ADR And Functions Of Arbitral Secretaries And Registrars

What is ADR?

ADR stands for Alternative Dispute Resolution. ADR is generally used to describe the methods and procedures used to resolve disputes either as alternative to the traditional mechanism of the court or in some cases as supplementary to such mechanism.[1]

Taken broadly, ADR includes a variety of private means or court supervised means of settling disputes; such as: mediation, negotiation, arbitration, etc. ADR illustrious history of thriving where State law cannot reach indicates that ADR has a very bright future indeed.

• HISTORY OF ADR

That ADR typically serves the needs of shop-keepers by no means indicates that it requires the steady and secure environment of a well-regulated State. To the contrary, ADR has thrived under conditions that render soldiers and bureaucrats powerless. Consider the Mediterranean in the eleventh century: Muslim and Christian worlds stood on opposite shores, divided not only by sea but by religion, kinship, kingdom, and culture.

Merchants struggled with agency relations under asymmetric information, an inability to specify comprehensive agreements, and sharply limited means of enforcing contracts. Yet free, private, and competitive trade thrived, thanks to the Maghribi traders, a coalition of merchants, who set up and ran a private legal system.

The Law Merchant (Lex Mercatoria) represents a more sophisticated and well-known example of how the demands of commerce can create and sustain a polycentric legal system under circumstances that frustrate statist law. Like the Maghribi traders’ coalition, the Law Merchant’s effectiveness relied not on State coercion but on the threat of ostracism.

Merchants who defected from the Law Merchant’s standards found themselves cast out of its community of reciprocal commercial relationships. The Law Merchant survived the political turmoil of the middle Ages and influences international law and customary business practices to this day.

Just as important States left room for the development of the Maghribi traders’ coalition and the Law Merchant, so does the long delays and high costs of State legal systems today encourage the growth of commercial alternatives.

The largest private provider of ADR services in the U.S., the American Arbitration Association, administered 62,423 cases in 1995, nearly twice as many as the 35,156 it handled in 1975. More than 1,000 ADR brokerages compete with the AAA, led by Judicial Arbitration and Mediation Services/Endispute, a private California company founded in 1979. JAMS/Endispute handled about 15,000 arbitrations and mediations in 1997, generating $45 million in revenue. By March of 1998, its monthly average caseload had already risen 13 per cent over 1997 figures, to 1,500 a month.

In Nigeria today the use of ADR mechanisms is catching on and in the last couple of years the Lagos and Abuja Multi-Door Courthouses have been established to promote the use of alternative dispute resolution mechanisms even by parties who have brought their disputes to the court forums for resolution.

There are also professional associations who carry out training, retraining and provide rules for ADR in the country. Such associations include the Chartered Institute of Arbitrators (Nigeria) (which trades under the name of the Nigerian Institute of Chartered Arbitrators), the Chartered Institute of Mediators and Conciliators (ICMC) and the Nigerian Conflict Management Group (NCMG) amongst others.

Types of ADR

• Conciliation
• Negotiation
• Mediation
• Mini-trial
• Neutral evaluation
• Med–Arb
• Arb-Med
• Private Judging

Alternate Dispute Resolution Mechanisms, A Synopsis

Below are brief descriptions of the most prominent of the ADR mechanisms in use today, particularly: CONCILIATION, NEGOTIATION, MEDIATION, MED-ARB, ARB-MED, MINI-TRIAL, NEUTRAL EVALUATION, ARBITRATION AND PRIVATE JUDGING.

• CONCILIATION

Conciliation is a dispute resolution mechanism and the etymology of the word ‘conciliation’ can be traced back to its Latin root ‘conciliationem’ which means ‘a connection, union, bond and figuratively means making friendly or gaining over’.

The concept itself in dispute resolution is defined as a third-party facilitated negotiation by a conciliator, who can add value to the process by making proposals to the parties for the settlement of the dispute. This added value of making proposals for settlement is the difference between mediation and conciliation.

The Arbitration and Conciliation Act (ACA) provides a framework for conciliation in Nigeria. Section 55 ACA provides that “parties to an international commercial agreement may agree in writing that disputes in relation to the agreement shall be settled by Conciliation Rules set out in the Third Schedule to this Act.”

