U.S. Supreme Court reviews U.S.-UK investment treaty's arbitration clause which allows either party to submit a dispute to a competent tribunal of the Contracting Party under certain conditions; issue is whether a court or the arbitrator has primary responsibility for interpreting and applying the local litigation requirement to an underlying controversy.
Later, in the midst of an economic crisis, Argentina enacted an emergency law that required investors to collect tariff revenues in Argentinian pesos at a rate of one peso per dollar. Due to the weak international peso-to-dollar exchange rate, these changes made it difficult for BG to see a return on its investment. Simultaneously, Argentina adopted legislation that stayed all lawsuits arising from the emergency measures. BG sought recourse under the BIT between the United Kingdom and Argentina. The Treaty required that BG first attempt to resolve its dispute before a "competent tribunal" in Argentina for at least eighteen months. Instead, BG bypassed the Argentinian courts and submitted its dispute directly to an arbitral tribunal. The arbitral panel, seated in Washington, D.C., held that Argentina's changes to its judicial system excused the eighteen-month precondition to arbitration and awarded BG over US $185 million in damages. Argentina petitioned the district court to vacate the award under the Federal Arbitration Act by arguing that the arbitral panel exceeded its powers. The court denied the petition. The U.S. Court of Appeals, District of Columbia Circuit reversed and held that the determination of whether BG could submit its dispute directly to arbitration must be made by a court, not the arbitral tribunal.
The District of Columbia District Court upheld the arbitration award, stating that the tribunal could decide its own jurisdiction. Accordingly, the court denied Argentina's motion to vacate the award and granted BG's motion to recognize and enforce the award. The Court overturned the district court decision and found that the tribunal did not have jurisdiction because the parties did not meet the preconditions for Article 8(2). BG filed a petition for a writ of certiorari with the United States Supreme Court, which granted the petition on June 10, 2013.
The key issue here is whether the arbitrators or the courts should determine whether a precondition for arbitration has been satisfied. In answering the question, the court treats the document before it as if it were an ordinary contract between private parties. Were that so, the court concludes, the matter would be for the arbitrators. However, the court then asks whether the fact that the document in question is a treaty makes a critical difference. The court concluded that it does not.
"Where ordinary contracts are at issue, it is up to the parties to determine whether a particular matter is primarily for arbitrators or for courts to decide. Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) ('Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit'). If the contract is silent on the matter of who primarily is to decide threshold questions about arbitration, courts determine the parties' intent with the help of presumptions."
"On the one hand, courts presume that the parties intend courts, not arbitrators, to decide what we have called disputes about 'arbitrability.' These include questions such as 'whether the parties are bound by a given arbitration clause,' or 'whether an arbitration clause in a concededly binding contract applies to a particular type of controversy.' Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002); accord, Granite Rock Co. v. Teamsters, 561 U.S. 287, 299-300, 130 S.Ct. 2847, 177 L.Ed.2d 567 (2010) (disputes over 'formation of the parties' arbitration agreement' *1207 and 'its enforceability or applicability to the dispute' at issue are 'matters ... the court must resolve' (internal quotation marks omitted)). See First Options, supra, at 941, 943947, 115 S.Ct. 1920 (court should decide whether an arbitration clause applied to a party who 'had not personally signed' the document containing it); AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 651, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (court should decide whether a particular labor-management layoff dispute fell within the arbitration clause of a collective-bargaining contract); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-548, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964) (court should decide whether an arbitration provision survived a corporate merger). See generally AT & T Technologies, supra, at 649, 106 S.Ct. 1415 ('Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator')."
"On the other hand, courts presume that the parties intend arbitrators, not courts, to decide disputes about the meaning and application of particular procedural preconditions for the use of arbitration. See Howsam, supra, at 86, 123 S.Ct. 588 (courts assume parties 'normally expect a forum-based decisionmaker to decide forum-specific procedural gateway matters.' These procedural matters include claims of 'waiver, delay, or a like defense to arbitrability.' Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). And they include the satisfaction of 'prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate.' Howsam, supra, at 85, 123 S.Ct. 588 (quoting the Revised Uniform Arbitration Act of 2000 [section] 6, Comment 2, 7 U.L.A. 13 (Supp.2002). See also [section] 6(c) (An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled'); [section] 6, Comment 2 (explaining that this rule reflects 'the holdings of the vast majority of state courts' and collecting cases)."
