"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Tuesday, June 18, 2019

Tribunal Secretaries as a New Career Opportunity for Young Lawyers in India

Who is a tribunal secretary?

Administrative support to arbitral proceedings, especially in the documents intensive and high stakes arbitrations,  is important. "Administrative" support ranges from interacting with the parties regarding administrative matters to sending letters/ documents, maintaining the documents. Administrative support might sometimes even concern drafting procedural orders, etc. A tribunal secretary performs this role on behalf of the tribunal, thus ensuring that the tribunal's focus is on adjudication rather than on performing these mundane but important tasks.

It is important to note that the parties are deemed to have appointed the tribunal to adjudicate the disputes between them and so the tribunal secretary should not ideally perform any adjudicatory function on behalf of the tribunal. Therefore, there are certain duties that should be consented to, expressly or impliedly, by the parties.

What are the functions of a tribunal secretary?

Following could be regarded as the broad functions of a tribunal secretary:

  • Sending and receiving communications on behalf of the tribunal.
  • Maintaining the arbitration record, including the documents, of the arbitration, in various forms- soft and hard copies
  • Conducting legal research on behalf of the tribunal
  • Drafting the non-substantive (which records adjudication by the tribunal) parts of procedural orders and awards. 
  • Keep a record of the costs and manage pre-deposits made by the tribunal for costs.
  • Organising hearings and also meetings of the tribunal.
  • Take notes of the proceedings and keeping tab of time
  •  Proof reading the draft orders, directions and award(s) for typo and other errors, errors in references in citations, etc.
Who can become a tribunal secretary?

Anybody with sufficient training can become a tribunal secretary. However, lawyers can play an important role in acting as tribunal secretaries considering their knowledge of arbitration and the procedures involved therein. Lawyer-secretaries could also aid the tribunal in drafting and research, wherever permissible. 

What is its scope in India?

There is a small increase in the cost of arbitral proceedings due to appointment of tribunal secretaries but it is value for money as they make life far easier for the parties and the arbitral tribunal and ensure that the arbitration process is carried out with amount of hassles. 

In India where most of the arbitrations are ad hoc, using professional and well-trained tribunal secretaries will help immensely in managing and expediting arbitrations. Legally trained tribunal secretaries can play an important role where the tribunal consists of non-lawyers. Arbitral institutions can also have a panel of tribunal secretaries who can help the tribunal in administrative matters. 

As India strives to become a global force on arbitration, it is important to ensure a steady supply of well-qualified and trained tribunal secretaries in order to meet the increasing demand for tribunal secretaries. Tribunal secretaries would play a major role in bigger arbitrations.

What is the Way Forward? 

It is high time that standards organisations and arbitral institutions begin training programmes in India on tribunal secretaries. Government can publish a discussion paper on tribunal secretaries. But the arbitral institutions such as the MCIA, NPAC, etc. should come up with a proper training course on tribunal secretaries. In the interest of developing the pool of tribunal secretaries in India, they should come up with proper training programmes for tribunal secretaries. 

Young lawyers with practice below 5-7 years are in dire need of learning and earning opportunities. If they are trained well enough, India could have a pool of about 50-100 tribunal secretaries in every District in India, who can be ambassadors of how arbitrations can be professionally conducted in India. Following are a list of things that could be done:
  • Arbitral institutions should begin to train young professionals on tribunal secretaries.
  • Arbitral institutions should maintain a pool of well-qualified and trained professionals who can act as tribunal secretaries
  • Arbitral tribunals and High Court annexed arbitral institutions should begin to use the secretaries.
  • Awareness programmes should be conducted on tribunal secretaries and their role in the arbitration process
As recommended in this post and this paper, amendments need to be introduced to the Arbitration law to recognise and bring in the concept of tribunal secretaries in India.

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