Attention should be drawn to the words “international commercial agreements” used in section 55 of the ACA. By strict interpretation, the Conciliation Rules only apply to international commercial agreements. However, since conciliation, like mediation, is loosely regulated and its final outcome is still based on acceptance by disputing parties, disputants in non-international commercial disputes may still agree to have their disputes resolved in accordance with the Conciliation Rules in the Third Schedule to the ACA.

The Conciliation Rules contains 20 Articles covering areas from commencement of conciliation, appointment of conciliator, submission of statements to a conciliator, role of conciliator, communication between parties, suggestions for settlement, settlement agreement and confidentiality.

The role of the Conciliator is set out in Article 7 of the Conciliation Rules thus:

(1) The conciliator assists the parties in an independent and an impartial manner in their attempt to reach an amicable settlement of their dispute.

(2) The conciliator will be guided by the principles of objectivity, fairness and justice, giving consideration to, among other things, the rights and obligations of the parties, the usages of trade concerned and the circumstances surrounding the dispute, including any previous business practices between the parties.

(3) The conciliator may conduct the conciliation proceedings in such a manner as he considers appropriate, taking into account the circumstances of the case, the wishes the party may express, including any request by a party that the conciliator hear oral statements, and the need for a speedy settlement of the dispute.

(4) The conciliator may, at any stage of the conciliation proceedings, make proposal for a settlement of the dispute. Such proposals need not be in writing and need not be accompanied by a statement of the reasons therefore

The intended end point of the conciliation process is a settlement agreement, which will be signed by the parties and have effect in law as a binding and enforceable legal instrument. However, unlike an arbitral award which is enforceable by a court of law upon an application, without more, a settlement agreement reached pursuant to a conciliation process can only be enforced as a mere contract through a full action and after a trial.

• NEGOTIATION

Negotiation is a common way for people to deal with problems and conflict. It happens when the people involved in a dispute want to talk to each other with the aim of finding a solution to the problem through bargaining and trading.

Sometimes negotiation is very informal, and it happens within everyday situations. It can also be a formal method of conflict resolution used to resolve interpersonal, intergroup and interstate conflicts.

• MEDIATION

Mediation is a negotiation process facilitated by a neutral third party who listens to all parties and helps them to communicate with each other or one another, as the case may be.

What is Mediation?

Mediation can also be said to be a negotiated settlement of a dispute, with parties taking active control of their dispute and how it is resolved though the help of a third party-Mediator.

GLOBAL COMPANIES THAT USE MEDIATION

1. Google’s Approach to Dispute Resolution: “Don’t Litigate.”
2. In 2013 Google avoided formal charges by the Federal Trade Commission by agreeing to make small changes to its search practices.
3. In February of 2014, they reached a similar deal with European Commission regulators, promising to reserve space high on its European search pages for competitors like “Nextag” to offer their own search results, albeit only after paying Google for the space.
4. These two deals allowed Google to avoid an official probe and a potential fine of up to 10% of its global annual revenue, which was $59.8billion in 2013.
5. Compare with Microsoft that fought European antitrust charges for a decade, a battle that ultimately cost the company more than $2.5billion in fines.

Mediation is the most favoured ADR mechanism for the following reasons:

1. Legal Frame work
2. Potential for developing optimal solutions; Low cost to parties and providers; Potential for preserving the parties’ relationship; Efficiency in timely resolution; Speed of Implementation of Mediation Agreement.
3. Customary Laws
4. Arbitration and Conciliation Act, FHC Act etc?
5. Laws of Various States
6. Traditional way of resolving disputes peacefully in agrarian rural based Nigeria. Mediation was used as a tool for preserving cultural norms and values. The mediator’s authority was hinged on his standing and the respect accorded to him in the community. Mediation prevented disputes from escalating, maintained peace and preserved traditional values.

In the case of Okpuruwu vs. Okpokam: the Honourable Justice Oguntade JCA (as he then was) observed thus

“In the pre-colonial times and before the advent of the regular courts, our people (Nigerians) certainly had a simple and inexpensive way of adjudicating over disputes between them. They referred them to elders or a body set up for that purpose. The practice has over the years become strongly embedded in the system that they survive today as custom”.

Section 24 of the High Court Law of Lagos State Chapter H3 Laws of Lagos State 2003 states thus: –

“Reconciliation in civil cases:

In any action in the High Court the courts may promote reconciliation among the parties thereto and encourage and facilitate the amicable settlement thereof”

VARIOUS STATE LAWS

Order 3 r 11 of High Court of Lagos State (Civil Procedure) Rules 2012:

“All Originating Processes shall upon acceptance for filing by the Registry be screened for suitability for ADR and referred to the Lagos Multi Door Court House or other appropriate ADR institutions or Practitioners in accordance with the Practice Directions that shall from time to time be issued by the Chief Judge of Lagos State.”

