Procedural Framework and Calendar

This Procedural Order No. 1, issued by the arbitral tribunal constituted under the auspices of the International Centre for Settlement of Investment Disputes (ICSID), establishes the comprehensive procedural framework governing the arbitration between Continental Gold Inc. and the Republic of Colombia. The order was issued following the tribunal's first session, held by video conference on 5 March 2025, and reflects consideration of the parties' submissions on draft procedural orders.

The order sets forth the rules applicable to the proceedings, confirming the application of the ICSID Arbitration Rules (2022), as modified by the Canada-Colombia Free Trade Agreement. It addresses key procedural matters including the constitution of the tribunal, representation of the parties, the appointment of a tribunal assistant, and the apportionment of costs. The procedural languages are established as English and Spanish. The order details the specific requirements for the filing and submission of pleadings, witness statements, expert reports, and other documents, including protocols for document production to be guided by the 2020 IBA Rules on the Taking of Evidence. It also outlines the procedures for hearings, submissions by non-disputing parties, and data privacy.

Operative Directions

A key operative component of the order is the adoption of a detailed Procedural Calendar, attached as Annex B, which sets out the deadlines for all major phases of the arbitration, including written submissions, document production, and the oral hearing phase. The calendar provides for three potential scenarios contingent upon whether a request for bifurcation is made and, if so, whether it is granted by the tribunal. The place of the proceeding is designated as Washington, D.C.

Procedural Context and Key Issues

This Procedural Order No. 5 addresses the Claimant's application to bifurcate the proceedings and the Respondent's corresponding opposition and alternative requests in an ICSID arbitration initiated under the Canada-Colombia Free Trade Agreement (FTA). The central issue before the Tribunal was whether to separate the determination of jurisdiction and liability from the quantification of damages, pursuant to ICSID Arbitration Rule 42.

The Parties' Respective Positions

The Claimant, Continental Gold Inc., requested bifurcation on the grounds that an evolving and unstable security situation at its mine made it impossible to present a complete and stable assessment of damages at this stage. It argued that bifurcation would promote procedural efficiency and is a common practice in ICSID arbitration.

The Respondent, the Republic of Colombia, opposed the application, contending it would be inefficient and would prolong the proceedings. Critically, Colombia argued that under Articles 819 and 820 of the FTA, a demonstration of loss or damage caused by an alleged treaty breach is a prerequisite to the Tribunal's jurisdiction. As the Claimant had not substantiated its damages, Colombia submitted that the Tribunal lacked jurisdiction. Colombia made several alternative requests, including an order compelling the Claimant to submit its full arguments on damages and causation.

The Tribunal's Analysis and Decision

The Tribunal first analyzed the jurisdictional argument advanced by the Respondent. It found that the language of the FTA suggests that the three elements of a claim—breach, damage, and causation—are constitutive for establishing jurisdiction on a prima facie basis. Accordingly, the Tribunal concluded that a preliminary presentation on damages and causation was necessary to ensure procedural fairness, enabling the Respondent to formulate its jurisdictional objections and the Tribunal to properly assess its jurisdiction.

Applying the criteria of ICSID Arbitration Rule 42(4) to the bifurcation request, the Tribunal determined that the Claimant had not met its burden. It found no certainty that bifurcation would reduce the time and cost of the proceeding. Furthermore, it held that the issues of damages and causation were inextricably linked to the questions of jurisdiction and liability under the specific terms of the FTA, militating against their separation. The Tribunal was not persuaded that the security situation completely prevented the Claimant from presenting at least a preliminary case on damages.

Operative Orders

The Tribunal rejected the Claimant's application for bifurcation. It ordered the Claimant to submit, within 60 days, an updated Memorial containing its allegations on damages and causation to the greatest extent possible under the current circumstances. If a full exposition is not possible, the Claimant must provide a well-founded explanation. The Tribunal affirmed the Claimant's right to update or modify its damages submissions at a later stage. The Tribunal deferred its decision on the Respondent's reservation of right to request summary dismissal and rejected all other pending requests, inviting the parties to agree on a revised procedural calendar.