Justiciability of a Non-Merit Condition Precedent to Arbitration

On December 2, 2013, the Supreme Court will hear oral arguments regarding a United States Court of Appeals for the District of Columbia Circuit's decision in Republic of Argentina v. BG Group PLC. The opinion vacated an arbitration tribunal's award of damages in the amount of $185 million. The appellate court held that it was for a court — not an arbitrator — to decide whether a company violated a specific precondition to arbitration. The Petitioner claims that this decision violates the Federal Arbitration Act's dictate that courts must not be hostile to arbitration. The Petitioner attempts to establish that a circuit split now exists and the value of arbitration is drastically undermined by a ruling that incentivizes litigation over arbitration. Because the Brief in Opposition implicitly ignores the merits of the Petitioner's claim, this Article directly refutes the Petitioner's assertion that an arbitrator has the right to decide whether a party has satisfied a precondition to arbitration that is unrelated to the merits of a case