(a) The Claimant’s Request for Interim Measures, dated 16 August 2019 (the "Request for Interim Measures"), in which it requested that the Tribunal order (i) the disputing parties to preserve, index, protect, and scan documentation in their possession, custody, or control that is relevant to the dispute; and (ii) the Respondent to produce within 30 days the non-confidential documents on record in the Windstream Energy LLC v. Government of Canada case in their entirety to the Claimant, along with an index;
(b) The Respondent’s Request for Bifurcation, submitted on 23 September 2019 (the "Request for Bifurcation") to address in a preliminary procedure the Respondent’s NAFTA Article 1116(2) time-bar jurisdictional objection; and
(c) The Respondent’s Motion for Security for Costs, and in the same submission, its Motion for the Disclosure of Third-Party Funding, dated 16 August 2019 (the "Motion for Security for Costs" and "Motion for the Disclosure of Third Party Funding"), in which it requested the Tribunal to order the Claimant to (i) issue security for costs in the amount of 6,934,001.95 CAD, by depositing the security into an escrow account arranged by the Permanent Court of Arbitration (the "PCA") within 90 days of the order, or the arbitral proceedings will be discontinued; and (ii) disclose the existence of any third-party funding agreement that the Claimant has entered into to finance its claim in this arbitration, the name(s) and details of the third-party funder(s), and the nature of the arrangements concluded with the third-party funder(s), including whether and to what extent it/they will share in any successes that Claimant may achieve in this arbitration, or pay an adverse costs order against the Claimant.
(a) The Claimant is to set out in full its detailed pleading on the issue of jurisdiction in its Memorial and specifically on the issue of time-bar which has been raised by the Respondent. In accordance with the procedural timetable set out in PO 1, this Memorial is due to be filed 90 days from the date of this Procedural Order (i.e. Wednesday, 27 May 2020).
(b) Should the Respondent wish to pursue bifurcation of the proceedings after having had sight of the Claimant's Memorial, the Respondent is to file its detailed objections on jurisdiction and a request for bifurcation within 45 days from the date of the Claimant's Memorial (i.e.Monday, 13 July 2020).
(c) If the Respondent files a request for bifurcation in accordance with (b) above, the Claimant is to file its response to the Respondent's request for bifurcation within 21 days from the date of that request (i.e.Monday, 3 August 2020).
(d) After receiving the above submissions, the Tribunal will decide on the papers without a hearing on whether the proceedings should be bifurcated. In this regard, the Tribunal notes that it has had the benefit of extensive arguments by Parties on the issue of bifurcation and the oral arguments made at the Hearing in particular have been of assistance to the Tribunal. In the interests of expediency and to save time and costs for all Parties, the Tribunal is confident that it can address a second bifurcation request without a further hearing.
(e) The Tribunal will issue the relevant procedural directions after it has come to a decision on the Respondent's second bifurcation request, including any adjustments to the procedural timetable where necessary.
(f) Should the Respondent choose not to pursue bifurcation of the proceedings after having had sight of the Claimant's Memorial, the timelines will continue to run in accordance with the procedural timetable set out in PO 1.
(a) the identity of any third-party funder;
(b) any terms contained in the third-party funding arrangement relating to the payment of adverse costs orders against the Claimant in this arbitration. Any such terms should be quoted in full in the Claimant’s disclosure; and
(c) where no such terms set out at (b) above exist, the Claimant is to inform the Tribunal and the Respondent of that fact.
(a) any change to the identity of the third-party funder, including termination of the third-party funding arrangement; or
(b) any change to the terms relating to the payment of adverse costs orders against the Claimant in this arbitration.
1. At the request of either party, the arbitral tribunal may take any interim measures it deems necessary in respect of the subject-matter of the dispute, including measures for the conservation of the goods forming the subject-matter of the dispute, such as ordering their deposit with a third person or the sale of perishable goods.
2. Such interim measures may be established in the form of an interim award. The arbitral tribunal shall be entitled to require security for the costs of such measures.
3. A request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement.
A Tribunal may order an interim measure of protection to preserve the rights of a disputing party, or to ensure that the Tribunal’s jurisdiction is made fully effective, including an order to preserve evidence in the possession or control of a disputing party or to protect the Tribunal’s jurisdiction. A Tribunal may not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in Article 1116 or 1117. For purposes of this paragraph, an order includes a recommendation.
(a) prima facie, there is a reasonable possibility that the respondent would prevail in the case;
(b) the respondent would likely suffer harm not adequately reparable by an award of damages without the order;
(c) the respondent's potential harm without the order substantially outweighs the harm that the claimant would likely incur from the order; and
(d) the condition of urgency is met.
(a) REJECT the Claimant’s request for interim measures.
(b) REJECT the Respondent’s request for bifurcation as premature, and directs that modifications in accordance with paragraph 93 above be made to the procedural timetable set out at PO 1 for the scenario where the proceedings are not bifurcated.
(c) ORDER the Claimant to make the disclosures set out at paragraphs 106 and 107.
(d) REJECT the Respondent's motion for security for costs.