BG Group and ‘Conditions’ to Arbitral Jurisdiction

Professor Alan Scott Rau, Mark G. and Judy G. Yudof Chair in Law at the University of Texas School of Law, and Professor Andrea K. Bjorklund, L. Yves Fortier Chair in International Arbitration and International Commercial Law at McGill University, have published “BG Group and ‘Conditions’ to Arbitral Jurisdiction,” Pepperdine Law Review, Forthcoming; KBH Energy Center Research Paper No. 2016-4. In the scholarly work, Professors Rau and Bjorklund each provide their own perspective on the United States Supreme Court’s 2014 holding in BG Group v. Argentina.

Here is the 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.

This and other research papers written by Professors Rau and Bjorklund may be downloaded free of charge from the Social Science Research Network.

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