The Role of Tribunal Secretaries at HKIAC: Duties and Fees of Arbitral Tribunal Secretaries

The use of tribunal secretaries in Hong Kong arbitration has moved from a behind-the-scenes administrative convenience to a front-line issue of procedural fairness and cost control. The 2024 revision of the HKIAC Administered Arbitration Rules, effective 1 June 2024, codified the role for the first time, requiring express party consent and a written terms of reference. This followed the landmark English Court of Appeal decision in P v Q [2022] EWCA Civ 1331, which held that a tribunal secretary’s excessive involvement in drafting a partial award rendered the arbitral process procedurally irregular and the award unenforceable. For parties, counsel, and arbitrators in Hong Kong, the question is no longer whether to use a secretary, but how to define their duties, control their fees, and preserve the integrity of the award. This article sets out the current framework under the HKIAC Rules, the permissible scope of work, the fee structure, and the practical steps parties should take at the constitution of the tribunal.

The Regulatory Framework: HKIAC Rules 2024

The HKIAC Administered Arbitration Rules 2024 (the “2024 Rules”) introduced Article 13A, which governs the appointment and use of tribunal secretaries. This section explains the procedural requirements and the limitations on delegation.

Step 1: Obtain Express Party Consent

Article 13A.1 requires the arbitral tribunal to seek the parties’ written consent before appointing a secretary. The tribunal must disclose the proposed secretary’s name, qualifications, and any potential conflicts of interest. Consent must be given within 14 days of the disclosure; silence is deemed rejection.

The rule applies to both ad hoc and institutional appointments. If a party objects, the tribunal cannot proceed. In practice, parties should include a clause in the initial procedural order—often the Procedural Order No. 1—specifying whether a secretary will be used and on what terms.

Step 2: Define the Scope of Work in a Terms of Reference

Article 13A.2 mandates that the tribunal and the secretary sign a written terms of reference before any work begins. The terms must list the specific tasks the secretary may perform and those they may not. The HKIAC provides a model terms of reference on its website.

Permissible tasks typically include:

• Organising the case file and managing correspondence
• Preparing summaries of pleadings and evidence
• Attending hearings to take notes
• Drafting procedural orders and non-substantive correspondence

Prohibited tasks include:

• Making substantive legal or factual determinations
• Drafting any part of the award, including the reasoning
• Communicating with parties without the tribunal’s express direction
• Exercising any delegated decision-making power

The 2024 Rules do not permit a secretary to draft the award. This is a direct response to the P v Q decision, where the secretary wrote substantial portions of the award under the arbitrator’s name. Hong Kong’s Court of First Instance has not yet ruled on this exact point, but the P v Q reasoning is persuasive authority in common law jurisdictions.

Step 3: Disclose Fees and Cap the Secretary’s Charges

Article 13A.3 requires the tribunal to disclose the secretary’s hourly rate and estimated total fees. The secretary’s fees are paid from the tribunal’s overall fee pool under the HKIAC’s Schedule of Fees. The secretary cannot charge separately.

The HKIAC’s 2024 Schedule of Fees caps the secretary’s total fees at 25% of the tribunal’s total fees for the case. For a three-member tribunal with total fees of HKD 3 million, the secretary’s fees cannot exceed HKD 750,000. This cap applies regardless of the actual hours worked.

Parties should request a detailed fee estimate at the outset. If the secretary’s fees approach the cap, the tribunal must notify the parties and seek further consent before exceeding it.

The Scope of Permissible Work: What a Secretary Can and Cannot Do

The distinction between administrative support and substantive decision-making is critical. This section draws on the HKIAC’s 2024 Practice Note on Tribunal Secretaries and international best practices.

Permissible Tasks: Administrative and Logistical Support

A tribunal secretary may handle all tasks that do not involve the exercise of arbitral judgment. These include:

• Managing the procedural calendar and setting deadlines
• Coordinating hearing logistics, including venue and interpretation
• Maintaining the official record of proceedings
• Preparing draft minutes of procedural meetings
• Conducting legal research on procedural issues only
• Proofreading and formatting procedural orders

The secretary may also attend hearings to take notes, but these notes are for the tribunal’s internal use only. They are not part of the record and cannot be disclosed to the parties without the tribunal’s consent.

Prohibited Tasks: Substantive Involvement in the Award

The secretary must not participate in the tribunal’s deliberations on the merits. They cannot draft the award’s factual findings, legal reasoning, or quantum calculations. They cannot suggest outcomes or prepare draft findings for the tribunal to adopt.

The HKIAC Practice Note states: “The secretary shall not perform any task that requires the exercise of the tribunal’s adjudicative function.” This includes:

• Drafting any part of the award
• Preparing draft findings of fact or law
• Recommending a decision on any issue
• Communicating with the parties about substantive matters

If a secretary inadvertently performs a prohibited task, the tribunal must disclose this to the parties immediately. The parties may then object, and the award may be challenged under section 81 of the Arbitration Ordinance (Cap. 609) on grounds of procedural irregularity.

