The Fourth Arbitrator? The Role of Secretaries to Tribunals in International Arbitration

IT IS axiomatic to say of an arbitrator's mission that it is ‘intuitu personae’.1 A party's choice of arbitrator is, of essence, personal. And so is the chosen arbitrator's mandate. In accepting appointment, an arbitator necessarily accepts a duty not to delegate that mandate.2 Although the IBA's ‘Rules of Ethics for International Arbitrators’ make no express reference to such a duty, it is implicit throughout. Notably, Article 2.3 requires a prospective arbitrator to accept an appointment: only if he is able to give to the arbitration the time and attention which the parties are reasonably entitled to expect.3 The existence of a ‘duty not to delegate’ may be uncontroversial. It has not, however, impeded the use by arbitrators of junior lawyers to assist them in the performance of their arbitral mandates. 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.4 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.