The Guide to Challenging and Enforcing Arbitration Awards - Second Edition, Global Arbitration Review

In a method of dispute resolution that is always based on a consent agreement between the parties,1 and where the persons empowered to determine the dispute are typically party-appointed, the role of the tribunal secretary in the arbitral process can be problematic. Procedural ambiguity and a perceived lack of transparency have given rise to challenges both to arbitrators and to arbitration awards. For many, these threaten to undermine the legitimacy of international arbitration and engender concerns about the enforceability of awards.

The ‘fourth arbitrator’

In 2002, the Journal of International Arbitration published Constantine Partasides’ seminal article ‘The Fourth Arbitrator? The Role of Secretaries to Tribunals in International Arbitration’.2 Describing the unease developing around the use, or misuse, of tribunal secretaries almost two decades ago, Mr Partasides noted that:

[a] concern is growing in the world of arbitration at what is perceived to be the excessive role of some of these assistants, known commonly as secretaries to tribunals. The term the ‘fourth arbitrator’ alludes to this concern, rather than to a state of affairs that is presently believed to exist. For, whether justified or not, such a concern can only damage the legitimacy of the arbitral process and deserves to be addressed.3
Since the publication of this article, the role and functions of tribunal secretaries in inter­national arbitration have come under increasing scrutiny, with a number of well-known challenges to awards and arbitrators, and increasing academic commentary on the subject. In response to the international arbitration community’s mounting concerns, arbitral institutions have also taken steps to codify the precise framework for the use of tribunal secretaries.

Challenges to arbitration awards

Compagnie Honeywell Bull SA v. Computacion Bull de Venezuela CA

One of the first known challenges to an award based (in part) on the actions of a tribunal secretary is recorded in the 1990 Paris Court of Appeal Decision in Compagnie Honeywell Bull SA v. Computacion Bull de Venezuela CA,4 well before the concept of the ‘fourth arbitrator’ was first described by Mr Partasides.

In an appeal to set aside an International Chamber of Commerce (ICC) award, the appellant, Honeywell, alleged that the tribunal secretary had ‘interfered’ during the two-day hearing on the dispute.5 In dismissing this element of the complaint, the Paris Court of Appeal noted that the tribunal was permitted to appoint a tribunal secretary and Honeywell had ‘not explained how he would have interfered in the proceedings in circumstances which would be more prejudicial to Bull than to its opponent’.6

To read the full article, please visit Global Arbitration Review.

  1. C Schreuer, ‘Consent to Arbitration’, in P Muchlinski, et al (editors), The Oxford Handbook of International Investment Law (2008), p. 1.
  2. C Partasides, ‘The Fourth Arbitrator? The Role of Secretaries to Tribunals in International Arbitration’, 2002(18) Journal of International Arbitration, p. 147.
  3. ibid., pp. 147 and 148.
  4. Compagnie Honeywell Bull S.A. v. Computacion Bull de Venezuela C.A., Paris Court of Appeal [PCA], 21 June 1990, 1991(1) Rev. Arb. 96 (unofficial translation).
  5. ibid., p. 100.
  6. id.