Summary

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

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III. THE DECISION OF THE TRIBUNAL

15. Procedural Order No. 3 envisaged that the pleadings on a renewed request for bifurcation would be submitted at a later stage. Nevertheless, the Tribunal now has before it quite detailed arguments from both Parties and considers that it can and should take its decision on the renewed request now.

16. The Tribunal does not consider that Norway has acted improperly in the way that it has approached the question of quantum in the Counter-Memorial. A respondent is not obliged to submit evidence or an expert report if it does not wish to do so. Save in a few cases where pertinent information is available only to a respondent, it is for the claimant to prove its case, including its case on the amount of damages to which it is entitled. A respondent is free to challenge the claimant's case through argument and cross-examination.

17. Doing so involves a degree of risk, since evidence which might refute the claimant's case will not be before the tribunal but it is for the respondent to decide whether or not it wishes to take that risk. What is not acceptable is for a respondent to submit in its rejoinder expert testimony and detailed evidence to refute a case which the claimant has already set out in the memorial. Norway's letter of 24 November 2021 makes clear, however, that it has no intention of doing that.

18. On the other hand, the fact that a respondent has decided not to submit expert testimony and detailed evidence with its counter-memorial cannot in itself be a reason for a tribunal to order bifurcation. Otherwise, a respondent could, in effect, force the tribunal into bifurcating the proceedings by the way in which it pleads its case.

19. In considering whether to grant Norway's renewed request for bifurcation, therefore, the Tribunal has not accorded any weight to the way in which Norway has chosen to plead its case on quantum.

20. What is important is that the Tribunal now has before it a detailed statement of Norway's case on its jurisdictional objections (which occupies approximately a hundred pages of the Counter-Memorial) and the merits (which is almost as long) as opposed to the brief summary which was before it when Norway first requested bifurcation. That means that the situation facing the Tribunal is, as the Tribunal expressly envisaged, significantly different from that which existed when it issued Procedural Order No. 3.

21. While the Tribunal expresses no opinion - indeed has formed no opinion - on whether these arguments will succeed, it is of the view that they show that there is a very wide range of outcomes possible before any question of quantum could arise.

22. For the purposes of deciding on the present request, the Tribunal considers that what matters most is the range of possible outcomes in which the Claimants' case is defeated only in part. Those outcomes have the potential to make a very substantial difference to the way in which the issue of quantum would have to be approached. That raises the possibility that either each of these different possibilities will have to be debated by the Parties, so that argument on quantum would have to cover a significant number of different permutations, or that the Tribunal, having reached its conclusion on jurisdiction and merits, might have to revert to the Parties for further argument and perhaps seek additional evidence and expert testimony. That consideration argues in favour of a decision to hive the quantum issues off to a second stage of the proceedings (if such a stage is necessary) and not to have them considered at a single hearing on jurisdiction, merits and quantum.

23. The Tribunal is not persuaded that issues of quantum are so interwoven with issues arising on the merits or with regard to jurisdiction that they cannot sensibly be left for a subsequent phase.

24. The Tribunal has therefore concluded that the most efficient way to conduct the proceedings is to grant the request for bifurcation. Once the Tribunal has reached its decision on jurisdiction and merits, then - if the Claimants have succeeded in whole or in part - a second stage of the proceedings can be held to focus exclusively on issues of quantum.

25. While the Tribunal is sympathetic to the Claimants' argument that they have already incurred considerable expense and that any saving would only be of benefit to the Respondent, it does not consider that this argument is sufficiently compelling to override the considerations set out above.

26. First, ensuring that the remaining written pleadings in the current phase and the hearing which will follow focus only on jurisdiction and merits is likely to result in savings for both Parties.

27. Secondly, if the Claimants are successful in whole or in part in the first phase, the costs which they have incurred in submitting detailed argument on quantum with their Memorial will be a factor to be taken into account in the Tribunal's eventual decision on costs.

28. For the avoidance of doubt, the present Procedural Order does not affect the right of the Claimants to make their own request for bifurcation when they file their Reply on Merits and Counter-Memorial on Jurisdiction, as specified in the schedule annexed to Procedural Order No. 4.