Lagos Court of Arbitration law

Section 9 of LCA Law:

The Functions of the Court of Arbitration shall be to:

Promote resolution of disputes in the territory of Lagos State by Arbitration and other ADR mechanisms apart from litigation.

Maintain a Penal of Neutral which shall consist of Arbitrators, Mediators as well as other experts with special skills and experience in specialized areas and who are willing to be members of any Tribunal constituted by the Court of Arbitration in respect of any Dispute referred to it.

Mediation guidelines of the LCA

Article 1.2: For the flexibility of the mediation process, Guideline shall not be unduly prescriptive. Construed and interpreted in a liberal manner to produce a just, efficient, expeditious and cost-effective process of resolving disputes by mediation between parties.

Article 1.3: Mediation Agreement: A written agreement wherein parties have agreed to submit all or certain disputes which have arisen or which may arise between them to mediation. It may be a mediation clause of separate agreement.

Settlement Agreement: Agreement reached between the parties at the successful conclusion of the mediation

Lagos Multi-Door Courthouse Law

The Objective of the Multi-Door Courthouse

The objectives of the LMDC are to: –

1. Enhance access to justice by providing alternative mechanisms to supplement litigation in the resolution of disputes;
2. Minimize citizen frustration and delays in justice delivery by providing a standard legal framework for the fair and efficient settlement of disputes through Alternative Dispute Resolution (ADR);
3. Serve as the focal point for the promotion of ADR in Lagos State;
4. Promote the growth and effective functioning justice system through ADR methods.
5. Lagos Multi-Door Courthouse Law

MINI TRIAL

The term “Mini Trail” is used in loose terms because a Mini Trial is not a trial per se. A “mini-trial”, otherwise called an “information exchange”, resembles an abridged court case but without live evidence.

A Mini Trial is a form of evaluative mediation process which assists the parties to a dispute to gain a better understanding of the issues in dispute thereby enabling them to enter into settlement negotiations on a more informal basis.

Getting Started with Mini-Trial

The Mini-Trial process is initiated with an agreement (usually in writing) to resolve the matter by Mini Trial. The parties may either mutually agree on an individual to be the Neutral Advisor or ask an ADR organization to appoint a neutral Advisor for them.

Steps in Mini –Trial

The parties and the neutral then schedule a date and time for the “information exchange” and decide on the formality of the proceedings, the applicability of evidence rules and any other procedural aspects

Discovery (request for certain documents in possession of any of the parties) between the parties may take place prior to the “information exchange”, in accordance with the agreement between the parties.

The parties shall exchange written statements summarizing the issues in the case and copies of all documents they intend to present at the “information exchange”

Information Exchange

This is where the respective Counsel of the parties to the dispute will make a short presentation of his case to a panel comprising of the disputing parties (or in the case of a corporation, the chief decision maker) and the Neutral Advisor.

The goal of the mini trial is to enable the parties view the dispute in a better perspective and help them settle in a more dispassionate manner.

The decision-makers on each side sit with the neutral person as if they were judges, facing the lawyers for each side, who “fast-forward” to their “final addresses” and answer questions from the “bench”.

After the presentation by the lawyers, the parties retire and try to negotiate a settlement in light of their evaluation of their strengths and weaknesses, as exposed during the previous session, assisted by the Neutral Advisor

If parties reach settlement, the Neutral Advisor draws up an agreement, which upon signing by the parties becomes binding on them.

If a deadlock occurs, each party would draft a non-binding document of opinion for other party’s consideration. Proceedings are confidential and not binding on the parties.

ADVANTAGES OF MINI-TRIAL

Mini trials are a good method for resolving disputes in which the underlying law is settled.

Mini trial can give high level corporate executives an opportunity to become involved in resolving a dispute at an earlier stage than usual in litigation, potentially saving the corporation significant time and money.

The high-level corporate executives hear each other’s side of the story (perhaps for the first time), not through their own counsel’s words, but directly from the opponent. This can deepen their understanding of the problem and its roots, and possibly clear up any misconceptions or misunderstandings as to the other side’s actions and positions.

