By letter dated 17 October 2016, Sir Franklin Berman QC replied to Counsel for the Claimants as follows:
Dear Me Garcès,
You wrote on 13 October posing a long series of questions to me in my capacity as President of the Resubmission Tribunal in the dispute between Mr Victor Pey Casado and others and the Republic of Chile. With the delivery of its Award last month, the Tribunal completed the task conferred on it. It has not subsequently been called into being for any other purpose under the ICSID Arbitration Rules. I am nevertheless responding to your letter in the same spirit of friendly courtesy as has characterized the conduct of the resubmission proceedings.
The Secretary-General of ICSID has, so I understand, already replied to an earlier letter from you, after consultation with me, to convey my confirmation that there was nothing subsequent to my appointment as presiding arbitrator that had called for any supplementary declaration by me under the Arbitration Rules.
You are, l am sure, aware that an English barristers' chambers is not a law firm, and that all barristers in chambers operate in strict independence of one another, with the sole exception of the circumstance in which more than one of them is retained by the same client to act in the same matter. I would not therefore in any case be able to answer your questions, as the governing rules impose on each barrister the strictest confidence over the affairs of his clients, so that it would be prohibited for me to make enquiries of fellow members of chambers about the work undertaken by them.
I hope that it is not necessary for me to add that at no stage during the resubmission proceedings have I had any discussion of any kind about the case other than with my co-arbitrators, the Secretary to the Resubmission Tribunal, and Dr Gleider Hernandez, the Tribunal's assistant. I would have been deeply distressed had you thought otherwise.
With kind and collegial regards,
Cher M. Garcès,
Je me réfère à : (i) votre lettre du 20 septembre 2016 (adressée à Mme la Secrétaire générale du CIRDI) ; (ii) votre lettre du 13 octobre 2016 (adressée à Sir Frank Berman et moi-même) ; et (iii) la lettre du 12 octobre 2016 de Mme la Secrétaire Générale (adressée à vous-même).
Je confirme ce que Mme la Secrétaire Générale vous a écrit dans sa lettre : à ma connaissance, aucune circonstance n'est survenue, depuis ma déclaration du 31 janvier 2014 jusqu'à la sentence du 13 septembre 2016, justifiant d'être notifiée en application de l'article 6(2) du Règlement d'arbitrage du CIRDI.
Je confirme, aussi, que je n'ai eu aucune relation professionnelle d'affaires ou autre avec les parties dans cet arbitrage.
Si je comprends bien les questions que vous m'avez posées dans votre seconde lettre, vous demandez des informations confidentielles concernant d'autres barristers exerçant leurs professions d'avocats au sein de Essex Court Chambers.
Etant donné que tous les barristers de Essex Court Chambers (comme d'autres chambers en Angleterre et au Pays de Galles) exercent à titre individuel et ne constituent donc pas une « law firm », un « partnership » ou une « company », je regrette de ne pas être en mesure de vous répondre. D'après le Code of Conduct du Bar Standards Board, chaque barrister est indépendant et « must keep the affairs of each client confidential » (Core Duty 6). En bref, ces informations confidentielles, quelles qu'elles soient, ne peuvent être ni ne sont connues de moi.
Je vous prie d'agréer, mon cher confrère, l'expression de mes salutations distinguées.
V. V. Veeder QC
Dear Dr Kim,
I have been informed by the Secretary-General that a proposal has been lodged for my disqualification as an arbitrator in respect of the ancillary proceedings in relation to the resubmission, following a partial annulment, of the dispute between Mr Victor Pey Casado and the Foundation President Allende and the Republic of Chile (ARB/98/2). As you know, the resubmission tribunal, over which I presided, completed its mandate with the issue of its award on 13 September 2016, but was subsequently called back into being on a request for rectification of that award.
In order not to impose any unnecessary delay in your consideration of the matter, I write to say at once that there is nothing I wish to say, or need to say, on the substance of the proposal for my disqualification; I am content for you to decide the matter on the record as it stands, though I naturally stand ready to answer any questions you may wish to put to me.
