5 The Splitting of Issues for Separate Determination (Bifurcation/Trifurcation)
Jeffery Commission, Rahim Moloo
This chapter focuses on one of the most important procedural decisions a tribunal can make in an investment arbitration: the bifurcation or trifurcation of issues into separate phases. The rationale behind bifurcation/trifurcation is straightforward: bifurcation may result in the narrowing or even dismissal of claims, but can significantly increase the costs and duration of an arbitration. This has not gone unnoticed by users of the International Centre for Settlement of Investment Disputes (ICSID) and other systems of dispute settlement. After discussing the relevant arbitration rules that govern the decisions of arbitral tribunals on bifurcation, the chapter considers the various procedural aspects of bifurcation requests. It also examines the number of bifurcation requests actually filed in ICSID and UNCITRAL arbitrations, how tribunals decided those requests, and the factors applied by tribunals in those decisions.