LAWCOMM 702 - International Arbitration

Overview

International arbitration involves many interesting facets of the law including customary international law, the law of treaties, conflict of laws, soft law and contract law. It has become the preferred dispute resolution option in international business. It has also been incorporated as the standard dispute resolution method in bilateral and multilateral investment treaties and in free trade agreements such as that between New Zealand and China (2008), New Zealand and Korea (2015) and more recently the Trans Pacific Partnership (2016) (now renamed as the Comprehensive and Progressive Agreement for Trans Pacific Partnership).

The course will begin on the first day with an introduction to the legal fundamentals of international commercial arbitration. The rest of the course will then focus on certain specific aspects of international commercial arbitration and introduce students to the field of investment treaty arbitration. We will cover both practical and more theoretical issues.

The course will be of particular interest to students contemplating a career in arbitration and/or international law, but we hope you all enjoy the course regardless of your future aspirations. On completion of the course, you should have developed an understanding of global diversity and harmonisation in approaches to resolution of commercial disputes, an understanding of the importance of choosing appropriate methods of dispute resolution to the enforcement of legal obligations; the dynamic features of transnational law making; and structure of, and policy issues relevant to, the arbitration of foreign investment disputes.

Course outline

14 March: Introduction; applicable laws [morning session: Amokura]

  • The laws of international arbitration - regulatory overview
  • National law of arbitral procedure - Introduction to the UNCITRAL Model Law
  • Non-national substantive law in arbitration

Applicable laws [afternoon session: Anna]

  • New York Convention
  • Institutional Rules
  • Soft Law

Attend AMINZ Arbitration Seminar on Discovery in Arbitration, ICSID Arbitration, and Counsel’s views of Arbitrators vs. Arbitrators’ views of Counsel.

15 March: Practical aspects of international arbitration [morning session: Anna]

  • Arbitration clauses
  • Applicable law
  • Commencing an arbitration - Jurisdiction
  • Tribunal Secretaries
  • Ethics

Preparing a case: Arbitral Procedure [afternoon session: Tim Lindsay]

  • To include - Bifurcation/form of pleadings/document production

16 March: Interface with national courts [morning and afternoon: Amokura]

  • Arbitrability
  • Interim measures and anti-suit injunctions
  • Setting aside
  • Enforcement
  • Philosohpical reflections on international arbitration law

19 March: Introduction to investment treaty arbitration/ISDS [morning: Amokura]

  • Development of the system
  • Trans Pacific Partnership case study

Introduction continued [afternoon session: Anna]

  • UNCITRAL v ICSID
  • Definition of “investor”
  • Definition of “investment”

20 March: Investment treaty arbitration [morning and afternoon: Anna]

  • Standards of Treatment under Investment Treaties:
    • Fair and Equitable Treatment
    • Full Protection and Security
    • Expropriation
    • Most-Favoured-Nation Treatment and National Treatment
    • The “Umbrella Clause”
  • Annulment, Review and Enforcement of Investment Treaty Awards

Course materials

You have been provided with online access via Canvas to the following:

  1. Primary materials, including the UNCITRAL Model Law, the 1958 New York Convention, ICC Rules and the ICSID Convention
  2. Other materials and cases referred to in the reading list below

Reading

All of the required readings are contained in the materials on Canvas, except for the excerpts from Williams & Kawharu on Arbitration. Williams & Kawharu is available for purchase from the University of Auckland bookshop, Ubiq, or from www.lexisnexis.co.nz. The text is also available on Short Loan in the Davis Law Library. We strongly recommend that you read chapter 1, chapter 20, and para [25.1.1] of chapter 25 in Williams & Kawharu, before you begin working through the reading list. We expect that students will have read the materials before class and will come prepared to discuss them.

Assessment

100% research essay of 12,500 words.

Each student is required to submit a research essay of no more than 12,500 words including an abstract/synopsis of up to 500 words. The essay is to be original work, relying on secondary and primary sources. It must be the work of the enrolled student. Another person, other than the enrolled student, MUST NOT write the essay nor do the research on behalf of the enrolled student. Plagiarism is not permitted and in that regard each student should read the University’s plagiarism policy and adhere to it. All students will be expected to sign a plagiarism declaration when submitting their essays. Students must also use proper legal citations and include a reading list at the end of their type-written essay, complying with the New Zealand Law Style Guide. The essay should be comprised of properly crafted English sentences (note form is unacceptable). The use of sub-headings is encouraged and footnotes rather than Harvard style in-text referencing are to be used.

Descriptive essays are not encouraged. Instead students are expected to engage with relevant legal issues by, for example, critiquing the law; developing proposals for reform; examining the operation of law and policy in practice; and/or providing a conceptual analysis of the law. For inspiration on possible research topics, and for insights into topical issues, students may wish to review the contents of recent arbitration and investment law journals (such as Arbitration International, the ICSID ReviewJournal of World Trade and Investment and Journal of International Economic Law), recent publications by international organisations in the field (such as the ICC, UNCITRAL, ICSID and UNCTAD - the latter on investment treaty arbitration), and the freely accessible Kluwer Arbitration Blog. Students must confirm their proposed research topics with us before commencing research.

Information on the Faculty grading guidelines that we apply is available on Canvas.

Essays must be submitted to the Faculty of Law, 12 noon, 31 May 2018. Extensions will not be granted lightly and must be requested formally through the Postgraduate Manager. We (as your lecturers) are unable to grant extensions.

Course details

Timetable

Semester: One    
Type: Intensive    
Date: 14-20 March 2018    
Times:

9-10.45am
11am-12 noon

1.30-3pm
3.15-4.30pm

   
Venue: Building 810, Room 3.40
1-11 Short Street
   
Points: 30    
Assessment due date: by 12 noon, 31 May 2018    

Contact details

Law Student Centre
Level 2, 1-11 Short St
Email: postgradlaw@auckland.ac.nz