RWAnswers: Working for an Arbitral Institution

"I would like to start a career in arbitration and I am looking to case counsel positions in arbitral institutions. However, it seems to me that case counsels are not real lawyers, they just fulfill mailbox functions. What do you think?"

Margarita Drobyshevskaya, Case Counsel at the Russian Arbitration Center (RAC) and Member of the RWA Steering Committee:

Contemplating a career in an arbitral institution, one should understand how the work of the team administering arbitrations is organized. For example, the Russian Arbitration Center (RAC) has an Administrative Office, which is headed by the Executive Administrator. The staff of the Administrative Office – legal counsels and case counsels (in essence, positions similar in importance and value of contribution) – ensure the functioning of the RAC at all stages of arbitral proceedings. The Administrative Office determines the compliance of the Notice of Arbitration with the requirements of the RAC Arbitration Rules, establishes whether the dispute is domestic or international for the purposes of commencing arbitration, participates in the constitution of the arbitral tribunal, assists the RAC Board in resolving complex issues, e.g. consolidation of arbitral proceedings or challenge of arbitrators. Besides, the distinctive feature of the RAC from other arbitral institutions is that in the overwhelming number of cases the staff of the Administrative Office act as assistants to the arbitral tribunal. Thus, they have a wide range of duties, which implies not only the performance of a significant amount of tasks until the constitution of the arbitral tribunal, but also the provision of assistance to the arbitrators by drafting orders and awards (merits excluded).

This requires a thorough theoretical knowledge of procedural and substantive law, as well as an understanding of the expectations of various stakeholders – parties, their counsels , arbitrators, members of the Board, and state courts in various jurisdictions where the issue of setting aside or enforcing an arbitral award may arise. For instance, in the RAC, all arbitral awards undergo a mandatory two-step scrutiny to eliminate the risk of a set-aside or refusal to recognize and enforce the award. To scrutinize an arbitral award, it is necessary to be mindful of what state courts pay attention to when considering arguments about procedural violations or public policy. 

Apart from administering arbitration, at RAC, the staff of the Administrative Office are expected to be involved in research, educational and other projects. This allows us not only to get to know the arbitration community in Russia and other jurisdictions, but also to combine the legal function with other tasks, which is not always possible for lawyers in legal consulting. Finally, an arbitral institution is not only a place to practice arbitration, but also the place that drives its development. It is often the arbitral institutions that set the trends in arbitration development based on the needs of their users. For example, until 2021, in no Russian arbitral institution did the parties have the opportunity to resort to an emergency arbitrator. Over the past year, the RAC has administered several such cases, and their number will grow. Accordingly, sooner or later such awards may find their way to Russian state courts, which can form a new practice.

In my opinion, working in an arbitral institution you gain skills that are transferable to the role of a lawyer in consulting or inhouse. Some may argue that employees of arbitral institutions do not appear in arbitration, but let's face it, lawyers in arbitration practices rarely do it either until they are partners.

I believe that in Russia the misperception of lawyers in an arbitral institution as “fake lawyers” or a "mailbox" is over. This is even more so in leading arbitral institutions in other jurisdictions, where even a small amount of experience in an arbitral institution is considered as beneficial when moving, for example, to an associate role in a law firm or inhouse. Foreign colleagues realize how valuable it is to understand the "inner workings" of an arbitral institution, to be well-versed in working with arbitrators and steering bodies of institutions.

Victoria Khandrimaylo, Counsel at the Hong Kong International Arbitration Centre (HKIAC):

A case counsel forms part of the Secretariat of an arbitral institution. One can call the Secretariat the engine of the institution, the key mechanism in making decisions delegated to the arbitral institution. In order to understand what the case counsel’s job is, one can familiarize oneself with the rules under which the institution carries out its functions.

The scope of the case counsel’s work consists of matters that have been referred to the arbitral institution for decision. Thus, most of the case counsel’s work is administration of arbitration, especially at the stage prior to the constitution of an arbitral tribunal. Case counsels check procedural documents (incl., notice of arbitration, answer to the notice of arbitration) for compliance with the rules, prepare recommendations in response to various requests of the parties (e.g., expedited procedure, consolidation of arbitration proceedings), and constitute an arbitral tribunal.

Case counsels work under the supervision of the Managing Counsel and the Secretary-General. The last instance of decision-making is the relevant committee. Case counsels analyse the case to identify the issues, summarize the procedural history, the parties’ positions, do relevant research and prepare the recommendations (e.g., in response to a party's application to consolidate arbitration proceedings). This is only part of what a case counsel does on a daily basis. Typically, a separate department within the Secretariat handles dispatch of the correspondence. However, there is nothing wrong with the technical work that every lawyer does during his or her career.