Spring 2019 Course Schedule

Bilateral Investment Treaty Arbitration (LAW-972-001)
Nigel Blackaby, Caroline Richard

Meets: 08:30 AM - 10:20 AM (Tu) - Yuma - Room Y115

Enrolled: 21 / Limit: 22

Administrator Access


Notices

This will be a highly interactive class. We will have a debate on the controversies surrounding investment treaty arbitration, and we will have a fun in-class moot competition that will serve as a practice run for the take-home exam (the moot is always based on last year’s exam).

Please register for this class if you want to learn to think like a corporate lawyer in a dispute resolution context. Join us if you want to think practically about the concerns investors have when taking their capital abroad, and if you want to understand a highly practical discipline in international arbitration that corporations think about every single day.

Description

- This is a practical class that follows the course of an investment treaty arbitration, from the perspective of investment treaty counsel and parties, from beginning to the very end.

- we will start at the very outset, when political risk materializes (an expropriation, a denial of a permit, a change in regulation) and we will look at ALL THE OPTIONS open to investors. Should the investor challenge the government measure before the courts? Should it sue under its contract? Should the investor ask its home state to put diplomatic pressure on the state hosting its investment? Or should it bring a claim under an investment treaty? We will discuss the advantages and disadvantages of all of these dispute settlement methods, and the circumstances investment treaty arbitration makes sense (and when it doesn’t make sense)

- we will then spend 3 weeks looking at how to create jurisdiction for an investment claim, or from the perspective of the State, how to defend against a claim through jurisdictional arguments. This is more exciting that it seems! For instance, what if the investment was procured through corruption? Can a tribunal resolve a claim from an investor that comes to the table with unclean hands? Also, what about forum shopping? Can an investment in a given country, say the Ukraine, is ultimately controlled by Ukrainian nationals, but it is structured through third states in order to benefit from investment treaty protection, should the tribunal hear the claim?

- then we will spend a few weeks discussing the substantive protections provided by investment treaties. What limitations do those treaties place on sovereign states? Does it prevent them from legislating in the public interest? Does it elevate purely contractual claims to the level of a claim under international law? Much of the controversy over ISDS - including the Trump administration’s pulling out of the Trans Pacific Partnership agreement and the renegotiation of NAFTA - relates to the scope of these protections.

- finally, we will talk about damages. Ultimately, these cases are all about damages, and the way in which these damages awards can be enforced against STate assets around the world? Ever wonder why CITGO, a US company controlled by the Venezuelan government, was recently seized? It is because of investment treaty arbitration.

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.

Readings will be posted soon in MyWCL.

First Class Readings

Readings will be posted soon in MyWCL.