However, the provision before the court concerns the structure and text of the provision and makes it clear that it is a procedural condition precedent to arbitration. It states that a dispute "shall be submitted to international arbitration" if "one of the Parties so requests," as long as "a period of eighteen months has elapsed" since the dispute was submitted to a local tribunal and the tribunal "has not given its final decision." Art. 8(2). The language in Article 8 does not give substantive weight to the local court's determinations on the matters at issue between the parties. To the contrary, Article 8 provides that only the "arbitration decision shall be final and binding on both Parties." Art. 8(4). The litigation provision is consequently purely procedural--a claims-processing rule that governs when the arbitration may begin, but not whether it may occur or what its substantive outcome will be on the issues in dispute.
Moreover, the court finds no support in Article 8 or elsewhere in the Treaty that might overcome the ordinary assumption. It nowhere demonstrates a contrary intent as to the delegation of decisional authority between judges and arbitrators. Thus, were the document an ordinary contract, it would call for arbitrators primarily to interpret and apply the local litigation provision.
The court ultimately asks whether the fact that the document before it is a treaty makes a critical difference to its analysis. The Solicitor General argues that the local litigation provision may be "a condition on the State's consent to enter into an arbitration agreement." Brief for United States as Amicus Curiae 25. He further adds that courts should "review de novo the arbitral tribunal's resolution of objections based on an investor's non-compliance" with such a condition. Ibid. Finally, he recommends that the court remand this case to the Court of Appeals to determine whether the court-exhaustion provision is such a condition. Id., at 31-33.
Despite his efforts, the court did not accept the Solicitor General's view as applied to the treaty in question. "As a general matter, a treaty is a contract, though between nations. Its interpretation normally is, like a contract's interpretation, a matter of determining the parties' intent. Air France v. Saks, 470 U.S. 392, 399, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985) (courts must give 'the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties'); Sullivan v. Kidd, 254 U.S. 433, 439, 41 S.Ct. 158, 65 L.Ed. 344 (1921) ('[T]reaties are to be interpreted upon the principles which govern the interpretation of contracts in writing between individuals, and are to be executed in the utmost good faith, with a view to making effective the purposes of the high contracting parties'); Wright v. Henkel, 190 U.S. 40, 57, 23 S.Ct. 781, 47 L.Ed. 948 (1903) ('Treaties must receive a fair interpretation, according to the intention of the contracting parties'). And where, as here, a federal court is asked to interpret that intent pursuant to a motion to vacate or confirm an award made in the United States under the Federal Arbitration Act, it should apply the presumptions supplied by United States law. See New York Convention, Art. V(1)(e) (award may be 'set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made'). [...]"
The court found that parties often submit important matters to arbitration and the word consent could be attached to a highly procedural precondition to arbitration, such as a waiting period, which the parties are unlikely to have intended that courts apply without saying so. While the court leaves the matter open for future argument, the court does not see why the presence of the term "consent" in a treaty warrants abandoning, or increasing the complexity of, our ordinary intent-determining framework. Howsam, 537 U.S., at 83-85, 123 S.Ct. 588; First Options, 514 U.S., at 942-945, 115 S.Ct. 1920; John Wiley, 376 U.S., at 546-549, 555-559, 84 S.Ct. 909.
Although a treaty may contain evidence that shows the parties had intent contrary to ordinary presumptions related to arbitration, the treaty before the court does not demonstrate any such contrary intention. The court concedes that the local litigation requirement appears in Paragraph (1) of Article 8, while the Article does not mention arbitration until the subsequent paragraph, Paragraph (2). Moreover, a requirement that a party exhaust its remedies in a country's local courts before seeking arbitration may seem particularly important to a country offering protection to foreign investors. Likewise, the placing of an important matter prior to any mention of arbitration suggests intent by Argentina, the United Kingdom, or both, to have courts rather than arbitrators apply the litigation requirement.
The text and structure of the litigation requirement set forth in Article 8 make clear that it is a procedural condition precedent to arbitration--a step that a party must undertake before giving notice of arbitration. The Treaty nowhere specifies that the provision is to operate as a substantive condition on the formation of the arbitration contract, or that it is a matter of such high importance that it is to be determined by courts. "[...] International arbitrators are likely more familiar than judges with the expectations of foreign investors and recipient nations regarding the operation of the provision. Howsam, supra, at 85, 123 S.Ct. 588. And the Treaty itself authorizes the use of international arbitration associations, the rules of which provide that arbitrators shall have the authority to interpret provisions of this kind. Art. 8(3) (providing that the parties may refer a dispute to the International Centre for the Settlement of Investment Disputes (ICSID) or to arbitrators appointed pursuant to the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL)); accord, UNCITRAL Arbitration Rules, Art. 23(1) (rev. 2010 ed.) ('[A] rbitral tribunal shall have the power to rule on its own jurisdiction'); ICSID Convention, Regulations and Rules, Art. 41(1) (2006 ed.) ('Tribunal shall be the judge of its own competence'). Cf. Howsam, supra, at 85, 123 S.Ct. 588 (giving weight to the parties' incorporation of the National Association of Securities Dealers' Code of Arbitration into their contract, which provided for similar arbitral authority, as evidence that they intended arbitrators to 'interpret and apply the NASD time limit rule')."
