In a judgment of 17 June 2020, the Brussels Court of First Instance refused to set aside an ICC award in favour of the European Commission based on allegations that it was partly drafted by a tribunal secretary, ruling there was nothing wrong with the practice so long as the arbitrator(s) review and correct their work.
In 2009, the European Commission (“Commission”) concluded a contract with two contractors – a Cypriot company and the subsidiary of a German group – for the construction of sewers, water distribution networks and pumping stations in Cyprus. After defects were detected, the Commission and the two contractors disagreed on the origin of these defects, which led to ICC arbitration proceedings in Brussels subject to Belgian law. In February 2020, the arbitral tribunal issued a partial award on liability largely in favour of the Commission.
After the arbitration proceedings, the arbitral tribunal received questions from the contractors about the role of the tribunal secretary in the preparation of the questions to the expert witnesses and her role in the preparation of the arbitral award. In his reply, the Chairman of the arbitral tribunal admitted that the tribunal secretary had prepared a draft list of questions and assisted in the drafting of the award. However, the Chairman made clear that he had reviewed the list of questions and that there was not a single phrase in the award that he had not reviewed, checked and, if necessary, corrected.
The two contractors still demanded more information, which led the Chairman to resign, noting that the defendants’ continued disagreement and conduct in criticising certain decisions in the award was aggressive, vexatious, unprecedented and simply unacceptable.
The two contractors subsequently filed a civil action asking the Brussels Court of First Instance to set aside the arbitral award on several grounds, including a delegation of decision power to the tribunal secretary, which is a ground for nullity of an arbitral award pursuant to Article 1717, §3, a) v) of the Belgian Code of Civil Procedure.
In a judgment of 17 June 2020, the Brussels Court of First Instance (“Court”) first held that one of the cardinal principles of arbitration is the intuitu personae character of appointing the arbitrators, who are committed to decide the dispute personally. However, the reality is that arbitral tribunals are increasingly relying on the assistance of administrative secretaries, whose tasks can be more than purely administrative and organisational. The Court considers that the mere fact that an arbitral tribunal entrusts a tribunal secretary with the redaction of all or part of the award or a list of questions for expert witnesses is not enough to demonstrate a delegation of decision power. There must be proof of a real delegation of decision power to the tribunal secretary.
According to the Court, it all depends on how the arbitrators conceive and carry out their task. For some, the act of writing is the ultimate safeguard of intellectual control. For others, the same degree of control can be achieved without having written the first draft. It is ultimately a question of the integrity and professional conscience of the arbitrators themselves, whom the parties have chosen precisely for their qualities. The Court also mentions that tribunal secretaries are often young lawyers who lack experience and for that reason are unlikely to influence the decision process.
The Court concludes that the proofreading and review by the Chairman of the draft arbitral award prepared by the tribunal secretary was in line with the regulatory framework for the intervention of tribunal secretaries in the ‘Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration according to ICC Rules of Arbitration’ and does not amount to an unlawful delegation of decision power.
The Court also dismissed the contractors’ other complaints about the arbitral tribunal’s alleged lack of impartiality, lack of reasoning and lack of adversarial argument.