Bifurcation is by no means a rarity: ICSID Tribunals have rendered over 115 decisions on bifurcation. Despite this, until now, there has not been a comprehensive regulation of Bifurcation within the ICSID Convention and Rules. Case law has, thus, been fundamental to its development. This article will examine investment arbitration case law in order to answer a set of questions: What is the objective of Bifurcation? Under which circumstances should Tribunals bifurcate? Do these circumstances change depending on the issues to be bifurcated?
We will then take a look at the post-bifurcation scenario, specifically at the issue of reconsideration of decisions. After a review of case law on the matter, we will examine two further questions: when should Tribunals reconsider their decisions? And what is the rationale behind these reasons to reconsider a decision?
As we will further develop, these questions revolve around one key concept: Procedural Economy. Both bifurcation and reconsideration of decisions can ultimately be seen as a balancing exercise of procedural economy, Tribunals having to carefully balance out the circumstances of each case to decide whether the bifurcation of proceedings or the reconsideration of decisions would benefit efficiency.
Arbitration: The International Journal of Arbitration, Mediation and Dispute Management