In saying this, I wish merely to draw attention to certain aspects of the record: -
1) It is not correct to say that I declined to make disclosure. The request was originally put to me through the Secretary-General, and my reply was promptly conveyed, through the Secretary-General, that disclosure had been made in the standard terms at the time of my appointment, and that nothing had happened since then to call for further disclosure. I drew attention to this in my letter to counsel for the claimants. When counsel subsequently wrote to me direct to convey his personal esteem and admiration, I understood this to mean that he recognized that there could be no objection to the impartiality and independence with which I had carried out my functions in the case. Both letters are attached for ease of reference.
2) I note that the disqualification proposal bases itself on a professional engagement said to have been made by the respondent state with a fellow member of my Chambers a short while before the issue of the resubmission award, a matter of which I was entirely unaware (nor could I have been aware of it) until it was raised by counsel some weeks after the resubmission award had issued.
3) I note finally a suggestion in the papers that the resubmission tribunal had pressed ahead with the rectification proceedings in undue haste, and attach therefore, for completeness sake, a copy of the Centre's letter to the parties which sets out the schedule laid down by the tribunal under Arbitration Rule 49(3).
Dear Mr Garel (as Secretary to the Tribunal),
I refer to the timetable established by the ICSID Secretariat’s second letter dated 29 November 2016 under ICSID Arbitration Rule 9(3), whereby I am invited to respond in writing to the formal challenge made by the Claimants to my independence as a co-arbitrator (nominated by the Claimants in this arbitration), within the meaning of Article 14(1) of the ICSID Convention.
Save for one matter, I think it inappropriate here to add to the written response made by my letter dated 17 October 2016 addressed to the Claimants’ counsel (copied to the Parties), the contents of which I here confirm (a copy is attached; it is also Pièce 16 to the Claimants’ formal challenge of 22 November 2016).
That matter relates to my voluntary resignation in 2007 as the presiding arbitrator in the ICSID arbitration, Vanessa Ventures v Venezuela (ICSID Case No ARB/05/24). The Claimants’ counsel (who was not personally involved) has misunderstood the relevant circumstances in that case, citing it several times in support of the Claimants’ challenge (e.g. see paragraph 39 of the Claimants’ said challenge and Pièces 1, 4, 10, 12, 13 & 17).
I resigned in that ICSID arbitration because I learnt at the jurisdictional hearing, for the first time, that one of the counsel acting for the claimant (Vanessa Ventures) was an English barrister who was, at that time, also cocounsel with me acting for a different party in a different and unrelated ICSID Case. I did not resign because he and I were both members of the same barristers’ chambers. Before the jurisdictional hearing, I did not know that this counsel was acting for Vanessa Ventures; nor could have I taken any legitimate steps by myself to check for any such conflict owing to the confidential nature of every English barrister’s professional practice.
The circumstances in Vanessa Ventures related to an actual conflict caused by counsel within the same arbitration and not to counsel extraneous to the arbitration. To my understanding, the former circumstances are not present in this case (nor so alleged by the Claimants).
V. V. Veeder QC
For an international system like that of ICSID, it seems unacceptable for the solution to reside in the individual national bodies which regulate the work of professional service providers, because that might lead to inconsistent or indeed arbitrary outcomes depending on the attitudes of such bodies, or the content (or lack of relevant content) of their rules. It would moreover be disruptive to interrupt international cases to ascertain the position taken by such bodies. (...).17
The Respondent adds that the Essex Court Chambers website explains that it "is not a firm, nor are its members partners or employees. Rather, Chambers is comprised of individual barristers, each of whom is a self-employed sole practitioner." The Essex Court Chambers website further explains that members of chambers commonly appear on opposing sides in the same dispute, including in arbitration proceedings, or in front of other Essex Court Chambers members acting as arbitrators, with protocols in place to safeguard confidentiality.41
i. was the Proposal made promptly as required by ICSID Arbitration Rule 9(1);
ii. can a proposal for disqualification be made in a rectification proceeding pursuant to ICSID Arbitration Rule 49; and
iii. if the answers to (i) and (ii) above are affirmative, do the facts described in the Proposal establish that the Challenged Arbitrators manifestly lack reliability to exercise independent judgment, justifying a disqualification under Articles 57 and 14 of the ICSID Convention?
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.
The evidence in the record of the case shows that information concerning Chile’s representation by Essex Court Chambers barristers in ICJ proceedings had been publicly available since December 2012. In particular, it was reported in the press that Mr. Samuel Wordsworth QC, one of the Essex Court Chambers barristers identified by the Claimants, was acting for Chile in certain ICJ proceedings.69
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