REGGIE B. WALTON, District Judge.
Currently before the Court is a cross-motion filed by respondent BG Group PLC ("BG Group") to confirm an arbitral award (the "Award") rendered in its favor and against petitioner Republic of Argentina ("Argentina") under the Federal Arbitration Act, 9 U.S.C. § 207 (2000) (the "FAA"), and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38, available at 1970 WL 104417 (the "New York Convention" or the "Convention"), which was ratified by Congress and codified at 9 U.S.C. §§ 201-08 (2000). Cross-Motion for Recognition and Enforcement of Arbitral Award (the "Resp't's Cross-Mot.") at 1. Argentina previously moved to vacate the Award under the FAA and the New York Convention, but the Court denied that relief in a memorandum opinion and order issued on June 7, 2010. Republic of Argentina v. BG Group, 715 F.Supp.2d 108, 126 (D.D.C. 2010) (Walton, J.). The Court held a hearing on September 28, 2010, as to the merits of the motion currently before the Court, at which time the Court issued an oral ruling granting the cross-motion and informed the parties that it would memorialize its rationale and ruling thereafter.
Many of the facts germane to the issues confronting the Court in this case have already been set forth in the June 7, 2010 memorandum opinion, but in the interest of providing the factual background necessary to understanding the Court's legal analysis below, those facts will be revisited here.
In 2001, after a period of exceptional economic growth, Argentina began to suffer an economic crisis. Pet'r's Pet. at 6-7. In its efforts to respond to this predicament, Argentina enacted an emergency law that took effect on January 6, 2002, which consisted of several measures that, according to BG Group, negatively impacted its investment in MetroGAS. Id.; Respt't's Cross-Mot. at 2. As a result, BG Group initiated international arbitration proceedings on April 25, 2003, under Article 8 of the Investment Treaty,
An arbitral panel commenced proceedings in New York and Washington, D.C. beginning in July of 2006. Pet'r's Pet. ¶ 4. On December 24, 2007, the arbitral panel issued a decision in which it rejected BG Group's contention that Argentina breached Section 5 of the Investment Treaty, Award ¶ 269, concluding that there had been no expropriation of BG Group's investment in MetroGAS because "the impact of Argentina's measures [was] not ... permanent on the value of BG[Group's] shareholding in MetroGAS," and that "MetroGAS'[s] business never halted, continues to operate, and has an asset base which is recovering," id. ¶ 270. The panel concluded, however, that Argentina breached Article 2(2) of the Investment Treaty by "fundamentally modif[ying] the investment [r]egulatory [f]ramework," id. ¶ 310, and "unilaterally withdr[a]w[ing] commitments which induced BG [Group] to make its investment in Argentina," id. ¶ 343.
With regards to assessing the amount of damages owed by Argentina for its breach of Article 2(2), the arbitral panel applied
The arbitral panel rejected Mr. Wood-Collin's figures, concluding that his findings led "to a result [that] is uncertain and speculative." Id. ¶ 439. The panel then calculated the damages in this case by relying on two transactions involving the sale of shares in MetroGAS and Gas Argentino, S.A. Id. ¶ 443. First, the panel reviewed a transaction that took place after the promulgation of the emergency measures, in which BG Group relinquished part of its interest in MetroGAS (through Gas Argentino, S.A.) in exchange for a debt write-off, and concluded that the value of BG Group's investment at that time was $91,825.244.15. Id. ¶ 440. Second, the panel analyzed a transaction in which the sale of a minority stake in Gas Argentino, S.A., reflected a value of $277,110,730 for BG Group's shares in MetroGAS. Id. ¶¶ 441-42. Considering the difference between these two values, the arbitral panel concluded that the damage to BG Group's investment as a result of Argentina's breach of Article 2(2) was $185,285,485.85. Id. ¶ 443. The arbitral panel also concluded that BG Group was entitled to interest, id. ¶ 467(5), costs for the arbitration, id. ¶ 467(6), and attorneys' fees, id. ¶ 467(7).
