President’s Message

06/12/2024

Who’s Afraid of Virginia, the Tribunal Secretary?¹

In a previous life, I was a clerk at the Zurich District Court. In a labour case, I had a very different opinion than the judge as to who should win. To me, it was an obvious case of bogus lawsuit, and I told the judge so. After a while, the judge looked at me, smiled, and said: “I hear you, but I disagree. Can you write the judgment according to my opinion?” Of course I could, and I did. After all it was surprising that the judge was interested in my view at all – an arbitrator would not have been.

So, there is no reason to be afraid of someone like me as a tribunal secretary: I would not be listened to and even if I were, the arbitrator would still decide on his or her own and I would assist accordingly. But what about the Virginias out there? Maybe you should be afraid of them? But why, exactly?

It is argued that the parties have chosen an arbitrator and are, therefore, entitled to have all the work done by that person.

Whether this is the case depends on the contract between the arbitrator and the parties (and/or the institution), the receptum arbitri, and thus on the interpretation of this contractual relationship. This in turn depends on the applicable law and all the relevant circumstances. If there is an explicit agreement between the parties and the arbitrator about a tribunal secretary and his or her function and remuneration, wonderful. If not, it can become too complicated for my two pages. I can only offer a few thoughts.

First, are arbitrators different from court judges? One of the amazing achievements of our industry is that essentially the whole world accepts private arbitrators as the functional equivalent of state court judges. The success of the New York Convention is based on this principle. If arbitrators are treated the same as judges, perhaps their job description should be the same or at least similar? If judges can have the assistance of court secretaries and clerks, why not arbitrators? There is a lot of talk about the U. S. Supreme Court justices at the moment. However, I am not aware of any buzz about the individual clerks who assist these justices in various ways, including in the drafting of opinions. Likewise, the decisions of the Swiss Supreme Court are often drafted at least
in part by court secretaries, the Gerichtsschreiber.

Second, parties are increasingly spending significant time and money on the selection of arbitrators, sometimes even in the six-figure range. In large cases, it should not be too difficult to add an item to the checklist “whether and how tribunal secretaries are used”.

Third, if the parties want a star arbitrator, they must assume that he or she will be busy and will not have the time or inclination to draft a 500-page award on his or her own. The parties may object that they do not need 500 pages. True, but then they should not complain if, for example, their argument no. 43(b) on page 612 of their second or third memorial is not addressed in detail in the award. A case in point are the famous $ 50b Yukos awards, which have been challenged by Russia, inter alia, on the ground that they had mostly been drafted by the Tribunal Secretary.²

Fourth, many arbitrators are members of law firms and are accustomed to delegating some work to trusted associates. When they sit as arbitrators, they do most of the work themselves, but they do not become hermits, and no one should expect them to.

Yes, arbitrators bear full responsibility for their assignment and must make their orders and awards “en pleine connaissance de cause”, but this does not mean that they must ignore the comparative advantages inherent in our society which is based on the division of labour.

Another question is how to find the right secretary for a given case. Finding a suitable secretary can be difficult, especially for arbitrators who work alone to avoid the many conflicts inherent in large law firms. A new tool promises to help: the Global Tribunal Secretary Platform, developed by ASA and hosted by Jus Connect,³ connects arbitrators and secretaries worldwide and offers advice on how to go about it. On top, ASA offers training to tribunal secretaries, for the first time as a prelude to the Swiss Arbitration Summit 2025⁴ – one more reason to come to Zurich for this year’s Summit.

No need to be afraid of the secretaries on this Platform, whether they are
named Virginia or not.

Felix Dasser

1. Borrowed from the play “Who’s Afraid of Virginia Woolf?” by Edward Albee (adapted as
   an acclaimed movie by Mike Nichols in 1966). ↩︎
2. Alison ROSS, ‘Valasek wrote Yukos awards, says linguistics expert’, GAR 20 October
   2015. ↩︎
3. The Global Tribunal Secretary Platform ↩︎
4. Highlights – Swiss Arbitration Summit ↩︎

• ASA President's Message
• Swiss Arbitration Association