Master 2022/2023

Investment Arbitration

Category 'Best Course for Career Development'

Category 'Best Course for Broadening Horizons and Diversity of Knowledge and Skills'

Category 'Best Course for New Knowledge and Skills'

Type: Elective course (Law of International Trade and Dispute Resolution)

Area of studies: Law

Delivered by: School of International Law

Where: Faculty of Law

When: 2 year, 1, 2 module

Mode of studies: offline

Open to: students of all HSE University campuses

Instructors: Konstantin Ksenofontov

Master’s programme: Law of International Trade, Finance and Economic Integration

Language: English

ECTS credits: 6

Contact hours: 32

Course Syllabus

Abstract

This course is aimed on developing more profound knowledge of rules governing resolution of complex disputes between investors and host states. Students already familiar with the modern system of international protection of foreign investment will get more in-depth understanding of procedural aspects of investor-state dispute settlement. The course will be focused on various stages of a dispute resolution process: from filing a notice of claim to setting-aside an arbitral award. Topics like appointment and challenging arbitrators, document discovery, examining and cross-examining witnesses will be covered extensively. The course will thoroughly explore the problems currently faced by the modern investor-state dispute settlement system and ways to address them, including the investment dispute settlement reform discussed under the auspices of UNCITRAL and other institutions.

Learning Objectives

• The aim of the course is to provide students with a theoretical and practical understanding of procedural aspects of investor-state dispute settlement. Students will familiarize themselves with the process of preparation and drafting of various procedural documents and will be equipped with necessary legal writing skills as well as with knowledge of key documents and doctrinal sources.
• Students must gain knowledge on procedural framework for resolution of disputes concerning foreign investment including the UNCITRAL Arbitration Rules and the ICSID Institution Rules; applicable guidelines and “soft law” rules, including but not limited to the IBA Guidelines on Conflicts of Interest in International Arbitration, the IBA Rules on the Taking of Evidence in International Arbitration, and others.
• Skills and abilities: to understand how a typical arbitration is conducted and divided in stages, what is expected from legal counsel at each stage; to use specific procedural rules and to know their contents; practical abilities to research relevant sources, including case law and doctrine; skills to advise clients on procedural aspects of international investment arbitration; understanding of arbitrators’ selection process; ability to draft specific procedural documents (e.g. Redfern schedules, notices of challenge, etc.).
• Students should gain the following competences: ability to work with information (search, evaluate, use information, necessary for fulfilment of academic and professional tasks, from various sources, including application of the systematic approach); ability to carry out professional activities in the international environment; ability to search, analyze, and work with relevant information by using the juridical, comparative and other specific methods.

Expected Learning Outcomes

• ability to work with information (search, evaluate, use information, necessary for fulfilment of academic and professional tasks, from various sources, including application of the systematic approach);
• ability to carry out professional activities in the international environment;
• ability to search, analyze, and work with relevant information by using the juridical, comparative and other specific methods.

Course Contents

• 1. Introduction to International Investment Arbitration
• 2. Jurisdiction of investor-state tribunals
• 3. Procedural framework
• 4. Arbitrators in investor-state disputes
• 5. Arbitral procedure and interim measures
• 6. Evidence in investor-state arbitration
• 7. Awards and costs
• 8. Recent developments and ISDS reform

Assessment Elements

• Attendance, active participation and in-class discussion
• Intermediate test 1 (selection of arbitrators)
  Students will search for appropriate arbitrators for a hypothetical dispute between an investor and a host state using any sources they can find. Students will have to prepare a short list of candidates and substantiate their choice.
• Intermediate test 2 (challenging arbitrators)
  Students will draft a notice of challenge for arbitrator(s) in a hypothetical case, taking into account the circumstances of the case and the background information on the arbitrator(s).
• Final test: written take-home exam
  Exam for the course will be set up as a take-home exam session. The exam is open book and any external sources may be used. Students are NOT allowed to consult with any other persons during writing their exam.

Interim Assessment

• 2022/2023 2nd module
  0.4 * Final test: written take-home exam + 0.2 * Attendance, active participation and in-class discussion + 0.2 * Intermediate test 1 (selection of arbitrators) + 0.2 * Intermediate test 2 (challenging arbitrators)

Bibliography

Recommended Core Bibliography

• Lim, C. L., Ho,Jean, & Paparinskis,Martins. (2018). International Investment Law and Arbitration. Cambridge University Press. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsrep&AN=edsrep.b.cup.cbooks.9781107180338

Recommended Additional Bibliography

• Vadi, V. (2015). Analogies in International Investment Law and Arbitration. Cambridge: Cambridge University Press. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsebk&AN=1105192