Pre-arbitration requirements contained in bilateral investment treaties (BITs) have been variously interpreted as pertaining to issues of arbitrability, procedure, jurisdiction, or admissibility. That categorization—getting the cate-gorization right—can determine the outcome of when and whether a case reaches the merits. This Article explores the current ad hoc method of categoriza-tion and the international disharmony that exists.

BG v. Argentina, the arbitral award, and the enforcement action that went up on appeal before the United States Supreme Court, is foregrounded as a focal point for the struggle with pre-arbitration requirements, specifically, the local lit-igation requirement in the Argentina-United Kingdom BIT. Ultimately, this Article seeks to put in conjunction and evaluate the various approaches to pre- arbitration requirements; it aims to lay the groundwork for further development in the law around threshold issues stemming from treaties. It posits a unitary jurisdictional approach/regime to process requirements. One of the instigations for this paper is Chief Justice Roberts’ statement in his dissent in BG v. Argentina, the Supreme Court’s first decision interpreting a bilateral invest-ment treaty. He stated: “The only question is whether BG group formed an arbi-tration agreement with Argentina.”

Continue reading Before Ending the Case: Disassembling Jurisdiction and Admissibility in BG v. Argentina