The Supreme Court's recent decision in BG Group, PLC v. Republic of Argentina
, 134 S. Ct. 1198 (2014), is instructive on this point. In BG Group,
Argentina's primary argument was similar to Ecuador's in the present case. By its terms, the Bilateral Investment Treaty between the United Kingdom and Argentina
required an investor to litigate its claims in the local court system before submitting the claims to arbitration. 134 S. Ct. at 1204. BG Group submitted a claim to arbitration without observing this process. The arbitration panel concluded that Argentina had waived the local litigation requirement and found in BG Group's favor on the merits. Id.
at 1204-05. When BG Group sought to confirm the award in the District Court for the District of Columbia, the District Court deferred to the arbitrators' determination regarding the local litigation requirement. Republic of Argentina v. BG Group PLC,
715 F. Supp. 2d 108, 121-22 (D.D.C. 2010). This Court reversed, holding that "[b]ecause the Treaty provides that a precondition to arbitration of an investor's claim is an initial resort to a contracting party's court... the question of arbitrability is an independent question of law for the court to decide." Republic of Argentina v. BG Group PLC,
665 F.3d 1363, 1371 (D.C. Cir. 2012).