When is a Conflict not a Conflict in legal disputes?

by Melvin J. Howard
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Ms Meg Kinnear was the original lawyer representing the Government of Canada in the proceedings between my companies and the Government of Canada. Over the course of these proceedings, she was granted the position of the Secretary General of the International Centre for Settlement of Investment Disputes (“ICSID”). Ironically enough, in this position she is the appointing authority of these particular NAFTA proceedings. That means she decides who the arbitrators for my case, if there is a challenge.Of the appointed arbitrators for the case, one was Mr Henri Alvarez.Prior to accepting his appointment, Mr Alvarez did a conflict of interest search on the parties involved in the case to ensure there was none. After performing the search, he claimed there was not conflict of interest.One thing he forgot to mention was that his law firm was involved a lawsuit between Canadian Independent Medical Clinics Association, Cambie Surgeries Corporation, Delbrook Surgical Centre Inc., False Creek Surgical Centre Inc., Okanagan Health Surgical Centre Inc., and Ultima Medical Services Inc. as the Plaintiffs and Medical Services Commission of British Columbia, Minister of Health Services of British Columbia and Attorney General of British Columbia as the Defendants. It is true, Fasken Martineau is a large law firm, and it has offices all across Canada and in other countries in the world. It is reasonable to assume that if Mr Alvarez was from the Paris law office, perhaps he was unaware of this case within his firm. However, that is not the case in this instance. He works out of the Vancouver law office, the very same office that this case was represented from.On the same day of receiving my challenge, not 24 hours later, Ms Tabet, writes a letter to Ms Kinnear(yes, before she was elected to Secretary General of the ISCID, she was Ms Tabet’s boss), suggesting how she handle a case that she used to be involved in, and providing judgement on how the challenge should be handled.CONFLICTS

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