Other advantages to mini-trials are similar to those of other ADR processes, e.g., their confidential nature, the preservation of business relationships, etc.

DISADVANTAGES OF MINI-TRIAL

Mini-trial should not be used when the underlying legal issues are uncertain or when they want to create legal precedent for other cases.

Mini-trials may be expensive because if parties fail to settle, the matter will proceed to litigation or arbitration.

A mini-trial could be considered as a dry run for a later court trial and this may give the other side advance warning of future trial strategies and important evidence already disclosed during the mini trial.

However it has been argued that a dry run also allows parties to weed out unimportant, collateral or technical problems that may be obscuring the real dispute and to eliminate areas in which the parties are in agreement and even if the dispute goes to trial before a judge and jury, parties will then focus on the issues that were argued during Mini trial, thereby saving time and money in the trial.

NEUTRAL EVALUATION

This process is similar to Early Neutral Evaluation but as a matter of practice, Early Case Evaluation is usually done soon after a matter has been filed in Court.

Under Neutral Evaluation, parties to a dispute make presentation of their own side of the case to a Neutral Evaluator (usually a retired judge or an expert in the field of dispute)

The goals of Neutral Evaluation are to:

1. Enhance direct communication between the parties about their claims and supporting evidence
2. Identify and clarify the central issues in dispute, assist with discovery and motion planning or with an informal exchange of key information
3. provide an assessment of the merits of the case by a neutral expert and  a “reality check” for clients and lawyers
4. facilitate settlement discussions, when requested by the parties

NEUTRAL EVALUATION PROCESS

The evaluator, an experienced attorney with expertise in the case’s subject matter, hosts an informal meeting of clients and counsel at which the following occurs:

Each side – through counsel, clients or witnesses – presents the evidence and arguments supporting its case (without regard to the rules of evidence and without direct or cross-examination of witnesses)

The evaluator identifies areas of agreement, clarifies and focuses the issues and encourages the parties to enter procedural and substantive stipulations

The evaluator writes an evaluation in private that includes:

– an estimate, where feasible, of the likelihood of liability and the amount orange of damages

– an assessment of the relative strengths and weaknesses of each party’s case and the reasoning that supports these assessments

The evaluator would then present the evaluation to the parties, who may then engage in settlement discussions facilitated by the evaluator, often in separate meetings with each side. The evaluator has no power to impose settlement and does not attempt to coerce a party to accept any proposed terms. The parties may agree to a binding settlement. If no settlement is reached, the case remains on the litigation track.

VALUATION

Valuation is often resorted to when parties dispute on issues of quantitative and qualitative natures, where there is a disagreement and an independent expert valuer is commissioned to measure the parameters of the subject matter in dispute and submit a report to the parties. It should be noted that all the valuer does is just to provide information based on his expertise and that his report is not binding on the parties.

PRIVATE JUDGING

This is also known as Referral Judging or “Rent-a-Judge.”

Here, parties enter into an agreement to hire a Private Judge (a Retired Judge) to try their dispute in private

In Countries where there are applicable laws, the appointment of the Judge will be in accordance with the provisions of the law. For example, in USA, the authority of the Judge comes from the US Commercial Arbitration Act. In other instances, parties may define procedures governing proceedings before the private Judge (such as time and place of proceedings).

Unlike other presiding officials in ADR proceedings, a private Judge has full judicial powers including the contempt powers. Judgment rendered by a private Judge is binding on the parties and enjoys the same right of appeal given to judgments rendered by sitting judges. Private Judging is used mainly for commercial disputes and in family/divorce proceedings.

The Process stages in Private Judging

The judge conducts a Preliminary Planning Meeting to:

Identify the issues in dispute.

Specify an efficient process for dealing with the matter.

Determine information and evidence requirements and how they will be presented.

Set a process timetable, including hearing dates.

Agree the costs of the process.

Submissions and reports are prepared and exchanged, in accordance with the agreed arbitration plan and timetable.

The judge then conducts the Formal Hearing, which may run for anything from a half day upwards.

After hearing all the arguments and reviewing all the evidence, the judge concludes the proceedings by producing a written “Award”, which is legally binding on the parties.  The Award is like a simplified court judgment– it states the judge’s decision, along with brief reasons

The parties can agree to be absolutely bound by the judge’s decision, excluding all rights of appeal, if they want to make the process completely final. Otherwise, they have rights to appeal the judge’s decision directly to Court.