On March 21, 2008, Argentina filed in this Court its petition to vacate or modify the Award under 9 U.S.C. §§ 10-11 and Article V(1)(e) of the New York Convention, see Pet'r's Pet. ¶¶ 3-5 (relying on the FAA and New York Convention to vacate or modify the Award), to which BG Group responded with its own motion to have the Award confirmed pursuant to 9 U.S.C. § 9 and Article IV of the Convention, Resp't's Cross-Mot. at 36. On June 7, 2010, this Court issued a memorandum opinion and order denying Argentina's petition to vacate the Award. Republic of Argentina, 715 F.Supp.2d at 126-27. Specifically, the Court rejected Argentina's arguments that "the arbitral panel exceeded its authority under the Investment Treaty," that "the arbitral panel acted `in manifest disregard of the law,'" that "there was `evident partiality or corruption' on the part of one of the arbitrators on the panel," that "the Award was procured through corruption, fraud, or undue means," and that "the Award is disproportionate, unfair, and irrational." Id. at 121. As to BG Group's cross-motion to confirm the Award, the Court noted that Argentina did not set forth its reasons as to why confirmation should be denied; rather, Argentina expressly reserved weighing in on the matter
Argentina then filed its supplemental memorandum in support of denying confirmation of the Award on June 30, 2010, relying on Article V(1)(c) of the New York Convention, which states that the Court may deny recognition of an arbitral award "when the award deals with a difference... not falling within the terms of the submission to arbitration," in addition to Article V(2)(b). Specifically, Argentina asserts that (1) "[t]he [a]rbitral [t]ribunal exceeded its powers in permitting BG [Group] to arbitrate its claims in blatant disregard of the [p]arties' agreement to arbitrate," Pet'r's 3d Supp. Mem. at 12; (2) the arbitral panel's decision to allow BG Group to bring a claim for "alleged damages suffered ... by ... MetroGAS [] in which BG [Group] held ... shares," id. at 13, "is contrary to the public policy of the United States," id. at 16; and (3) the arbitral panel's reliance on a 1998 transaction in determining the fair market value of MetroGAS in 2001, see id. at 18, is an excessive use of its powers and, moreover, contravenes settled United States public policy because the calculation of actual damages must take into account the injury "suffered as of the time of the wrongful act or the taking []of property[]," id. at 22. Additionally, Argentina argued at the September 28, 2010 hearing that the arbitral panel's decision to arbitrate BG Group's claims also violated the public policy of the United States. See Tr. 8:20-21:15, Sept. 28, 2010.
Not surprisingly, BG Group urges the Court to reject all of these arguments. BG Group asserts that Argentina's attack on the Award as having been made in excess of the arbitral panel's authority "have already been dismissed by the Court," Resp't's 4th Supp. Mem. at 3. As for Argentina's public policy arguments, BG Group contends that Argentina's position is unmeritorious because it has failed to identify any fundamental public policy that implicates "this country's `most basic notions of morality and justice.'" Id. at 7.
Pursuant to 9 U.S.C. § 207, the Court is required to "confirm the award unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the [New York] Convention." Those specified grounds can be found under Article V of the Convention. Specifically, Article V(1) authorizes the Court to deny confirmation of the arbitral award under the following circumstances:
Furthermore, Article V(2) of the Convention provides the Court with two additional grounds for denying recognition of an arbitral award:
As one federal circuit court has observed, "[t]here is now considerable case[]law holding that ... the grounds for relief enumerated in Article V of the Convention are the only grounds available for [denying recognition or enforcement] of a [foreign] arbitral award." Yusuf Ahmed Alghanim & Sons v. Toys "R" Us, Inc., 126 F.3d 15, 20 (2d Cir.1997) (emphasis added) (citing M & C Corp. v. Erwin Behr GmbH & Co., KG, 87 F.3d 844, 851 (6th Cir.1996); Int'l Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Industrial Y Comercial, 745 F.Supp. 172, 181-82 (S.D.N.Y.1990); Brandeis Intsel Ltd. v. Calabrian Chems. Corp., 656 F.Supp. 160, 167 (S.D.N.Y.1987); and Albert Jan van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation 265 (1981)); see also TermoRio, 487 F.3d at 935 (D.C.Cir.2007) (quoting Yusuf, 126 F.3d at 23) (concluding that where an enforcement action is brought in a jurisdiction outside of where the arbitral award was rendered, "the state may refuse to enforce the award only on the grounds explicitly set forth in Article V of the Convention"). Given that the
