Practical Aspects of International Dispute Resolution (LAW-795AD-001)
Luke Sobota, Charles Kotuby
Assessment:Assessment is based on a series of in-class and out-of-class exercises (moot court/oral argument, simulated mediation) that are each prefaced with take-home writing assignments (arbitration memorials, mediation statements, judicial pleadings). Class participation is taken into account.
With the growth of the global economy and with foreign states actively involved in the commercial sector, there has been a concomitant rise in conflicts between investors and foreign states. These are high stakes disputes, raising delicate sovereign, diplomatic, and social issues for the foreign state and significant business, financial, and strategic issues for the company. Yet the legal regime governing these disputes is both complicated and underdeveloped. Issues such as immunity, choice of fora and choice of law create pitfalls and opportunities that call for creative counsel. The result is a rich factual and legal backdrop that provides the opportunity for students to learn the practical and strategic interplay of doctrine and fora, and how to manage parallel processes in complex disputes.
The focus of the course is on practical skills and strategic considerations. The course will take students through a hypothetical dispute based upon realistic global scenarios so that they can master the practical and strategic problems present when a U.S. company becomes embroiled in a dispute with a foreign sovereign entity. The lectures will cover all of the substantive and procedural aspects of suing a foreign sovereign or sovereign entity in a U.S. court (like the Foreign Sovereign Immunity Act and the Act of State Doctrine). The course will also address the practical considerations of litigating in foreign courts, and the tools available for litigators to coordinate parallel U.S. and foreign litigation (like transnational discovery and antisuit injunctions). It will then explore commercial and treaty-based arbitration against foreign state-owned entities and states themselves, which may be pursued alternatively or in addition to U.S. and foreign litigation. As most disputes are ultimately mediated and settled, the course addresses the different ways by which the parties can reach a negotiated solution. Finally, the course reviews the issues surrounding asset attachment and recognition of judgment and arbitral awards against foreign sovereigns. Illustrating the practical and theoretical interplay among these scenarios, the focus will be on the strategic options presented at various junctures, as well as a focus on advocacy skills required across the domestic, foreign, and arbitral fora.
All of these issues will be considered through a single, intricate and simulated case. Every few weeks, the students will receive a detailed “case development” notice concerning some new facet of the case. After in-class discussion of the issues the relevant legal issues, the students will be divided into teams and tasked with preparing written and oral presentations—it may be a strategy session with a corporate general counsel or foreign attorney general, a pleading to a federal or foreign court, an arbitration memorial, or media or government outreach. The course thus offers students a balance of lectures, written advocacy and “stand up” experience before a varied audience, and the students will be assessed on their written and oral performance. Even those not interested in international law will hone the core writing and advocacy skills required of all attorneys engaged in dispute resolution. The class will also include a tour and mock hearing at the International Centre for Settlement of Investor Disputes (ICSID), one of the world’s leading arbitral facilities.
Textbooks and Other Materials
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First Class Readings
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