November 3, 2011 5:53 PM

Citing Potential Conflicts, Former Ogilvy Chair Fortier Leaving Norton Rose OR

Posted by Julie Triedman

A half-century after joining Ogilvy Renault, chairman emeritus L. Yves Fortier will is leaving the firm now known as Norton Rose OR as of December 31.

Fortier—the most prominent Ogilvy partner to depart since the firm's November 2010 merger with Norton Rose—served as Ogilvy's chair from 1992 until 2009. Along the way, as The American Lawyer reported in this 2007 profile, he also helped lift the firm's arbitration practice to international prominence.

Fortier's desire to maintain his own arbitration practice was the driving factor behind his decision to leave the firm. Norman Steinberg, who succeeded Fortier as Ogilvy's chair and who now chairs Norton Rose OR, says that in the year since Ogilvy joined forces with Norton Rose, "almost any time he was asked to be an arbitrator, there were conflicts or the appearance of conflicts." Fortier, Steinberg says, "realized that the situation is really impossible for him."

Fortier, who was on a cruise this week and unavailable for comment, said as much in an interview with the Ontario law publication Law Times, suggesting that the conflicts issue had gotten more pronounced since the merger. "That started to give me bellyaches because every time I received an appointment to act as arbitrator, I had to run conflicts checks throughout the Norton Rose Group, which is very active globally," he said.

Unlike most arbitration specialists, who litigate international disputes, Fortier only adjudicates such matters. That means whenever he is named to an arbitration panel—which happens regularly, given that The American Lawyer's most recent Arbitration Scorecard listed him as the ninth-busiest arbitrator in the world—Fortier, like all arbitrators, must disclose any possible conflicts he may have related to the dispute being decided.

Potential conflicts can also prompt parties to an arbitration to challenge an arbitrator's appointment. Just last month, for example, the Venezuelan government moved to disqualify Fortier from sitting on an International Centre for Settlement of Investment Disputes panel, according to the ICSID Web site. The panel in question is set to decide a blockbuster $30 billion dispute filed in 2007 by ConocoPhillips over Venezuela's expropriation of the company’s oil concessions.

Documents related to the disqualification motion have not yet been made public, and a decision in the matter is not expected before the end of the year. But lawyers for the Venezuelan government filed the motion to disqualify Fortier just a day after Norton Rose and Calgary-based MacLeod Dixon announced plans to merge. MacLeod Dixon represents ConocoPhillips in connection with the financing of a massive Canadian pipeline project, according to the firm's Web site.

The ConocoPhillips-Venezuela dispute isn't the only big-ticket arbitration in which Fortier is currently playing a role. He is chairing a panel adjudicating a trio of unfair treatment and expropriation claims seeking $104 billion brought against the Russian government by former shareholders of the defunct Yukos Oil Company—the largest reported arbitration claim ever. He is also chairing the panel adjudicating Occidental Petroleum's $4 billion claim against the Republic of Ecuador over that country's termination of an oil exploration and development contract in 2004.

Few lawyers at large global firms serve exclusively as arbitrators anymore, says Marc Lalonde, who gave up a similar practice at Stikeman Elliott in 2006 to form a solo practice due to conflicts.

"The problem is not only for the arbitrator, but for the firm," Lalonde says. "It plays both ways. If you accept an arbitration appointment, and six months later, the firm is approached by a potential client that would be a lot more lucrative, but it's a subsidiary of the party that was involved in the arbitration, the firm has to turn it down." Many arbitrators, Lalonde says, have chosen to open boutique firms or solo practices because of the conflicts problems they face at larger firms.

Fortier, Lalonde notes, was challenged several times on arbitration appointments even before the Norton Rose merger. In 2005, for instance, Fortier withdrew from a pair of sports-doping arbitrations after two Greek sprinters accused him of a conflict of interest because an Ogilvy colleague, Stephen Drymer, had worked for the World Anti-Doping Agency on an unrelated case. In 2001, the government of Argentina—citing another Ogilvy lawyer's role in providing tax advice to the petitioner in the matter—unsuccessfully challenged his appointment to a panel adjudicating an investment-treaty dispute.

Steinberg says that Fortier supported the marriage of Ogilvy with Norton Rose, even though he knew it was going to complicate his practice. Whether Fortier will work as a solo practitioner or join another firm once he leaves Norton Rose OR is unclear, Steinberg says.

"We're very sad he's leaving," Steinberg says. "His career has been, in a word, unbelievable."

According to the American Lawyer profile, Fortier made his name in the mid-1970s fending off what was then the largest price-fixing prosecution in Canadian history, against the Canadian sugar industry. He became president of the Canadian Bar Association in 1982, and was appointed as Canada's representative to the United Nations six years later. Upon returning to Ogilvy, Fortier turned down the chance to become managing partner to become chairman instead. It was at that point that he shifted his practice to international arbitration.

With a barren portfolio, Fortier, according to American Lawyer reporter Michael D. Goldhaber, "flew to London to introduce himself to the then leaders of Freshfields's arbitration practice. It was a lucky stroke of timing. The next day, he was offered the chairmanship of the panel in a fast-track, billion-dollar dispute over cost overruns in building the Eurotunnel." Fortier would eventually take the top spot in The American Lawyer's Arbitration Scorecard in 2003, 2005, and 2007.

According to the 2007 profile, Fortier could have had a career in politics. In 1984, Canadian pundits considered both Fortier and his friend and Ogilvy colleague Brian Mulroney potential prime minister candidates, and the then leader of the country's Liberal Party approached Fortier about running for an open seat in Parliament. Fortier wound up declining the opportunity.

Fortier also served as chairman of Alcan Inc.'s board from 2002 through 2007. During that time, he parried a frenzy of cross-border merger bids on behalf of the beleaguered Canadian aluminum company before ultimately accepting a $38 billion offer from Australian mining giant Rio Tinto in 2007. He then took a seat on Rio Tinto's board, from which he retired in March.