bg group plc republic argentina argued december decided march investment treaty treaty kingdom argentina authorizes party submit dispute decision competent tribunal contracting party whose territory investment made local art permits arbitration relevant period eighteen months elapsed moment dispute submitted tribunal said tribunal given final decision art petitioner bg group plc british firm belonged consortium majority interest metrogas argentine entity awarded exclusive license distribute natural gas buenos aires time bg group investment argentine law provided gas tariffs calculated dollars set levels sufficient assure gas distribution firms reasonable return argentina later amended law changing among things calculation basis pesos metrogas profits soon became losses invoking article bg group sought arbitration parties sited washington bg group claimed argentina new laws practices violated treaty forbids expropriation investments requires nation give fair equitable treatment investors argentina denied claims also argued arbitrators lacked jurisdiction hear dispute relevant bg group complied article local litigation requirement arbitration panel concluded jurisdiction finding among things argentina conduct also enacting new laws hindered recourse judiciary firms bg group situation excused bg group failure comply article requirement merits panel found argentina expropriated bg group investment denied bg group fair equitable treatment awarded damages bg group sides sought review federal district bg group confirm award new york convention federal arbitration act faa argentina vacate award part ground arbitrators lacked jurisdiction faa district confirmed award appeals district columbia circuit vacated found interpretation application article requirement matters courts decide de novo without deference arbitrators views circumstances excuse bg group failure comply requirement bg group commence lawsuit argentina courts wait months seeking arbitration thus held arbitrators lacked authority decide dispute held reviewing arbitration award made treaty interpret apply threshold provisions concerning arbitration using framework developed interpreting similar provisions ordinary contracts framework local litigation requirement matter arbitrators primarily interpret apply courts review interpretation deference pp treaty ordinary contract call arbitrators primarily interpret apply local litigation provision ordinary contract parties determine whether particular matter primarily arbitrators courts decide see steelworkers warrior gulf nav contract silent matter decide threshold question arbitration courts determine parties intent using presumptions courts presume parties intended courts decide disputes arbitrability howsam dean witter reynolds arbitrators decide disputes meaning application procedural preconditions use arbitration see including claims waiver delay like defense arbitrability moses cone memorial hospital mercury constr satisfaction limits notice laches estoppel howsam provision issue procedural variety text structure make clear determines contractual duty arbitrate arises whether contractual duty arbitrate neither language language article gives substantive weight local determinations matters issue parties litigation provision thus rule analogous procedural provisions found arbitrators primarily interpret apply see nothing article treaty overcome ordinary assumption pp fact document issue treaty make critical difference analysis treaty contract nations interpretation normally matter determining parties intent air france saks federal asked interpret intent pursuant motion vacate confirm award made federal arbitration act normally apply presumptions supplied american law presence condition consent arbitration treaty likely warrant abandoning increasing complexity ordinary framework see howsam supra treaty state local litigation requirement condition consent need resolve effect language need go beyond holding absence language treaty demonstrating parties intended different delegation authority ordinary interpretive framework applies pp treaty contains evidence showing parties intent contrary ordinary presumptions decide threshold arbitration issues text structure article litigation requirement make clear procedural condition precedent arbitration ordinary presumption applies overcome interpretation application provision primarily arbitrators courts must review decision considerable deference pp argentina entitled review properly deferential standard arbitrators decision excuse bg group noncompliance litigation requirement review shows arbitrators determinations lawful conclusion litigation provision construed absolute impediment arbitration cases lies well within interpretative authority factual findings argentina passed laws hindering recourse local judiciary firms similar bg group undisputed argentina accepted valid conclusion argentina actions made absurd unreasonable read article require investor bg group position bring grievance domestic arbitrating barred treaty pp reversed breyer delivered opinion scalia thomas ginsburg alito kagan joined sotomayor joined except part sotomayor filed opinion concurring part roberts filed dissenting opinion kennedy joined opinion notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions washington typographical formal errors order corrections may made preliminary print goes press bg group plc petitioner republic argentina writ certiorari appeals district columbia circuit march justice breyer delivered opinion article investment treaty kingdom argentina contains applicable disputes one investor see agreement promotion protection investments art hereinafter treaty provision authorizes either party submit dispute decision competent tribunal contracting party whose territory investment made local art provides arbitration period eighteen months elapsed moment dispute submitted competent tribunal said tribunal given final decision ii final decision aforementioned tribunal made parties still dispute art treaty also entitles parties agree proceed directly arbitration art case concerns treaty arbitration clause specifically local litigation requirement set forth article question us whether reviewing arbitration award made treaty interpret apply local litigation requirement de novo deference courts ordinarily owe arbitration decisions say arbitrator bears primary responsibility interpreting applying local litigation requirement underlying controversy view matter arbitrators courts must review determinations deference early petitioner bg group plc british