COURT OF APPEALS VACATES $185 MILLION ARBITRATION AWARD WHERE CLAIMANT FAILED TO ABIDE BY TREATY’S PREREQUISITE OF BRINGING A LAWSUIT IN THE ARGENTINEAN COURTS
The United States Court of Appeals for the D.C. Circuit has vacated an arbitration award in excess of $185 million issued against the Republic of Argentina and in favor of a British company, BG Group, PLC, that had invested in gas distribution in Argentina. It reversed a district court order that, as we reported earlier, had confirmed the award. The court cited BG Group’s failure to abide by a provision in the governing Bilateral Investment Treaty between Argentina and the U.K. requiring disputes to be submitted to an Argentinean court and litigated for eighteen months without resolution before an arbitration could be commenced. The appellate court further rejected the arbitration panel’s decision that it would be “senseless” to comply with this provision, which the panel based on an opinion, rendered by a former Argentinean Attorney General and Minister of Justice, that it could take six years to resolve BG Group’s claims in the Argentinean courts. The court of appeals further held that the district court erred in determining that the arbitrators properly decided the threshold question of arbitrability because there was no clear and unmistakable evidence that the arbitrators should decide the issue where the precondition of bringing the dispute to court had not been met. , No. 11-7021 (D.C. Cir. Jan. 17, 2012).