BG Group and 'Conditions' to Arbitral Jurisdiction

62 Pages Posted: 29 Feb 2016 Last revised: 1 Mar 2016

See all articles by Alan Scott Rau

Alan Scott Rau

University of Texas at Austin - School of Law

Andrea Bjorklund

McGill University - Faculty of Law

Date Written: February 18, 2016

Abstract

Although the Supreme Court has over the last decade generated a robust body of arbitration caselaw, its first decision in the area of investment arbitration under a Bilateral Investment Treaty was only handed down in 2014. BG Group v. Argentina was widely anticipated and has attracted much notice, and general approval, on the part of the arbitration community. In this paper we assess the Court’s decision from two different perspectives -- the first attempts to situate it in the discourse of the American law of commercial arbitration; the second considers it in light of the expectations of the international community surrounding the proper construction of Conventions between states.

Our initial goal had been to write jointly, with the hope that we could bridge our differences to find, if not common, at least neighboring, ground. On some points we did so, but ultimately our divergent appreciations of the proper way to interpret the condition precedent in the investment treaty in BG Group overcame the idealism with which we commenced the project. Nonetheless we have decided to present the two papers together to emphasize the dichotomous approaches to treaty interpretation that two moderately sensible people, who inhabit overlapping but non-congruent interpretive communities, can have.

Keywords: arbitration caselaw, investment arbitration, Bilateral Investment Treaty, BG Group v. Argentina, American law of commercial arbitration, Conventions between states, treaty interpretation

Suggested Citation

Rau, Alan Scott and Bjorklund, Andrea, BG Group and 'Conditions' to Arbitral Jurisdiction (February 18, 2016). Pepperdine Law Review, Forthcoming, KBH Energy Center Research Paper No. 2016-4, U of Texas Law, Public Law Research Paper No. 647, Available at SSRN: https://ssrn.com/abstract=2738742

Alan Scott Rau (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

Andrea Bjorklund

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec H3A 1W9
Canada
5143985372 (Phone)

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