The result is that the court's presumption applies and it is not overcome. The interpretation and application of the local litigation provision is primarily for the arbitrators to decide. The court concluded that it cannot review the decision de novo. Rather, it must do so with considerable deference.
The Court then turns to analyze the dissent opinion, and states:
"The dissent interprets Article 8's local litigation provision differently. In its view, *1211 the provision sets forth not a condition precedent to arbitration in an already-binding arbitration contract (normally a matter for arbitrators to interpret), but a substantive condition on Argentina's consent to arbitration and thus on the contract's formation in the first place (normally something for courts to interpret). It reads the whole of Article 8 as a 'unilateral standing offer' to arbitrate that Argentina and the United Kingdom each extends to investors of the other country. Post, at 1219-1220 (opinion of ROBERTS, C. J.). And it says that the local litigation requirement is one of the essential "'terms in which the offer was made.'" Post, at 1218 (quoting Eliason v. Henshaw, 4 Wheat. 225, 228, 4 L.Ed. 556 (1819); emphasis deleted)."
"While it is possible to read the provision in this way, doing so is not consistent with our case law interpreting similar provisions appearing in ordinary arbitration contracts. [...] Consequently, interpreting the provision in such a manner would require us to treat treaties as warranting a different kind of analysis. [...] That is a matter of some concern in a world where foreign investment and related arbitration treaties increasingly matter." "[...] [T]he local litigation provision on its face concerns arbitration's timing, not the Treaty's effective date; or whom its arbitration clause binds; or whether that arbitration clause covers a certain kind of dispute. Cf. Granite Rock, 561 U.S., at 296-303, 130 S.Ct. 2847 (ratification date); First Options, 514 U.S., at 941, 943-947, 115 S.Ct. 1920 (parties); AT & T Technologies, 475 U.S., at 651, 106 S.Ct. 1415 (kind of dispute). The dissent points out that Article 8 (2) (a) 'does not simply require the parties to wait for 18 months before proceeding to arbitration,' but instructs them to do something--to 'submit their claims for adjudication.' Post, at 1219. That is correct. But the something they must do has no direct impact on the resolution of their dispute, for as we previously pointed out, Article 8 provides that only the decision of the arbitrators (who need not give weight to the local court's decision) will be 'final and binding.' Art. 8(4). The provision, at base, is a claims-processing rule. And the dissent's efforts to imbue it with greater significance fall short."
"[...] [T]he bulk of international authority supports our view that the provision functions as a purely procedural precondition to arbitrate. See 1 G. Born, International Commercial Arbitration 842 (2009) ('A substantial body of arbitral authority from investor-state disputes concludes that compliance with procedural mechanisms in an arbitration agreement (or bilateral investment treaty) is not ordinarily a jurisdictional prerequisite'); Brief for Professors and Practitioners of Arbitration Law as Amici Curiae 12-16 (to assume the parties intended de novo review of the provision by a court 'is likely *1212 to set United States courts on a collision course with the international regime embodied in thousands of [bilateral investment treaties]'). See also Schreuer, Consent to Arbitration, supra, at 846848 ('clauses of this kind ... creat[e] a considerable burden to the party seeking arbitration with little chance of advancing the settlement of the dispute,' and 'the most likely effect of a clause of this kind is delay and additional cost')."
Although the Court agrees with the dissent that a sovereign's consent to arbitration is important and that the sovereigns can condition their consents to arbitrate by writing various terms into their bilateral investment treaties, it does not agree that that is the issue here. "The question is whether the parties intended to give courts or arbitrators primary authority to interpret and apply a threshold provision in an arbitration contract--when the contract is silent as to the delegation of authority. We have already explained why we believe that where, as here, the provision resembles a claims-processing requirement and is not a requirement that affects the arbitration contract's validity or scope, we presume that the parties (even if they are sovereigns) intended to give that authority to the arbitrators."
