IA1009 | International Arbitration

This seminar will explore the two principal kinds of international arbitration: Investment arbitration and commercial arbitration. This seminar will be taught using the so-called Socratic Method as it is employed in American law schools, in order to expose students to this way of teaching the law, and also to prepare those students who may wish to pursue a degree in the United States.
International investment arbitration is really a subset of international investment law, and will be approached as such. This seminar will aim to develop in the students an understanding of, and an appreciation for, the important principles of international investment law. This will require an historical approach to the subject, which will allow students to see both why international investment the law is the way it is today, but also to see possibilities for what it could be. We will review the legal principles espoused by the United States and other Western countries at the beginning of the last century, when there were few independent countries interested in challenging these views.  We will then will consider the development of dissent from this Western consensus that emerged following the Second World War, when the number of countries in the world increased drastically as a result of decolonization, and the Cold War polarized views on many issues, including investment law.  After considering this period of discord, we will turn to the so-called “Washington Consensus” that developed in the 80s and 90s.  We then will focus on the thousands of investment treaties in force today, many of which have been influenced by the Washington consensus. We will also consider arbitral awards that have interpreted these treaties, to see the effects of investment law, and also the difficulties in applying it.  Here, the tension between state sovereignty and fairness towards investors will play a key part: when do state policies (such as policies concerning taxes, environmental protections, health issues, human rights, or labor conditions) become a violation of international investment law, and is this a problematic infringement on state sovereignty?
International commercial arbitration has become the preferred way of resolving business disputes in international business. We will consider the history of this kind of arbitration only briefly, and rather focus on understanding it advantages and its problems. This section of the seminar is organized not historically, but rather roughly traces a commercial arbitration from beginning to end. We begin with the arbitration agreement and the most relevant international treaties, and we will consider the issues that arise when an arbitration is being launched. Will then consider the arbitration process itself, and then turn to the award and its recognition and enforcement. In lieu of a conclusion to the course, we will seek to understand the new global order that arbitration has created. Throughout, we will consider whether international commercial arbitration indeed achieves its stated advantages of efficiency and fairness. Similarly, we will consider whether criticisms of international arbitration are justified. Critics of international commercial arbitration tend to see it as a way to circumvent state courts and thus see it as an attack on state sovereignty.