Westmoreland Mining Holdings LLC v Canada - ICSID Case No. UNCT/20/3 - NAFTA - Government of Canada - Reply to the Claimant's Response to Canada's Request for Bifurcation - 28 August 2020
Reproduced from www.worldbank.org/icsid with permission of ICSID.
1. Canada submits this Reply to the Claimant's Response to Canada's Request for Bifurcation ("Claimant's Response", or "Response") filed on August 14, 2020. Canada maintains its request that the Tribunal bifurcate these proceedings and decide the jurisdictional and admissibility objections set out in Canada's Statement of Defence in a preliminary phase.
2. The Claimant does not disagree that Article 21(4) of the 1976 UNCITRAL Arbitration Rules (the "1976 UNCITRAL Rules") establishes a presumption that questions of jurisdiction should be determined in a preliminary phase, but argues that the Tribunal should exercise its discretion to reject that presumption. The Claimant's overarching argument is that Canada's preliminary objections will raise complicated legal and factual issues and should therefore be determined alongside the merits. However, the Claimant overstates the complexity of Canada's objections and the mere fact that issues could be complex is neither a basis to reject the presumption under Article 21(4), nor a basis to join issues with the merits. So long as questions of jurisdiction and admissibility are serious and substantial, can be examined without prejudging or entering the merits, and would dispose of all or an essential part of the claims raised, they should be decided on a preliminary basis, especially when there is a presumption under the applicable rules to do so.
3. Each of Canada's objections satisfies these factors, and it would be procedurally fair and efficient to both parties to have the Tribunal decide them in a preliminary phase. In particular, the disputing parties have been able to agree on an efficient schedule for a preliminary phase whereby written pleadings will be complete in only seven months, with an oral hearing held shortly thereafter. The Tribunal and the disputing parties should seek to avoid finding themselves in the circumstances which caused another tribunal to lament that, "[w]ith the wisdom of hindsight, the majority of the costs and expenses of each party and of the dispute, both in duration and expense, would have been avoided" had the proceedings been bifurcated and the respondent's objections been heard in a preliminary phase.
II. QUESTIONS OF JURISDICTION AND ADMISSIBILITY SHOULD BE CONSIDERED AS A PRELIMINARY MATTER WHEN DOING SO WILL INCREASE THE FAIRNESS AND EFFICIENCY OF THE PROCEEDINGS
III. BIFURCATION WILL INCREASE THE FAIRNESS AND EFFICIENCY OF THE PROCEEDINGS
A. Canada's Objections That the Alleged Breaches Pre-Date the Claimant's Investment in Canada
1. The Claimant Was Not a Protected Investor at the Time of the Alleged Breaches
2. The Claimant Has Not Made Out a Prima Facie Damages Claim
3. The Challenged Measures Do Not Relate to the Claimant or its Investments under NAFTA Article 1101(1)
B. Canada's Objection that the Claimant Has Not Made a Timely Claim
C. Canada's Objection That NAFTA Article 1102 Does Not Apply to Alberta's Allocation of Transition Payments by Virtue of NAFTA Article 1108(7)(b)
 Claimant's Response to Canada's Request for Bifurcation, 14 August 2020 ("Claimant's Response to Request for Bifurcation"), ¶ 8.
 RLA-036, Caratube International Oil Company v. Republic of Kazakhstan (ICSID Case No. ARB/08/12) Award, 5 June 2012, ¶ 487. The Claimant argues that the "value of efficiency as presented by Canada presumes an outcome" and that "were the Tribunal to decide against Canada and find that it does have jurisdiction, everything Canada says about efficiencies would be untrue". See Claimant's Response to Request for Bifurcation, ¶ 4. However, the same is true should the proceedings not be bifurcated and the Tribunal ultimately decides that it has no jurisdiction or that aspects of the Claimant's claim are inadmissible. In that context, both disputing parties would likely have expended significant resources litigating claims over which the Tribunal has no jurisdiction, or which are inadmissible, which would be unfair and inefficient to both parties. It is for this reason that the presumption in favour of bifurcating jurisdictional issues exists under Article 21(4) of the 1976 UNCITRAL Rules.