BG Group PLC v Republic of Argentina: 134 S. Ct. 1198 (2014)
Case note | June 2017 | Available for purchase & free for members
If not satisfied, procedural preconditions to arbitration may bar a party’s right to pursue a case in arbitration. But who decides – a court or an arbitrator – whether those conditions have been performed and the case may proceed? In an international treaty case, the United States Supreme Court recently reiterated that those questions are for the arbitrator to determine. The Court noted the long-accepted distinction between procedural and substantive arbitrability, where only the latter are presumed to be for courts to decide. The procedural condition here, prior litigation, was deemed to have been frustrated by the respondent (Argentina), and therefore Argentina could not assert that claimant BG Group lost its right to arbitrate by not first engaging in that process.
We thank the author of this case note Stuart M. Widman and the journal editor Russell Thirgood for their contribution to this journal.