Indeed, a new form private appeal judging or “rent an appeal judge” is emerging in the US”

BENEFITS OF PRIVATE JUDGING

Private Judging is a particularly effective process where parties require an experienced, objective and highly credible third party to make a final and binding determination on complex factual or legal issues.

They get a decision that carries similar weight to a court’s determination, while avoiding most of the delay, cost and stress that comes with conventional litigation.

The process can save spectacular amounts of time and cost in complex commercial disputes.

DISADVANTAGES

It has been argued that it allows more affluent litigants evade the problems of the judicial system.

According to “Robert Gnaizda” The elite abandoning a public system in decay ensures that it will never be improved.

It lures experienced jurists into early retirement to collect the combination of public pensions and private fees.

It lets corporations and other litigants shield their doings from public scrutiny. In normal civil- court proceedings, hearings are generally open to the press and public and the records are public records.

MED-ARB

Med-Arb is an abbreviation for “mediation-arbitration”. In Med-Arb, an attempt is made to resolve a dispute by agreement through mediation and if that fails, then parties proceed to arbitration, where a binding decision will be reached.

The agreement to proceed to arbitration if arbitration fails is usually reached by the parties before the commencement of the mediation. Parties usually appoint the initial mediator as the arbitrator and his decision in the arbitration proceedings will be final and binding on the parties.

The real or perceived advantage is that the process will produce a resolution one way or the other and so parties will try harder to be reasonable and resolve the matter during mediation

Where the dispute proceeds to arbitration and the mediator is appointed as the arbitrator, there will no loss of time or costs in having to reacquaint a new person with the facts of the matter. However, some people have concerns that when acting as arbitrator, the neutral person may be influenced by what was learned in confidence about the disputants’ bottom lines.

ARB-MED

“Arb-Med” came up to try and overcome the concerns some people have with “Med/Arb”. The neutral person acts first as arbitrator, receiving from the disputants’ only information that they exchange with each other. The arbitrator makes a written decision. This is not revealed to the parties unless and unless the next stage (mediation) is unsuccessful.

Although the risk of the decision being influenced by confidential material is eliminated, this is done at the cost of the arbitration part of the process, especially if the mediation is successful, because in that event the decision never sees the light of day.

CASE MANAGEMENT CONFERENCE/PRETRIAL CONFERENCE

Under the High Court of Lagos State (Civil Procedure Rules) 2019

Order 27, Rule 2(c) of the Rules provides that within 14 days of the completion of pleadings, the Claimant shall apply for the issuance of a Case Management Conference Notice; consequent upon which the Judge shall cause to be issued a Case Management Conference Notice which shall amongst other things promote the amicable settlement of the case or adoption of ADR.[2]

FUNCTIONS OF ARBITRAL SECRETARIES AND REGISTRARS:

Arbitration proceedings, as a form of ADR necessarily require certain positions to be in place for the efficacy and effectiveness of the whole process, inability to ensure the smoothness of this will stultify and defeat the process, slowing it down and thus inevitably resulting in a lackluster arbitration proceeding.

One of such pertinent positions is that of an Arbitral Registrar also known and referred to as arbitral secretary, administrative secretary or a tribunal secretary, who basically handles logistics and secretarial duties.

Locally and internationally, arbitral tribunals do engage the services of an arbitral secretary, the benefits of which are humongous.

APPOINTMENT

Arbitral secretaries are either individually appointed or appointed by an institution. The appointment of an arbitral secretary ensures that the other members of the Tribunal keep their focus on the substantive adjudication of the arbitral proceeding, amongst other benefits which shall be considered later.

When appointed by an institution, there are guidelines provided by the institutions by which they must abide.

In ad-hoc arbitration, the parties decide who the secretary should be, this is called party autonomy. There are no regulations guiding their conduct, only guidelines.

The appointment usually takes place after the tribunal has been constituted.

Disclosure is necessary in a situation where a party knows of any existing conflict of interest that may act as a clog in the wheel of the fairness of the proceeding.

QUALIFICATIONS

Any competent individual can be a registrar; however, the qualified ones are preferred in practice.

1. Junior lawyers are popularly known to be appointed as arbitral secretaries.
2. Anyone who has had some experience in arbitration proceeding.