firm belonged consortium bought majority interest argentine entity called metrogas metrogas gas distribution company created argentine law result government privatization gas utility argentina distributed utility assets new private companies one metrogas awarded metrogas exclusive license distribute natural gas buenos aires submitted controlling interest company international public tender bg group successful bidder time argentina enacted statutes providing regulators calculate gas tariffs dollars tariffs set levels sufficient assure gas distribution firms metrogas reasonable return argentina faced economic crisis enacted new laws laws changed basis calculating gas tariffs dollars pesos rate one peso per dollar exchange rate time roughly three pesos dollar result metrogas profits quickly transformed losses bg group believed changes several others violated treaty argentina believed contrary bg group invoking article treaty sought arbitration parties appointed arbitrators agreed site arbitration washington arbitrators decided motions received evidence conducted hearings bg group essentially claimed argentina new laws regulatory practices violated provisions treaty forbidding expropriation investments requiring nation give fair equitable treatment investors argentina denied claims also arguing arbitration tribunal lacked jurisdiction hear dispute app pet cert according arbitrators lacked jurisdiction bg group investor bg group interest metrogas investment bg group initiated arbitration without first litigating claims argentina courts despite article requirement argentina view failure bg bring grievance argentine courts months renders claims arbitration inadmissible late december arbitration panel reached final decision began determining jurisdiction consider merits dispute support determination tribunal concluded bg group investor interest metrogas amounted investment argentina conduct waived excused bg group failure comply article local litigation requirement panel pointed president argentina issued decree staying days execution courts final judgments injunctions suits claiming harm result new economic measures addition argentina established renegotiation process public service contracts contract metrogas alleviate negative impact new economic measures argentina simultaneously barred participation process firms litigating argentina arbitration measures making litigation argentina courts literally impossible nonetheless hindered recourse domestic judiciary point treaty implicitly excused compliance local litigation requirement requiring private party circumstances seek relief argentina courts months panel concluded lead absurd unreasonable result merits arbitration panel agreed argentina expropriate bg group investment also found argentina denied bg group fair equitable treatment awarded bg group million damages march sides filed petitions review district district columbia bg group sought confirm award new york convention federal arbitration act see convention recognition enforcement foreign arbitral awards art iv june new york convention providing party may apply recognition enforcement arbitral award subject convention providing party may move order confirming arbitral award federal place designated agreement place arbitration place within argentina sought vacate award part ground arbitrators lacked jurisdiction see federal may vacate arbitral award arbitrators exceeded powers district denied argentina claims confirmed award supp dc supp dc appeals district columbia circuit reversed appeals view interpretation application article local litigation requirement matter courts decide de novo without deference views arbitrators appeals went hold circumstances excuse bg group failure comply requirement rather bg group must commence lawsuit argentina courts wait eighteen months filing arbitration bg group done arbitrators lacked authority decide dispute appeals ordered award vacated ibid bg group filed petition certiorari given importance matter international commercial granted petition see bilateral investment treaties history policy interpretation explaining mechanisms allowing arbitration critical element modern day bilateral investment treaties dugan wallace rubins sabahi arbitration referring large number investment treaties provide arbitration explaining also impose prearbitration requirements waiting periods amicable negotiations exhaustion local remedies ii said question us arbitrator bears primary responsibility interpreting applying article local litigation provision put terms standards judicial review review arbitrators interpretation application provision de novo deference courts ordinarily show arbitral decisions matters parties committed arbitration compare first options chicago kaplan example makes mind issue independently parties agree arbitrated oxford health plans llc sutter slip example defers arbitrators parties arbitral resolution question quoting eastern associated coal mine workers see also hall street associates mattel matters committed arbitration federal arbitration act provides limited review needed maintain arbitration essential virtue resolving disputes straightaway prevent merely prelude cumbersome judicial review process internal quotation marks omitted eastern associated coal supra parties send matter arbitration set aside arbitrator interpretation agreement means rare instances answering question shall initially treat document us ordinary contract private parties conclude matter arbitrators ask whether fact document question treaty makes critical difference conclude iii ordinary contracts issue parties determine whether particular matter primarily arbitrators courts decide see steelworkers warrior gulf nav rbitration matter contract party required submit arbitration dispute agreed submit contract silent matter primarily decide threshold questions arbitration courts determine parties intent help presumptions one hand courts presume parties intend courts arbitrators decide called disputes arbitrability include questions whether parties bound given arbitration clause whether arbitration clause binding contract applies particular type controversy howsam dean witter reynolds accord granite rock teamsters disputes formation parties arbitration agreement enforceability applicability dispute issue matters must resolve internal quotation marks omitted see first options supra decide whether arbitration clause applied party personally signed document containing technologies communications workers decide whether particular layoff dispute fell within arbitration clause