The Court also must remain mindful of the principle that "judicial review of arbitral awards is extremely limited," and that this Court "do[es] not sit to hear claims of factual or legal error by an arbitrator" in the same manner that an appeals court would review the decision of a lower court. Teamsters Local Union No. 61 v. United Parcel Serv., Inc., 272 F.3d 600, 604 (D.C.Cir.2001) (quoting Kanuth v. Prescott, Ball & Turben, Inc., 949 F.2d 1175, 1178 (D.C.Cir.1991)). In fact, careful scrutiny of an arbitrator's decision would frustrate the FAA's "emphatic federal policy in favor of arbitral dispute resolution," Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (internal citation omitted)—a policy that "applies with special force in the field of international commerce," id.—by "undermining the goals of arbitration, namely, settling disputes efficiently and avoiding lengthy and expensive litigation," LaPrade v. Kidder, Peabody & Co., 94 F.Supp.2d 2, 4-5 (D.D.C.2000) (Sullivan, J.), aff'd 246 F.3d 702 (D.C.Cir.2001). Instead, "a court must confirm an arbitration award where some colorable support for the award can be gleaned from the record." Id.
As the Court noted in its prior memorandum opinion, "[t]he remaining question in this matter ... is whether the Court should grant BG Group's cross-motion to confirm the Award." Republic of Argentina, 715 F.Supp.2d at 126. Argentina argues that the Award should not be confirmed by the Court because (1) the arbitral panel "completely disregard[ed] the terms of the parties' agreement to submit to arbitration," Pet'r's 3d Supp. Mem. at 6; (2) the arbitral panel improperly allowed BG Group to present a "derivative" claim in contravention of United States and international law, see id. at 13-14; and (3) the arbitral panel improperly held Argentina "liable to pay compensation for the consequences of an economic crisis," id. at 17. As to the first and third issues, Argentina argues that the arbitral panel exceeded its powers in reaching the conclusions that it did, see id. at 12, 22, and that as to all three issues, Argentina contends that recognition of the Award, given these alleged errors, would be contrary to the well-settled public policy of the United States, see id. at 16, 18; Tr. 8:20-21:15, Sept. 28, 2010.
As an initial matter, the Court has serious doubts about whether Article V(1)(c) of the New York Convention authorizes this Court to deny confirmation of the Award on the ground that the arbitral panel exceeded
Nonetheless, the Court need not conclusively decide whether Article V(1)(c)
Turning to the issue of whether recognition of the Award would be contrary to the public policy of the United States, the Court finds it helpful to review some foundational and relevant legal principles in this regard. "The public policy defense" under the New York Convention "is to be construed narrowly [and] applied only where enforcement would violate the forum state's most basic notions of morality and justice." TermoRio, 487 F.3d at 938 (quoting Karaha Bodas Co., 364 F.3d at 305-06). More specifically, the Court's authority to deny recognition of an arbitral award under the New York Convention "is limited to situations where the contract as interpreted [by the arbitrators] would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests." Banco de Seguros del Estado v. Mutual Marine Office, Inc., 344 F.3d 255, 264 (2d Cir.2003) (emphasis added and alteration in original) (quoting United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 43, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987)). This does not mean, however, that an arbitral award may be denied confirmation simply because it violates some statute in existence in the United States. As one court noted:
Argentina argues that the Court should deny confirmation of the arbitral award under Article V(b)(2) because it did not consent to arbitrate this dispute. From Argentina's perspective, the Court must first "second guess" the arbitral panel's conclusion that this dispute was arbitrable, see Tr. 4:11-15, Sept. 28, 2010 ("THE COURT: But why should I question the [a]rbitration [p]anel's decision as to its authority to issue the arbitration award? You're not suggesting I should second[-]guess that, are you? MR. BOTTINI: Yes, Your Honor, we are saying that."), and instead adopt its interpretation that Argentina's consent to arbitrate this dispute rested on the condition that "the dispute had to be submitted for [eighteen] months to ... an Argentine judge," id. at 5:5-7, id. at 7:15-18. Then, Argentina urges the Court to find that because this condition was not met, it therefore did not consent to arbitrate this dispute, and thus enforcement of the Award would contravene the principle that "arbitration of a particular dispute" is to occur only when "the parties agreed to arbitrate that dispute." Granite Rock Co. v. Int'l Brotherhood of Teamsters, ___ U.S. ___, ___, 130 S.Ct. 2847, 2856, 177 L.Ed.2d 567 (2010); see also Stolt-Nielsen, ___ U.S. at ___, 130 S.Ct. at 1773 (recognizing "the basic precept that arbitration `is a matter of consent, not coercion'" (quoting Volt Information Sciences, Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)).
