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
Date Written: November 22, 2017
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
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