Tower Bridge in London, UK

In the recent anonymised judgment of P v Q and others [2017] EWHC 194 (Comm), the England & Wales Commercial Court gave some important guidance on delegation within Tribunals and the appropriate role of a Tribunal Secretary. An appointment as a Tribunal Secretary is often seen as a stepping stone for arbitration practitioners looking for their first arbitral appointment.  This judgment will be of interest to current and aspiring Tribunal Secretaries, as well as to Tribunals themselves.

The judgment was an anonymised version of the findings of Popplewell J, who had rejected an application by the Claimant to remove the Second and Third defendants as arbitrators under s. 24 of the Arbitration Act 1996.

The Claimant alleged that these two co-arbitrators had improperly delegated their powers to the chairman of the three member Tribunal. In particular, the Claimant alleged that by doing so, they had undermined any decision that could be reached by the Tribunal. The Claimant further alleged that the chairman had improperly delegated its powers to the Tribunal Secretary, which arose following a series of procedural applications and decisions relating the sharing and production of documents and an extension of time. The Claimant had sent a letter to the Tribunal in respect of which the chairman had sent an email, intended for the Tribunal Secretary, asking the Tribunal Secretary: “your reaction to this latest from [Claimant]?”. However, the email was mistakenly sent instead to a paralegal at the Claimant’s solicitors.

Popplewell J stated that the delegation of any procedural or interlocutory decisions by co-arbitrators to the chairman was “entirely appropriate“, so long as the co-arbitrators approved it or otherwise took an active role in its final state. Popplewell J explained that such an approach properly balanced the requirement for any decision to reflect the views of the Tribunal as a whole with the need to keep excessive costs (of both time and money) down.

Critically, Popplewell J then went on to say that, even if such delegations had the effect of undermining the confidence that a party might have in the Tribunal a mere “loss of confidence cannot, of itself, constitute substantial injustice” and therefore could not constitute grounds for the removal of an arbitrator under s. 24 Arbitration Act 1996.

In reaching this conclusion, Popplewell J considered that the Claimant had earlier made a similar challenge to the LCIA Court, which had similarly been rejected (although, in a further twist, the LCIA later removed the chairman on different grounds, relating to comments they made at a conference – but refused to remove the two co-arbitrators). The Judge noted that the Claimant’s arguments had “shifted somewhat” between the two applications – indicating a lack of certainty and clarity on the Claimants part which the court found “entirely inappropriate” in applications such as these.

Popplewell J also dismissed allegations that the chairman had inappropriately delegated decision making powers to the Tribunal Secretary, stating that “an arbitrator who receives the views of a tribunal secretary does not thereby necessarily lose the ability to exercise full and independent judgement on the issue in question“. He further noted that judges can sometimes be “assisted by the views of a judicial assistant or law clerk, but that does not prevent him or her from reaching an independent judgment“. He did, however, acknowledge that there was a “real danger of inappropriate influence” if a Tribunal Secretary was too involved with the decision making process. Indeed, the Judge noted that the “danger may be greater with arbitrators who have no judicial training or background, than with judges who are used to reaching entirely independent adjudicatory decisions with the benefit of law clerks or other junior judicial assistant“.

To prevent Tribunal Secretaries becoming (or to be seen to become) “fourth arbitrators”, the court recommended that Tribunal Secretaries avoid any task which “involves expressing a view on the substantive merits of an application or issue“. Popplewell J also noted that, although best practice might not have been followed, “failure to follow best practice is not synonymous with failing properly to conduct proceedings” for the purposes of s. 24 Arbitration Act 1996.

Summary of Key Findings

  • Delegation of procedural or interlocutory decisions by co-arbitrators to the chair of a Tribunal is appropriate to an extent.
  • The level of injustice that must occur for a successful application to remove an arbitrator under s. 24 Arbitration Act must be “substantial“.
  • It is best practice to avoid involving a Tribunal Secretary in any discussions which could result in it expressing a view on substantive issues.