In a decision rendered on July 29, 2015, the Swiss Federal Supreme Court had to consider the use of administrative secretaries and “consultants” to arbitral tribunals (decision 4A_709/2014 of July 29, 2015). The case concerned the renovation of a property in Switzerland. The parties had agreed to submit a dispute to a sole arbitrator who should decide it ex aequo et bono. The parties losing the arbitration filed an appeal and argued that the sole arbitrator had decided the case together with another lawyer and with the assistance of an administrative secretary, which was thus contrary to the arbitration clause. The Swiss Federal Supreme Court rejected the argument that there was an issue of improper constitution of the arbitral tribunal within the meaning of Art. 190 para. 2 lit. a of the Private International Law Act.
As to the role of the administrative secretary, the Swiss Federal Supreme Court held that arbitrators are appointed intuitu personae, which means that they have to fulfill the mandate themselves, without delegating it to another person. Arbitrators are required to know the file, to deliberate and to take part in the decision-making process of the arbitral tribunal. However, this does not exclude the use of an administrative secretary as long as the arbitrators do not delegate any core functions. Hence, a secretary may assist the arbitral tribunal in organizing the correspondence between the arbitral tribunal and the parties, preparing hearings, taking minutes and accounts for fees and costs. In addition, a secretary may also provide to a certain degree assistance in drafting the award, albeit under the supervision and in accordance with the instructions of the arbitral tribunal. As a result, an administrative secretary can also attend hearings and be present at the deliberations of the arbitral tribunal, as long as he or she does not exercise any core functions. In the case at hand, the Swiss Federal Supreme Court held that the administrative secretary’s role had not been such that it would warrant to set aside the award.
As to the role of the lawyer acting as “consultant” to the sole arbitrator, the Swiss Federal Supreme Court held that arbitral tribunals are not prevented from relying on external assistance, again to the extent that they do not delegate core decision-making functions to such a consultant. If the parties have not agreed on the procedural rules, the arbitral tribunal is, in principle, free to organize the proceedings on its own discretion; this includes the right to also appoint a consultant, without the need to ask for the parties’ consent. In the present case, the consultant had been appointed by the sole arbitrator for his knowledge of procedural matters in international arbitration and not for his technical expertise in the construction industry, an expertise which the sole arbitrator had himself. Moreover, the appointment of the consultant had not caused additional costs to the parties as he was paid by the sole arbitrator himself. There was thus no improper constitution of the arbitral tribunal.