By Notice of Arbitration dated 1 June 2017, the Claimant commenced this arbitration against the Respondent pursuant to Articles 1116 and 1120 of Chapter 11 of the North American Free Trade Agreement ("NAFTA"), and the Arbitration Rules of the United Nations Commission on International Trade Law, 1976 ("UNCITRAL Rules").
On 24 June 2019, the Tribunal issued Procedural Order No. 1 ("PO 1") establishing the procedural calendar for an initial phase up to the Tribunal's decision on bifurcation and preliminary motions, and two alternative timetables for a subsequent phase applicable (i) should the proceedings not be bifurcated; and (ii) should the proceedings be bifurcated.
On 27 February 2020, the Tribunal issued Procedural Order No. 4 ("PO 4"), in which it dismissed the Respondent's request for bifurcation on the ground that it was premature. The Tribunal held, in relevant part:
87. In the exercise of its discretion to bifurcate, the Tribunal is guided by three relevant considerations. These considerations are (i) whether the jurisdictional objection is frivolous; (ii) whether the objection, if successful, would materially reduce the time and costs of the proceeding; and (iii) whether the objection concerns issues intertwined with the merits of the arbitration.
88. Having considered the Parties' submissions on this issue, the Tribunal has decided to dismiss the Respondent's request for bifurcation on the ground that it is premature.
89. The Tribunal has been directed to paragraph 91 of the Claimant's Notice of Arbitration dated 1 June 2017 ("NOA").102 Paragraph 91 of the NOA refers to "four categories of wrongful actions" purportedly committed by the Respondent, namely (i) the unfair manipulation of the award of access to the electricity transmission grid; (ii) the unfair manipulation of the dissemination of the FIT Program information; (iii) the unfair manipulation of the awarding of the FIT Program Contracts; and (iv) the improper destruction of necessary and material evidence by senior officials in the Government of Ontario. However, the NOA simply does not contain sufficient particulars of each category of wrongdoing which would allow the Tribunal to take a view, one way or another, on whether the Tribunal can determine the Respondent's jurisdictional objection without entering into the merits.
90. The Respondent has requested that the Tribunal bifurcate the proceedings to consider the Respondent's jurisdictional objection that the Claimant allegedly failed to meet the conditions precedent for submitting a claim to arbitration pursuant to Article 1116(2) of the NAFTA. According to the Respondent, the NOA was filed more than three years after the Claimant first acquired, or should have acquired, knowledge of the alleged breach and knowledge that it incurred loss or damage as a result of that breach and as such, the claim is time-barred.
91. Before the Tribunal can make an assessment of whether to bifurcate the proceedings, the Tribunal will need to know what evidence it will likely have to consider in determining the Respondent's jurisdictional objection and whether the Tribunal will be substantially engaging in the facts of the dispute when considering that evidence. However, until the Tribunal is informed of the specific breach in question which the Respondent now contends is time-barred, the Tribunal does not know what evidence will likely be adduced or the evidence it will likely have to consider in assessing when the Claimant acquired, or should have acquired, knowledge of that breach. Consequently, the Tribunal is unable to decide at this stage whether an inquiry into the Respondent's jurisdictional objection will be best conducted with the merits phase when the Tribunal will have the benefit of the entire record or whether the jurisdictional objection should be heard as a preliminary issue. The Tribunal needs to see the Claimant's claims in more detail before it can decide whether the proceedings can be bifurcated. The Tribunal cannot decide whether to bifurcate the proceedings or not if there is no specificity to the claims. For these reasons, the Respondent's request for bifurcation is premature.1
(d) After receiving the [Parties'] 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.3
On 28 October 2020, the Respondent sought leave (i) to submit into the record as a new legal authority the Westmoreland Mining Holdings LLC v. Government of Canada, ICSID Case No. UNCT/20/3, Procedural Order No. 3, Decision on Bifurcation, dated 20 October 2020 (the "Westmoreland Decision"); and (ii) for both disputing Parties to file submissions on the relevance of the Westmoreland Decision to the Renewed Request for Bifurcation.
a. The Respondent's Renewed Request for Bifurcation is granted;
b. The scope of the bifurcated jurisdictional hearing shall be determined after the Claimant's Counter-Memorial on Jurisdiction is filed; and
c. The issue of the costs of the Respondent's Renewed Request for Bifurcation is reserved to a further order, decision or award.
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