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Arbitrators find that ratione temporis objection raises pure question of law, and its bifurcation would enhance procedural efficiency
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1976 UNCITRAL Rules create presumption in favor of bifurcation, but tribunal retains discretion to overrule this presumption
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Tribunal rejects claimant’s request for revision aimed at holding document production phase before decision on bifurcation
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Award in TC Energy v. USA (2) case was not part of the record
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Background: USA requests bifurcation in UNCITRAL NAFTA legacy arbitration
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Claimants’ costs were unreasonably high for a straightforward expropriation case, but respondent’s failure to admit any responsibility also weighs in decision on costs
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Larger sample of comparators used by claimants is to be preferred; usual approach is to adopt unmodified country risk premium
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Argentina’s jurisdictional objections ratione materiae are dismissed at advanced stage
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Tribunal’s earlier findings on quantum were not contradictory and cannot be revised absent exceptional circumstances
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Claimants’ failure to provide sufficiently disaggregated evidence dooms their case for incidental damages
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Claimants barely advanced claim of closure costs as incidental damages in original proceedings, but there is no prejudice in ruling on the matter in a supplementary decision
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Tribunal has power to reconsider earlier decisions in exceptional circumstances
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Claimants’ litigation strategy in delaying their claims results in interest running only from their notice of dispute
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Closure costs cannot enter fair market value analysis without double counting
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Beta to discount rate should not be reverted to one, but kept constant
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While claimants managed to match revenue projected by the Business Plan, estimates of costs were not borne out by the facts and relied on untested assumptions
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Both projections and historical data are helpful to value a business, though they both have shortcomings
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Discrepancy with DCF and reliance on single transaction dooms proposed market approach
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Valuation is impacted by financial crisis, but this does not make it a case of duress
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Police powers doctrine is only relevant for indirect expropriations
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Claimants’ bundle of rights and assets was protected under the BIT
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Argentina’s political choice to terminate private pension regime was not obviously pretextual, and breached no legitimate expectations from the claimants
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Argentina cannot prove prejudice in claimant’s decision to wait nearly 8 years before bringing the claims
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Amici are allowed to participate, but can only address limited questions
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