On 18 April 2016, the Parties and the Tribunal held the first procedural hearing to discuss, inter alia, the procedural calendar. During that hearing, the Respondent indicated that it intended to wait until the Claimants filed their Statement of Claim before formulating its objections to jurisdiction and admissibility, and proposed that whether those objections should be heard in a preliminary bifurcated phase should be determined thereafter.1 That said, the Respondent made the following commitments:
a. First, "[i]f following the Claimants' memorial being filed, we realize that in fact, on the claim as formulated, there are no objections we wish to take to either jurisdiction or admissibility, we would commit to letting the Tribunal know that straightaway, irrespective of the timeline which would have been otherwise put in place to file the objections."2
b. "Secondly, if when we file the objections to jurisdiction and admissibility, we realize that there would be no good grounds for bifurcation or in fact feel that actually everything is better dealt with in one phase, we would also say that straightaway."3
The Respondent contends that the present dispute falls outside of the scope of protection of the India-United Kingdom bilateral investment treaty (the "BIT"), and as a result is outside of the scope of the Tribunal's jurisdiction22, or the claim is inadmissible.23 More specifically, the Respondent raises the following three preliminary objections:24
a. First, the Respondent argues that the Claimants' claim is premature, because it concerns a first instance assessment order which is still in the process of being reviewed within the appellate procedure provided for in the Indian Income Tax Act 1961 (the "Income Tax Act" or the "Act") (the "First Preliminary Objection").25 The Tribunal understands the Respondent's position in this regard to be that this renders the claim inadmissible.26
b. Second, the Respondent contends that the BIT does not apply to disputes concerning taxation measures (the "Second Preliminary Objection").27 The Tribunal understands that, as a result, the Respondent argues that the Tribunal has no jurisdiction over the Claimants' claim.28
c. Third, the Respondent submits that the dispute does not concern the Claimants' "investments", but rather it relates to a taxation measure that has been imposed on the Claimants' "returns", which either (i) do not fall within the scope of the investor-State dispute settlement provisions in Article 9 of the BIT and therefore fall outside of the Tribunal's jurisdiction, or (ii) are not protected by the substantive protections invoked by the Claimants, which cover "investments" and not "returns" (with the exception of Article 7 of the BIT, which is inapplicable) (the "Third Preliminary Objection").29 As explained at paragraph 40 below, the Tribunal understands the Respondent's position is that "the Claimants' claim is outside the scope of protection of the BIT" (and thus outside of the Tribunal's jurisdiction, or "alternatively that the bulk of the substantive protections invoked by the Claimants are not available to them".30
First, the Respondent submits that all of its preliminary objections are serious and substantial. Specifically:
a. The First Preliminary Objection (i.e., that the Claimants' claim is premature because it concerns a first instance assessment order which is still in the process of being reviewed by the appellate procedure provided for in the Income Tax Act) is serious and substantial for the following reasons:
i. The Respondent is not suggesting that the Claimants must exhaust local remedies; rather, it submits that "the Claimants must make proper use of the dispute settlement procedures available to it under the Income Tax Act of 1961 before its claim for alleged breach of the BIT can be pursued any further."51 More specifically, it argues that "what is required of the Claimants is that they take such reasonable steps to challenge the FAO and Tax Demand through the statutory and constitutional procedures that are available to it."52 According to the Respondent, the chronology of the Claimants' actions demonstrates the prematurity of these arbitral proceedings, as the Claimants served their Notice of Dispute under the BIT the day following the Draft Assessment Order was served on CUHL, and filed their Notice of Arbitration without awaiting the results of the domestic challenge that CUHL had initiated before the Dispute Resolution Panel.53 Nor have the Claimants pursued their challenge to the tax assessment "diligently", as they have chosen not to pursue all available appeal mechanisms and have sought to delay the proceedings before the Income Tax Appellate Tribunal ("ITAT") as much as possible.54