contract john wiley sons livingston decide whether arbitration provision survived corporate merger see generally technologies supra unless parties clearly unmistakably provide otherwise question whether parties agreed arbitrate decided arbitrator hand courts presume parties intend arbitrators courts decide disputes meaning application particular procedural preconditions use arbitration see howsam supra courts assume parties normally expect decisionmaker decide procedural gateway matters emphasis added procedural matters include claims waiver delay like defense arbitrability moses cone memorial hospital mercury constr include satisfaction time limits notice laches estoppel conditions precedent obligation arbitrate howsam supra quoting revised uniform arbitration act comment supp emphasis deleted see also arbitrator shall decide whether condition precedent arbitrability fulfilled comment explaining rule reflects holdings vast majority state courts collecting cases provision us latter procedural variety text structure provision make clear operates procedural condition precedent arbitration says dispute shall submitted international arbitration one parties requests long period eighteen months elapsed since dispute submitted local tribunal tribunal given final decision art determines contractual duty arbitrate arises whether contractual duty arbitrate cf lord williston contracts pp ed condition precedent determines must happen contractual duty arises make validity contract depend happening emphasis added neither language language article give substantive weight local determinations matters issue parties contrary article provides arbitration decision shall final binding parties art litigation provision consequently purely procedural requirement rule governs arbitration may begin whether may occur substantive outcome issues dispute moreover local litigation requirement highly analogous procedural provisions others found arbitrators courts primarily interpret apply see howsam supra whether party filed notice arbitration within time limit provided rules chosen arbitral forum matter presumptively arbitrator judge john wiley supra respect mandatory prearbitration grievance procedure involved holding two conferences see also dialysis access center llc rms lifeline respect prearbitration good faith negotiations requirement lumbermens mut cas broadspire management respect prearbitration filing disagreement notice finally later discuss detail see infra find nothing article elsewhere treaty might overcome ordinary assumption nowhere demonstrates contrary intent delegation decisional authority judges arbitrators thus document ordinary contract call arbitrators primarily interpret apply local litigation provision iv relax ordinary contract assumption ask whether fact document us treaty makes critical difference analysis solicitor general argues says local litigation provision may condition state consent enter arbitration agreement brief amicus curiae adds courts review de novo arbitral tribunal resolution objections based investor condition ibid recommends remand case appeals determine whether provision condition accept solicitor general view applied treaty us general matter treaty contract though nations interpretation normally like contract interpretation matter determining parties intent air france saks courts must give specific words treaty meaning consistent shared expectations contracting parties sullivan kidd reaties interpreted upon principles govern interpretation contracts writing individuals executed utmost good faith view making effective purposes high contracting parties wright henkel treaties must receive fair interpretation according intention contracting parties federal asked interpret intent pursuant motion vacate confirm award made federal arbitration act normally apply presumptions supplied american law see new york convention art award may set aside suspended competent authority country law award made vandevelde bilateral investment treaties arbitral awards pursuant treaties subject review arbitration law state arbitration takes place dugan arbitration national courts law legal situs arbitration control losing party attempt set aside award solicitor general deny presumption discussed part iii supra namely presumption parties intend procedural preconditions arbitration resolved primarily arbitrators applies ordinary contracts similar provisions treaties provisions also conditions consent brief amicus curiae respect government views proper interpretation treaties abbott abbott unable find authority precedent suggesting use consent label treaty make critical difference discerning parties intent whether courts arbitrators interpret apply relevant provision willing assume solicitor general appearance label treaty show parties one thought designated matter quite important unlikely conclusive parties often submit important matters arbitration word consent attached highly procedural precondition arbitration waiting period several months parties unlikely intended courts apply without saying see agreement encouragement reciprocal protection investments art netherlands contracting party hereby consents submit dispute sic solve amicably within three months international center settlement disputes settlement conciliation arbitration online internet materials visited available clerk case file agreement promotion protection investments art june contracting party hereby consents submit dispute arbitration agreement reached within three months parties leave matter open future argument see presence term consent treaty warrants abandoning increasing complexity ordinary framework see howsam first options john wiley event treaty us state local litigation requirement condition consent arbitration thus need go beyond holding absence explicit language treaty demonstrating parties intended different delegation authority ordinary interpretive framework applies leave another day question interpreting treaties refer conditions consent explicitly see free trade agreement art provision entitled conditions limitations consent party providing claim may submitted arbitration section unless claimant waives writing right press claim administrative tribunal online www north american free trade agreement arts providing party onsent rbitration conditioned fulfillment certain procedures one waiver investor right litigate claim arbitrated see also model bilateral investment treaty art entitled conditions limitations consent party online sites default files bit apply ordinary presumption interpretation application procedural