‘In the Statement of Claim, [Claimant] essentially raises the following claims:

(i) A claim for payment of [an amount] which [Claimant] says it should have been awarded already in [a prior ICC arbitration] (“Revised Damages Claim”).

(ii) A claim for reimbursement of VAT already paid by [Claimant] … but not claimed in [the prior arbitration] (“VAT Claim”).

(iii) A claim for payment of related consequential damages occurred but suffered by [Claimant] … (“Consequential Damages Claim”).

[Respondent] raises, among other things, the following defences:

(i) The Tribunal lacks jurisdiction to hear the Revised Damages Claim because this Claim in effect attempts to appeal the Final Award in [the prior arbitration]. Further, the Revised Damages Claim is inadmissible because (i) it is time-barred, (ii) it is precluded by the res judicata effect of the Final Award in [the prior arbitration], and (iii) it is precluded by the waiver in the Settlement Agreement ...

(ii) The VAT Claim is inadmissible because it is time-barred.

(iii) The Consequential Damages Claim is inadmissible because (i) it is time-barred and (ii) it is precluded by the res judicata effect of the Final Award in [the prior arbitration].

... [Claimant] filed a request for the production of documents in the following terms: “(1) All documents taken from the Claimant relating to the contracts entered into between the Claimant and Respondent in 2001 and 2002; and (2) the Claimant’s purchase of materials pursuant to those contracts”. In said letter, [Claimant] argued that it is “unable to present its case on the VAT claim properly and fairly until these documents are returned and produced by the Respondent”. According to [Claimant] (contested by [Respondent]) these documents were seized by the latter in the course of criminal investigations and withheld by [Respondent] ever since. Further, [Claimant] applied for an extension of the time to file the Reply until such time as the requested documents will have been produced.

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[Respondent] suggested, inter alia, a bifurcation of the proceedings so as to deal with its jurisdictional and admissibility objections on a preliminary basis, and that the further course of the arbitration should be discussed at the occasion of a case management conference call (“CMCC”).

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By letter ... the Tribunal informed the parties of its decision (i) to convene a CMCC and (ii) to put the current Procedural Timetable ... on hold until further notice.

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... [Claimant] filed a written note of its position on the topics to be discussed at the CMCC. In said submission, [Claimant] generally alleged (denied by [Respondent]) that the issues of corruption and illegality would hang over these proceedings; refined its position on document production in that it filed another production request in the following terms: “The Respondent is also hereby requested to produce all documents relating to its investigation of the project and its own personnel and the conclusions of such investigations”; and submitted that the requested documents are relevant “not simply to the underlying claim but also to the procedural defences raised by the Respondent”, including the defence that the Claims are time-barred.

The CMCC took place on [the agreed date] from 18.30h to 20.00h CET. At the CMCC the parties had the opportunity to further present their cases on the matters of bifurcation and document production. At the end of the CMCC, the Tribunal determined, in consultation with the parties, to proceed as follows ...

1. As a next step, the Tribunal shall decide on the Respondent’s application for bifurcation. The decision will be communicated to the parties in writing in due course.

2. [Within a month of the CMCC] the Claimant shall re-submit its requests for the production of documents in accordance with Article 3(3) of the IBA Evidence Rules, preferably in the format of a Redfern schedule.

In case of bifurcation, the Claimant’s requests to produce documents shall focus, among other things, on the materiality and relevance of the requested documents to defeat the Respondent’s jurisdictional defence and admissibility objections raised against the Claimant’s Revised Damages Claim, the VAT Claim and the Consequential Damages Claim. In case no bifurcation is ordered, the Claimant’s requests to produce documents shall further include a statement as to the materiality and relevance of the requested documents to determine the merits of its Revised Damages Claim, VAT Claim and Consequential Damages Claim.

3. [Within the following two weeks], the Respondent shall comment on the Claimant’s requests and in particular state any objections it may have to some or all of the documents requested and provide those documents to the Claimant as to which it makes no objection.

4. Thereafter, the Tribunal will render a decision on any remaining issues concerning the Claimant’s requests to produce documents.

5. Following the Tribunal’s decision as per item 4 above, a new case management conference shall be convened in order to fix new deadlines for the parties’ further submissions.

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At the end of the CMCC, at the request of the Tribunal, both parties’ Counsel orally (i) stated that they have no further comments to make on the issue of bifurcation and (ii) agreed to confirm this statement in writing (via email) promptly after the CMCC ...

II. Discussion

Article 22(1) of the ICC Rules provides that the arbitral tribunal and the parties shall make every effort to conduct the arbitration in an expeditious and cost-effective manner, having regard to the complexity and value of the dispute. Article 22(2) of the ICC Rules further provides that, in order to ensure effective case management, the arbitral tribunal, after consulting the parties, may adopt such procedural measures as it considers appropriate, provided that they are not contrary to any agreement of the parties.

