Apotex Holdings Inc. and Apotex Inc. v. United States of America (ICSID Case No. ARB(AF)/12/1), Claimant Rejoinder on Bifurcation (January 16, 2013)
In accordance with paragraph 14.2.5 of the Tribunal’s First Procedural Order and its order of October 29, 2012, claimants Apotex Holdings Inc. (“Apotex Holdings”) and Apotex Inc. (“Apotex-Canada”) (collectively, “Apotex”) respectfully submit this rejoinder to the US Reply to Claimants’ Opposition to Bifurcation.1
1. The US Reply on Bifurcation serves to confirm that economy, efficiency and fairness favor a single hearing on all issues over a hearing limited to the jurisdictional objections presented by the US.
2. First, the US does not dispute that bifurcation can only delay the date on which this case will be resolved. The hearing will take place in November 2013 whether the case is bifurcated or not. The issue presented by the US request is whether that hearing will with certainty put the Tribunal in a position to issue an award disposing of the case (as Apotex proposes) or whether following that same hearing the Tribunal will be significantly limited in its ability to resolve the case (as the US proposes).
3. Second, the US Reply acknowledges that the economies and efficiencies it posits depend upon its jurisdictional objections succeeding both as to Apotex Holdings and as to Apotex-Canada. It does not dispute that the failure of its objections as to Apotex Holdings will require a full hearing on the merits. Nor does it deny that the failure of its objections as to Apotex-Canada will also require a full hearing on the merits. It does not attempt to support or even explain its assertion that the scope of a hearing on the merits would be limited in the event it succeeded on its objection as to Apotex-Canada.
4. Third, the US does not deny the substantial inefficiencies and costs that would result from bifurcation if the Tribunal rejects one or more of the US jurisdictional objections. It does not dispute that at least 18 months of additional delay would result from a failed preliminary phase. It does not contest that the passage of time results in faded memories, unavailable witnesses and documents that are more difficult to locate. It does not deny that the efficiencies of scale that come with a single hearing and a single set of pleadings are lost in the event of a failed preliminary phase.
5. Fourth, the US concedes that there is complete overlap between its “relating to” objection and the merits. Instead, it erroneously contends that the overlap is not “substantial” because it is limited to the first of three elements of the national treatment and MFN treatment claims. In a footnote, the US Reply attempts to distinguish Methanex’s reasoning that a claimant’s showing under Articles 1102, 1105 and 1110 informed whether it established a “legally significant connection” under Article 1101(1).
6. The US contentions are without merit. No authority on bifurcation requires complete identity between every legal element of the merits and the jurisdictional objection. Instead, the question is whether “the facts on which the objection is based are closely connected with the merits and a decision on the objection might prejudice the decision on the latter.”2 Here, all Parties acknowledge that the facts on which the “relating to” objection is based are intimately connected with the merits.