Substantive and procedural arbitrability in ad hoc investorstate arbitration bg group v. This note offers an alternative approach that encompasses these differences and also illustrates the. Administering institution none no administering institution composition of tribunal. United states supreme court gives deference to arbitrators in. Dec 02, 20 rather, bg group must commence a lawsuit in argentina s courts and wait eighteen months before filing for arbitration.
Argentina, the supreme court relied on the simple application of contract law and failed to appreciate the significant differences associated with the bilateral investment treaty context. The republic of argentina, uncitral, brief in opposition of the petition for writ of certiorari, by the respondent republic of argentina october 1, 2012. Bg group claimed that argentina s new laws and practices violated the treaty, which forbids the expropriation of investments and requires each nation to give fair and equitable treatment to investors from the other. Later, in the midst of an economic crisis, argentina enacted an emergency law that required investors to collect tariff revenues in argentinian pesos at a rate of one peso per dollar.
In the third the highly controversial case of bg group v argentina the dc circuit vacated an award in its entirety, based on the investors failure to meet a threshold gateway point that, it held. Among these measures, gas tariffs started being calculated from u. Argentina published on 01 jan 2015 by brill nijhoff. Arbitral praeliminaria reflections on the distinction between. At the time of bg groups investment, argentine law provided that gas tariffs would be calculated in u. In the early 1990s, bg group plc bg, a british company, made a major investment in argentina s natural gas industry. Arbitral praeliminaria reflections on the distinction. More than 150 years after the founding of our firm, sidley today comprises a diverse group of legal professionals from many cultures who are dedicated to teamwork, collaboration and superior client service.
Expressly acknowledging its importance for international commercial arbitration, on march 5, 20, the u. In 2003, bg group started arbitral proceedings under the uncitral. Republic of argentina, decided march 5, 2014, the u. United nations commission on international trade law uncitral uncitral arbitration rules general assembly resolution 3198 section i.
In 2001, argentina adopted a series of measures in order to contend an economic crisis that hit the country. Bg group also relies on the fact that the parties agreed that arbitration proceedings would be governed by the uncitral rules, which grant the arbitration tribunal power to decide any objection to its jurisdiction. Argentina united kingdom bit 1990 nationality of the parties. Claimant and the republic of argentina respondent final award 24 december 2007 before the tribunal comprising. Substantive and procedural arbitrability in ad hoc. Republic of argentina on petition for a writ of certiorari to the united states court of appeals for the district of columbia circuit brief for the united states as amicus curiae effrey mary mcleod acting legal adviser department of state washington, d.
Court of appeals for the district of columbia circuit in july 2018. Republic of argentina, issued on 5 march 2014, and the effect of that decision on principles of competencecompetence under u. Introductory rules scope of application article 1 and model arbitration clause notice, calculation of periods of time article 2 notice of arbitration article 3 representation and assistance article 4. Argentina for the promotion and protection of investments, entered into on 11 december 1990 and the uncitral arbitration rules. The arbitral award in 2003, bg group started arbitral proceedings under the uncitral. The republic of argentina, uncitral, judgment of the supreme court of the united states march 5, 2014.
General on october, 2014, carol hamilton, senior adviser for the u. Invoking article 8, bg group sought arbitration, which the parties sited in washington, d. Because bg group had not done so, the arbitrators lacked authority to decide the dispute. United states court of appeals for the district of columbia circuit argued november 10, 2011 decided january 17, 2012 no. May 31, 2011 in a memorandum opinion issued on 21 january 2011 the united states district court for the district of columbia, ruling on a crossmotion for recognition and enforcement of an award, held that the u. Argentina lise johnson a us appellate court has vacated an award against argentina in a decision that may give investors pause before attempting to bypass treaty provisions requiring that they first pursue their claims in the host states courts. This article discusses the decision of the united states supreme court in bg group plc v. By relating the standard of protection and constant security and.
Us court vacates award against argentina bg group plc v. Decides its first investment treaty arbitration case. Bg group claimed that argentinas new laws and practices violated the treaty, which forbids the expropriation of investments and requires each nation to give fair and equitable treatment to investors from the other. Argentina points out that bg group never presented an alternative basis for the tribunals jurisdiction in the proceedings below. Eight months after the stay under article 12 of decree 21402 had expired, bg group filed a notice of arbitration, on april 25, 2003, pursuant to article 83 of the treaty. More than 150 years after the founding of our firm, sidley today comprises a diverse group of legal professionals from many cultures who are dedicated to teamwork, collaboration and. Supreme court decision, march 5, 2014 by laura ghitti.
Republic of argentina opinion of the court specifically the local court litigation requirement set forth in article 82a. Nov 19, 20 the us supreme court is scheduled to hear oral argument in the bg group v argentina case on 2 december. As a result, the claimant filed for arbitration under the uncitral arbitration rules and the. When it was unable to reach agreement with argentina on an alternate forum, bg group submitted to arbitration under the uncitral rules. But argentina later amended the law, changing among other things thecalculation basis to pesos. In its first case involving international arbitration under a bilateral investment treaty, bg group plc v. Kompetenzkompetenz under the faa and the uncitral model law, 25 u. Federal arbitration act and the new york convention required the court to recognize and enforce a 24 december 2007 arbitral award rendered against argentina in the uncitral case bg group plc v. In a memorandum opinion issued on 21 january 2011 the united states district court for the district of columbia, ruling on a crossmotion for recognition and enforcement of an award, held that the u. Bg group plc, appellee, appeal from the us district court for the district of. Republic of argentina, final award, 5153 uncitral arbitral trib. Argentina sought to set aside the award, arguing that the dispute was not arbitrable, as bg group had failed to comply with the bits requirement that claimants must litigate their bg group v argentina. The republic of argentina, uncitral, brief of amicus curiae republic of ecuador in support of respondent november 1, 20. Supreme court provided guidance on whether a united states.1074 1571 5 1522 1066 840 478 535 178 540 770 1281 920 45 401 823 30 1057 879 1039 234 400 846 1426 1019 212 1382 775 1000 149 1359 402 388 1233 1061 102 276 539