Content Join OGEMID
 
  • Linkedin
  • Twitter
  • Rss

Transnational Dispute Management

Skip navigation

Transnational Dispute Management

The network for international arbitration, mediation and ADR, international investment law and Transnational Dispute Management

Join OGEMID

Transnational Dispute Management

The network for international arbitration, mediation and ADR, international investment law and Transnational Dispute Management

  • Sign in
  • Subscribe
  • Home
  • Sign in
  • About About
    1. Home
    2. About
    3. About TDM
    4. About TDM
    5. Founding Editor T.W. Wälde
    6. T.W. Wälde
    7. Editorial team
    8. Editorial team
    9. Contributing Authors
    10. Contributing Authors
    11. Subscriptions
    12. Subscriptions
  • Journal Journal
    1. Home
    2. Journal
    3. Browse Issues
    4. Browse
    5. Articles by Category
    6. By Category
    7. Articles by Author
    8. By Author
    9. Advance publication
    10. Advance publication
    11. Specials
    12. Specials
    13. Search
    14. Search
    15. Book reviews
    16. Reviews
  • Legal & Regulatory docs. L & r docs
    1. Home
    2. Legal & Regulatory docs.
    3. L&R by Country
    4. L&R by Country
    5. L&R by Category
    6. L&R by Category
    7. L&R recent additions
    8. L&R recent additions
    9. Search
    10. Search
  • Audiovisual library AV library
    1. Home
    2. Audiovisual library
    3. Audiovisual Library
    4. Audiovisual Library
    5. TDM/OGEMID Interviews
    6. TDM/OGEMID Interviews
    7. Conference presentations
    8. Conference presentations
  • OGEMID OGEMID
    1. Home
    2. OGEMID
    3. About OGEMID
    4. About OGEMID
    5. Suggest a topic
    6. Suggest a topic
    7. Guest programme
    8. Guest programme
    9. Seminar programme
    10. Seminar programme
    11. Browse archive
    12. Browse archive
    13. Search
    14. Search
    15. Join
    16. Join
  • News & Events Events
    1. Home
    2. News & Events
    3. News
    4. News
    5. Events
    6. Events
  • Subscribe
Home > Legal & Regulatory docs.

Westmoreland Mining Holdings LLC v Canada - ICSID Case No. UNCT/20/3 - NAFTA - Response to Canada's Request for Bifurcation - 14 August 2020

  • Sign in to download document
Country
  • Canada
  • United States
Year

2020

Summary

Reproduced from www.worldbank.org/icsid with permission of ICSID.

I. INTRODUCTION

1. Canada contends that decisions on jurisdiction and admissibility are ripe, require no factual inquiry, and can be decided as a matter of law as if subject to a motion to dismiss.1 Claimant, Westmoreland Mining Holdings LLC ("Westmoreland"), disagrees.

2. Canada invokes a three-factor test for determining when bifurcation is appropriate to decide jurisdiction and admissibility.2 First, the moving party's arguments must be prima facie serious and substantial. But here, Canada's arguments regarding jurisdiction ratione temporis, the exception in Article 1108(7)(b) for "subsidies and grants," and the statute of limitations all reflect a cramped view of the law and a limited appreciation of the facts. Second, Canada contends there is no factual overlap of the facts pertaining to jurisdiction and admissibility, on the one hand, and the merits of the dispute, on the other. However, there is overlap. And, third, Canada argues that Article 1108(7)(b) and the statute of limitations would dispose of the entirety of this arbitration, which is not so.

3. Canada's primary plea for bifurcation is for efficiency. Canada argues that "[i]t would be procedurally unfair and inefficient to require either disputing party to spend potentially millions of dollars and thousands of hours of lawyer, expert, and witness time litigating claims over which the Tribunal has no jurisdiction or which are inadmissible."3

4. The value of efficiency as presented by Canada presumes an outcome, that the Tribunal would determine, pursuant to bifurcation, that it has no jurisdiction. But were the Tribunal to decide against Canada and find that it does have jurisdiction, everything Canada says about efficiencies would be untrue. The parties would have spent more money and hours of lawyer, expert, and witness time on separate and additional pleadings and hearings, and proceedings to arbitrate the merits may be delayed as much as a year. The proposed jurisdictional phase envisions a hearing (subject to Tribunal availability) in mid-July 2021; assuming the Tribunal takes two months to render a decision, the merits phase will not begin until almost October 2021. Under this schedule, the merits phase would be delayed by another year and Claimant would not get to a merits hearing until fall/winter 2023--four years after initiating this arbitration. Canada knows this trap because it has led tribunals into it before.4

5. Canada presents its arguments as simple inquiries, but this superficial analysis omits complicated issues regarding the bankruptcy restructuring of Westmoreland Coal Company; the basis (as opposed to the funding source) of the Off- Coal Agreements; and any measures involved with Alberta's Climate Leadership Plan. All of these issues will require factual inquiry despite Canada's contentions otherwise.

