This case was argued before the Supreme Court on December 2, 2013. It presents a unique fact pattern concerning arbitration between an investor (BG Group PLC) and a sovereign state (Argentina). The issue to be resolved by this appeal to the Supreme Court is whether a court or the arbitrator will get to determine whether a precondition to arbitration has been satisﬁed.
BG had obtained a 2007 arbitral award of $185M, despite the fact that it had not followed a bilateral investment treaty (BIT) clause requiring that a precondition be met before bringing arbitration. After de novo review, the D.C. Circuit vacated, finding a failure to comply with an explicit intent to comply with an arbitration precondition.
Diane Marie Amann, the Emily and Ernest Woodruff Chair in International Law at the University of Georgia School of Law, has an argument analysis posted December 4, 2013 on ScotusBlog, as well as an argument preview, posted November 20, 2013.
Prof. Amann describes the oral argument before the Supreme Court as one nested with “matryoshka-doll complexities,” causing Justice Kennedy to complain about “intellectual whiplash.”
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Delaware Chancery Court Petitions SCOTUS To Allow Chancery Court To Oversee Private Arbitrations
As reported by the ABAJournal on January 22, 2014, Delaware seeks a writ of certiorari from SCOTUS to review the decision of the Third Circuit ruling that the Delaware Chancery Court’s corporate arbitration program violated the First Amendment because it involved secret trials.
Delaware’s Chancery Court is well-known for its expertise in corporate matters, and touts its arbitration program as a benefit for sophisticated corporate clients. Besides, it will argue, secret arbitrations aren’t really trials. The Chancery Court is represented by Andrew J. Pincus of Mayer Brown. Mr. Pincus represented AT&T in its significant SCOTUS victory over consumer plaintiffs in AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011).