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4 When the BIT Hits the FAA: U.S. Courts Confront Conditions Precedent in Bilateral Investment Treaties

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Chapter Summary

United States courts, when called upon to review arbitration awards entered in the arbitrations under the Federal Arbitration Act (FAA), have begun to wrestle with how to review the conclusions that arbitrators have reached about their own jurisdiction. Recent cases, including one now before the United States Supreme Court, show that some courts have performed that task more impressively than others. In the context of a BIT, the state parties express their consent to arbitrate with investors of the other state party in the BIT itself. Many BITs provide for arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law ("UNCITRAL"), or under institutional rules such as those of the Arbitration Institute of the Stockholm Chamber of Commerce. Other BITs allow an investor to choose from a menu of rules that may include ICSID, UNCITRAL and other rules.

Keywords: arbitration rules; Federal Arbitration Act (FAA); ICSID; jurisdiction; UNCITRAL; United States courts



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