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Permissible use of administrative secretaries and "consultants" to arbitral tribunals

29 July 2015

Authors: Philippe Bärtsch; Anya George

On a petition to set aside an award for improper constitution of the arbitral tribunal and breach of the right to be heard, the Swiss Supreme Court tackled the use of tribunal-appointed "consultants" and the role of administrative secretaries in international arbitration. It found that arbitrators are entitled, as a matter of principle, to rely on the assistance of consultants and administrative secretaries as long as they do not delegate their core decision-making functions.

This is the first time that the Supreme Court has dealt with the role of administrative secretaries at any length. The court's finding that arbitrators may rely on external assistance, as long as they do not delegate any core functions, is in line with international opinion. However, the exact scope of such "core functions" is still subject to debate.

As to the role of "consultants" to the arbitral tribunal, practitioners should bear in mind that the facts of this case were somewhat unusual and a more restrictive approach might be warranted in other circumstances. (Decision 4A_709/2014.)

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Published in Practical Law Arbitration

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