Bifurcation in International Arbitration Involving Joint Ventures: Beyond Efficiency and Fairness

The International Lawyer, 2024, Vol. 57, No. 1, pp. 1-59

59 Pages Posted: 13 May 2024

Date Written: April 1, 2024

Abstract

Faced with high degree of complexity traditionally associated with international arbitration involving joint ventures their participants may turn their eyes toward bifurcation, a technique allowing to divide proceedings into two or more separate phases, each including submissions, hearing and decision of an arbitral tribunal on a single or multiple issues which could potentially terminate proceedings and avoid the need to argue and to decide on the remaining issues or to facilitate their resolution. The article critically evaluates the existing approach to bifurcation in international arbitration, proposes a benchmark for assessment of its benefits as well as a set of "internal" and "external" criteria which could be used by tribunals in their decisions whether to order bifurcation. It argues that the existing approach according to which in the process of rendering bifurcation decisions tribunals should strive to find an appropriate balance between efficiency and fairness shall be considered as misplaced. It further argues that in rendering decisions on bifurcation arbitral tribunals should go beyond the traditional dichotomy between efficiency and fairness and, instead, focus their analysis on whether, as a result of bifurcation, a wrongly injured party would be able to receive a return on its investment in the proceedings. It also identifies typical issues in commercial and investment arbitration involving joint ventures which could be potentially suitable for bifurcation and analyses which of them could be suitable and not suitable for allocation into a separate procedural stage.

Note: Copyright 2024 American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Keywords: Joint ventures. bifurcation, international commercial arbitration, international investment arbitration, ICSID

Suggested Citation

Pentsov, Dmitry A., Bifurcation in International Arbitration Involving Joint Ventures: Beyond Efficiency and Fairness (April 1, 2024). The International Lawyer, 2024, Vol. 57, No. 1, pp. 1-59, Available at SSRN: https://ssrn.com/abstract=4780395

Dmitry A. Pentsov (Contact Author)

MLL Legal Ltd ( email )

rue du Rhône 65
PO Box 3199
Geneva, 1204
Switzerland

HOME PAGE: http://https://mll-legal.com/?lang=en

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