The Principle of Bifurcation in Investment Arbitration
Keywords:
Bifurcation, Investment Arbitration, ICSID, UNCITRAL, JurisdictionAbstract
Bifurcation in investment arbitration refers to the separation of disputes into discrete phases, most commonly a preliminary phase for jurisdiction or admissibility and a subsequent phase for merits or damages. This paper examines the evolution of bifurcation through landmark cases, including Glamis Gold and Mesa Power, which have shaped the procedural framework by establishing criteria to determine whether separate phases enhance procedural efficiency. The comparative analysis contrasts ICSID and UNCITRAL arbitration rules, highlighting a historical presumption of preliminary jurisdictional rulings under the 1976 UNCITRAL Rules and the more discretionary approach that both systems have moved towards today. Empirical data suggests that bifurcation, while potentially cost-saving if a dispositive objection is upheld, can in fact prolong proceedings and raise expenses if the case proceeds to the merits. The paper further explores the strategic considerations behind bifurcation requests, identifying risks such as dilatory tactics and overlapping factual or legal issues. Ultimately, bifurcation emerges as a double-edged sword: indispensable in certain scenarios but not always advantageous. Evolving procedural rules, including the 2022 ICSID reforms, underscore a drive toward more structured, case-sensitive approaches to bifurcation, reflecting the continued quest for fairness and efficiency in investment arbitration. Practical implications are discussed and explored in detail.
References
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