Whose Role Is It Anyway? Who Has Jurisdiction Over Contractual Pre-Conditions To Arbitration

The scenario is not uncommon; a multi-tiered dispute resolution clause requires a step (or steps) to be taken by the disputing parties before arbitration can be commenced. The reality of how and when disputes arise can mean that adhering to that multi-step agreement is not always practical. When one party commences arbitration without completing a 'step', is it for the court, or an appointed arbitral tribunal, to determine whether that party is (or was) bound to fulfil the pre-condition? Is this a question of jurisdiction or of admissibility?

BG v Argentina

The issue has been considered from a US law perspective in an investor-state case, BG Group Plc v Republic of Argentina. The UK-Argentina bilateral investment treaty (BIT) requires any dispute to be referred to a local court for a period of 18 months before commencing arbitration. When a dispute arose, BG proceeded straight to arbitration, seated in Washington under the UNCITRAL Rules. The arbitral tribunal