I. Introduction
The Singapore International Arbitration Centre [“SIAC”] is considered one of the most prestigious institutions in international commercial dispute resolution. The SIAC Rules [“the Rules”/ “the SIAC Rules”], introduced in 2016, are considered to be among the most comprehensive set of rules in commercial arbitration and have governed more than 3000 international arbitration cases since their introduction. The institution recently released the 7th edition of the SIAC Rules[“the 2025 Rules”], which came into force on January 1, 2025. This is being hailed as a major reform in terms of enhancing user experience and satisfaction with arbitral proceedings administered by SIAC.
Some changes brought to the Rules include an increase in the cap on disputes eligible for expedited procedure, the introduction of a new ‘Streamlined Procedure’ and ‘Preliminary Determination’ of issues, along with a new case-and-document-management system, called the ‘SIAC Gateway’, among others. However, the purpose of this article is not to cover all the changes proposed, but to dissect a rather low-lying area, i.e. the formal introduction of ‘Tribunal Secretaries’ in the SIAC world through the 2025 Rules.
II. Who are tribunal secretaries?
A tribunal secretary, also known as an arbitral secretary, is an additional personnel appointed to assist the tribunal on issues relating to case management, to save time, and in turn save costs. As per a survey conducted by Queen Mary University, tribunal secretaries are a common phenomenon, with 82% of the survey respondents having either used or observed their services.
The role of tribunal secretaries in international arbitration has attracted divisive opinions among experts and commentators, primarily due to concerns over their potential influence on tribunal decisions. The genesis of this debate lies in the case of Yukos v. Russia [“Yukos”], the landmark judgment in the realm of enforcement and setting aside awards. One of the grounds of the set-aside request raised by Russia was that the ‘assistant’ to the tribunal spent 40-70% more time on the arbitration than the arbitrators. While the award was set aside without considering this ground, it was ultimately upheld by the Hague Court of Appeal, which was further confirmed by the Dutch Supreme Court. Regardless, the case initiated discussions regarding the proper mandate of tribunal secretaries.
III. Inclusion of tribunal secretaries in instruments
Although the Yukos judgment did not base its decision on tribunal secretaries, Russia's concerns sparked a debate on their use. This prompted various institutions to formally adopt provisions concerning tribunal secretaries within their respective instruments. While the Young ICCA Guide on Arbitral Secretaries was the first comprehensive guide about the appointment and mandate of tribunal secretaries, arbitral institutions, inter alia the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), the Stockholm Chamber of Commerce (SCC), and the Hong Kong International Arbitration Centre (HKIAC), all subsequently adopted provisions about the use of secretaries to the tribunal.
Although SIAC previously relied on the Practice Note on the Appointment of Administrative Secretaries [“the Practice Note”] to govern the area, the 2025 Rules ensure the inclusion of provisions surrounding tribunal secretaries within the Rules.
IV. Analysing the position of secretaries as per the 2025 rules
Rule 24 of the 2025 Rules covers the provision for a ‘Tribunal Secretary’ in SIAC arbitrations. While this may be a giant step towards acknowledging the position of tribunal secretaries in SIAC, there are certain issues concerning the appointment and role of secretaries that warrant a rethink. The issues may even jeopardize fundamental principles of arbitration.
A. Aspect I – The role of the tribunal and registrar: A step away from party autonomy?
The aforementioned Practice Note which served as the guiding document for the appointment of tribunal secretaries in SIAC mandated parties’ approval and consent for the appointment of a tribunal secretary as per paragraph three of the Practice Note [This corresponds to party autonomy, which is essential in any decision about the conduct of arbitral proceedings]. However, Rule 24.1 of the 2025 Rules states that the power to appoint tribunal secretaries lies with the Tribunal or Registrar, both of whom may appoint a secretary after considering the view of the parties. There is no clarity as to whether such consideration amounts to the consent and approval of parties or mere consultation. While it is mentioned that the Rule shall be by the “Practice Notes for the time being in force,” there is no indication about the extent to which the Practice Note shall be referred to while appointing a secretary.
