International Commercial and Investment Arbitration

The course is designed to acquaint students with a comprehensive view of the principles, laws, rules and praxis which govern international commercial and investment arbitration, the principal mechanism for resolving disputes arising out, on one hand, of cross border and transnational economic transactions between private companies and individuals (commercial) and, on the other hand, of foreign direct investment between States or state entities and private companies and individuals based in another jurisdiction (investment).
The course will firstly distinguish between, on one hand, international and domestic arbitration and, on the other hand, between arbitration and other frequently used ADR mechanisms (such as mediation, mini-trials, expert determination). It will then provide an historical perspective with a particular emphasis on the peculiar features of the phenomenon within the different legal traditions (Europe, Latin America, China and Japan, India, Australia, Russia) and on the main legal sources (international conventions, arbitration laws and arbitration rules).
The course will then address, in a critical and comparative perspective, all the main features of this alternative method of dispute settlement, such as the arbitration agreement (definition, validity, the law applicable to it, multi-party scenario, pathological clauses); the issue of arbitrability of disputes in sensitive areas (such as competition law, securities transactions, IP disputes, insolvency law, fraud, bribery and corruption); the relationship between arbitration and EU law (the duty of arbitrators to apply ex officio European public policy; the possibility for them to address the ECJ for a preliminary ruling; the relationship between Brussels I Recast and arbitration); the arbitral tribunal and all the issues related to it (impartiality and independence of the arbitrators; their appointment and challenge; their duties and responsibility); the issue of arbitral jurisdiction and its conflict with state courts' jurisdiction (parallel proceedings; anti-suit injunction); the conduct of the arbitral proceedings (principles and rules governing the procedure, the law applicable to the merits, the process of taking of evidence, interim measures); the role of national courts during the proceedings; the award (form and content); the setting aside proceedings against the award; the recognition and enforcement worldwide of the award under the New York Convention.
The course will then focus on investment arbitration, the main method for resolving disputes between States or state entities and private companies or individuals arising out of international investment contracts in the area of foreign direct investment ('FDI'), which represents one of the most relevant legal and economic phenomena of the last decades at an international level. It encompasses some of the most strategic industrial and economic activities worldwide (in the field of energy, telecommunication, financial activities, constructions, environment, shipping) and can be defined as an economic operation made by an investor (a physical or legal person) based in one country (the home state) into a company, entity or undertaking based in another country (the host state), over which the investor has a significant degree of influence and control. The settlement of disputes arising out of FDI can take in principle many forms (state courts' proceedings, mediation, arbitration and diplomatic protection), but arbitration, especially under ICSID rules, has enormously developed as the preferred method.