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\u2014getting the cate-gorization right\u2014can 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.<\/p>\n
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\u2019 statement in his dissent in BG v. Argentina, the Supreme Court\u2019s first decision interpreting a bilateral invest-ment treaty. He stated: \u201cThe only question is whether BG group formed an arbi-tration agreement with Argentina.\u201d<\/p>\n