Bifurcación - Arbitraje en virtud del Mecanismo Complementario (Reglas de 2022)

Bifurcation refers to the separation of the procedure into independent phases that address separate issues. Bifurcation refers, in general, to the separation of jurisdictional issues from the substance of the dispute or to the separation of liability issues from quantum .

The Tribunal has the discretion to bifurcate the procedure into different phases, at the request of a party or ex officio ( Rules 52(6)  and  53(4) of the ICSID Additional Facility Arbitration Rules ). There is no presumption in favor of bifurcation. The courts considered all the circumstances, in particular whether the bifurcation would significantly reduce the time and cost of the procedure.

The Additional Facility Arbitration Rules distinguish between bifurcation requests relating to preliminary objections ( Rules 53  and  54 of the ICSID Additional Facility Arbitration Rules ) and all other bifurcation requests ( Rule 52 of the Additional Facility Arbitration Rules). ICSID Supplementary ). The Rules provide guidance on the deadline, procedure and factors to be taken into account, although the parties may agree to a different procedure.

Sometimes the deadline for filing a bifurcation application is discussed at the first session of the Court. If the parties do not know whether an application will be filed, a procedural calendar that provides for several alternative scenarios can be incorporated into Procedural Resolution No. 1, such as:

• the schedule that must be followed if neither party requests the bifurcation
• the schedule that must be followed if a party requests bifurcation and the Court grants the request
• the timetable to be followed if a party requests bifurcation, but the Court decides to consolidate all issues into a single phase

The Court then adopts the procedural schedule in view of the applicable scenario (ie whether an application is made and whether such application is admitted or rejected).

Request for bifurcation relating to issues other than preliminary objections ( Rule 52 of the ICSID Additional Facility Arbitration Rules ) 

A party may request bifurcation of issues other than preliminary objections, eg , that the Court first determine liability before proceeding to the question of quantum . 

A request for bifurcation relating to issues that are not preliminary objections should be filed as soon as possible and identify the issues to be bifurcated ( Rule 52(3) of the ICSID Additional Facility Arbitration Rules ). The schedule for written submissions is determined by the Court in consultation with the parties. It must issue its decision within 30 days of the last submission on the application.

In deciding whether to bifurcate, the Court must consider all the relevant circumstances, including whether:

• bifurcation would significantly reduce the time and cost of the procedure
• the decision of the issues that would be bifurcated would dismiss all or a substantial part of the dispute
• The issues that would be considered in separate phases of the procedure are so closely linked that they would make bifurcation impractical. 

If bifurcation is ordered, the Tribunal stays the proceedings with respect to the issues that must be addressed at a later stage, unless otherwise agreed by the parties (Rule 52(5 ) of the ICSID Additional Facility Arbitration Rules ).

 

 

Request for bifurcation regarding preliminary objections ( Rule 54 of the ICSID Additional Facility Arbitration Rules ) 

Unless the parties otherwise agree, a party's request for bifurcation of preliminary objections must be filed within 45 days of the filing of the brief on the merits or as soon as possible if the objections are based on matters of which the party does not was aware of at the time of the filing of the brief ( Rule 54(1)(a) of the ICSID Additional Facility Arbitration Rules ). A request for bifurcation may also relate to preliminary objections linked to a subordinate claim ( Rules 54(1)(a)(ii)  and  58 of the ICSID Additional Facility Arbitration Rules ).

The request for bifurcation must identify the preliminary objections to bifurcation ( Rule 54(1)(b) of the ICSID Additional Facility Arbitration Rules ). The schedule for written submissions is determined by the Court in consultation with the parties. It must issue its decision within 30 days of the last submission on the application. During this time, the proceedings on the merits are stayed, unless otherwise agreed by the parties ( Rule 54(1)(c) of the ICSID Additional Facility Arbitration Rules ).

In deciding whether to bifurcate a preliminary objection, the Court must consider all relevant circumstances, including whether:

• bifurcation would significantly reduce the time and cost of the procedure
• the preliminary objection decision would dismiss all or a substantial part of the dispute
• the preliminary exception and the merits are so linked to each other that they would make bifurcation impractical. 

The Court may decide to bifurcate all preliminary objections or only some of them for separate determination.

If the Tribunal decides to address the preliminary objection in a separate phase of the proceedings, it stays the proceedings on the merits, unless otherwise agreed by the parties (Rule 54(3) of the ICSID Additional Facility Arbitration Rules ).