Argentina's analytical approach is flawed, however. As the authorities cited above command, the Court is without authority to deviate from the arbitral panel's interpretation of the Investment Treaty in determining whether enforcement of the Award would contravene the public policy of the United States. Rather, the Court must accept as correct the arbitral panel's construction of the Investment Treaty in determining whether the agreement violates public policy. See Banco de Seguros del Estado, 344 F.3d at 264 (quoting United Paperworkers Int'l Union, 484 U.S. at 43, 108 S.Ct. 364) (holding that the question to be resolved on a challenge under Article V(2)(b) is whether "the contract as interpreted would violate some explicit public policy" (emphasis added)); cf. Nat'l R.R. Passenger Corp. v. Consol. Rail Corp., 892 F.2d 1066, 1070 (D.C.Cir.1990) (quoting W.R. Grace & Co. v. Local Union 759, Int'l Union of the United Rubber, Cork, Linoleum & Plastic Workers of America, 461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983)) (concluding in the context of the FAA that it is the duty of the courts to resolve "question[s] of public policy [that are] implicated under the contract as interpreted" (emphasis added)).
Id. at 943, 115 S.Ct. 1920 (citing 9 U.S.C. § 10). In other words, where the parties have conferred upon the arbitrator the authority to determine whether the dispute is arbitrable, then judicial review of that decision "is extremely limited," and this Court is without authority "to hear claims of factual or legal error by an arbitrator." Teamsters Local Union No. 61, 272 F.3d at 604 (quoting Kanuth, 949 F.2d at 1178). Thus, it is the arbitral panel's interpretation of the Investment Treaty, and not Argentina's (or this Court's), that controls the Court's analysis.
Accepting, as it must, the arbitral panel's construction of the Investment Treaty, it is evident to the Court that Argentina was not compelled to arbitrate this dispute without its consent, and thus there was no violation of the principle set forth in Granite Rock.
Next, Argentina argues that the arbitral panel's decision to allow BG Group to directly proceed against Argentina on a "derivative claim[] ... is contrary to the public policy of the United States of America." Pet'r's Supp. Mem. at 16. Specifically, Argentina asserts that it was MetroGAS that directly suffered harm as a result of the various measures enacted in 2002, id. at 13, and that any damages suffered by BG Group were limited to the decrease in the value of its shares in Gas Argentino, S.A. and MetroGAS, id. at 12. Argentina further contends that it is well-established in both international and United States jurisprudence that "a shareholder does not have an individual cause of action against third parties for wrongs or injuries to the corporation in which he or she holds stock," id. at 14, and that the adjudication of this claim by the arbitral panel, therefore, violates this principle, id. at 16.
The Court agrees with Argentina that, as a general matter, a shareholder cannot "maintain a direct action when the alleged injury is inflicted on the corporation and the only injury to the shareholder is the indirect harm which consists of the diminution in the value of his or her shares." Lapidus v. Hecht, 232 F.3d 679, 683 (9th Cir.2000); see also Labovitz v. Washington Times Corp., 172 F.3d 897, 902 (D.C.Cir.1999) (recognizing the "general principle[] of corporate law" that a shareholder "cannot recover on account of injury done to the corporation" (internal quotation marks omitted)). But what Argentina fails to recognize is that there are numerous exceptions to this rule, including where "a special contractual duty exists." Nocula v. UGS Corp., 520 F.3d 719, 726 (7th Cir.2008); see also Oliver v. Sealaska Corp., 192 F.3d 1220, 1226 (9th Cir.1999)
These principles, when applied to the facts of this case, refute Argentina's argument that BG Group could not bring a direct action against it under the Investment Treaty. There is no question that Argentina, as a "contracting party," directly owed BG Group, an "investor," the duty under the Investment Treaty to refrain from enacting "unreasonable or discriminatory measures" that would "impair ... the management, maintenance, use, enjoyment, or disposal of investments in its territory."