provisions provision us primarily arbitrators treaty may contain evidence shows parties intent contrary ordinary presumptions decide threshold issues related arbitration treaty us show contrary intention concede local litigation requirement appears article article mention arbitration subsequent paragraph moreover requirement party exhaust remedies country domestic courts seeking arbitrate may seem particularly important country offering protections foreign investors placing important matter prior mention arbitration least arguably suggests intent argentina kingdom courts rather arbitrators apply litigation requirement considerations however outweighed others discussed supra text structure litigation requirement set forth article make clear procedural condition precedent arbitration sequential step party must follow giving notice arbitration treaty nowhere says provision operate substantive condition formation arbitration contract matter elevated importance decided courts international arbitrators likely familiar judges expectations foreign investors recipient nations regarding operation provision see howsam supra comparative institutional expertise factor determining parties likely intent treaty authorizes use international arbitration associations rules provide arbitrators shall authority interpret provisions kind art providing parties may refer dispute international centre settlement investment disputes icsid arbitrators appointed pursuant arbitration rules nations commission international trade law uncitral accord uncitral arbitration rules art rev ed rbitral tribunal shall power rule jurisdiction icsid convention regulations rules art ed tribunal shall judge competence cf howsam supra giving weight parties incorporation national association securities dealers code arbitration contract provided similar arbitral authority evidence intended arbitrators interpret apply nasd time limit rule upshot ordinary presumption applies overcome interpretation application local litigation provision primarily reviewing courts review decision de novo rather must considerable deference dissent interprets article local litigation provision differently view provision sets forth condition precedent arbitration arbitration contract normally matter arbitrators interpret substantive condition argentina arbitration thus contract formation first place normally something courts interpret reads whole article unilateral standing offer arbitrate argentina kingdom extends investors country post opinion roberts says local litigation requirement one essential offer made post quoting eliason henshaw wheat emphasis deleted possible read provision way consistent case law interpreting similar provisions appearing ordinary arbitration contracts see part iii supra consequently interpreting provision manner require us treat treaties warranting different kind analysis dissent without supplying different set general principles might guide analysis matter concern world foreign investment related arbitration treaties increasingly matter even ignore ordinary contract principles however take dissent view explained local litigation provision face concerns arbitration timing treaty effective date arbitration clause binds whether arbitration clause covers certain kind dispute cf granite rock ratification date first options parties technologies kind dispute dissent points article simply require parties wait months proceeding arbitration instructs something submit claims adjudication post correct something must direct impact resolution dispute previously pointed article provides decision arbitrators need give weight local decision final binding art provision base rule dissent efforts imbue greater significance fall short treatises dissent refers also fail support position post authorities primarily describe offer arbitrate investment treaty accepted investor filing notice arbitration see salacuse law investment treaties schreuer consent arbitration oxford handbook international investment law muchlinski ortino schreuer eds dugan arbitration endorse dissent reading local litigation provision provisions like contrary bulk international authority supports view provision functions purely procedural precondition arbitrate see born international commercial arbitration substantial body arbitral authority disputes concludes compliance procedural mechanisms arbitration agreement bilateral investment treaty ordinarily jurisdictional prerequisite brief professors practitioners arbitration law amici curiae assume parties intended de novo review provision likely set courts collision course international regime embodied thousands bilateral investment treaties see also schreuer consent arbitration supra clauses kind creat considerable burden party seeking arbitration little chance advancing settlement dispute likely effect clause kind delay additional cost sum agree dissent sovereign consent arbitration important also agree sovereigns condition consent arbitrate writing various terms bilateral investment treaties post issue question whether parties intended give courts arbitrators primary authority interpret apply threshold provision arbitration contract contract silent delegation authority already explained believe provision resembles requirement requirement affects arbitration contract validity scope presume parties even sovereigns intended give authority arbitrators see parts iii supra argentina correctly argues nonetheless review arbitrators decision excuse bg group noncompliance litigation requirement take jurisdiction dispute asks us provide review argues even proper standard ighly eferential one still prevail brief respondent relevant materials us shall provide review agree argentina arbitrators concluding jurisdiction ibid quoting arbitration panel made three relevant determinations matter treaty interpretation local litigation provision construed absolute impediment arbitration app pet cert argentina enacted laws hindered recourse domestic judiciary whose rights allegedly affected emergency measures sought prevent judicial interference emergency legislation excluded renegotiation process public service contracts licensee seeking judicial redress ibid circumstances absurd unreasonable read article requiring investor bring grievance domestic arbitrating first determination lies well within arbitrators interpretive authority construing local litigation provision absolute requirement mean argentina avoid arbitration say passing law closed system indefinitely prohibited investors using courts interpretation runs contrary basic objective