Following a proposal by the Tribunals during the Joint First Session that Ms. Renée Thériault serve as assistant to the Tribunals in these two proceedings, and the Parties’ subsequent agreement thereto, Ms. Thériault was appointed to serve as Assistant to the two Tribunals. In February 2012, with the agreement of the Parties, Ms. Alison FitzGerald replaced Ms. Thériault to serve as Assistant to the two Tribunals.3
The only other Norton Rose lawyer who has continued to serve, after 31 December 2011, as Assistant to an ICSID arbitral tribunal which I chair and who continues to do so today is Ms. Alison Fitzgerald who works in the Ottawa office of Norton Rose. These are the two Zimbabwe’s cases referred to in footnote 27 of the Respondent’s submission. These two related large cases have been proceeding in parallel since the tribunals were constituted. Ms. Fitzgerald was appointed as Assistant to the Tribunals prior to 31 December 2011 when she was a very junior lawyer with Oqilvy Renault. After I resigned from Norton Rose, it also made good practical and financial sense to have her continue as Assistant to these ICSID tribunals.
I refer to the Respondent’s Reply Brief of 19 February 2016 and paras. 45, 46 and 47 thereof.
What follows is the long form version of all pertinent incidents which led to the confirmation in February 2012 of Ms. Alison Fitzgerald as assistant to the two ICSID Zimbabwean tribunals which I chaired:
1. Upon my recommendation to my co-arbitrators, Ms. Renée Thériault of the Ottawa office of Ogilvy Renault was appointed, with the consent of the parties, as assistant to the two tribunals when they were constituted.
2. Ms. Renée Thériault fulfilled her duties as assistant to these tribunals until mid-December 2011 when she informed me that she had decided to leave active practice at the end of the month and join the Supreme Court of Canada as a research assistant.
3. I thus recommended to my co-arbitrators that Ms. Thériault be replaced by her colleague, Ms. Alison Fitzgerald, also a young lawyer at the Ottawa office of Ogilvy Renault with whom I had worked previously.
4. My co-arbitrators readily endorsed my recommendation before the end of December 2011.
5. As you will recall, I resigned as a partner at Ogilvy Renault effective 31 December 2011 and at that time was making arrangements to leave my office and pursue my career as an independent arbitrator. There were thus a number of matters, such as the formalization of Ms. Fitzgerald’s appointment as a successor to Ms. Thériault, which I did not consider pressing. Accordingly, those matters went on a list of "things to do" in early 2012.
6. At the end of an extended Christmas vacation, on 2 February 2012, through the secretary of the tribunals, I informed the parties of Ms. Thériault’s departure from active practice in December and proposed, on behalf of the tribunals, that her former colleague at Ogilvy Renault (at that time Norton Rose OR), Ms. Alison Fitzgerald, be appointed in her place and stead subject to the same terms and conditions. All parties agreed and I note that the formalization of Ms. Fitzgerald’s appointment took place in February 2012.
I sincerely hope that these explanations are helpful.
In accordance with the schedule which you have fixed, I now provide my explanations to the Respondent’s new proposal of 26 February 2016 to disqualify me.
1. I have seen paragraph 45, 46 and 47 of the Respondent’s Reply Brief of 19 February 2016.
2. As then requested by the Respondent, I submitted detailed explanations to the Respondent on 25 February 2016. I would be grateful if those explanations were incorporated to the present submission.
3. I have also seen the Claimants’ submission of 2 March 2016.
4. In its proposal of 26 February 2016, the Respondent alleges that the disclosures which I made (and reaffirmed) on 16 April 2015 with respect to the appointment of Ms Alison Fitzgerald as assistant to the two Zimbabwe ICSID tribunals which I chaired were incorrect.
5. For the sake of clarity, I reconfirm the following:
(i) Ogilvy Renault changed its name to Norton Rose OR LLP on 1 June 2011. It was not "merged out of existence on June 1, 2011". (See para. 7 of Respondent’s letter of 26 February 2016).
(ii) I severed all of my professional ties with Norton Rose OR LLP as of 31 December 2011.
(iii) Macleod Dixon joined Norton Rose OR LLP on 1 January 2012 when Norton Rose OR LLP changed its name to Norton Rose Canada LLP.
6. It would have been more accurate for me to add in my explanations of 16 April 2015, after "Ogilvy Renault" "whose name had been changed to Norton Rose OR LLP on 1 June 2011".
7. I note that in para. 5 of my explanations of 25 February 2016, I wrote that "[...] I resigned as a partner at Ogilvy Renault effective 31 December 2011". Again, it would have been more accurate for me to write that "I resigned as a partner at Ogilvy Renault which had changed its name to Norton Rose OR LLP on 1 June 2011, effective 31 December 2011 […]".
8. When I was appointed to this Tribunal, I was independent and impartial. I have always been and will remain independent and impartial until the end of the present proceedings.
9. I reiterate my profound conviction that I am today, always have been and will remain able to exercise independent judgment in the present arbitration.
10. I note that the Respondent calls upon me to resign voluntarily (para. 10). In view of the facts which are before you, I see no reason to voluntarily withdraw as arbitrator.
The record shows that the answers to Respondent’s inquiries have always been dribbled out and have been incomplete, misleading and/or inaccurate. Even with respect to Ms. FitzGerald, Mr. Fortier made no disclosure, despite repeated requests by Respondent for disclosure of all relationships with Norton Rose, until Respondent itself discovered that Ms. FitzGerald had acted as Assistant in the Zimbabwe cases. Then, in response to the direct question concerning Ms. FitzGerald, Mr. Fortier informed Respondent that Ms. FitzGerald was appointed when she was a "very junior lawyer with Ogilvy Renault" and that it made "good practical and financial sense to have her continue" in that capacity, even though she was not appointed when she was a very junior lawyer at Ogilvy Renault, she was not continuing anything after December 31, 2011 as she was not even appointed until February of 2012, and there in fact were no "practical" or "financial" reasons whatsoever for appointing her rather than a non-Norton Rose attorney. (footnote omitted).21
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