[I] have seen your letter of 29 January 2015 addressed to all members of this ICSID Tribunal.
Nothing has changed since 31 December 2011 when I resigned as a partner of Norton Rose OR LLP. I ceased then to have any professional relationship with the firm (now Norton Rose Fulbright).
As I wrote to my co-arbitrators on 18 October 2011, there were then members of Norton Rose OR LLP who assisted me in certain files in which I served as an arbitrator (principally as Chairman) and whom I have continued to call upon for assistance after 1 January 2012.
Since 1 January 2012, I have pursued my career independently as an arbitrator and mediator in premises which I lease from Ivanhoé Cambridge at Suite 2822 at Place Ville Marie in Montreal. I am also a door tenant at 20 Essex Street in London and arbitrator-member of Arbitration Place in Toronto.
The two arbitrators, following the resignation of Professor Abi-Saab, have considered the matter of their consent to the resignation in terms of Article 56(3) of the ICSID Convention and Rule 8(2) of the Arbitration Rules. They have also considered the comments on that matter submitted by the Parties.
Over a very lengthy period the two Arbitrators, particularly the President, have urged Professor Abi-Saab to complete his dissent and then, as he had himself indicated, to resign from the Tribunal so that the Respondent could appoint a replacement arbitrator. The President kept stressing the urgency of the matter and Professor Abi-Saab in mid-November, while saying that he still expected to complete the dissent by the end of that month, indicated that if he had not completed by the end of the year, he would have to resign in any event. In the course of those exchanges, the two arbitrators plainly did consent to the proposed resignation.
The two arbitrators did not however consent to a resignation in late February when the quantum hearing was only seven weeks away and a challenge to one of the arbitrators was pending.
In accordance with the schedule set by the ICSID Secretariat, I provide the following explanation relating to the Respondent's new proposal to disqualify Mr Fortier and myself.
The Respondent, at the end of its Submission, concludes that I should be disqualified from continuing to act as an arbitrator in the present case because I have, together Mr Fortier, exhibited an attitude towards Respondent that in the reasonable evaluation of a third party would give rise to the appearance of a lack of the requisite impartiality (p 53).
I have only this to say. It is over thirty years ago since I first took a judicial oath to do right to all manner of people according the laws and usages of the particular jurisdiction, without fear or favour, affection or ill will (the terms of the New Zealand oath, earlier Western Samoa, the Cook Islands and Niue and later in Fiji all to similar effect). I have made comparable oaths and solemn declarations to act impartially and conscientiously in the Judicial Committee of the Privy Council, arbitral tribunals and the International Court of Justice. I have always done my very best to meet those serious responsibilities. That is also true in the present case.
A party proposing the disqualification of an arbitrator pursuant to Article 57 of the Convention shall promptly, and in any event before the proceeding is declared closed, file its proposal with the Secretary-General, stating its reasons therefor.
A party may propose to a Commission or Tribunal the disqualification of any of its members on account of any fact indicating a manifest lack of the qualities required by paragraph (1) of Article 14.
Persons designated to serve on the Panels shall be persons of high moral character and recognized competence in the fields of law, commerce, industry or finance, who may be relied upon to exercise independent judgment. Competence in the field of law shall be of particular importance in the case of persons on the Panel of Arbitrators.
for the reasons stated above, the Chairman:
(a) rejects the request for a recommendation on the Proposal from a third party;
(b) rejects the request for an oral hearing on the Proposal; and
(c) rejects the Bolivarian Republic of Venezuela's Proposal to Disqualify Judge Kenneth Keith and Mr. L. Yves Fortier.