investment treaty argentina argue absolute interpretation second determination argentina argue facts set forth arbitrators incorrect thus accept valid third determination controversial argues neither suspension courts issuances final judgments refusal allow litigants arbitration use contract renegotiation process taken separately together warrants suspending waiving local litigation requirement necessarily characterize actions rendering domestic requirement absurd unreasonable time say arbitrators conclusions barred treaty arbitrators interpretation application otherwise dispens brand justice animalfeeds providing arbitrator engages activity decision may quoting major league baseball players assn garvey per curiam consequently conclude arbitrators jurisdictional determinations lawful judgment appeals contrary reversed ordered sotomayor concurring part bg group plc petitioner republic argentina writ certiorari appeals district columbia circuit march justice sotomayor concurring part agree local litigation requirement issue case procedural precondition arbitration arbitrators interpret condition argentina consent arbitrate review de novo ante importantly reaching conclusion acknowledges treaty us state local litigation requirement consent arbitration ante thus wisely leave another day question interpreting treaties refer consent explicitly ibid join opinion understanding fact decide issue write separately absence express reservation opinion might construed otherwise appears suggest dictum decision treaty parties describe condition one consent arbitrate unlikely conclusive deciding whether parties intended condition resolved ante suggestion unnecessary decide case tension explicit reservation issue join opinion exception part dictum point unnecessary may also incorrect far clear treaty express use term consent describe precondition arbitration conclusive analysis held instance gateway dispute whether parties bound given arbitration clause raises arbitrability decide howsam dean witter reynolds party plainly bound arbitration clause consent see granite rock teamsters arbitration strictly matter quoting volt information sciences board ees leland stanford junior consent especially salient context bilateral investment treaty treaty already arbitration provision known parties rather nation state standing offer arbitrate amorphous class private investors setting might reasonably wish condition consent arbitrate previously unspecified investor counterparty investor compliance requirement might deemed purely procedural ordinary commercial context ante moreover chief justice notes trifling matter sovereign nation subject international arbitration proceedings presume country takes step lightly post dissenting opinion consider example free trade agreement recognizes ante includes provision explicitly entitled conditions limitations consent party art provision declares claim may submitted arbitration unless claimant first waives right initiate continue administrative tribunal proceeding respect measure alleged constitute breach another provision treaty ibid waiver appear without consent label binding arbitration agreement two commercial parties one might characterize kind procedural precedent presume parties intend arbitrators decide howsam waiver requirement denominated condition consent investment treaty label well critical determining whether party treaty condition reviewed dispute consent starkest form question whether parties agreed arbitrate post ordinarily presume parties intend courts decide questions otherwise arbitrators might force unwilling parties arbitrate matter reasonably thought judge decide first options chicago kaplan accordingly local litigation requirement issue labeled condition treaty parties consent arbitrate view change analysis whether parties intended requirement interpreted arbitrator parties agree local litigation requirement denominated see agreement promotion protection investments art compelling reason suppose parties silently intended make condition consent arbitrate given local decision legal significance treaty ante given entire purpose bilateral investment agreements reliev investors concern courts host countries unable unwilling provide justice dispute foreigner government brief professors practitioners arbitration law amici curiae moreover argentina conduct confirms local litigation requirement condition consent rather objecting arbitration ground binding arbitration agreement begin argentina actively participated constitution arbitral panel proceedings followed see eastern airlines floyd treaty interpretation informed parties postenactment conduct light many indicators argentina kingdom intend local litigation requirement condition consent arbitrate understanding pass weight courts attach treaty use term consent concur opinion roberts dissenting bg group plc petitioner republic argentina writ certiorari appeals district columbia circuit march chief justice roberts justice kennedy joins dissenting begins deciding different case initially treat ing document us ordinary contract private parties ante document us course nothing sort instead treaty two sovereign nations kingdom argentina investor party agreement elided rather important fact much analysis majority finally relax es ordinary contract assumption ask whether fact document us treaty makes critical difference analysis ante come surprise starting wrong road majority ends wrong place start document us take terms document bilateral investment treaty kingdom argentina argentina agreed take steps encourage investors invest within borders kingdom agreed respect argentine investors agreement promotion protection investments treaty treaty indeed contain completed agreement arbitration signatory countries art treaty also includes article certain provisions resolving disputes might arise signatory country investor party agreement one provision completely ignored analysis specifies disputes may resolved arbitration host country investor agreed art one doubts normal rule whether agreement arbitrator decide see first options chicago kaplan express agreement host country investor must form agreement another way obligation arbitrate arises treaty constitute agreement arbitrate investor investor party treaty something else must happen create agreement none article makes clear something investor must submit dispute courts host country months unsatisfactory decision investor may request arbitration submitting dispute courts thus condition formation agreement simply matter performing existing agreement article constitutes effect