In BG Group v. Argentina, the U.S. Supreme Court, for the first time in its history, has decided to hear a case involving a bilateral investment treaty. The threshold question before the Supreme Court is whether courts, rather than arbitrators, should decide arbitrability where a precondition to arbitration has not been satisfied. Both the U.S. arbitration community and the U.S. Solicitor General have weighed in on this question, submitting opposite amicus curiae briefs. While the former urged the U.S. Supreme Court to reverse the challenged court decision, the latter opposed the petition. The debate and the underlying issues this case raises are not unique to the United States. Courts in Europe and investment tribunals have also had the opportunity to address similar questions and have adopted a variety of approaches, calling to mind the positions advocated by the different stakeholders before the U.S. Supreme Court.
Journal of International Arbitration