THE DUTIES & RESPONSIBILITIES

Copious reasons exist that give the justification for the engagement of arbitral secretaries. Arbitral Tribunals locally and internationally make use of arbitral secretaries. Some Arbitration Institutes are silent on the role of the arbitral secretary like the Arbitration Institute of the Stockholm Chamber of Commerce; Netherlands Arbitration Institute (NAI); Swiss Chambers’ Arbitration Institution

There is also, the argument that an arbitral registrar is not so important in simple arbitration cases, only in the complex ones.  Generally, their function is purely administrative, they coordinate, facilitate and administer the conduct of the arbitral process, amongst numerous other functions which include:

1. INTERMEDIARY BETWEEN THE TRIBUNAL & PARTIES:

They serve as a channel of communication: receiving and sorting out the documents being submitted by the parties.

2. SECRETARIAL DUTIES
3. Sending out notices and reminders.
4. Recording and transcriptions of the proceeding.
5. Providing agenda for the meetings.
6. Recording attendance of parties and their representatives.
7. VENUE ARRANGEMENTS

Making proper and adequate arrangements for a suitable venue.

4. FINANCIAL RECORDS
5. They handle the collection of fees and keep proper account of all outgoings and incomings.
6. They also take charge of disbursements.
7. They must give a periodic account of the financial status of the tribunal.

5. CUSTODIAN OF TRIBUNAL DOCUMENTS

They maintain proper record of all filings and correspondence and ensure a safe custody of same.

6. ELIMINATION OF ERRORS

They proof-read procedural orders and awards to ensure they are error free.

7. CONFIDENTIALITY

They must ensure utmost confidentiality of the proceedings.

However, the functions of an arbitrary secretary would usually vary from one proceeding to the other, and the extent and scope of the functions will also depend on the level of experience and the efficiency of the secretary. The case of Russian Federation V Yukos Oil Co provides for clarity in understanding the role and function of the arbitral secretary, where it was alleged that the secretary was delegated more duties than was agreed upon by the arbitrators.

Some institutes like the International Chamber of Commerce (ICC); London Court of International Arbitration (LCIA) and Singapore International Arbitration Commission (SIAC); have broadened the function of an arbitral secretary to provide oversight functions over the proceeding to include:

• The discretion to reject or accept an application for arbitration.
• Approval of arbitrators nominated by the parties.
• Conducting legal research
• Assessment of the award before issuance.
• Review of fees and cost of the arbitration.
• Attendance at arbitration deliberations
• Drafting procedural orders and in some cases portions of the award and to mention a few.

The Secretariat of the ICC International Court of Arbitration promulgated a two-page ‘Note on the Appointment, Duties and Remuneration of Administrative Secretaries’ where it stated that:

“Under no circumstances may the Arbitral Tribunal delegate decision-making functions to an Administrative Secretary. Nor should the Arbitral Tribunal rely on the Administrative Secretary to perform any essential duties of an arbitrator…. A request by an Arbitral Tribunal to an Administrative Secretary to prepare written notes or memoranda shall in no circumstances release the Arbitral Tribunal from its duty personally to review the file and/or to draft any decision of the Arbitral Tribunal.”

The Note further states that the appointment of an arbitral secretary and the scope of its function should not pose an extra financial burden on the parties.

Michael Polkinghorne and Charles B Rosenberg in an article titled – “The Role of the Tribunal Secretary in International Arbitration: A Call for A Uniform Standard” concluded by advocating that different arbitration Institutes should: “…develop a uniform standard in the form of guidelines of best practices that could be adopted by arbitration institutions and parties. This, in turn, would strengthen the perceived legitimacy of the arbitration process and resulting award by minimizing the likelihood that the secretary would exceed his or her position as an assistant to the tribunal and impermissibly become a decision-making ‘fourth arbitrator.”

Greg Nwakogo in a paper titled ‘The Role of Tribunal Registrars in Arbitration’ stated:

“The personal qualities of the Tribunal Registrar would as of necessity include Impartiality and Independence. The Tribunal Registrar must identify impermissible conflicts of interest and provide the parties with a reasonable opportunity to object. He must disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. Further, the Tribunal Registrar once appointed remains under a continuing obligation to disclose any such circumstances. The fact that the Tribunal Registrar’s tasks may in many cases be menial and hence not much on the merits is irrelevant. The aim is to engender confidence in the entire arbitral process.”

