The Bifurcation Games: How Arbitrators Buy Their Lottery Ticket

Publication: Scientific journalJournal articlepeer-review

Abstract

his article has been written to provide guidance to arbitrators and counsel when dealing with bifurcation, with special consideration of resource optimization issues and legal constraints. As it proceeds, it illustrates the complexity and multiplicity of the world of international commercial arbitration. Approaching a definition for bifurcation, the author begins by summing up various views of commentators, leading to a resolutive understanding of what bifurcation is. The work goes on to identify the arbitral powers used to bifurcate proceedings, their limits and potential. While doing so, it offers a deepened analysis of the role of inherent and implied powers, clarifying the nature of the arbitrators’ office, position and status. It then lists and describes different types of bifurcation that can occur in practice, considering each type according to its nature and scope. The author provides a standard formula and other suggestions to assess when it is optimal to take the decision to bifurcate, giving tribunals guidance for its implementation and ad hoc data gathering. Finally, it sets forth situations in which bifurcation is ideal.
Original languageEnglish
Pages (from-to)358 - 380
JournalArbitration: The International Journal of Arbitration, Mediation and Dispute Management
Volume87
Issue number3
Publication statusPublished - 2021

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