between the party and the arbitrator has become adversarial and that removal is justified on that separate ground for apparent bias." ...tribunals should circumscribe the secretary's role so that they are not involved "in anything which could be characterised as expressing a view on the substance of that which the tribunal is called upon to decide...
In light of the increasing trend, the English courts are making it clearer that care should be taken not to indulge protracted and expensive satellite proceedings which are inimical to arbitration, and should minimise its intervention in a process to which the parties have submitted. Helpfully, Popplewell J also took care to consider best practice on the appointment and use of secretaries. He acknowledged the "understandable anxiety in the international arbitration community that the use of secretaries risks them becoming, in effect, 'fourth arbitrators'", when the decision making process should be the preserve of the tribunal members alone. He suggested that to insulate themselves from the risk of secretaries exerting inappropriate influence on the decision-making process (and of a related challenge to the tribunal), tribunals should circumscribe the secretary's role so that they are not involved "in anything which could be characterised as expressing a view on the substance of that which the tribunal is called upon to decide". The judge did add that an arbitrator's failure to adhere to such best practice would not necessarily equate to a failure properly to conduct proceedings within the meaning of section 24(1 )(d) of the Arbitration Act, but the sentiment remains clear enough. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
THE AUTHOR
GORDON BELL Gordon is an international arbitration specialist and has represented a number of UK and international clients in disputes throughout Europe, Brazil, India, Indonesia, Iran, Lebanon, Malaysia, Nigeria, Pakistan, Peru, the Philippines, South Korea, Tanzania, Qatar, Saudi Arabia, Sudan and the UAE. Click here to learn more about Gordon.