unilateral offer arbitrate investor may accept complying terms sure local litigation requirement might absolute particular investor might argue implicit aspect unilateral offer afforded reasonable opportunity submit dispute local courts even however question remain whether investor managed form arbitration agreement host country pursuant article question article like question article arbitrator decide respectfully dissent contrary conclusion majority acknowledges fails heed first principle underscores arbitration decisions arbitration strictly matter consent granite rock teamsters quoting volt information sciences board trustees leland stanford junior see ante accordingly held arbitration way resolve disputes disputes parties agreed submit arbitration first options chicago supra first principle underlies arbitration pursuant bilateral investment treaties see dugan wallace rubins sabahi arbitration dugan salacuse law investment treaties vandevelde bilateral investment treaties history policy interpretation argentina agreed bg group arbitrator resolve dispute arbitrator case authority parties majority opinion nowhere explains argentina agreed bg group submit arbitration instead majority seems assume agreeing kingdom adopt article along rest treaty argentina thereby formed agreement potential investors including bg group submit disputes arbitration misunderstands article trivializes significance sovereign nation subjecting arbitration anywhere world solely option private parties majority focuses throughout opinion calls treaty arbitration clause ante provision stand alone rather part subordinate part broader dispute resolution provision article thus entitled settlement disputes investor host state opens without much mentioning arbitration instead initially directs disputing investor signatory country treaty calls contracting party investor one contracting party contracting party dispute amicably settled treaty commands dispute shall submitted request one parties dispute decision competent tribunal contracting party whose territory investment made art emphasis added provision clearer taking steps aggrieved investor must submit dispute contracting party contracting party courts two routes arbitration article passes contracting party domestic courts treaty arbitration provisions article presuppose parties complied local litigation provision article specifically party may request arbitration period eighteen months elapsed moment dispute submitted competent tribunal contracting party whose territory investment made said tribunal given final decision art final decision aforementioned tribunal made parties still dispute art ii ibid either way obligation arbitrate arise contracting party courts first crack dispute article provides third route arbitration paragraph namely contracting party investor contracting party agreed ibid contrast two routes article one refer local litigation provision omission significant makes clear investor bypass local litigation obtaining contracting party explicit agreement proceed directly arbitration short investor choice litigate contracting party courts least period structure article confirms routes arbitration paragraph much eliciting contracting party consent arbitrate route paragraph article requisite consent demonstrated specific agreement article requisite consent demonstrated compliance requirement resort country local courts whereas article part completed agreement argentina kingdom constitutes unilateral standing offer argentina respect investors offer submit arbitration certain conditions met scholars understand arbitration provisions bilateral investment treaties general see dugan salacuse brief practitioners professors international arbitration law amici curiae bg group describes investment treaty particular see brief petitioner treaty standing offer argentina arbitrate reply brief offer must accepted legally binding contract formed undeniable principle law contracts offer one person another imposes obligation upon former accepted latter according terms offer made qualification departure terms invalidates offer eliason henshaw wheat emphasis added principle applies international arbitration agreements domestic commercial contracts see dugan salacuse schreuer consent arbitration oxford handbook international investment law muchlinski ortino schreuer eds incorporating local litigation provision article paragraph establishes provision term argentina unilateral offer arbitrate accept argentina offer investor must therefore first litigate dispute argentina courts either final decision months whichever comes first unless investor perhaps establishes valid excuse failing discussed see infra accepted terms argentina offer arbitrate thus formed arbitration agreement although majority suggests local litigation requirement condition consent even treaty explicitly called one holding limited treaties contain clear statement see ante reason think clear statement required generally require talismanic words treaties medellĂ­n texas indeed another arbitral tribunal concluded local litigation condition argentina consent arbitrate despite absence sort clear statement apparently contemplated majority see ics inspection control servs argentine republic pca case award jurisdiction still tribunals reached conclusion regard similar litigation requirements argentine bilateral investment treaties see daimler financial servs ag argentine republic icsid case award wintershall aktiengesellschaft argentine republic icsid case award face authority majority quotes treatise proposition substantial body arbitral authority disputes concludes compliance procedural mechanisms arbitration agreement bilateral investment treaty ordinarily jurisdictional prerequisite ante quoting born international commercial arbitration simply restates question whole issue whether local litigation requirement mere procedural mechanism instead condition argentina consent arbitrate bg group concedes terms article constitute conditions argentina consent arbitrate even though expressly labeled see tr oral arg investor treaty claim suing another party treaty true arbitration agreement emphasis added explain term litigation requirement viewed differently majority reading accord ordinary contract law treats language word article creating conditions even though language may constitute clear see lord williston contracts ed majority seems regard local litigation requirement condition precedent performance contract rather condition precedent formation contract ante see lord prior fulfillment local litigation requirement