The Court accepts Argentina's argument that is entitled to a court review of the arbitrators' decision to excuse BG Group's noncompliance with the litigation requirement, and to take jurisdiction over the dispute. However, it does not agree with Argentina that the arbitrators "exceeded their powers" in concluding their jurisdiction.
"The arbitration panel made three relevant determinations:
(1) 'As a matter of treaty interpretation,' the local litigation provision 'cannot be construed as an absolute impediment to arbitration,' App. to Pet. for Cert. 165a;
(2) Argentina enacted laws that 'hindered' 'recourse to the domestic judiciary' by those 'whose rights were allegedly affected by the emergency measures,' id., at 165a-166a; that sought 'to prevent any judicial interference with the emergency legislation,' id., at 169a; and that 'excluded from the renegotiation process' for public service contracts 'any licensee seeking judicial redress,' ibid.;
(3) under these circumstances, it would be 'absurd and unreasonable' to read Article 8 as requiring an investor to bring its grievance to a domestic court before arbitrating. Id., at 166a."
"The first determination lies well within the arbitrators' interpretive authority. Construing the local litigation provision as an 'absolute' requirement would mean Argentina could avoid arbitration by, say, passing a law that closed down its court system indefinitely or that prohibited investors from using its courts. Such an interpretation runs contrary to a basic objective of the investment treaty. Nor does Argentina argue for an absolute interpretation."
"As to the second determination, Argentina does not argue that the facts set forth by the arbitrators are incorrect. Thus, we accept them as valid."
"The third determination is more controversial. Argentina argues that neither the 180-day suspension of courts' issuances of final judgments nor its refusal to allow litigants (and those in arbitration) to *1213 use its contract renegotiation process, taken separately or together, warrants suspending or waiving the local litigation requirement. We would not necessarily characterize these actions as rendering a domestic court-exhaustion requirement "absurd and unreasonable,' but at the same time we cannot say that the arbitrators' conclusions are barred by the Treaty. The arbitrators did not "'stra[y] from interpretation and application of the agreement'" or otherwise "'effectively "dispens[e]"'" their "'own brand of ... justice.'" Stolt-Nielsen S.A. v. Animal Feeds Int'l Corp., 559 U.S. 662, 671, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010) (providing that it is only when an arbitrator engages in such activity that "'his decision may be unenforceable'" (quoting Major League Baseball Players Assn. v. Garvey, 532 U.S. 504, 509, 121 S.Ct. 1724, 149 L.Ed.2d 740 (2001) (per curiam)))"
The U.S. Supreme Court concludes that the arbitrators' jurisdictional determinations are lawful and reverse the Court of Appeals judgment.
In its concurring opinion Justice SOTOMAYOR states:
"The Court's dictum on this point is not only unnecessary; it may also be incorrect. It is far from clear that a treaty's express use of the term "consent" to describe a precondition to arbitration should not be conclusive in the analysis. We have held, for instance, that "a gateway dispute about whether the parties are bound by a given arbitration clause raises a 'question of arbitrability' for a court to decide." Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002). And a party plainly cannot be bound by an arbitration clause to which it does not consent. See Granite Rock Co. v. Teamsters, 561 U.S. 287, 299, 130 S.Ct. 2847, 177 L.Ed.2d 567 (2010) ("Arbitration is strictly 'a matter of consent'" (quoting Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)))."
"Consent is especially salient in the context of a bilateral investment treaty, where the treaty is not an already agreed-upon arbitration provision between known parties, but rather a nation state's standing offer to arbitrate with an amorphous class of private investors. In this setting, a *1214 nation-state might reasonably wish to condition its consent to arbitrate with a previously unspecified investor counterparty on the investor's compliance with a requirement that might be deemed 'purely procedural' in the ordinary commercial context, ante, at 1207-1208. Moreover, as THE CHIEF JUSTICE notes, '[i]t is no trifling matter' for a sovereign nation to 'subject itself to international arbitration' proceedings, so we should 'not presume that any country ... takes that step lightly. [...]"
"[...] [A] dispute as to consent is 'the starkest form of the question whether the parties have agreed to arbitrate." [...] And we ordinarily presume that parties intend for courts to decide such questions because otherwise arbitrators might 'force unwilling parties to arbitrate a matter they reasonably would have thought a judge ... would decide.' First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 945, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)."
