Investor-State Arbitration (LAW-795-018)
Kalicki
Meets: 06:00 PM - 09:00 PM (MTWTH) - Room 526
Enrolled: 9 / Limit: 23
Notices
Meets 6/4/2012 - 6/7/2012 This course is part of the 2012 International Commercial Arbitration Summer Program. The session brings together world-renowned practitioners and arbitrators. Luncheons and networking activities provide participants with the opportunity to exchange information and interact with their peers and expert instructors. For more information about extracurricular activities please go to: https://www.wcl.american.edu/arbitration/summer_network_activities.cfm A certificate of attendance will be available to students upon request. Exam Information: A final examination will consist of a 24-hours take-home exam. Given the interrelated nature of these courses, students taking more than one course can choose to take all the exams at the end of the three week session. Students are allowed the accumulated time allowed for each individual exam. In that way, students can use the knowledge they have acquired through the whole session. Students may download the take-home exams from the day after the last class of the course has taken place. The exam will be available online until Monday, July 2, 2012 at MyWCL.
Description
The course provides an overview of arbitration under Investment Treaties – including NAFTA (chapter 11) arbitration – and ICSID Arbitration of Disputes under Investment Treaties. The course also addresses “hot topics” in Investor-State Arbitration including transparency and third party participation, denial of justice and resort to local courts, provisional measures, parallel proceedings and diplomatic protection, substantive issues in annulment proceedings, proposals for appeal mechanisms, and enforcement of awards. Investor-state arbitration is becoming one of the most relevant developments in international arbitration. In general, international commercial arbitration takes place between private parties (including state-owned companies acting in a non-sovereign capacity). However, during recent decades there has been a significant growth in arbitrations involving state parties, including those originating in investment treaties and general commercial contracts. Consequently, investor-state arbitration is a new area of the law. The vast majority of claims and decisions have only occurred in the last ten years, and many areas of the law and procedure remain to be developed. Its novelty and complexity has created a need for courses and programs that train students in this growing area of law. For more information, please see the International Commercial Arbitration Home page here.
Textbooks and Other Materials
The textbook information on this page was provided by the instructor. Students should use this information when considering purchases from the AU Campus Store or other vendors. Students may check to determine if books are currently available for purchase online.
Class materials will be available at MyWCL. Please contact arbitration@wcl.american.edu for more information READING ASSIGNMENTS: 1. UNCTAD Course on Dispute Settlement in International Trade, Investment and Intellectual Property (2003) (Chapter 2.1, pp. 5-12, 15-16; Chapter 2.2, pp. 7-12 -- page 8 is intentionally missing) 2. UNCTAD, Investor-State Dispute Settlement and Impact on Investment Rulemaking (2007), pp. 37-61 3. UNCTAD, Latest Developments in Investor-State Dispute Settlement, II.A Monitor No. 1 (2009) 4. Skim U.S. Model Bilateral Investment Treaty (2004), available at http://www.state.gov/e/eb/rls/othr/38602.htm 5. José E. Alvarez, “The Evolving BIT,” TDM (Provisional) (June 2009) 6. UNCTAD Course on Dispute Settlement in International Trade, Investment and Intellectual Property (2003) (item 1 above) (Chapter 2.3, pages 5-39 -- pages 10, 16, 22, 28 and 36 are intentionally missing) 7. Julian Davis Mortenson, The Domain of Investment Law, Kluwer Arbitration Blog (2011) 8. Christoph Schreuer, “Traveling the BIT Route: Of Waiting Periods, Umbrella Clauses and Forks in the Road,” 5 J. World Investment & Trade 231 (2004) 9. James Crawford, “Treaty and Contract in Investment Arbitration,” 24(3) Arbitration International 351 (2008) 10. Guido Santiago Tawil, “Most Favoured Nation Clauses and Jurisdictional Clauses in Investment Treaty Arbitration,” in INTERNATIONAL INVESTMENT LAW FOR THE 21ST CENTURY: ESSAYS IN HONOR OF CHRISTOPH SCHREUER (Christina Binder, Ursula Kriebaum, August Reinisch, Stephan Wittich, eds.) pages 9-30 (2009) 11. Aurélia Antonietti, “The 2006 Amendments to the ICSID Rules and Regulations and the Additional Facility Rules,” 21 ICSID Review – F.I.L.J. 427 (2006) 12. ICSID Caseload — Statistics (2012), available at http://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDDocRH&actionVal=CaseLoadStatistics 13. Anthony Sinclair, “ICSID Arbitration: How Long Does it Take?,” 4(5) Global Arbitration Review (2009) 14. Skim ICSID Convention, available at http://www.worldbank.org/icsid/basicdoc/basicdoc.htm 15. Skim ICSID Arbitration Rules, available at http://www.worldbank.org/icsid/basicdoc/basicdoc.htm 16. Oxus Gold v. Uzbekistan -- Litigation Funding Disclosure. 17. Noah Rubins, “Opening the Investment Arbitration Process: At What Cost, for What Benefit?,” 3(3) TDM (June 2006) 18. UNCTAD Course on Dispute Settlement in International Trade, Investment and Intellectual Property (2003) (item 1 above) (excerpts: Chapter 2.8, pp. 13-33 -- pages 16 and 30 are intentionally missing) 19. Irmgard Marboe, “ICSID Annulment Decisions: Three Generations Revisited,” in INTERNATIONAL INVESTMENT LAW FOR THE 21ST CENTURY: ESSAYS IN HONOR OF CHRISTOPH SCHREUER (Christina Binder, Ursula Kriebaum, August Reinisch, Stephan Wittich, eds.) pages 200-220 (2009) 20. Promod Nair and Claudia Ludwig, “ICSID Annulment awards: the fourth generation?,” GLOBAL ARBITRATION REVIEW (Oct. 2010) 21. Edward Baldwin, Mark Kantor & Michael Nolan, “Limits to Enforcement of ICSID Awards,” 23(1) J. of Int’l Arbitration 1 (2006) 22. August Reinisch, “The Future of Investment Arbitration,” in INTERNATIONAL INVESTMENT LAW FOR THE 21ST CENTURY: ESSAYS IN HONOR OF CHRISTOPH SCHREUER (Christina Binder, Ursula Kriebaum, August Reinisch, Stephan Wittich, eds.) pages 894-916 (2009)
First Class Readings
International Arbitration and the Foundations of Investor-State Arbitration • Cornerstones of international arbitration: consent, flexibility, neutrality, enforcement • Use in public international law and public/private settings, comparison with alternate mechanisms (diplomatic protection, recourse against States through national courts) Bilateral and Multilateral Investment Treaties • Typical substantive protections • Evolution of BITs (1990s BITs, NAFTA Ch. 11, 2004 US Model BIT, etc.)