Apotex Inc. v. The Government of the United States of America, UNCITRAL, Submission of Respondent United States of America in Opposition of a Stay (November 12, 2010)
I. Introduction
1. This arbitration includes two claims by Apotex, Inc. ("Apotex") against the United States of America under NAFTA Chapter 11, one brought in a Notice of Arbitration ("NOA") dated December 1 0, 2008 (the "Sertraline claim") and the other in a NOA dated June 4, 2009 (the "Pravastatin claim"). Both claims arise from Apotex's efforts to bring new generic drugs to market in a commercially advantageous manner in the United States and its disappointment with the outcome of litigation brought in U.S. courts in connection with this marketing strategy. The disputing parties agreed to have the same Tribunal hear both claims but have not agreed on how to organize the proceedings.
2. Apotex has asked the Tribunal to stay the Pravastatin claim in favor of the Sertraline claim, alleging that to do so would avoid "confusion" and "unnecessary burdens."J By contrast, the United States objects to a stay, and seeks to have the Tribunal hear both claims concurrently in a fashion that will ensure that common issues of fact, law, and procedure are briefed, heard, and considered at the same time and are therefore dealt with in the fairest, most consistent, and most efficient manner.
3. On October 15, 2010, the Tribunal directed Apotex to "file a submission explaining in detail the precise grounds upon which it seeks such a stay; detailing the differences between the two cases; [and] detailing the prejudice it will suffer if the two cases proceed concurrently[.],,2
4. Apotex filed its submission in response to the Tribunal's request on October 29,2010. Despite the Tribunal's direction that Apotex provide "precise grounds" for seeking a stay of the Pravastatin claim, Apotex offered no basis in the NAFTA, the UNCITRAL Rules, or in arbitral practice for its request. Instead, Apotex focuses only onwhat it asserts are differences in the two claims and the prejudice it believes it would suffer if a stay of the Pravastatin claim were not granted. Apotex alleges in broad terms that its "two NAFT A claims arise from entirely different factual scenarios pertaining to separate investments; involve separate and independent legal issues; and involve wholly separate injuries at the hands of wholly separate Party actors.") Moreover, Apotex states that were the claims to be heard together, counsel and the Tribunal would be "unnecessarily burden[ed]," that the concurrent proceeding would "waste time and resources," and that a divergent result could produce "unnecessary accounting problems," all of which would result in ''tremendous prejudice.,,4 Apotex states repeatedly that the claims are so "complicated" that "there exists great risk of confusion" by the Tribunal if it were to hear them concurrently.5 In the view of the United States, these concerns are profoundly overstated and without merit.
5. First, the Tribunal has broad power under Article 15(1) of the UNCITRAL Rules to organize these proceedings. In relevant part the UNCITRAL Rules authorize the Tribunal to "conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at any stage of the proceedings each party is given a full opportunity of presenting his case."