Gov’t fails to remove arbiter

supremecourtsbarbadosThe thrill of victory has eluded the Freundel Stuart Administration in the Barbados High Court. Government’s efforts to have the sole arbitrator of its dispute with the Canadian company which was rehabilitating the old Mobil refinery site removed on the grounds of bias failed this week, Barbados TODAY learnt. It is the latest development in the disagreement between the state and industrial remediation firm, Fiton Technologies Corporation.

After receiving evidence and hearing evidence from counsel representing Fiton and the Office of Attorney General, Justice Olson Alleyne has decided after deliberating that Englishman V.V. Veeder, Q.C. should not be removed by reason of impartiality.

Fiton was represented by Barry Gale, Q.C. Ralph Thorne, Q.C. and Mechelle Forde, while the Attorney General was represented by Sir Maurice King, Q.C., Barry Carrington and Adrian King. Last year Government filed an application with the court challenging Veeder’s authority to continue serving as sole arbitrator in arbitral proceedings between it and Fiton, saying it had serious reservations about his independence and impartiality.

The allegations of bias were grounded on the argument that Veeder had “acted on advice and recommendations” in an email from Fiton counsel Martin Valasek, and that this was before Gale, indicated Fiton would be taking certain actions.

Government also wanted Veeder removed because it said he was made aware of the content of court documents relating to the initial request for his removal. Its original objection was partly based on the fact that Veeder had been selected to arbitrate another matter together with well-known Canadian arbitrator Yves Fortier Q.C., on Fiton’s behalf. The High Court had to determined whether a “fair-minded and informed observer” would conclude that Veeder would be a biased adjudicator in the circumstances.

“The issue is whether an arbitrator’s association, as co-arbitrator in pending proceedings, with counsel for one of the parties is enough, without more, to lead to a finding of apparent bias,” Alleyne said in his written decision delivered on Monday. “Mr. Veeder’s curriculum vitae is in evidence. He is a highly qualified and experienced arbitrator and like Mr. Fortier, is one of her Majesty’s Counsel. He has acted in judicial capacities in England and is widely published. Mr. Gale’s evidence is that he is regarded as a leading expert on arbitration. I deduce from their professional rank, that Mr. Veeder and Mr. Fortier are persons of experience and distinction.

“The fair-minded and informed observer would recognise that Mr. Veeder and Mr. Fortier are but men subject to human failings. However, any suspicion would be outweighed in his mind by the fact that the individuals involved are experienced lawyers of the highest calibre and that Mr. Veeder is an experienced arbitrator with some judicial experience,” the judge added.

Alleyne also said the “fair-minded and informed observer” would “consider that given his professional standing and experience, it would not be expected that Mr. Fortier would seek to influence Mr. Veeder in the conduct of the arbitration”.

“He would also consider that Mr. Veeder would be accustomed and expected to adjudicate in arbitral proceedings uninfluenced by his professional links. Further, he would note that Mr. Veeder acted properly by disclosing their association, immediately on becoming aware that Mr. Fortier had joined Fiton’s legal team,” the judgment noted.

“However, the fact of this disclosure is not decisive… Furthermore, the fact that Mr. Veeder stated that his impartiality was unaffected by his professional association with Mr. Fortier is immaterial. The standard remains an objective one, the yardstick being that of the fair-minded and informed observer.

“All factors considered, while it might trouble the mind of the unduly suspicious, I do not think that such an observer would find that there was a real possibility of bias on Mr. Veeder’s part by reason only of his professional association with Mr. Fortier,” it added.

It was also pointed out that “the fact that an adjudicator becomes aware of a complaint against him is not a basis for imputing apparent bias”. (SC)

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