Were the Tribunal to bifurcate and then find it has jurisdiction, it would have to resolve overlapping arguments and complicated factual issues twice. The significant risk of increased burdens on the Tribunal and the Parties ought to persuade the Tribunal not to bifurcate.

...

II. THE TEST FOR BIFURCATION
III. BIFURCATION IS NOT APPROPRIATE FOR CANADA'S DEFENSE THAT THE BREACHES SUPPOSEDLY PRE-DATED CLAIMANT'S INVESTMENT
A. Canada's Objections Are Not Serious And Substantial
B. The Remaining Factors Do Not Support Bifurcation
IV. CANADA IS NOT ENTITLED TO BIFURCATION FOR ITS ARTICLE 1108(7)(b) OBJECTION
V. CANADA'S STATUTE OF LIMITATIONS OBJECTION DOES NOT WARRANT BIFURCATION
VI. CONCLUSION

Footnotes omitted.

To download this document you need to be a subscriber

Sign in

Forgot password?

Sign in

Subscribe

Fill in the registration form and answer a few simple questions to receive a quote.

Subscribe now

Documents missing? Documents to share? Let us know!

If you know of documents which are currently missing from our Legal & Regulatory database do let us know. You can send them directly to us for inclusion in the database, anonymously or otherwise.
Learn more here

Call for contributions

TDM Call for Papers: Sanctions and International Arbitration: Impact on Substantive and Procedural Issues

Ali Burney, Rinat Gareev, Kiran Nasir Gore, Dini Sejko, Prof. Joel Slawotsky, May Tai

  • Ali Burney
  • Rinat Gareev
  • Kiran Gore
  • Dr Dini Sejko
  • Prof. Joel Slawotsky
  • May Tai

TDM Call for Papers: National Courts as a Forum for the Resolution of Disputes under Article 26 Energy Charter Treaty

John P. Gaffney, Dr. iur Richard Happ,
Lucia Raimanova, Anna-Maria Tamminen, Dr. Catharine Titi

  • John P. Gaffney
  • Dr. iur Ricard Happ
  • Lucia Raimanova
  • Anna-Maria Tamminen
  • Dr. Catharine Titi

TDM Call for Papers: International Investment Arbitration - Environmental Protection and Climate Change Issues

Professor Dr A F M Maniruzzaman, Wendy J. Miles QC, Carla Lewis, Dr Stephen Minas

  • Professor Dr A F M Maniruzzaman
  • Wendy J. Miles QC
  • Carla Lewis
  • Dr Stephen Minas

TDM Call for Papers: The African Continental Free Trade Agreement (AfCFTA)

J. Chaisse, J. Górski, E. Laryea, M.M. Mbengue, and K. Olaoye

  • Prof. Julien Chaisse
  • Dr. Jedrzej Gorski
  • Prof. Emmanuel Laryea
  • Prof. Makane Moïse Mbengue
  • Kehinde Olaoye
  • More
  • Contribute

Advance publication

Summary of Young-OGEMID Symposium No. 14: "International Arbitration and International Commercial Courts: Competitive or Complementary?" (March 2022)

3 Mar 2023

E.S. Delgado

  • E.S. Delgado

Compliance with the AfCFTA: Is There any Room for Hope?

1 Mar 2023

Y. Kouassi

  • Y. Kouassi

La protection de l'environnement dans l'accord créant la zone de libre-échange continentale africaine

27 Feb 2023

E.M.S. Ngondje Songue

  • E.M.S. Ngondje Songue
  • More
  • Contribute

Stay connected

Sign up for our email alerts.

  • Issues
  • Advance publication
  • News
  • Linkedin
  • Twitter
  • RSS

Join the debate

Want to join OGEMID, the leading on-line discussion platform for international dispute resolution?

Simply fill in the registration form to start your trial membership.

Download the app

  1. App store
  2. Google play

The Transnational Dispute Management Journal (TDM, ISSN 1875-4120) and OGEMID listserv focus on recent developments in the area of (investment) arbitration and dispute management, regulation, treaties, judicial and arbitral cases, voluntary guidelines, tax and contracting. Read our Terms & Conditions here, and our Privacy Policy here.

About TDM

  • Terms & Conditions
  • Contribute
  • Subscriptions
  • Contact
  • Help

Other publications

  • Oil, Gas & Energy Law Intelligence (OGEL)

© 2004 - 2023. Published by MARIS.

  • Home
  • Contribute
  • Subscriptions
  • Contact
  • Help