The Bifurcation of Jurisdictional and Admissibility Objections in Investor-State Arbitration

16 The Law and Practice of International Courts and Tribunals (2017) 44-70

Posted: 22 Oct 2018

See all articles by N. Jansen Calamita

N. Jansen Calamita

National University of Singapore (NUS) - Centre for International Law

Elsa Sardinha

National University of Singapore (NUS); McGill University

Date Written: November 22, 2017

Abstract

The practice of arbitral tribunals is notably consistent with respect to articulating the fundamental values which need to be balanced in deciding whether to bifurcate preliminary objections with respect to jurisdiction or admissibility. Moreover, there is substantial consensus on the issues or factors which ought to be evaluated by arbitral tribunals exercising their discretion under the relevant rules. What the decisions appear to lack, however, is rigorous evaluation of the likely time and costs effects of the decision to bifurcate or not. Ensuring that the parties produce information relevant to the decision whether to bifurcate rests with tribunals and the way in which they manage the proceedings before them. Tribunals ought not rely upon the parties to produce such information on their own. Instead, tribunals can and should proactively request such information in order to better carry out their judicial function. Improving the analytical rigour and depth of the analysis behind bifurcation decisions would not only improve tribunals’ conclusions, but also bolster the legitimacy of those decisions.

Keywords: investor-state arbitration; bifurcation; case management; jurisdictional objections

Suggested Citation

Calamita, N. Jansen and Sardinha, Elsa, The Bifurcation of Jurisdictional and Admissibility Objections in Investor-State Arbitration (November 22, 2017). 16 The Law and Practice of International Courts and Tribunals (2017) 44-70. Available at SSRN: https://ssrn.com/abstract=3236560

N. Jansen Calamita (Contact Author)

National University of Singapore (NUS) - Centre for International Law ( email )

469 Bukit Timah Road
259776
Singapore

Elsa Sardinha

National University of Singapore (NUS) ( email )

Bukit Timah Road 469 G
Singapore, 117591
Singapore

McGill University ( email )

Montréal, Quebec
Canada

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