‘Procedural Order No. 1 …

The Tribunal makes the following Procedural Order:

Bifurcation of the Proceedings

1. The Respondent in its email dated ... requested the bifurcation of the proceedings. Specifically, the Respondent requested that the jurisdictional issue of whether the Tribunal has jurisdiction over this dispute or [Respondent] be dealt with as a preliminary issue and be decided in a partial or final award, as appropriate.

2. By an email dated [three days earlier], the Claimants have already opposed such a request and are of the view that the Respondent’s challenge to jurisdiction and defence on the merits should be heard together.

3. The Tribunal, having the power to determine any procedural issue, including the issue of bifurcation, pursuant to Articles 19 and 22 of the Rules of Arbitration of the International Chamber of Commerce in force as from the 1st January 2012 (the "Rules"), unanimously decides that the arbitration proceedings shall not be bifurcated and all issues between the Parties shall be determined together in a single final award.

4. A determination on whether to bifurcate proceedings or not necessarily involves a cost-benefit analysis by the Tribunal which eventually turns on an appreciation of probabilities and an estimate of potential costs. In deciding the issue of bifurcation, the Tribunal took the following three factors into account:

a) Whether the issues to be determined as preliminary ones are sufficiently distinct from the issues to be determined as main issues, and whether the former can be examined and decided independently of the latter;

b) What is the likely added time and cost of having an early determination of the issue in comparison with overall likely cost, i.e. how much more time and cost would be added if the arbitration is conducted in two parts as opposed to only one part;

c) Whether bifurcation of the proceedings would amplify the, already significant, time constraints of the procedural timetable for this arbitration, which must be completed within 90 days in accordance with the arbitration agreement upon which this arbitration is based.

5. While the Respondent reasonably argues that the issue of whether the Respondent is bound by the arbitration agreement upon which this arbitration is based is an important issue that could potentially be dispositive of the entire arbitration, this is an issue which at this juncture the Tribunal considers to be intertwined with many of the main substantive issues in this arbitration, particularly those involving subrogation by the Respondent into [X]’s position in relation to the Contract between the Claimants and [X]. Thus, the Tribunal considers most appropriate and efficient to hear all such issues in one proceeding.

6. Further the Tribunal considers that the existing 90-day timeframe for this arbitration is already very tight, allowing little time in between the different procedural steps. Adding more procedural steps to it, including Parties’ submission on Jurisdiction, Parties’ Reply Submission on Jurisdiction and a Hearing on Jurisdiction, would increase the time constraints and complexity of this arbitration.

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