ii. The Respondent summarizes the basis for its First Preliminary Objection as follows: "(a) [t]here are a number of independent domestic avenues open to CUHL to challenge the Final Assessment Order; (b) CUHL has invoked the first of these mechanisms - albeit that it has then sought to delay that domestic process; (c) [t]he heart of the Claimants' claim is based on detailed issues of Indian law, which have as yet not been tested by the Indian courts; (d) [i]t is perfectly possible that the domestic mechanisms available to the Claimants will provide complete or partial redress and/or refine the issues of Indian law which are in dispute."55
iii. Citing Generation Ukraine, the Respondent contends that "[t]he Claimants cannot simply treat as irrelevant their statutory rights of appeals and available constitutional review processes, and bring before this Tribunal a decision made by the lowest revenue officer in the assessment chain and purport to treat it as a finally adjudicated demand."56 According to the Respondent, "[t]his is not simply a case where the Claimants have not availed themselves of the domestic avenues"; here, "the Claimants seek to keep a toe in the door of the domestic proceedings, whilst simultaneously rail-roading the Respondent into this arbitration."57
b. The Second Preliminary Objection (i.e., that the BIT does not apply to disputes that concern taxation measures) is also serious and substantial. Although the Respondent acknowledges that the BIT does not formally exclude taxation measures, it submits that "tax disputes are not capable of being resolved by arbitration under the BIT in light of an implied exception to the scope of application of the BIT, and of the fact that the Respondent and the United Kingdom have in fact specifically agreed that tax disputes should be settled in accordance with the procedure prescribed in the contemporaneous Double Taxation Agreement ('the DTA')."58 More specifically, the Respondent contends that:
i. There is "an implied exception in relation to disputes (such as this one) which involve a challenge to a State's legislative powers to tax."59 Citing Dutch law and Indian law, the Respondent submits that a dispute concerning the ability of a sovereign state to introduce general legislation in respect of taxation is not arbitrable.60
ii. The India-UK DTA, which was being negotiated at the same time as the BIT, determines the respective powers of India and the UK to impose taxes on persons who are residents of one or both of those States, and its scope extends to capital gains tax. At Article 27, the DTA provides that disputes between a resident and one or both of the Contracting States are not to be resolved by a third party mechanism such as arbitration, but by mutual agreement between the "competent authorities" of both Contracting States. According to the Respondent, "it would [...] be surprising if India and the UK had simultaneously intended that disputes arising out of their sovereign powers of taxation were nonetheless to be subject to arbitration under the BIT."61
iii. The Claimants' contention that the DTA and the limits on arbitrability under domestic law are irrelevant to the status of claims brought under the BIT misses the point: "[t]he issue is whether the Claimants' claims are properly within the scope of the BIT".62 According to the Respondent, "it cannot be assumed, from the fact that the BIT does not expressly exclude tax matters, that disputes which go to the heart of a State's sovereign powers to tax fall within the scope of the BIT"; "[o]n the contrary, the [DTA] and the approach of Indian and Dutch law are all consistent with an intention that such public law disputes are outside the scope of the Tribunal's jurisdiction."63
c. The Respondent further contends that the Third Preliminary Objection (i.e., that the dispute does not concern the Claimants' "investments", but rather it relates to the Claimants' "returns") is serious and substantial. Specifically, the Respondent contends that:64
i. The measure challenged by the Claimants concerns a taxation measure that has been imposed on capital gains made by the Claimants from the 2006 intragroup share transactions. The Claimants' assertion that the 2006 transactions did not give rise to any capital gain or profit assumes the very point which the Claimants must prove in this arbitration.
ii. These capital gains qualify as "returns" and not "investments" under the BIT. Indeed, Articles 1(b) and 1(e) of the BIT clearly distinguish between "investments" and "returns".
iii. The scope of application of the BIT (Article 2) and the substantive provisions contained at Articles 3(2), 3(3), 4(1), 5(1), 6(1) and 9(1) of the BIT apply to investments and not returns, while Articles 4(2) and 7(1) apply only to returns. In particular, the dispute resolution mechanism provided at Article 9 of the BIT only covers disputes relating to the Claimants' purported investments in India, not their returns. The Claimants do not explain the basis upon which they say their claims relate to investments and not returns.
