U.S. Supreme Court To Rule On Precondition To Arbitration Issue

WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court on June 10 granted a petition for writ of certiorari filed by a U.K. investor in a dispute with the Republic of Argentina over whether courts, rather than arbitrators, should decide whether a precondition to arbitration has been satisfied (BG Group Plc v. Republic of Argentina, No. 12-138, U.S. Sup. [lexis.com subscribers may access Supreme Court briefs for this case].).  

(Order list available.  Document #05-130625-012X.) 

Award  

In the 1980s and 1990s, Argentina experienced an economic reformation, which included entering into bilateral investment treaties with various countries.  Argentina entered into the Agreement for the Promotion and Protection of Investments between Argentina and the United Kingdom (referred to as BIT).  As part of the reformation, Argentina divided its gas transportation and distribution industries into two transportation companies and eight distribution companies. 

BG Group Plc, a U.K. company, invested in MetroGAS, one of the distribution companies, through a consortium of investors.  In 2001, Argentina began to suffer an economic crisis and enacted an emergency law in 2002 that negatively affected BG Group's investment.  BG Group filed arbitration proceedings against Argentina pursuant to the United Nations Commission on International Trade Law (UNCITRAL) arbitration rules.  An arbitration panel issued an award of $185,285,485.85 plus fees, costs and interest for the BG Group, finding that Argentina breached the BIT. 

Petition To Vacate  

Argentina filed a petition to vacate or modify the award in the U.S. District Court for the District of Columbia pursuant to the Federal Arbitration Act (FAA) and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, arguing that the arbitrators exceeded their authority by not taking into consideration the terms of the agreement between parties.  BG Group cross-moved to confirm the award.  The District Court denied Argentina's motion to vacate and confirmed the award on the merits, rejecting Argentina's challenge to the arbitrators' jurisdiction.  Argentina appealed to the District of Columbia U.S. Circuit Court of Appeals. The appeals court reversed the District Court's ruling and vacated the award, finding that the tribunal exceeded its powers in permitting the arbitration to proceed. 

Certiorari  

In July 2012, BG Group filed a petition for writ of certiorari in the U.S. Supreme Court.  BG Group presents the question of whether "in disputes involving a multi-staged dispute resolution process, does a court or instead the arbitrator determine whether a precondition to arbitration has been satisfied?"  The United States filed an amicus curiae brief in the case, arguing that certiorari should be denied.  On May 21, 2013, BG Group filed a supplemental brief in response to the United States' submission.    

In addition to granting BG Group's petition for writ of certiorari, the Supreme Court granted motions filed by the American Arbitration Association, the Professors and Practitioners of Arbitration Law, AWG Group Limited and the United States Council for International Business for leave to file briefs as amici curiae.  

BG Group is represented by Thomas C. Goldstein of Goldstein & Russell in Washington.  Argentina is represented by Matthew D. Slater of Cleary, Gottlieb, Steen & Hamilton in Washington. 

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