As arbitration's popularity increases its complexity, arbitral secretaries more prevalent: lawyer

As more litigants turn to the process, complexity is rising in arbitration, and this is leading to an increasing role for arbitral secretaries, says Margot Finley.

Arbitral secretaries – also known as tribunal secretaries – are lawyers who assist arbitrators and arbitration panels. Their role includes helping with logistics, executing procedural case management duties, and drafting the non-adjudicative portions of awards. While a common fixture in international arbitration, arbitral secretaries are now becoming more prevalent domestically as well, says Finley.

“The whole idea is that because arbitral secretaries have a lower billable rate than arbitrators, it can make the whole process more efficient and effective, like a junior lawyer assisting a senior lawyer or a judicial law clerk assisting a judge.”

Finley began her career at Borden Ladner Gervais, in the commercial litigation department, after graduating from U of T Law and clerking at the Court of Appeal. After seven years at the firm, she was largely focused on research and writing, but was also assisting arbitrators. Enjoying the work and finding that such a large firm presented too many conflicts, she left to work full-time as an independent counsel to arbitrators and mediators.

“A lot of parties are turning to arbitration over the court system because they have more control,” she says. “They’re often faster, more efficient, and they can agree between themselves what the terms of their dispute are, and the avenues of appeal.”

“It typically gives the parties more control over the process. They get to choose their adjudicator, to choose when and where it happens, and under what circumstances. I think that is increasingly attractive.”

The process is also private. While anyone, including journalists, can wander into a courtroom and access documents from the case, an arbitration is confidential.

COVID has generated more complexity because a lot of arbitrations have gone virtual and arbitrations need a common platform for evidence, Zoom, and must be able to coordinate parties being online at the same time, says Finley. But she adds that complexity did not arrive with COVID, as she used to have to manage “boxes and boxes” of hardcopy documents, arranging it so that, during the hearing, the arbitrator could easily access what they needed when they needed it.

Arbitral secretaries will manage correspondences between the arbitrator – or panel of arbitrators – and parties, ensuring their questions get answered. They handle technological issues, and coordinate with parties about how their evidence will be presented. They also do legal research and draft the non-adjudicative sections of the awards. If different panel-members write different aspects of the award, the arbitral secretary will stitch it together into a coherent whole.

The parties must consent upfront to the use of arbitral secretaries in the arbitration agreements, which state their hourly rate and that they will have the same independence and impartiality as the arbitrators, says Finley.

“The most important thing is just that the arbitrator can't delegate his or her decision-making authority or mandate to the secretary,” she says.

While there are some parties who may prefer not to have an additional person involved in the arbitration, even if the cost is greater as a result, Finley says most parties find that arbitral secretaries make their lives easier.

“They'll always have someone who has the ear of the tribunal, to get answers when they need answers. Usually, it means that the award will come out sooner because you have someone who's pushing it along or is making all the edits quickly.”