Finally, Argentina asserts that the arbitral panel's assessment of damages in this case is contrary to the public policy of the United States. Pet'r's 3d Supp. Mem. at 17. It is important to note here that, as far as the Court can tell, Argentina does not dispute the general rule applied by the arbitral panel in assessing the award of damages in this case, to wit, the difference in the value of BG Group's "investment in MetroGAS immediately before and after promulgation of the [emergency measures]," Award ¶ 438; see also id. ¶ 443 (calculating damages based on the difference between the value of BG Group's investment prior to enactment of the emergency measures and the value of the investment after Argentina's measures were in place). What Argentina does take issue with is what it believes to be the arbitral panel's failure to assess the fair market value of BG Group's shares in MetroGAS as of the date when the emergency measures went into effect, Pet'r's 3d Supp. Mem. at 22, which was January 6, 2002, Pet'r's Pet. at 6-7; Respt't's Cross-Mot. at 2. Specifically, Argentina argues that the arbitral panel should have appraised the value of BG Group's investment on "the day before the [emergency] measures" were taken, Tr. 17:7, Sept. 28, 2010, when the Argentine economy had already collapsed, Pet'r's 3d Supp. Mem. at 18, instead of assessing "the value of BG[Group's] stake in MetroGAS in 1998.... when the Argentine economy was at its peak," id. at 18, by relying on the July 12, 1998 transaction involving the sale of Gas Argentino, S.A. shares, Award ¶ 441. Argentina asserts that the arbitral panel's valuation of BG Group's investment resulted in Argentina being "held responsible... for the effects of the economic crisis it suffered between 1998 and 2001," and thus the arbitral panel's ruling conflicts with both the principle that "[a]ctual pecuniary loss sustained as a direct result of the wrong is the measure to be applied in fixing damages," Pet'r's 3d Supp. at 22 (citing Ainger v. Michigan General Corp., 476 F.Supp. 1209, 1233 (S.D.N.Y.1979)),
These arguments are without merit. For starters, Argentina distorts the arbitral panel's reliance on the 1998 transaction. At the onset of its analysis regarding Mr. Wood-Collins's damages
Award ¶ 430. At no point in its analysis, however, did the arbitral panel take issue with Mr. Wood-Collins's conclusion that January 1, 2002, should be the starting point for measuring the loss in BG Group's investment. Award ¶ 438. Rather, the only concern expressed by the arbitral panel regarding Mr. Wood-Collin's assessment of the fair market value of BG Group's investment was that his figures were "uncertain and speculative." Id. ¶ 439. The panel concluded that the more "objective indication of the value of BG[Group's] investment," id. ¶ 440, were actual transactions that reflected MetroGAS's fair market value, id. ¶ 443 (noting that the arbitral panel's calculation of damages was "based on actual transactions") (emphasis added); specifically, the cancellation of debt totaling $38,200,000 "in exchange for an 18.8% interest in MetroGAS that took place after the enactment of Argentina's emergency measures, see id. (concluding that the "Ashmore/Marathon transaction .... provides an objective indication of the value of BG [Group's] investment after the Emergency Law"), and the sale of a 25% interest in Gas Argentino, S.A. for $75,000,000, id. ¶ 442 (concluding that a 1998 transaction involving an interest in MetroGAS "is also a better proxy of the value of BG[Group's] investment before promulgation of the Emergency Law"). It is not the case, therefore, that the arbitral panel found that July 12, 1998, was the appropriate date from which to measure the damages suffered by BG Group; instead, the panel agreed (albeit implicitly) with Mr. Wood-Collins that January 1, 2002, was the starting point for calculating the damages in this case, but in reaching this conclusion, it found that the value of MetroGAS's shares, as reflected by the July 12, 1998 transaction, was a "better proxy of the value of BG[Group's] investment before promulgation of the [e]mergnecy [l]aw." Award ¶ 442.
