Biting the Bullet or Redefining 'Consent' in Investor-State Arbitration? Pre-Arbitration Requirements after BG Group v Argentina

16 Journal of World Investment and Trade 695 (2015)

35 Pages Posted: 1 Jun 2015

See all articles by Konstanze von Papp

Konstanze von Papp

Federal University of Public Admininstration

Date Written: May 30, 2015

Abstract

A purely consensual approach to international arbitration has its limits even in commercial arbitration. In investment treaty arbitration, the traditional approach to finding ‘consent’ to arbitrate encounters difficulties if there are any pre-arbitration requirements that have not been satisfied. This will be illustrated by the case of BG Group v Republic of Argentina. Drawing a line between purely ‘procedural’ pre-arbitration requirements and those that are strict conditions on a host state’s consent to arbitrate is difficult, if not impossible. This article suggests alternative solutions, taking into account the need to appreciate domestic arbitration laws as well as public international law concerns. ‘Biting the bullet’ would mean accepting the lack of consent between host state and investor. A doctrinally clearer approach to jurisdictional issues could then be found by drawing an analogy to non-signatory issues in commercial arbitration.

Keywords: commercial arbitration, investor-state arbitration, consent, investment treaty, procedural precondition, third-party beneficiary, non-signatory, unilateral contract

Suggested Citation

von Papp, Konstanze, Biting the Bullet or Redefining 'Consent' in Investor-State Arbitration? Pre-Arbitration Requirements after BG Group v Argentina (May 30, 2015). 16 Journal of World Investment and Trade 695 (2015). Available at SSRN: https://ssrn.com/abstract=2612470

Konstanze Von Papp (Contact Author)

Federal University of Public Admininstration ( email )

Willy-Brandt-Str. 1
Bruehl
Germany

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