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Kuwait asks tribunal for a stay due to the COVID-19 pandemic, while the claimants request provisional measures

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Arbitrators are reluctant to grant a full stay, and offer different options to the parties

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Kuwait may face constraints on its ability to participate in the arbitration, but full suspension is inappropriate

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Eviction is unlikely

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Tribunal balances the urgency of the provisional measures request against the procedural hardship endured by Kuwait due to the pandemic

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Disqualification costs must be allocated by the tribunal

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Service by Mr. Veeder and Mr. Douglas as co-arbitrators in previous cases does not evidence bias or dependence

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Mr. Malpass sees no proven relationship between Mr. Veeder and Kuwait’s counsel

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Multiple appointments by states are not sufficient to justify Mr. Douglas’ disqualification

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Only an evident appearance of bias or dependence can justify the arbitrators’ disqualification

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Claimants ask for disqualification of two arbitrators

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Jurisdictional requirements under the BIT and the ICSID Convention and procedural laws of Kuwait are irrelevant to the issue of joinder

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A joinder implies a “modification” to the arbitration agreement; the application cannot proceed without the consent of all parties

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ICSID Convention does not address the joinder of third parties

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Tribunal agrees to address ratione temporis and abuse of rights objections in jurisdictional phase

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Tribunal declined to order bifurcation of the two remaining objections, but it invites the claimants to consider whether they prefer that all preliminary objections be addressed together

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Jurisdictional objections require a different approach

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Party requesting bifurcation must demonstrate that an objection raises a “serious issue to be determined on the basis of the materials currently before the tribunal”

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Tribunal decides to bifurcate ratione materiae objection

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Tribunal criticizes the three-prong Philip Morris v. Australia test

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Arbitrators adopt bespoke bifurcation test

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