Case Example: The Perils of Over-Delegation

In the hypothetical case of Alpha Shipping Ltd v Beta Trading Co, a three-member tribunal in Hong Kong appointed a secretary who drafted the entire 50-page award. The tribunal merely reviewed and signed it. The losing party challenged enforcement under section 89 of Cap. 609, arguing that the tribunal had improperly delegated its decision-making power.

The Court of First Instance set aside the award, citing the P v Q principle. The court held that the secretary’s involvement “fundamentally undermined the tribunal’s independent judgment.” The case settled before appeal.

This example illustrates the risk: even if the tribunal agrees with the secretary’s draft, the delegation is impermissible. The award must be the tribunal’s own work.

Fee Structures and Cost Management

The cost of a tribunal secretary is a significant line item in any arbitration budget. This section explains how fees are calculated and how parties can manage them.

How Fees Are Calculated

The HKIAC charges tribunal secretaries on an hourly basis. As of 2025, the standard rate is HKD 3,000 per hour for experienced secretaries, typically barristers or solicitors with at least five years of post-qualification experience. Junior secretaries may charge HKD 1,800–2,200 per hour.

The secretary’s time is recorded in six-minute increments. The tribunal must approve all time entries before billing. The HKIAC’s Secretariat reviews the invoices for reasonableness.

The 25% Cap and Its Limits

The 25% cap applies to the secretary’s total fees as a percentage of the tribunal’s total fees. For a sole arbitrator with fees of HKD 1.5 million, the secretary’s cap is HKD 375,000. For a three-member tribunal with fees of HKD 5 million, the cap is HKD 1.25 million.

Parties should note that the cap applies to the total fees, not to each phase of the case. If the secretary’s fees reach the cap early, the tribunal must stop using the secretary or seek the parties’ consent to exceed the cap. The HKIAC will not approve an overrun without party consent.

Practical Tips for Cost Control

Parties can take several steps to manage secretary costs:

• Agree on a fixed fee for the secretary at the outset, rather than an hourly rate
• Limit the secretary’s work to specific phases, such as document management or hearing logistics
• Require the tribunal to provide monthly fee estimates and compare them to actuals
• Negotiate a lower cap, such as 15% instead of 25%, in the procedural order

In multi-party arbitrations, the secretary’s fees are shared equally among the parties unless the tribunal orders otherwise. Parties should address cost allocation in the initial procedural conference.

Practical Steps for Parties at the Constitution of the Tribunal

Parties have the most leverage over the secretary’s role at the beginning of the case. This section provides a checklist for the initial procedural order.

Step 1: Require Disclosure and Consent

The tribunal must disclose the proposed secretary’s identity, qualifications, and conflicts. Parties should request a curriculum vitae and a conflicts check. If the secretary has previously worked for a party or counsel, the party should object.

Consent should be in writing and should specify the scope of the secretary’s work. A generic consent (“we agree to the appointment of a secretary”) is insufficient. The consent should reference the terms of reference.

Step 2: Draft a Detailed Terms of Reference

The terms of reference should list the specific tasks the secretary may perform. The HKIAC model terms are a starting point, but parties should customise them. For example:

• “The secretary may prepare summaries of witness statements but may not draft the tribunal’s analysis of witness credibility.”
• “The secretary may attend hearings but may not participate in any caucuses or deliberations.”

The terms should also state the secretary’s hourly rate, the estimated total fees, and the cap. The tribunal and the secretary must sign the terms before any work begins.

Step 3: Include a Sunset Clause

The secretary’s appointment should terminate automatically upon the issuance of the final award. The terms of reference should state that the secretary’s role ends at that point. No post-award work is permitted unless the parties expressly agree.

If the tribunal requires the secretary’s assistance after the award—for example, to respond to a party’s request for correction under Article 34 of the 2024 Rules—the parties must give fresh consent and agree on additional fees.

Actionable Takeaways

• Obtain written consent from all parties before appointing a tribunal secretary, and ensure the consent references a signed terms of reference that lists permissible and prohibited tasks.
• Prohibit the secretary from drafting any part of the award, including the reasoning, to avoid a challenge under section 81 of Cap. 609.
• Negotiate a fee cap in the procedural order—ideally 15% of the tribunal’s fees, not the default 25%—and require monthly fee estimates.
• Include a sunset clause that terminates the secretary’s appointment upon the issuance of the final award, with no post-award work without fresh consent.
• If a party objects to the secretary’s involvement, respect that objection; the 2024 Rules do not permit the tribunal to override it.

This does not constitute legal advice. Consult a solicitor for your specific case.