## Facts

- Glamis Gold Ltd., a Canadian mining company, planned an open-pit gold mine in Imperial County, California.
- The project faced opposition based on environmental concerns and impacts on Native American sacred sites and related cultural practices.
- California adopted stringent backfilling and grading requirements for certain open-pit mines near sacred sites (later reflected in state legislation), affecting the project’s economics.
- Glamis initiated NAFTA Chapter 11 arbitration under the UNCITRAL Arbitration Rules, alleging that federal and California measures constituted expropriation (NAFTA art. 1110) and violated the minimum standard of treatment (NAFTA art. 1105), seeking monetary damages.
- Early in the arbitration, the United States filed a statement of defense and requested bifurcation to address jurisdictional and admissibility objections before the merits.
- The United States’ objections included a limitations defense (time-bar) and a ripeness/admissibility argument as to whether losses from the California measures had crystallized.

## Issues

1. Whether, under Article 21(4) of the UNCITRAL Arbitration Rules, the tribunal should bifurcate the proceedings to decide the identified jurisdictional/admissibility objections as a preliminary phase before the merits.

## Decision

- The tribunal denied the United States’ request for bifurcation.
- The tribunal held that Article 21(4) creates a general presumption favoring preliminary consideration of jurisdictional pleas but does not require bifurcation.
- The tribunal concluded there were insufficient grounds to separate the identified objections from the merits because the objections were closely connected to merits questions and bifurcation risked duplicative proceedings.

## Legal Principles

- Under UNCITRAL Arbitration Rules Article 21(4), jurisdictional pleas are generally suitable for preliminary determination, but the tribunal retains discretion to decide them with the merits.
- In deciding bifurcation, a tribunal may consider whether the preliminary phase is likely to dispose of all or part of the case, whether evidence and argument would overlap, and whether bifurcation would reduce (or increase) duplication and delay.
- Bifurcation may be denied where jurisdictional or admissibility objections (including limitations and ripeness) are materially intertwined with merits questions such as the characterization of measures, causation, and economic impact.

## Conclusion

The tribunal exercised its Article 21(4) discretion to proceed in a single phase, finding that the asserted time-bar and ripeness objections were insufficiently separable from the merits and that bifurcation was unlikely to improve procedural efficiency.


Glamis Gold, Ltd. v. United States, Procedural Order No. 2 (NAFTA Ch. 11 Arb. Trib. May 31, 2005)