International commercial and investment arbitration

A.Y. 2020/2021
6
Max ECTS
42
Overall hours
SSD
IUS/13 IUS/15
Language
English
Learning objectives
Aims of the course
· Acquiring knowledge of the principles, rules and praxis governing international commercial and investment arbitration;
· Developing the skills to apply the acquired knowledge to civil, commercial and investment disputes referred to international commercial and investment arbitration;
· Making autonomous judgments on international commercial arbitration legal issues;
· Acquiring basic knowledge of the principal tools of written and oral legal advocacy, including the ability to convincingly argue a case, to draft a legal memorandum, to plead in front of a tribunal.
Expected learning outcomes
At the end of the course students will have an advanced knowledge of:
- Fundamental features of international commercial and investment arbitration
- Distinction between arbitration and other forms of ADR (such as mediation, expert determination, mini-trials)
- The application of this method of settling dispute in key economic areas, such as international contracts, company law, competition law, IP law, foreign direct investment
They will acquire a method on:
- Critical legal thinking
- Analysis of case law
- Solving complex legal problems by practical sessions of case analysis, discussion and moot courts
- Written and oral legal advocacy
Course syllabus and organization

Single session

Responsible
Lesson period
First semester
The teaching, if not carried out "in the presence", will be implemented using the two platforms Ariel and Microsoft Teams. In particular, on Ariel all the relevant material of the course will be uploaded, and it will be accessible and downloadable by each student; on the same platform the function "Forum" will be activated, which consistst in an interactive tool to facilitate communication between the teaching staff and the students on any issue concerning the organization and the contents of the course. The lessons will in principle be held in "synchronous" mode, ie through online lessons on the Microsoft Teams platform, possibly alternated with pre-recorded lessons, uploaded on the same platform ("asynchronous" mode). The teachers are always reachable through their respective institutional email.
Course syllabus
The course is aimed at providing students with a complete view of the principles, rules and practices that govern international arbitration (both commercial and investment), i.e. the main mechanism for resolving disputes arising, on the one hand, from economic and commercial transactions between private parties (companies or individuals) and, on the other, from the so-called foreign direct investment (or FDI) between States (or entities attributable to them) and private investors (natural or legal persons), located in a jurisdiction other than that State.
The course will first higlight the main differences between domestic and international arbitration, as well as between arbitration and other frequently used Alternative Dispute Resolution mechanisms in relation to commercial disputes (such as mediation, mini-trials, 'expert determination ...). It will therefore provide a historical perspective of the evolution of the arbitration phenomenon, with a particular focus on its peculiar characteristics within different legal traditions and geographical areas (Europe, Latin America, China and Japan, India, Australia, Russia). It will then deal with the main legal sources that govern the matter (international conventions, arbitration laws, arbitration rules, soft law instruments, lex mercatoria ...).
The course will then address, in a critical and comparative perspective, all the main procedural issues related to this alternative dispute resolution method (the arbitration agreement - definition, validity, the law applicable to it, multi-party scenarios, pathological arbitration clauses); the problem of arbitrability of disputes in some controversial sectors (such as competition law, financial transactions, industrial property, bankruptcy law) and in some peculiar circumstances (when fraud or corruption are alleged in the course of an arbitration procedure); the relationship between arbitration and EU law (the duty of arbitrators to apply ex officio rules of European public policy; the possibility for them to address the Court of Justice with a preliminary ruling's application; the relationship between the Brussels I bis Regulation and arbitration); the arbitral tribunal and all related issues (impartiality and independence of the arbitrators; their appointment and challenge; their duties and responsibilities); the question of the arbitration jurisdiction and its conflict with the state courts' jurisdiction (the phenomenon of parallel procedures on the same subject-matter; anti-suit injunctions ...); the conduct of the arbitration procedure (principles and rules governing the procedure, the law applicable to the merits, the process of taking of evidence, the provisional measures); the role of national courts during the procedure; the arbitration award (form and content); national setting aside procedures; recognition and enforcement of awards abroad under the New York Convention.
The course will then focus on international investment arbitration, i.e. the preferred method to resolve disputes between States (or entities attributable to them), on the one hand, and private investors (natural persons or companies) located in a different State, on the other hand, deriving from international investment agreements. The phenomenon, known as Foreign Direct Investment (or "FDI"), represents one of the most relevant legal and economic developments of the last decades at an international level. FDI concerns economic and industrial operations which are among the most strategic for States (concerning sectors such as energy, telecommunications, financial activities, procurements, distribution, waste disposal, etc.). Technically, FDI can be defined as an economic operation carried out by an investor (a natural or legal person) of a specific State (the so-called home State) through the implementation of an investment (ie an undertaking) in the territory of another state (the so-called host State), over which the investor exercises a significant degree of control. In principle, the resolution of disputes arising from an international investment can take different forms (state judicial proceedings, mediation, arbitration and diplomatic protection), but arbitration, especially on the basis of ICSID rules, is by far the most used method.
The course, after a brief historical introduction on investment law, will address issues such as the characteristics of the different means of dispute resolution in this field, the notion of "investment", the notion of "investor", the peculiarities of the arbitration procedure between States and private investors compared to "ordinary" commercial arbitration procedures, as well as the new European investment policy.
Prerequisites for admission
There are no specific prerequisites for attending the course, other than those generally provided for by the academic regulation of the degree. However, a very good command of the English language (both written and oral) as well as having passed the exams of Civil Procedure and Private International Law are highly recommended.
Teaching methods
Each topic of the course will be addressed not only from a theoretical-dogmatic point of view, but also through the lens of the case law, both arbitral and judicial, both Italian and foreign, as well as supranational.
The course adopts a practical-oriented approach. In addition to lectures and seminars, students will be actively involved in case presentations to the class, in joint discussions, in group work and in simulations of arbitration proceedings.
The positive and active attendance of the course will also be an element of assessment within the selection procedures for taking part in international legal competitions sponsored by our University (in particular the Wilelm C. Vis Moot Court Competition in Vienna - https://vismoot.pace.edu/ - and the Frankfurt Investment Arbitration Moot Court - http://www.investmentmoot.org/), as well as for professional internships abroad as part of the EU-funded Erasmus Placement program.
Teaching Resources
Lectures (and the exam) will be mainly based on specific reading materials circulated during the course (scholarly papers, arbitral and judicial case law, reports of national and int'l organizations, associations and institutions, research studies).
Students who intend to deepen their knowledge on the topics dealt with during the class can avail of the following referenes:

Nigel Blackaby, Constantine Partasides QC, Alan Redfern, and Martin Hunter, Redfern and Hunter on International Arbitration, 6th ed., Londra, 2015

Attila Tanzi, Federica Cristani (eds.), International Investment Law and Arbitration, Bologna, 2013.
Assessment methods and Criteria
Attendance to the course is compulsory.
Only students who attend at least 75% of the course's lessons are allowed to take the final exam.
The final mark (maximum 30/30 cum laude) will consist of an overall assessment of the participation and activities carried out by each student during the course, combined with the mark obtained in the final written test (lasting about 2 hours), which will consist of: a) 15 multiple choice questions; b) 2 open questions (or "short essays"; c) the resolution of a legal problem.
Students who do not accept the final grade can take an oral colloquium, during the dates of the official exam sessions, on the entire course program. The same applies to non-attending students, who must bring the entire course program to the oral colloquium.
IUS/13 - INTERNATIONAL LAW - University credits: 0
IUS/15 - CIVIL PROCEDURAL LAW - University credits: 0
Lessons: 42 hours
Professor: Henke Albert