How the ICC’s 2026 rules formalise tribunal secretary role

The role of arbitral tribunal secretaries is recognised as one that is both indispensable and controversial. Some have gone as far as to describe them as the “fourth arbitrator”, and their role has raised recurring concerns around transparency, delegation of decision-making, and procedural fairness.

Against this backdrop, the 2026 Rules mark a significant development, moving beyond soft-law guidance to a formalised regulatory framework governing tribunal secretaries.

Codification

A key development in the 2026 Rules is their formal codification of several key provisions contained in the ICC Note to Parties (2019), including in relation to the role of tribunal secretaries. Whilst the Note remains operative guidance, the elevation of those provisions into the 2026 Rules carries significant practical weight: what was previously soft guidance is now part of the framework governing ICC arbitrations.

This move reflects a broader trend inherent in the 2026 Rules towards clarity and impartiality in relation to the appointment and role of tribunal secretaries, and aligns the revisions with institutional rules elsewhere, such as the January 2023 Stockholm Chamber of Commerce Arbitration Rules, which provide that the tribunal shall consult the parties regarding the tasks of the secretary.

Appointment safeguards

Article 44 of the 2026 Rules incorporates the relevant provisions relating to the appointment of tribunal secretaries as mandatory procedural requirements rather than recommended best practice, materially strengthening the safeguards around the appointment and role of secretaries.

Specifically, Article 44 provides that, after consulting with the parties, the arbitral tribunal may appoint a tribunal secretary to work under the arbitral tribunal's direction and control, without delegating its decision-making authority. It also imposes equivalent independence, impartiality and confidentiality obligations on secretaries, as those which apply to arbitrators themselves. In practice these requirements mean that the Tribunal is now under an obligation to notify the parties and provide the proposed secretary's CV and the secretary's signed declaration of acceptance, availability, impartiality and independence before appointing a secretary. The 2026 Rules give parties a veto, meaning a tribunal secretary will not be appointed if a party objects.

These requirements remedy a concern that tribunal secretaries may lack impartiality due to pre-existing contacts and relationships with arbitrators, parties' counsel and/or their instructing lawyers.

By way of comparison, other institutional rules are similarly stringent in their regulation of a secretary's appointment. Article 14A of the 2020 LCIA Arbitration Rules mandates that parties must expressly agree to the appointment and scope of work for a tribunal secretary, that their decision-making cannot be delegated, and that the secretary must maintain strict independence and confidentiality.

The Hong Kong and Singapore arbitration courts rely more on institutional oversight to govern secretaries, rather than provisions such as party veto mechanisms, rendering them less formalised than ICC/LCIA rules.

Fees and expenses

Under Article 7 of Appendix III of the 2026 Rules, the arbitral tribunal may claim reimbursement of a tribunal secretary's reasonable and justified expenses. Otherwise, appointing a tribunal secretary shall not create any additional financial burden on the parties. Direct arrangements between the arbitral tribunal and the parties regarding the tribunal secretary's fees are prohibited.

The introduction of this Article addresses a growing concern about arbitrators treating a secretary as a junior arbitrator, enabling the secretary to perform part of the arbitrators' role whilst circumventing ICC scrutiny of arbitrator remuneration. Article 7 limits the secretaries' recoverable fees to those which are"reasonable and justified", confirming that it is not the role of tribunal secretaries to generate separate professional fees charged to the parties.

By way of comparison to other rules, this approach in the 2026 ICC Rules is broadly aligned with that of the LCIA, where secretaries'; costs are absorbed within the tribunal's fee structure. HKIAC and SIAC give greater flexibility, allowing the treatment of secretary costs to vary depending on the tribunal's approach.

What this means

The 2026 Rules represent a clear shift towards formalisation and transparency in the regulation of tribunal secretaries.

By codifying guidance, the ICC has addressed long-standing concerns regarding the appointment, role and remuneration of secretaries, while reinforcing the non-delegable nature of arbitral decision-making.

Comparatively, the ICC's approach aligns closely with the LCIA in prioritising procedural safeguards and cost neutrality, but goes further in articulating a detailed, rule-based framework governing secretaries' involvement.

Co-written by Basant El Attar of Pinsent Masons