Republic of Argentina v. Bg Group Plc
398 U.S. App. D.C. 500
| D.C. Cir. | 2012Background
- BG Group sought arbitration under the UK-Argentina Treaty after 18-month local-court window; arbitration proceeded under UNCITRAL Rules despite BG Group not filing in Argentine courts first; Arbitral Panel asserted jurisdiction and held Argentina violated Article 2 and related Treaty provisions, awarding damages to BG Group; Argentina moved to vacate or modify the Final Award, BG Group opposed and cross-moved for enforcement; the district court denied vacatur and granted enforcement, and Argentina appealed to the D.C. Circuit; central issue is who decides arbitrability when Article 8(1)-(2) preconditions were bypassed by BG Group; this appeal focuses on whether arbitrability is a matter for the court or the arbitrator under the Treaty and governing law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who decides arbitrability under Article 8(1)-(2)? | BG Group contends arbitrability should be decided by the arbitrator. | Argentina contends arbitrability is a court question due to the Treaty precondition. | Court must decide arbitrability as a matter of law. |
| Does the Treaty require the court to decide arbitrability when the 18-month precondition is bypassed? | BG Group argues no need to follow Article 8(2) if 18-month period is circumvented. | Argentina argues arbitrability is unresolved and potentially deferable to arbitration. | Arbitrability hinges on court determination when precondition is disregarded. |
| Does First Options and Howsam govern whether arbitrability is decided by court or arbitrator in this international treaty context? | BG Group relies on arbitration-clause presumptions; argues clear evidence of arbitrator as gateway. | Argentina argues court should decide gateway matters absent clear evidence of arbitrator’s authority. | Treaty-based gateway requires court decision unless clear, unmistakable evidence of arbitrator authority. |
| Is John Wiley distinguishable from this international-arbitration context? | BG Group relies on John Wiley’s labor-arbitration distinction. | Argentina argues John Wiley does not control international treaty arbitrability here. | John Wiley inapplicable; gatekeeping here lies with court due to treaty provisions. |
Key Cases Cited
- First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) (requires clear and unmistakable evidence for arbitrator to decide arbitrability)
- Howsam v. Dean Witter, 537 U.S. 79 (2002) (when court decides gateway matters versus arbitrator; narrow exceptions)
- John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964) (distinguishes substantive vs. procedural arbitrability; labor context favoring arbitration not controlling here)
- Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) (strong federal policy favoring arbitral dispute resolution but not overriding contractual terms in international context)
- Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758 (2010) (limits on arbitrator power to infer agreement to arbitrateשים)
- AT&T Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643 (1986) (arbitrator’s authority; arbitrability involves contract interpretation)
- M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972) (emphasizes enforcing chosen forum in international contracts)