Hong Kong – Arbitral Award Written By The Tribunal Assistant.

 

12 December, 2017

 

 

In complex international arbitration and investor-state arbitration cases, it is not uncommon for the arbitral tribunals to engage tribunal assistants to assist them in discharging their duties. 

 

In fact, the use of administrative secretaries and assistants has been expressly provided for in many procedural rules of arbitration institutions, such as the HKIAC Administered Arbitration Rules 2013.  In one arbitration case, the arbitral tribunal explained that the engagement of tribunal assistants was required for “logistical assistance on the file in [the] case” (Caratube International Oil Company LLP v Republic of Kazakhstan, ICSID Case No. ARB/08/12, Award, 5 June 2012).  However, if the arbitral tribunal delegates the substantive responsibilities to the tribunal assistants, this may constitute a ground for the arbitral award to be challenged on the ground that the arbitral tribunal has failed to perform their duties personally.  In the context of the Hong Kong Arbitration Ordinance, this may give rise to an argument that the enforcement of the awards should be refused under sections 86(2)(b), 89(3)(b), 95(3)(b) or 98D(3)(b) of the Ordinance – it would be contrary to public policy to enforce the awards.

 

This was one of the grounds relied upon by the Russian Federation in its challenge of the three arbitral awards handed down by the Permanent Court of Arbitration in the Hague (PCA) on 18 July 2014 in the arbitration proceedings brought by the former shareholders of OAO Yukos Oil Company (Yukos).  In the awards, the arbitral tribunal in the PCA unanimously held that the Russian Federation had deliberately expropriated Yukos and awarded the former shareholders damages of about USD 50 billion.  In January 2015, the Russian Federation applied to the District Court of the Hague to set aside the award.  The Russian Federation argued, among others, that the PCA arbitral tribunal did not fulfil their mandate personally because the tribunal assistant played a significant role in analyzing the evidence and legal arguments, in the tribunal’s deliberations and in the drafting of the awards. 

 

The tribunal assistant, Mr Martin Valasek, came onto the scene at the first organizational hearing of the arbitration in October 2005, where the chairman of the tribunal, The Hon.L. Yves Fortier QC, informed the parties that Mr Valasek had been engaged as the assistant to the tribunal to provide administrative and liaison assistance.  Whilst the engagement of Mr Valasek was made without prior consultation with the parties, they did not oppose such engagement when the tribunal informed the parties of it.

 

Based on the disclosed fees and hourly rates, Mr Valasek spent 3,006 hours on the case, in which 381 hours were on the hearings on jurisdiction and admissibility and 2,625 hours were on the substantive hearings and preparation of the awards.  On the other hand, the chairman charged for 1,592 hours only.  Mr Valasek’s time spent was 65% more than the time spent by the chairman, and 70% and 40% more than the time spent by each of the other two arbitrators. 

 

When the Russian Federation requested the PCA Secretariat to provide details of Mr Valasek’s work for which he billed, the Secretariat replied that “in the view of the tribunal, the attached statement of accounts [containing hours only without any details of the work] provides the parties with the appropriate level of detail while ensuring confidentiality of the tribunal’s deliberation”.

 

By reason of the above, the Russian Federation contended that it had not been given notice of the extensive role played by Mr Valasek until after the issuance of the awards.  The Russian Federation argued that the tribunal violated the fundamental principle that “goes to the essence of the arbitral function” – that the arbitrator has the obligation “to review the evidence and arguments and to decide the case personally, without delegation”.

 

On 14 April 2016, the Hague District Court set aside the awards on the sole ground that the tribunal lacked jurisdiction over the Yukos former shareholders’ claims because the Russian Federation had never ratified the Energy Charter Treaty (under which Article 26 is the arbitration agreement).  The court did not deal with other contentions of the Russian Federation, including the contention that the tribunal improperly delegated its duties to the assistant, Mr Valasek.  As the Yukos former shareholders had lodged an appeal against the decision of the Hague District Court, it is possible that such a contention might be dealt with by the superior court of the Netherlands.  However, the appeal process may take years to complete.

 

Even if there is any decision by the Dutch court on the role of tribunal assistants, such a decision is not binding on the Hong Kong courts.  Having said that, as there are only very few cases addressing the issue of the role of tribunal assistants, it would be helpful to see how a court approaches such an issue and this might provide useful guidelines for international arbitration practitioners.