‘As a preliminary issue, it has to be reminded that the Sole Arbitrator may decide on any claim, submission, request and objection of the Parties in a single award or several partial awards. It may also decide to join to the merits part or all of the preliminary issues brought before it.

………

The Sole Arbitrator notes that:

- the Contract is silent as regards a potential bifurcation of the proceedings;

- the ICC Rules only provide that in the absence of (i) agreement between the Parties and (ii) silence of these Rules, the arbitral tribunal has discretion to conduct the procedure within the limits of the parties’ rights to equal treatment and to have the opportunity to present their case (Article 15);

- Rwandese Law No. 005/2008 of 14 February 2008 on arbitration and conciliation in commercial matters ..., law of the seat of the arbitration, envisages the possibility for an arbitral tribunal to rule on its jurisdiction either as “a preliminary issue” or “in judgments on the merits of the case” (Article 18). In the absence of any further guidance in this provision, Article 31, “Determination of rules of procedure”, also gives discretion to the arbitral tribunal to conduct the proceedings “in such a manner as it considers appropriate” in case of disagreement between the parties.

In the matter at hand, the Parties have not come to an agreement as to whether or not bifurcate the proceedings. Therefore, the Sole Arbitrator has discretionary power in ordering such a bifurcation (G. Born, International Commercial Arbitration, Kluwer Law International, 2009, pp. 1782(1783).

It is generally admitted in ICC arbitral practice that bifurcation is a technique used if it may “genuinely be expected to result in a more efficient resolution of the case” (Techniques for Controlling Time and Costs in Arbitration, ICC Bull. 18/1, 2007, pp. 23 et seq., Technique No. 41; see also, with the same view, T. Tallerico and J. Behrendy, “The Use of Bifurcation and Direct Testimony Witness Statements in International Commercial Arbitration Proceedings”, Journal of International Arbitration, Volume 20, Issue 3, 2003, p. 295).

In the matter at hand, the Parties’ respective claims seem, prima facie, to be based on one or several decision(s) by an alleged Engineer. At this stage of the procedure, the Parties’ written submissions, contentions and the evidence received by the Sole Arbitrator received, the value and impact of what the Parties refer to as consisting [sic] one or several decisions by the Engineer cannot be assessed, including Claimant’s claims on the Sole Arbitrator’s jurisdiction regarding Respondent’s counterclaims [sic].

In order to decide on the issue of jurisdiction, the Sole Arbitrator would thus have to make findings in relation to the identification of which decision(s) of the Engineer must be taken into account, and, subsequently, the legal value of such decision(s), findings which relate to the merits of the case.

Moreover, in the instant case, it seems highly likely that the evidence and contentions submitted by each of the Parties to support its case will be similar as regards Claimant’s jurisdictional objection and on the merits.

Therefore, the Sole Arbitrator is not convinced that ordering the bifurcation of the proceedings as regards jurisdiction to hear Respondent’s counterclaims would result in a more practical and efficient resolution of the case. Rather, it seems such an order might have the adverse effect of increasing the Parties’ and the Sole Arbitrator’s time and costs spent on the case.

Consequently, for the above reasons, the Sole Arbitrator rejects Claimant’s request for bifurcation of the proceedings. Therefore, the Sole Arbitrator will deal with the questions of jurisdiction, claims and counterclaims in a single award to be rendered according to the Provisional Timetable mentioned hereafter.’