CHARACTERISTICS EXPECTED OF AN ARBITRAL SECRETARY

1. He or she must be competent.
2. An arbitral secretary must be able to work independently.
3. He must adhere strictly to the confidentiality of the proceeding.
4. An arbitral secretary must not be seen to be partial.
5. He must pay attention to details and not get easily distracted or carried away.
6. Integrity is key to enable the secretary to win the trust of both parties.
7. Availability: he must decline to be a secretary if he knows he already has his hands full and won’t be able to give it the time it requires.
8. Punctuality: he must arrive at the venue at least an hour before the commencement of the proceeding.
9. Timeliness: he must ensure that all his duties are carried out timeously, thus providing enough time for all parties to adequately make all necessary preparations.
10. He must be conversant with the relevant Arbitration Rules.
11. Technology: he must be up to date and have basic ICT knowledge.
12. He must possess good writing and speaking skills.

CHALLENGES FACING ARBITRAL SECRETARIES

Arbitral secretaries are assailed by is a plethora of challenges, hence the need for training of Arbitral Secretaries.

According to Michael Polkinghorne and Charles B Rosenberg, in an article written by them;” The role of the tribunal secretary in international arbitration is an ‘enormously grey area’ that has been subject to instances of ‘abuse’.”

Some of the challenges include but not limited to:

1. Lack of Regulations.

There is no uniform standard. The industry as far as arbitral secretaries is concerned remains largely unregulated but are guided by institutional guidelines. However, some institutions do not even have such guidelines.

2. Lack of Guidelines:

Some institutions make no provision for guidelines; thus, the Tribunal (or the parties) is forced to set guidelines for the Arbitral secretary.

3. Subjectivity:

Any summary or research performed by the tribunal secretary will often, bear the secretary’s perspective and may thus impact negatively on the arbitrator’s own evaluation.

Certain institutions have taken it upon themselves to define the role of an arbitral secretary, some of which are:

1. The London Court of International Arbitration (LCIA)
2. The International Chamber of Commerce (ICC)
3. The Hong Kong International Arbitration Centre (HKIAC)
4. The International Centre for Settlement of Investment Dispute (ICSID)
5. Judicial Arbitration and Mediation Services, Inc (JAMS)
6. The American Arbitration Association (AAA)
7. United Nations Commission on Trade Law (UNCITRAL)
8. Arbitration Institute of the Finland Chamber of Commerce (FCC Institute)

BENEFITS

The benefits are numerous:

1. Cost effectiveness

They help in facilitating a speeding process, thus significantly reducing the length of the proceeding and reducing cost in the long run for the parties who are obliged to pay the arbitrators per sitting or per hour.

2. Speed

They help in speeding up the arbitration process. When these tasks are delegated, it significantly reduces the workload of the Tribunal or arbitrator thus resulting in a faster delivery of awards.

3. Elimination of Distraction

Distractions are eliminated and the Tribunal can then focus on the core of the proceeding.

4. Elimination of Errors

A good arbitral secretary may be asked to proofread the award for the purpose of eliminating all sorts of errors.

FEES

His fee is determined by the tribunal in consent with the parties. Fees may be charged;

1. Based on the value of the dispute or
2. By hourly rates, based on the amount of time spent on the proceeding.

IN CONCLUSION

From the foregoing, it is without doubt that ADR and other forms of it has come to stay, and that the role of the arbitral secretary, though to some may seem insignificant, is like the lubricant that removes the clog (or reduces the clog) in the wheel of any arbitration proceeding.

References:

[1] Paper presented in Alternative Dispute Resolution Conference 2022 of the Legal Ideas Forum Int’l at Dencan Moot Court, Faculty of Law, COOU, Igbariam, Anambra State, Nigeria, is culled from Nigerian Institute of Chartered Arbitrators Training Module and hand book.

[2] Under the High Court of Delta State (Civil Procedure Rules) 2009, Order 25, Rule 2(c) of the Rules provides that within 14 days of the completion of pleadings, the Claimant shall apply for the issuance of a Pretrial Conference Notice; consequent upon which the Judge shall cause to be issued a Pretrial Conference Notice which shall amongst other things promote the amicable settlement of the case or adoption of ADR. Similar provisions exist in the Rules of Court of other States of the Federation of Nigeria.

About the author:

Noel N. Udeoji PhD, FCIMC, MCArb, Lecturer II, Department of Public and Private Law, Nnamdi Azikiwe University, Awka, [email protected], [email protected] (+234-803-324-0300 | +234-905-004-5505).