In accordance with paragraph 14.2.3 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 memorandum in opposition to the request for bifurcation of respondent United States of America as stated in its counter-memorial of December 14, 2012.1

INTRODUCTION

1. The considerations of “economy, efficiency, and fairness” that the United States relies upon compel dismissal of its request for bifurcation.2 Economy and efficiency favor a single hearing in November 2013 on all issues. That approach ensures that this Tribunal will bring this case to conclusion based on the evidence adduced at that hearing. 

2. First, no efficiency in terms of time can be gained from bifurcation here. Under the schedule agreed by the Parties and ordered by the Tribunal, the hearing will take place in November 2013 whether the case is bifurcated or not. Bifurcation cannot advance the resolution of this case.

3. Second, the economies and efficiencies that the US posits depend upon a gamble that both of its jurisdictional objections will succeed. Each of the objections presented by the US goes only to a portion of the case put by Apotex. If a single objection fails, a hearing must be held on the merits, with no change in the scope of the issues to be considered.

4. Third, the inefficiencies and additional costs resulting from bifurcation if the Tribunal rejects one or more of the US jurisdictional objections are substantial and evident. A failed preliminary phase will result in at least 18 months of additional delay. With the passage of time, memories fade, witnesses become unavailable and documents more difficult to locate. Case preparation must begin anew. The efficiencies of scale that come with a single hearing and a single set of pleadings are lost. The cost of bifurcation in time and expense is high.