Be nice to the kid in the corner: Brussels Cour de Cassation provides charter for overworked and/or lazy arbitrators

In a recent and unique case, the chair of an ICC Arbitral Tribunal admitted that his Administrative Secretary had drafted decision-making parts of the award and lists of questions for him to ask the technical experts. 

It was argued before the Court of First Instance of Brussels that such conduct constituted an unlawful delegation of authority by the arbitrator. The Brussels court held that in ICC Arbitration an Administrative Secretary is permitted to draft decision-making parts of an award as long as the Arbitral Tribunal personally reviews the file and validates or corrects the said draft in light of its review of the file. On 24 April 2023, the Cour de Cassation upheld the decision.

Mr Constantine Partasides QC wrote an article in 2002, in which he said:

• “…Even a careful review by an arbitrator of a secretary’s first draft does not entirely remove the scope given to the secretary to make judgements as to what to emphasise and what to omit, judgements that the arbitrator reviewing the draft may not even be able to identify never mind control. The act of writing is the ultimate safeguard of intellectual control. An arbitrator should be reluctant to relinquish it.” 

Ten years later, he wrote a second article, in 2012 where he stated:

• “For some people, the act of drafting is the ultimate safeguard of intellectual control. For others, the same level of control can be achieved without producing the first draft. Ultimately, this must be a question for the arbitrator's judgment. If the arbitrator gets such a significant decision wrong, then the problem is not with the institution of secretaryship but with the choice of arbitrator.”

What do you think? Please get in touch with the author taner.dedezade@howardkennedy.com with your thoughts:

• Is it OK for an Administrative Secretary in ICC arbitration to draft decision-making parts of an award, as long as the Arbitral Tribunal reviews the award?
• Does delegation of writing the decision-making parts of an award to the Administrative Secretary necessarily amount to a delegation of an Arbitral Tribunal’s decision-making powers?

I will be writing a detailed article on the subject in our International Construction Newsletter which will be out soon. Watch this space.