Several institutions, on the other hand, including the London Court of Arbitration [“LCIA”] and the International Chamber of Commerce [“ICC”] have procedures that safeguard party autonomy in appointing tribunal secretaries. The ICC requires the tribunal to submit the curriculum vitae of the proposed secretary, an undertaking by both the tribunal and the proposed secretary, and a declaration of independence and impartiality to the parties so that concerns and objections can be raised by the parties. The LCIA on the other hand provides complete autonomy to parties under Rule 14.10 of the LCIA Rules 2020, concerning the appointment of a secretary.
SIAC's new provisions for tribunal secretaries allow for their removal by the Registrar without cause under Rule 24.6. If an award is issued without reasons for any tribunal action, it could result in enforcement issues and setting aside under Article V(1)(d). Particularly if the secretary is appointed post-consultation with parties, their removal without cause could constitute a significant breach of party autonomy.
Since awards issued by SIAC tribunals under the expedited procedure have already faced scrutiny for not upholding party autonomy, the appointment of tribunal secretaries may become a similar bone of contention for the institution.
B. Aspect II – The secretary’s mandate: A cause for concern?
Rule 24.3 also demarcates the mandate of a secretary, prohibiting delegation of “decision-making or other essential functions” of the Tribunal, with a duty for Tribunal supervision of secretary tasks. However, the Young ICCA surveyhighlights divergent opinions among practitioners and academics regarding tasks suitable for secretary delegation.
International arbitration institutions like LCIA and ICC have delineated distinct mandates for tribunal secretaries, distinguishing between delegable and non-delegable tribunal functions. However, SIAC’s recent provisions lack this clarity, potentially enabling secretaries to exceed their mandate and allowing respondents to exploit loopholes for unwarranted delays.
A point of reference in this regard can be J. Ole Jensen’s Traffic Light Scale, which takes inspiration from the Red, Orange, and Green lists of the IBA Guidelines on Conflict of Interest. These lists highlight circumstances that may raise concerns about the impartiality and independence of arbitrators. Jensen categorises tasks into three classes, to determine whether and/or when parties’ consent is required for tasks undertaken by secretaries. Not only is this a systematic approach to the problem, but the decision of the Belgian Supreme Court, dated April 24, 2024, was in line with this scaleproposed by Jensen. Therefore, if given further consideration and applied mutatis mutandis, this can serve as a useful point of reference for the provision within the SIAC Rules.
C. Aspect III – Impartiality and independence – the final bone of contention
Rule 24.2 states that the rules of disclosure for the arbitrators shall also apply to the secretaries, but mutatis mutandis with the necessary charges. Not only is this ambiguous, but since there is no clarity concerning the extent of the mutatis mutandis application of the provision in question, it is also important to note that the disclosure requirements themselves do not mention any circumstances in particular which may give rise to justifiable doubts. Thus, the discretion given to the Registrar for secretary removal is vague and may lead to issues concerning party autonomy and eventually, its enforcement.
Moreover, there is divided opinion on whether the same impartiality and independence degrees should apply to both arbitrators and secretaries. While some scholars have opined in the affirmative, others differ because there are several instances where a secretary has a close professional relationship with the arbitrator, but owing to a lack of decision-making power with secretaries, it would not amount to any form of lapse in judgment.
In the opinion of the authors of this article, it is important to first enumerate the mandate of the secretaries in detail to ensure that no decision-making power is bestowed upon them, and only then can the standards of impartiality and independence be relatively relaxed.
V. Conclusion
To conclude, SIAC’s move to introduce tribunal secretaries is commendable in its thought but needs clearer implementation. There is a lack of clarity concerning both the mandate and the requirements of disclosure. Moreover, there may be cases of breach of party autonomy, due to the unfettered power of appointment and removal given to the Registrar.
It is therefore recommended that the provisions relating to the Registrar’s powers are modified to include mandatory consultation with the parties while ensuring that the tribunal secretary’s mandate is clear. The LCIA Rules, the ICC Rules, and Jensen’s Traffic Light Scale can be used as references for the same. Moreover, to ensure that party autonomy is not breached, the mandate should be made open to discussion with the parties. Concrete measures showing occurrences that may raise doubts about impartiality and independence must be incorporated, as shown in the IBA Conflict of Interest Guidelines.
Comments