contract argentina bg group performed treaty agreement since bg group course party treaty neither majority bg group contends agreement article provision applies contracting party investor contracting party agreed arbitration agreement must formed article spells investor may submitting dispute local courts months decision rendered moreover treaty local litigation requirement certainly resemble time limits notice laches estoppel kinds provisions typically treated conditions performance arbitration agreement rather prerequisites formation revised uniform arbitration act comment unlike time limit submitting claim arbitration see howsam dean witter litigation requirement simply regulate timing arbitration majority recognizes ante provision simply require parties wait months proceeding arbitration instead requires submit claims adjudication period unlike mandatory grievance procedure see john wiley sons livingston litigation requirement sends parties host country law international arbitration domestic contract law lead conclusion paragraph article constitutes unilateral standing offer contracting parties investors submit arbitration certain conditions investor form arbitration agreement contracting party treaty investor accepts actual terms contracting party offer absent valid excuse means litigating dispute contracting party courts final decision barring least months nature obligations sovereign incurs agreeing arbitrate private party confirms local litigation requirement condition signatory country consent arbitrate merely condition performance arbitration agreement good reasons sovereign condition consent arbitrate disputes investors first litigating claims country courts specified period trifling matter sovereign nation subject suit private parties presume country including takes step lightly cf bormes slip congress must unequivocally express intent waive sovereign immunity quoting nordic village internal quotation marks omitted even sovereign nation subjected suit courts quite another thing subject international arbitration indeed ranting private party right bring action sovereign state international tribunal regarding investment dispute revolutionary innovation whose uniqueness power salacuse procedure substance arbitration procedurally paragraph article designates arbitration rules nations commission international trade law uncitral default rules governing arbitration rules authorize permanent arbitration hague designate appointing authority absent agreement parties select sole arbitrator case tribunal presiding arbitrator arbitrators nominated parties agree presiding arbitrator uncitral arbitration rules arts rev arbitrators turn select site arbitration absent agreement parties enjoy broad discretion conducting proceedings arts substantively acquiescing arbitration state permits private adjudicators review public policies effectively annul authoritative acts legislature executive judiciary see salacuse van harten investment treaty arbitration public law consider dispute gave rise case arbitral tribunal bg group challenged multiple sovereign acts argentine government taken argentine economy collapsed particular emergency law converted tariffs tariffs rate one argentine peso one dollar resolution decree established renegotiation process public service contracts decree stayed days injunctions execution final judgments lawsuits challenging effects emergency law indeed awarding damages bg group tribunal held first three enactments violated article treaty see app pet cert perhaps issue article contracting party grants private adjudicators necessarily choosing meet literally anywhere world power typically reserves courts grants power sit judgment sovereign acts given stakes one expect kingdom argentina taken particular care specifying limited circumstances foreign investors trigger treaty arbitration process precisely article requiring investors afford country courts initial opportunity review country enactments assess country compliance international obligations contrast article provides arbitration signatory countries disputes treaty without preconditions argentina kingdom considered arbitration particular foreign investors different kind require special limitations use majority regards local litigation requirement toothless simply treaty require arbitrator give substantive weight local determinations matters issue parties ante see also ante instead provides arbitration decision shall final binding parties art true arbitrator need defer argentine judgment investor dispute deprive litigation requirement practical import significant treaty provides arbitral tribunal shall decide dispute accordance laws contracting party involved dispute art ibid doubt tribunal give weight argentine authoritative argentine law rendered dispute might formally bound adopt interpretation local litigation requirement also help narrow range issues remain controversy time dispute reaches arbitration might even induce parties settle along way course investor might prevail likewise obviate need arbitration cf mckart none interpreted defending argentina history comes international investment history may prompt doubt requiring investor resort country courts first instance use question argentina kingdom reached agreement term issue question therefore rephrased whether makes sense either contracting party insist resort courts compelled arbitrate anywhere world arbitrators choosing foregoing reasons may seem compelling viewed apart particular episode us ii given treaty local litigation requirement condition consent arbitrate follows whether investor complied requirement question must decide de novo rather issue arbitrator decide subject deferential judicial review see adams suozzi holding compliance condition formation arbitration agreement rather arbitrator determine logic simple arbitrator authority depends consent parties arbitrator rule able decide whether parties fact consented consent parties question reference gateway dispute avoids risk forcing parties arbitrate matter may well agreed arbitrate howsam principle core arbitration precedents see granite rock questions concerning formation parties arbitration agreement decide de novo principle also embedded law international commercial arbitration born one party denies ever made arbitration agreement challenges validity agreement possibility de novo judicial review jurisdictional award annulment action logically necessary see also restatement third law international commercial arbitration tent draft apr determines de novo existence arbitration agreement indeed