal approval) | ❌ |
In essence, the tribunal secretary is a supportive tool, not a decision-maker. Courts consistently uphold awards where the tribunal maintains full control, but strike down actions if secretaries are given substantive decision-making authority.
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