As a result, with respect to its Third Preliminary objection the Respondent contends that:
a. "The Tribunal lacks jurisdiction because the Claimants' claims do not concern 'investments' but are rather brought concerning their 'returns', and Article 9 of the BIT only provides that international arbitration is available for disputes in relation to 'investments'."
b. "In the alternative, if the Tribunal does not accept that the Claimants' claims are in relation to 'returns' rather than in relation to 'investments', the Tribunal nonetheless lacks jurisdiction over the Claimants' claims for breach of Article 7, for their claim under Article 7 only concerns the Claimants' capital gains."
c. "In the further alternative, even if the Tribunal has jurisdiction under Article 9, Articles 3 and 5 are not available to the Claimants, and Article 7 is inapplicable[…]"65
a. "The Respondent's First, Second and Third Preliminary Objections should be bifurcated and determined in a preliminary phase;
b. The Respondent be awarded the costs of its Application for Bifurcation;
c. Such other relief as the Tribunal determines to be appropriate."73
More specifically, the Claimants argue that the First Preliminary Objection lacks legal merit and factual support, for the following reasons:
a. According to the Claimants, the Respondent seeks to obfuscate the real dispute between the Parties: the present claims arise from a violation of the UK-India BIT, not a violation of Indian law. In light of the dispute settlement provisions contained at Article 9 of the BIT, the proper forum cannot be the Indian courts. The Claimants are arguing that that India's retrospective imposition of the tax measure violates its treaty rights, and the remedy for that is treaty arbitration.110
b. The UK-India BIT does not contain any exhaustion of local remedies requirement. Indeed, one of the core purposes of the dispute settlement mechanism contained in Article 9 of the BIT is to relieve an injured investor from this requirement. The Respondent's attempt to read a local remedies requirement back into the BIT must be rejected.111 The tribunal in Generation Ukraine, on which the Respondent relies, recognized that any requirement to pursue local remedies as a pre-condition to bringing a treaty claim must be expressly stated in the treaty.112
c. Contrary to the Respondent's contention, the decision in Generation Ukraine does not stand for the proposition that a claimant must first challenge the offending measure in the courts of the host State; that tribunal merely referred to the principle that the exhaustion of available judicial remedies is necessary to establish a substantive claim for denial of justice.113
d. In any event, the facts on this case are very different to those in Generation Ukraine : while in that case the claimant made no "reasonable efforts" to challenge the actions of an inferior government official,114 here the Claimants have "diligently challenged the application and enforcement of India's tax measure against Cairn before domestic authorities for almost two years, but to no avail..."115
e. The Respondent's suggestion that the Claimants must challenge the 2012 Amendment before the Indian courts is ironic, as the 2012 Amendment was passed to overturn the Supreme Court decision in the Vodaphone case. In any event, the Claimants assert that such a constitutional challenge is only guaranteed to Indian citizens and is not available to the Claimants under Article 19 of the Constitution.116 As to the Respondent's argument that a similar remedy would be available under Article 14 of the Constitution, the Claimants "fail to see how an alleged pre-condition to pursue remedies up to the highest court of the land differs in substance from an exhaustion of local remedies requirement".117
With respect to the Second Preliminary objection, the Claimants raise the following arguments:
a. The Respondent's argument that matters of taxation are not arbitrable is wrong as a matter of treaty interpretation.118 The BIT does not contain any express exclusion for all tax-related claims; it merely contains "a very precise and limited exclusion in Article 4(3)", which excludes tax treaties and domestic tax legislation from the scope of national treatment and most-favoured nation ("MFN") treatment, which is irrelevant here because the Claimants do not invoke these obligations.119 According to the Claimants, "India is well aware of how to exclude all tax-related claims from the scope of an investment treaty because it has done so in a handful of its other investment treaties."120
b. The Respondent's contention that tax matters are not arbitrable under Indian law "is wholly irrelevant to the status of claims brought under a treaty governed by international law, and is in any event inconsistent with the limited and defined carve-out for tax matters that India agreed to in the UK-India BIT."121 The Claimants also submit that this is not an "international commercial arbitration", but a treaty arbitration.122
c. The Claimants further deny that the Tribunal's jurisdiction should be ousted by the UK-India DTA. The Claimants argue that the UK-India BIT and the UK-India DTA "serve different purposes and provide different remedies to achieve them."123 More specifically, the Claimants submit the subject matter of these treaties is distinct and separate: "The UK-India DTA (like all double taxation agreements) represents a division of tax bases between the two contracting states in relation to incomes that are taxable in both states and stipulates which State has the taxing rights over the relevant income."124 As to remedies, "[t]he Mutual Agreement Procedure contained in the DTA provides for inter-State consultations in the event a person of one Contracting Party may have been taxed in contravention of the DTA" (a remedy that the Claimants do not seek), while "the UK-India BIT allows a private investor like Cairn to bring a direct action against the State for measures - including tax measures - that violate specific protections contained in the BIT."125 Noting that the BIT was concluded one year after the DTA, the Claimants contend that if the Contracting Parties had intended to preclude any claims relating to taxation or tax legislation under the BIT, it would have been easy to clarify that intent in the BIT.126 In any event, the Claimants note that capital gains tax is expressly excluded from the scope of the DTA, as a result of which the Respondent itself has declared it to be inapplicable to this dispute.127
