"2. [...] between November 2017 and March 2018, Mr. Lee had been in discussions with the Claimants' counsel about him being engaged by the Claimants to advise on Panamanian law and to provide expert evidence on behalf of the Claimants. In the course of those discussions, confidential and privileged information was provided to Mr. Lee, the merits of the case were discussed and Mr. Lee in turn expressed his own opinion on the merits. In his report, Mr. Lee certifies that he has no relationship with the parties or the tribunal, but he does not mention his prior contacts and dialogue with the Claimants' counsel.
3. The above matters give rise to serious concerns: (a) Mr. Lee has a substantial conflict of interest, (b) Mr. Lee has failed to disclose in his report his prior relationship with the Claimants' counsel and his receipt of confidential and privileged information, and (c) Mr. Lee has given certification of two of the elements of independence specified under the IBA Rules on the Taking of Evidence (the "IBA Rules") (i.e. no relationship with the parties or the tribunal) but has stayed silent on the third (i.e. no relationship with the parties' counsel) for which he would have been unable to give a clear certification. [...J."1
"I apologize for not being able to respond earlier, as I was not able to discuss this matter with my partners until yesterday.
Unfortunately, after careful consideration of the characteristics of this matter, we have concluded that it would be extremely difficult to issue any opinion which may put in doubt the integrity of sitting justices of the Supreme Court. For this reason, I will not be able to assist you as expert witness."2
"[…] Claimants have not come anywhere close to demonstrating the type of impropriety that an investment tribunal must require before it takes the extreme and unusual step of publicly denouncing a person's integrity by denying a party its right to put an individual forward as an expert."3
"If any question of procedure arises which is not covered by this Section or the Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide the question."4
The Claimants have, however, relied on provisions of the IBA Rules that require the Tribunal to exclude any document, statement or oral testimony where this is necessary to give effect to any legal impediment or privilege under the legal or ethical rules that are determined by the Tribunal to be applicable.5
"I provided a description of the background to these proceedings and the claims. That information was either public and/or was in any event known to the Respondent."12
This accords with Mr. Lee's evidence.
"I described to Mr. Lee certain of the fact evidence that the Claimants had at that stage obtained and we discussed what facts and evidence each of us was aware of as to judicial corruption in the Panama Supreme Court and possible further lines of enquiry. […] Some of the factual matters to which Mr. Lee referred were public and some concerned his work on behalf of clients in Panamanian litigation and was not public and I understood was confidential."13
"Based on what you described, it sounds like there was a flaw in the process, denial of justice, no ability to defend ourselves."15
Mr. Lee says in his second witness statement that he does not recollect making this comment but that, if he did, it did not amount to an opinion on the merits of the Bridgestone case.
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