On 20 December 2018, the International Court of Arbitration of the International Chamber of Commerce (ICC) published updated guidance on the conduct of arbitration under its arbitration rules. The Note to Parties and Arbitral Tribunals on the Conduct of Arbitration under the ICC Rules of Arbitration (Note) entered into force on 1 January 2019, and represents a continuation of the ICC’s efforts to increase transparency and efficiency, and widen its range of services to users.  We consider six of the most significant updates to the Note below.

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English court endorses typical use of tribunal secretary in LCIA arbitration

The English Court has rejected an arbitrator challenge under s24 of the English Arbitration Act 1996 (the Act) on the basis of alleged "over-delegation" of their duties to their secretary. The Court's decision was based on a review of the Act, the LCIA Rules 1998, the various guidelines on the use of Tribunal Secretaries, academic commentary and previous English case law. In addition, the Court noted that it should be slow to depart from the conclusions of the LCIA Court on the same grounds of challenge.

This is a valuable judicial discussion of the practical use of tribunal secretaries and demonstrates that the Court will give robust consideration to whether the grounds of s24 are made out with regard to the use of a secretary.  

See P v Q 2017 EWHC 194 (Comm).

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ACICA announces panel of tribunal secretaries, publishes guideline on the use of tribunal secretaries

On 1 January 2017, the Australian Centre for International Commercial Arbitration (ACICA) announced the launch of a panel of tribunal secretaries which will serve as a resource for tribunals and parties undertaking arbitration in Australia and the region. ACICA also published the ACICA Guideline on the use of tribunal secretaries to provide guidance.

This is a welcome initiative as the use of tribunal secretaries in ACICA arbitrations has been somewhat of a grey area. The Guideline should provide parties with clarity as to the procedure for appointment and removal of tribunal secretaries, their duties and their remuneration.

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Sonatrach v Statoil: backdoor attempt to challenge the tribunal’s findings of fact receives short shrift from the English Court

In the case of La Societe pour la Recherche La Production Le Transport La Transformation et la Commercialisation des Hydrocarbures SPA v Statoil Natural Gas LLC [2014] EWHC 875 Comm, the Commercial Court considered an application under section 68 of the Arbitration Act 1996 (the “Act”) by the claimant (“Sonatrach”) to set aside an arbitration award.

Sonatrach argued that under section 68(2)(a) of the Act the tribunal had failed to comply with its general duty under section 33 of the Act by overlooking and mischaracterising two pieces of evidence and improperly using an administrative secretary. Sonatrach’s application to set aside the Award for serious irregularity under section 68 of the Act was dismissed on the grounds that Sonatrach was attempting to contest findings of fact made by the tribunal.

Sonatrach also made an application to set aside the Order of Cooke J granting the defendant (“Statoil”) permission under section 66 of the Act to enforce the award in the same manner as a judgment. Sonatrach challenged the award of interest at 8% under the Judgments Act 1838 on the damages and costs awarded by the tribunal from the date of the Order until payment. Sonatrach’s application to set aside the Order of Cooke J was dismissed.

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