The Yukos Case: More on the Fourth Arbitrator
In their International Dispute Resolution column, Lawrence W. Newman and David Zaslowsky write that in connection with the largest arbitration award ever issued, questions of the extent and influence of tribunal secretaries on arbitrators' decisions recently have been brought to the fore.
May 27, 2015 at 10:08 PM
11 minute read
In 2012, we wrote a column about the use of law secretaries in international arbitration titled, “The Fourth Arbitrator: Contrasting Guidelines on Use of Law Secretaries.”1 Recently, in the Yukos case, Veteran Petroleum Limited (Cyprus) v. the Russian Federation,2 in connection with the largest arbitration award ever issued, questions of the extent and influence of tribunal secretaries on arbitrators' decisions have been brought to the fore.
A challenge to that award by the Russian Federation in the District Court in The Hague in the Netherlands describes circumstances of the involvement of a tribunal assistant that it contends should lead the court to vacate the award. That challenge provides a unique opportunity to look more closely, and practically, at some of the issues raised in our earlier column.
Extent of Involvement
The argument made by Russia—though not the leading argument in its extensive brief—was that an assistant appointed by the chairman exercised too much influence over the tribunal's decision and that the award should therefore be set aside. According to Russia's brief, Martin Valasek, an associate lawyer in the Montreal office of the tribunal chairman, Yves Fortier, was appointed by the chairman to “assist me in the conduct of this case.” In describing to the parties Valasek's expected duties, Fortier went on to say, “because, like all of us, I travel a lot, if at any time I am unreachable, you can always contact him.”3 Thus, the appointment was made without prior consultation with the parties, but, when disclosed, was not objected to by them.
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