"Accordingly, if the local litigation requirement at issue here were labeled a condition on the treaty parties' 'consent' to arbitrate, that would in my view change the analysis as to whether the parties intended the requirement to be interpreted by a court or an arbitrator. As it is, however, all parties agree that the local litigation requirement is not so denominated. See Agreement for the Promotion and Protection of Investments, Art. 8(2), Dec. 11, 1990, 1765 U.N.T.S. 38. Nor is there compelling reason to suppose the parties silently intended to make it a condition on their consent to arbitrate, given that a local court's decision is of no legal significance under the treaty, ante, at 1207-1208, and given that the entire purpose of bilateral investment agreements is to 'reliev[e] investors of any concern that the courts of host countries will be unable or unwilling to provide justice in a dispute between a foreigner and their own government,' Brief for Professors and Practitioners of Arbitration Law as Amici Curiae 6. Moreover, Argentina's conduct confirms that the local litigation requirement is not a condition on consent, for rather than objecting to arbitration on the ground that there was no binding arbitration agreement to begin with, Argentina actively participated in the constitution of the arbitral panel and in the proceedings that followed. See Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 546, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991) (treaty interpretation can be informed by parties' postenactment conduct)."
In his dissenting opinion Chief Justice ROBERTS, with whom Justice KENNEDY joins, states:
"When there is no express agreement between the host country and an investor, they must form an agreement in another way, before an obligation to arbitrate arises. The Treaty by itself cannot constitute an agreement to arbitrate with an investor. How could it? No investor is a party to that Treaty. Something else must happen to create an agreement where there was none before. Article 8 (2) (a) makes clear what that something is: An investor must submit his dispute to the courts of the host country. After 18 months, or an unsatisfactory decision, the investor may then request arbitration."
"Submitting the dispute to the courts is thus a condition to the formation of an agreement, not simply a matter of performing an existing agreement. Article 8 (2) (a) constitutes in effect a unilateral offer to arbitrate, which an investor may accept by complying with its terms. To be sure, the local litigation requirement might not be absolute. In particular, an investor might argue that it was an implicit aspect of the unilateral offer that he be afforded a reasonable opportunity to submit his dispute to the local courts. Even then, however, the question would remain whether the investor has managed to form an arbitration agreement with the host country pursuant to Article 8(2)(a). That question under Article 8 (2) (a) is--like the same question under Article 8(2)(b)--for a court, not an arbitrator, to decide. [...]"
"The majority acknowledges--but fails to heed--"the first principle that underscores all of our arbitration decisions: Arbitration is strictly 'a matter of consent.'" Granite Rock Co. v. Teamsters, 561 U.S. 287, 299, 130 S.Ct. 2847, 177 L.Ed.2d 567 (2010) (quoting Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)); see ante, at 1206-1207. We have accordingly held that arbitration 'is a way to resolve those disputes--but only those disputes--that the parties have agreed to submit to arbitration.' First Options of Chicago, Inc., supra, at 943, 115 S.Ct. 1920. The same 'first principle' underlies arbitration pursuant to bilateral investment treaties. See C. Dugan, D. Wallace, N. Rubins, & B. Sabahi, Investor-State Arbitration 219 (2008) (Dugan); J. Salacuse, The Law of Investment Treaties 385 (2010); K. Vandevelde, Bilateral Investment Treaties: History, Policy, and Interpretation 433 (2010). So only if Argentina agreed with BG Group to have an arbitrator resolve their dispute did the arbitrator in this case have any authority over the parties."
"The nature of the obligations a sovereign incurs in agreeing to arbitrate with a private party confirms that the local litigation requirement is a condition on a signatory country's consent to arbitrate, and not merely a condition on performance of a preexisting arbitration agreement. There are good reasons for any sovereign to condition its consent to arbitrate disputes on investors' first litigating their claims in the country's own courts for a specified period. It is no trifling matter for a sovereign nation to subject itself to suit by private parties; we do not presume that any country--including our own--takes that step lightly. Cf. United States v. Bormes, 568 U.S._,_, 133 S.Ct. 12, 16, 184 L.Ed.2d 317 (2012) (Congress must 'unequivocally express' its intent to waive the sovereign immunity of the United *1220 States (quoting United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992); internal quotation marks omitted)). But even where a sovereign nation has subjected itself to suit in its own courts, it is quite another thing for it to subject itself to international arbitration. Indeed, '[g]ranting a private party the right to bring an action against a sovereign state in an international tribunal regarding an investment dispute is a revolutionary innovation' whose 'uniqueness and power should not be over-looked.' Salacuse 137. That is so because of both the procedure and substance of investor-state arbitration."
CITATION: BG Group PLC v. Republic of Argentina, 134 S.Ct. 1198 (U.S. Supreme Court 2014).
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|Publication:||International Law Update|
|Date:||Jan 1, 2015|
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