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Procedural Context
This Decision, issued by an ICSID tribunal constituted under the Latvia-Norway BIT, addresses several procedural matters raised by the parties during the first session. It supplements Procedural Order No. 1 by providing a fuller explanation for the Tribunal's rulings on contested issues, including bifurcation, witness presence, confidentiality, and document production.
The Tribunal's Decision on Bifurcation
The Tribunal denied the Claimants' request for an immediate decision to either order bifurcation or preclude a future request for it. The Claimants argued that an early decision was necessary for expedition, given their status as a small enterprise. The Respondent contended that the Tribunal lacked the power to decide on bifurcation before a formal jurisdictional objection was filed, pursuant to Article 41 of the ICSID Arbitration Rules, and that such a decision would be premature.
The Tribunal expressed "serious doubts" regarding its power to rule on bifurcation at this preliminary stage, noting that its authority under Article 41(3) is triggered "upon the raising of a formal objection." Even assuming it possessed such power, the Tribunal found it would be inappropriate to exercise it without knowing the substance of any potential jurisdictional objections, as it could not make a "sensible assessment" of whether bifurcation would enhance procedural efficiency. The Tribunal instead established a procedural timetable requiring the Respondent to make any bifurcation request within four weeks of receiving the Claimants' Memorial.
Rulings on Other Procedural Matters
The Tribunal also addressed several other contested issues. It rejected, for the time being, the Claimants' proposal to permit a non-party business partner (Mr. Kirill Levanidov) to be present in the hearing room before his testimony, finding his presence was not demonstrated to be necessary for counsel to receive instructions. The Tribunal declined to issue a separate confidentiality order, instead incorporating the relevant provisions into Procedural Order No. 1 and rejecting the Claimants' proposal for a two-tiered system of confidentiality as "unnecessary and inappropriate." Finally, the Tribunal deferred a decision on the Claimants' request for a round of document production on jurisdictional matters, stating the issue would be determined if and when a decision to bifurcate is made.