d. Finally, the Claimants argue that this objection raises merits issues that are inappropriate for preliminary treatment. The Claimants note in particular that in its Statement of Defence, the Respondent argues for the first time that, irrespective of the 2012 Amendment, "the 2006 share transfers made in preparation for the initial public offering in India triggered a liability to tax because they were part of an unwholesome tax avoidance scheme."128 According to the Claimants, deciding this argument would require a full hearing on the merits. Likewise, the Respondent's argument that the Claimants' claims are inadmissible because they challenge India's tax "policy", rather than the application of tax laws, raises merits issues.129
As to the Third Preliminary Objection, the Claimants argue as follows:
a. There can be no serious debate that the Claimants have "investments" under the meaning of Article 1 of the BIT, and that the government measures challenged in this arbitration relate to those investments. The Claimants assert that their shareholding in CIL falls within the definition of investment, and that their claim relates in part to the Respondent's seizure of those shares. The Claimants add that the corporate reorganization of Cairn's assets in 2006 and initial public offering in January 2009 (the "IPO") could arguably have resulted in a change in the form of Cairn's investments, but note that Article 1 expressly includes in its definition of investment "every kind of asset established or acquired, including changes in the form of such investment".130
b. As to the Respondent's contention that the challenged measure relates to capital gains which should be qualified as "returns", the Claimants submit that "[t]his argument confuses its characterisation of the government measures at issue with the investments to which those measures were applied."131 The Claimants allege that while the IPO resulted in extraordinary gains that were fully reported and were not taxable under Indian law, the intragroup share transfers between nonIndian companies made in preparation for that IPO that India is retroactively seeking to tax did not give rise to any capital gain or profit whatsoever, because equal economic values were exchanged.132 Accordingly, the Claimants argue that "this dispute does not relate to any actual capital gains earned by CUHL, but rather to the abusive application of India's tax laws - under the rubric of "capital gains tax" - to Cairn's investments in India, including Cairn's shareholdings in CIL, which are clearly protected "investments" under Article 1(b) of the Treaty."133
c. Further, the Claimants argue that the Respondent has not provided any reasoning for its request that the Claimants' claim under Article 7 be dismissed, nor has it responded to the Claimants' arguments that Article 7 does protect investors by allowing the free transfer or repatriation of both investments and returns.134
d. Finally, the Claimants submit that "even if one were to accept arguendo India's characterisation, it would not provide any support whatsoever for a dismissal on jurisdictional grounds": Article 9 of the BIT allows a claimant to bring "any dispute. in relation to an investment", and in the Claimants' submission, "[a] dispute over investment returns clearly constitutes a claim 'in relation to an investment'..."135
For the reasons set out above, the Claimants request the Tribunal to:
a. "DISMISS the Respondent's Bifurcation Application with prejudice;
b. DECIDE that the Respondent's preliminary objections should be considered and determined with the merits in a unitary proceeding; and
c. ORDER the Respondent to pay the Claimants' costs associated with the Respondent's Bifurcation Application."139
The Respondent submits that the factors to be considered are those identified in Glamis Gold, and adopted by the tribunals in Philip Morris and Emmis, namely:
a. Whether the objection is substantial (in the sense of not being frivolous);
b. Whether, if granted, the objection to jurisdiction would result in a material reduction of the proceedings at the next phase; and
c. Whether bifurcation is impractical, in the sense that the preliminary issue raised is so intertwined with the merits that it is very unlikely that there will be any savings in time or cost.147
Other tribunals have also emphasized the need to achieve procedural fairness and efficiency in light of the circumstances of the particular case. For instance, the tribunal in Apotex stated as follows:
"The Tribunal must take in this case a difficult but not a complicated decision, weighing for both sides the benefits of procedural fairness and efficiency against the risks of delay, wasted expense and prejudice. There is no bright dividing-line as to where that decision now lies, rightly or wrongly. Moreover, the Tribunal must decide the Respondent's application in the particular circumstances of this case. It serves no purpose for this Tribunal to follow blindly what other tribunals have or have not done in other circumstances, particularly with hindsight."150
This quest for procedural efficiency is consistent with the mandate contained in Article 1036(3) of the Dutch Arbitration Act, which provides:
"The arbitral tribunal shall ensure that there will be no unreasonable delay of the proceedings and, if necessary, take measures at the request of a party or on its own initiative. The parties have an obligation towards each other to prevent unreasonable delay of the proceedings."
