Tennant Energy LLC v Government of Canada - NAFTA - PCA Case No 2018-54 - Procedural Order No 8 - redacted - 12 November 2020
I. RELEVANT PROCEDURAL HISTORY
1. By Notice of Arbitration dated 1 June 2017, the Claimant commenced this arbitration against the Respondent pursuant to Articles 1116 and 1120 of Chapter 11 of the North American Free Trade Agreement ("NAFTA"), and the Arbitration Rules of the United Nations Commission on International Trade Law, 1976 ("UNCITRAL Rules").
2. On 24 June 2019, the Tribunal issued Procedural Order No. 1 ("PO 1") establishing the procedural calendar for an initial phase up to the Tribunal's decision on bifurcation and preliminary motions, and two alternative timetables for a subsequent phase applicable (i) should the proceedings not be bifurcated; and (ii) should the proceedings be bifurcated.
3. On 2 July 2019, the Respondent filed its Statement of Defence.
4. On 23 September 2019, the Respondent submitted its Request for Bifurcation, requesting that the Tribunal address in a preliminary procedure the Respondent's NAFTA Article 1116(2) time-bar jurisdictional objection.
5. On 23 October 2019, the Claimant submitted its Response to the Request for Bifurcation.
6. From 14 to 15 January 2020, a hearing on the issues of bifurcation and preliminary motions took place in Washington, D.C.
7. On 27 February 2020, the Tribunal issued Procedural Order No. 4 ("PO 4"), in which it dismissed the Respondent's request for bifurcation on the ground that it was premature. The Tribunal held, in relevant part:
IV. THE TRIBUNAL'S DECISION
46. For the foregoing reasons, the Tribunal determines and orders as follows:
a. The Respondent's Renewed Request for Bifurcation is granted;
b. The scope of the bifurcated jurisdictional hearing shall be determined after the Claimant's Counter-Memorial on Jurisdiction is filed; and
c. The issue of the costs of the Respondent's Renewed Request for Bifurcation is reserved to a further order, decision or award.
Dated: 12 November 2020
Place of Arbitration: Washington, D.C.
Mr. Cavinder Bull SC
On behalf of the Tribunal