question case whether bg group accepted terms argentina offer arbitrate presents issue contract formation starkest form question whether parties agreed arbitrate howsam dean witter reynolds gave two examples questions going consent courts decide whether parties bound given arbitration clause whether arbitration clause concededly binding contract applies particular type controversy examples least putative arbitration agreement parties dispute question whether agreement truly binding whether covers specific dispute contrast question whether arbitration clause treaty kingdom argentina gives rise arbitration agreement argentina bg group cf ante sotomayor concurring part consent especially salient context bilateral investment treaty treaty already arbitration provision known parties majority never even starts path instead preempts whole inquiry concluding local litigation requirement kind procedural precondition parties typically expect arbitrator enforce ante explained local litigation requirement resemble requirements previously deemed presumptively procedural see supra merely regulate timing arbitration send parties forms dispute resolution importantly cases cited majority examples procedural provisions involve commercial contracts two private parties see ante none single one involves agreement sovereigns agreement person seeking compel arbitration even party treaty course things majority suggests applying different kind analysis governing private commercial contracts issue treaty ante key point majority never addresses completed agreement whatsoever argentina bg group agreement must formed whether happened private commercial contract context issue decide see supra distinction questions concerning consent arbitrate mere procedural requirements existing arbitration agreement times seem elusive even mundane procedural requirement recast condition consent matter technical logic clear treaty local litigation requirement mere formality buenos aires london true parties often submit important matters arbitration ante precedents presume parties submit arbitration important matter whether subject agreement arbitrate first place majority pointed evidence rebut presumption showing argentina intended arbitrator litigation requirement howsam supra quoting technologies communications workers majority notes ante treaty incorporates certain arbitration rules turn authorize arbitrators determine jurisdiction dispute see art rules operate dispute properly arbitral tribunal course whole question case whether dispute bg group argentina arbitrators given bg group failure comply local litigation requirement leading treatise explained parties validly agreed arbitration agreement also necessarily agreed institutional arbitration rules born circumstances provisions institutional rules confer authority upon arbitral tribunal ibid also see reason think arbitrators enjoy comparative expertise construing local litigation requirement ante one thing provision involved application arbitrators rules cf howsam supra intertwined merits underlying dispute john wiley sons neither true litigation requirement assess compliance requirement least well arbitrator given structure article important interests litigation requirement protects seems clear kingdom argentina thought iii although appeals got slightly different route correctly concluded must decide questions concerning interpretation application local litigation requirement de novo cadc time however seems simply taken granted bg group submit dispute local courts arbitral award bg group favor invalid indeed addressed issue perfunctory paragraph end opinion saw one possible bg group required commence lawsuit argentina courts wait eighteen months filing arbitration quoting animalfeeds conclusion obvious leading treatise indicated necessary implication offer offeror addition makes offer promises accept tender performance lord understanding offeree failure comply essential condition unilateral offer bar action failure comply condition due offeror fault open bg group argue appeals principle incorporated article implicit aspect argentina unilateral offer arbitrate argument find support background principle customary international law foreign individual injured host country must ordinarily exhaust local remedies unless futile see dugan event issue analyzed one contract formation therefore decide accordingly vacate decision appeals remand case inquiry respectfully dissent footnotes dissent discounts significance argentina conduct ground argentina object ed arbitral tribunal jurisdiction hear dispute post difference arguing party failed comply procedural condition binding arbitration agreement arguing noncompliance condition negates existence consent arbitrate first place argentina points evidence objection consent variety omission notable argentina knew phrase arguments arbitrators terms consent argued separately consented arbitration bg group ground bg party license underlying dispute see app pet cert first options chicago kaplan contrary case held arguing arbitrability issue arbitrator constitute clea unmistakabl evidence sufficient override indisputably applicable presumption decide whether parties agreed arbitration question contrast whether presumption attaches begin whether local litigation requirement condition argentina consent arbitrate trigger presumption procedural condition already binding arbitration agreement argentina apparently took latter position arbitration surely relevant evidence condition fact one consent footnotes clear question whether bg group formed arbitration agreement argentina say bg group never formed agreement call question validity various commercial agreements argentina justice sotomayor contends argentina conduct confirms local litigation requirement condition consent rather objecting arbitration ground binding arbitration agreement begin argentina actively participated constitution arbitral panel proceedings followed ante opinion concurring part arbitral tribunal recognized argentina object tribunal jurisdiction hear dispute app pet cert held merely arguing arbitrability issue arbitrator say filing arbitrators written memorandum objecting arbitrators jurisdiction indicate clear willingness arbitrate issue willingness effectively bound arbitrator decision point first options chicago kaplan concurrence contends argentina apparently argued jurisdictional objection terms procedure rather consent ante one piece evidence cited negative inference arbitrator characterization argentina argument subsidiary issue hardly suffices distinguish first options