The Tribunal has carefully considered the Respondent's arguments in favor of bifurcation. It agrees with the Respondent that, prima facie, the objections it has raised meet some of the criteria cited at paragraph 76 above. In particular:
a. It is not the Tribunal's task at this stage to judge whether the Respondent's objections are justified in substance. However, for purposes of this decision, the Tribunal is satisfied that the Respondent has put forward serious arguments in support of its Application on Bifurcation, as have the Claimants. The Tribunal thus cannot exclude that the Respondent's objections might be successful and does not consider at this juncture that they are frivolous.151
b. The Claimants do not deny that any of these objections, if upheld, might either put an end to the dispute or significantly reduce its scope. The Tribunal notes however that a bifurcated phase would not dispose of all preliminary considerations: as noted above, in its Statement of Defence the Respondent has raised a fourth preliminary objection, namely that the Claimants have not made an investment in accordance with Indian Law.152 The Respondent "recognises that this preliminary objection is inappropriate for bifurcation inasmuch as it is intertwined with the merits of the dispute,"153 and thus does not request bifurcation in this regard. In addition, as discussed in paragraph 87.b below, the Tribunal is not persuaded that if the Third Preliminary Objection was decided in favor of the Respondent it would put an end to the dispute. As a result, the Tribunal finds that this consideration would be satisfied only for the First and Second Preliminary Objections.
That being said, after carefully considering the circumstances of this case, the Tribunal is not persuaded that a bifurcation would promote fairness or procedural efficiency. The Tribunal has considered in particular the following factors:
a. A year has passed since the first procedural hearing took place in April 2016. At that time, the Respondent insisted that it wished to await the Claimants' Statement of Claim to file its objections to jurisdiction and file its request for bifurcation. The Tribunal does not raise any objection to that position; however, as recorded by the Tribunal in its email of 21 April 2016 (which the Respondent did not object to), it committed to filing that request "as soon as reasonably possible", failing which it agreed that it would submit its Statement of Defence in full.154
b. The Claimants filed their Statement of Claim in June 2016. On three occasions, the Tribunal reiterated its invitation that the Respondent should file its request for bifurcation as soon as reasonably possible, failing which it would have to submit its Statement of Defence in full, but the application was not forthcoming.155 The Tribunal also explicitly stated that when ruling on a request for bifurcation, it would take into consideration whether it was timely made.156
c. The Claimants suggested that the Respondent could identify its objections and brief them later, so that the hearing scheduled for 7 October could be used to discuss both the Stay and Bifurcation Applications.157 The Respondent rejected the Claimants' proposal.158 Ultimately, it filed its Application for Bifurcation on the eve of that very hearing, and has acknowledged that this was done so that this Application could be considered in the discussion of the procedural calendar during that hearing.159
d. The Respondent has rightly noted that under Article 21(3) of the UNCITRAL Rules, it had the right to withhold the filing of its objections to jurisdiction (and its Application for Bifurcation) until the filing of its Statement of Defence. The Tribunal also recognizes that it was for the Respondent to make whatever strategic decisions it chose in terms of the timing of its Application for Bifurcation. The Tribunal offers no judgment in this respect, but the Respondent's decisions have had an impact on the procedural calendar and on the efficiency of this arbitration: deciding on bifurcation before any significant procedural steps have been undertaken is not the same as deciding on it later on in a proceeding and the circumstances are different as will now be considered more in depth. First, precisely, the first round of (full) written submissions are now in the record and this has certainly resulted in significant costs that are already expended.