Appendix IV to the ICC Rules contains a list with examples of case management techniques that can be used by the arbitral tribunal and the parties for controlling time and cost. According to sub-item (a) of this list, bifurcating the proceedings or rendering one or more partial awards on key issues, when doing so may genuinely be expected to result in a more efficient resolution of the case.

According to Article 22(4) of the ICC Rules the arbitral tribunal shall in all cases act fairly and impartially and ensure that each party has a reasonable opportunity to present its case.

In the present case, [Respondent] submits that, for reasons of procedural economy and efficiency, the proceedings should be bifurcated so as to deal with its jurisdictional and admissibility objections on a preliminary basis, and thus leaving the merits of [Claimant’s] Claims to be dealt with, if necessary, only when it should turn out that some or all of the jurisdictional and admissibility objections are to be rejected.

For its part, [Claimant] submits that the Tribunal should deny the application for bifurcation because said bifurcation is premature until [Respondent] “returns/produces the relevant documents or alternatively at the very least offers a full and detailed explanation (by means of verified evidence) of the circumstances surrounding confiscation and retention of the documents” ... Hence, [Claimant’s] position is that “the issues of document production must be resolved before the proceedings in general can advance and certainly before any decisions are made as to whether the claim can be decided on procedural grounds”, i.e. considering [Respondent]’s jurisdictional and admissibility objections.

The Tribunal notes that the nature of [Respondent]’s jurisdictional and admissibility objections is such that these objections may lead to the conclusion that some or all of [Claimant’s] Claims brought in this arbitration (i.e. the Revised Damages Claim, the VAT Claim and the Consequential Damages Claim) are to be denied without a need to entertain the merits of those Claims (i.e. without having to examine their validity, existence, quantum etc.). In the Tribunal’s view, this indeed speaks in favour of bifurcation, considering that doing so is likely to result in a more time- and cost-efficient resolution of the case, in line with Articles 22(1) and 22(2) and Appendix IV(a) of the ICC Rules.

Bifurcating the proceedings would not be appropriate if some or all of [Respondent]’s jurisdictional and admissibility objections were intertwined with issues of fact or law relating to the merits of [Claimant’s] claims. Upon reading [Claimant’s] submissions and upon hearing its pleadings at the CMCC ... the Tribunal notes that [Claimant] does not put forward a substantiated argument to that effect. Notably the contention that corruption and illegality would hang over these proceedings remained opaque, apart from the fact that (i) this was never raised before in this arbitration and (ii) it remained unclear whether these (alleged) issues were meant to suggest that there was an overlap between the merits of [Claimant’s] Claims and [Respondent]’s jurisdictional and admissibility objections. The Tribunal is thus satisfied that there is no connection between [Respondent]’s jurisdictional and admissibility objections and the merits of [Claimant’s] Claims that would render it impossible to decide the former without entertaining the latter.

[Claimant] essentially opposes the bifurcation of the proceedings arguing that [Respondent]’s jurisdictional and admissibility objections cannot be decided before [Respondent] has returned or produced the relevant documents which [Claimant] contends were confiscated and since then withheld by [Respondent]. According to [Claimant], a decision to the contrary would mean to deny it an opportunity to present its case fairly and properly.

The Tribunal is not persuaded by [Claimant’s] argument. [Claimant] has failed to put forward a substantiated justification for its position. Instead, it contented itself with simply repeating its argument as such, without explaining to what extent it would be deprived of presenting its case fairly and properly in bifurcated proceedings. [Claimant’s] position in this regard is also not persuasive because the issue of document production was brought up for the first time ... at a well-advanced juncture in this arbitration, although the requested documents are said to have been seized by [Respondent] many years ago. Indeed, the only explanation of [Claimant] for this delay seems to be that they have recently appointed new legal Counsel.

In view of the foregoing, the Tribunal is satisfied that (i) bifurcation of the present proceedings is in the interest of procedural economy and efficiency in terms of Articles 22(1) of the ICC Rules and (ii) such bifurcation does not affect the requirement that each party shall have a reasonable opportunity to present its case, pursuant to Article 22(4) of the ICC Rules. Therefore, the Tribunal concludes that [Respondent]’s application for bifurcation is to be granted.

For completeness, the Tribunal wishes to emphasize that its conclusion on the application for bifurcation in no way indicates how it will eventually decide on the case, be it on [Respondent]’s jurisdictional and admissibility objections or on the merits of [Claimant’s] Claims, if any.’