As a practical matter, this analytical distinction makes little difference because under the arbitral panel's calculus, its exclusive reliance on the July 12, 1998 transaction has the result of equating the value of BG Group's investment in MetroGAS in 1998 with the value of that investment on January 1, 2002. As a legal matter, however, this distinction is significant. Had the arbitral panel concluded that July 12, 1998, was the correct starting point to measure the damages suffered by BG Group, even though the act that caused the injury—the promulgation of the emergency law—occurred on January 1, 2002, then Argentina would have a colorable argument that it is being held accountable for something more than just "the actual pecuniary loss sustained as a direct result of the wrong." Ainger, 476 F.Supp. at 1233. But, because the arbitral panel measured the fair market value of BG Group's investment in MetroGAS as of January 1, 2002, Argentina's challenge must not be directed at the date at which the panel measured the damages, but rather at the fact that the arbitral panel relied on the 1998 transaction to appraise the fair market value of BG Group's investment in MetroGAS in 2001. Given that the employment of the "fair market value" standard "as a measuring device in the workaday world of business" does not include resorting to "the equivalent of a precise scientific formula," McDonald v. Comm'r,
Neither does the Award contravene the principle of "just compensation" as set forth in the Fifth Amendment. The Takings Clause of the Fifth Amendment "prohibits the government from taking private property for public use without just compensation." Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (emphasis added). For the Court to find that enforcement of the Award would offend the policy of the "just compensation" mandate of the Fifth Amendment, the Court would have to conclude (1) that there was a government taking; (2) that the taking was of private property for public use; and (3) that the taking occurred without providing "just compensation." U.S. Const., amend. V. It had been Argentina's position during the arbitration proceeding, however, that no government expropriation occurred in this case. See Award ¶ 252 ("Argentina denied that any expropriation under Article 5 of the [Investment Treaty] has occurred."). Indeed, the arbitral panel sided with Argentina on this point, reasoning that "the impact of Argentina's measures has not been permanent on the value of BG[Group's] shareholding in MetroGAS," as the "business never halted, continues to operate, and has an asset base which is recovering." Award ¶ 270. Thus, enforcement of the Award cannot be said to be contrary to the Takings Clause when, as Argentina successfully demonstrated in the arbitration, there had been no improper government expropriation of BG Group's investment.
To the extent Argentina is asserting that the arbitral panel's issuance of the Award itself violates the Takings Clause and contravenes the public policy of the
"A judgment is unenforceable as against public policy to the extent that it is `repugnant to fundamental notions of what is decent and just in the State where enforcement is sought.'" Ackermann, 788 F.2d at 841 (quoting Tahan, 662 F.2d at 864). Argentina's attempts to convince the Court to deny confirmation of the Award fall exceedingly short of this standard. Indeed, Argentina failed to establish that the arbitral panel's interpretations of the Investment Treaty contravened any well-settled law or case precedent, let alone that its rulings were contrary to a principle so inextricably woven into the fabric of American jurisprudence to warrant this Court's intervention. Having failed to meet "the showing required to avoid summary confirmation," Ottley, 819 F.2d at 376, the Court concludes that the Award must be confirmed, and that BG Group is entitled to damages of $185,285,485.85, along with interest, costs for the arbitration, and attorneys' fees.
Furthermore, the Investment Treaty provides that "where the dispute is referred to international arbitration," the parties "may agree to refer the dispute either to: (a) the International Centre for the Settlement of Investment Disputes [(the "ICSID")] ... or (b) an international arbitrator or ad hoc arbitration tribunal... under the Arbitration Rules of the United Nations Commission on International Trade Law [(the "UNCITRAL Rules")]. Award at 6 (citing Article 8(3)(a)-(b) of the Treaty). Here, "[b]ecause the [p]arties failed to agree on submission of the dispute to [the ICSID], [BG Group] submitted the arbitration under [the UNCITRAL Rules]." Id. at 7.