e. Likewise, and second, it cannot be ignored that the Tribunal has now decided on the Respondent's Stay Application and that this application and its disposal caused significant delay to the determination of any Application for Bifurcation. As above, the Tribunal offers no judgment in this respect; to the contrary, given the serious nature of the matters raised in the Respondent's Stay Application, in particular the risk of conflicting decisions in the Cairn and Vedanta arbitrations, the Tribunal considers that the delay caused by that application was justified. That said, as a matter of fact, the Stay Application delayed the consideration of any Application for Bifurcation by several months, in particular because (i) the Respondent requested a hearing on its Stay Application, which the Tribunal granted over the Claimants' objection, and that hearing did not take place until 7 October 2016; (ii) in order to reduce the risk of conflicting decisions, the Tribunal invited the Parties to consult with Vedanta to see if enhanced forms of cooperation between the two arbitrations were feasible; and (iii) after these consultations failed, the Parties made further submissions on the Stay Application. As a result, the Tribunal ruled on the Stay Application in March 2017, and can only now address the Respondent's Application for Bifurcation.160
f. It is true that the Parties have already consulted and agreed on a procedural timetable for bifurcated and non-bifurcated proceedings. However, due to the inability to find hearing dates earlier, the hearing for either scenario has been set for January 2018, which effectively means that the briefing and oral submissions for the Respondent's preliminary objections alone would take the same amount of time as if these objections were joined to the merits (approximately one year). Indeed, as noted above, both Parties have already submitted their full memorials in chief, addressing issues of jurisdiction, admissibility and the merits.
g. The Tribunal is aware that the Respondent has objected to having been required to file its Statement of Defence in full before its Stay Application and Application for Bifurcation were decided. The Tribunal has taken note of this objection, but observes that the Respondent itself agreed to this course of action if it did not file its Application for Bifurcation as soon as reasonably possible after receiving the Claimants' Statement of Claim. Given the procedural history that predates this Application and is cited in Section I above, the Tribunal cannot but conclude that the Respondent did not file this Application as soon as it would have been possible. In the circumstances, the Tribunal ordered the Respondent to submit its full Statement of Defence in an attempt to exercise its discretion under Article 15(1) reasonably and with a view to preserving fairness between the Parties. The Tribunal further notes that it granted the Respondent several extensions to file its Statement of Defence: although the pleading was originally due on 11 November 2016, the Respondent ultimately filed it on 4 February 2017.
h. The Tribunal is likewise not persuaded that, because the Vedanta tribunal has decided to bifurcate two identical objections to the Respondent's two first preliminary objections, the Tribunal should do so here as well. Although the Tribunal does not have the details of the factual and procedural circumstances surrounding that arbitration, it understands that the Respondent filed its request for bifurcation some time before it did so in this arbitration, and that the hearing for that application is scheduled for May 2017. It also understands that the Respondent did not file a stay application in the Vedanta arbitration. The procedural circumstances (and the procedural timetables) are thus very different. In any case, as recalled above, each Tribunal has to decide on the merits of bifurcation on the basis of the circumstances of the case before it and not solely in reliance on a precedent, however similar the circumstances of that other case might appear to be.
Finally, although it considers its reasoning in terms of procedural fairness and economy sufficient, the Tribunal notes that, with respect to the Second and Third Preliminary Objections, it is not satisfied that they can easily and entirely be addressed separately from the merits of the dispute:
a. With respect to the Second Preliminary Objection, the Claimants have pointed out that in its Statement of Defence the Respondent argues that the 2006 share transfers triggered the Claimants' tax liability irrespective of the 2012 Amendment because they were part of an "unwholesome tax avoidance scheme", an argument that according to the Claimants is intertwined with the merits.163 The Claimants also argue that the Respondent's argument that the Claimants' claims are inadmissible because they challenge India's tax policy rather than the application of its tax laws may also raise merits issues.164
b. As to the Third Preliminary Objection, the Tribunal is not persuaded that it raises only issues of treaty interpretation. In particular, even if the Respondent's interpretation of the BIT is correct, the Tribunal might still need to determine whether the Claimants made "investments" in the meaning of the BIT (which the Respondent recognizes is an issue intertwined with the merits), or whether they made the capital gains that the Respondent refers to as "returns" and that do not qualify as "investments". The Claimants deny that they made any profit from the 2006 transactions, but the Respondent rightly observes that this assumes "the very point" which the Claimants must prove in this arbitration. In the Tribunal's view, this point would also be intimately linked with the merits.
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