The course is designed to acquaint students with a comprehensive view of the principles, laws, rules and praxis which govern international commercial arbitration, the principal mechanism for resolving cross border disputes in civil and commercial matters, as well as with an introduction to the theory and praxis of written and oral legal advocacy.
· Acquiring knowledge of the principles, rules and praxis governing international commercial arbitration; · Developing the skills to apply the acquired knowledge to civil and commercial disputes deferred to international commercial 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;
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 students with an overview on how commercial arbitration developed over the centuries outside the state courts' system, with a particular emphasis on the peculiar features 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.
Each topic will be addressed not only from a theoretical point of view, but also through the lens of the most relevant arbitral and judicial case law. The module on Legal advocacy is aimed at providing students with the basic tools and skills of written and oral advocacy, consisting in presenting a case in front of an arbitral tribunal in a manner which is clear, well organized, efficient and persuasive. Key advocacy skills include identifying key legal, factual and evidential issues, case analysis, use of skeleton arguments, presenting an effective and coherent opening speech, oral submissions and debate skills, examinations-in-chief and cross-examination, handling evidence and exhibits, questioning witnesses and witnesses' depositions, prepare an effective and coherent closing speech.
Informazioni sul programma
The attendance to the course is positively assessed in light of the students' recruitment process for the different legal competitions sponsored by our University (in particular the Wilelm C. Vis Moot Court Competition in Vienna - https://vismoot.pace.edu/ -), as well as for the professional internships abroad within the Erasmus Placement Programme.
Prerequisiti e modalità di esame
Only students who attend at least 80% of the course are admitted to take the final exam.
The final mark will consist in an overall assessment of the activities carried out by each student throughout the course. Those students who do not accept that assessment can register for an oral colloquium during the official exam sessions.
The course will combine frontal lessons, seminars held by experienced specialists, an interactive and innovative teaching methodologies (based on the active participations of the students through individual or collective contributions in the form of presentations, summaries or prepared discussions, practical sessions of written and oral legal advocacy, simulation of proceedings before different adjudicatory bodies, moot courts and mock trials). Advance reading and regular preparation are necessary prerequisite for the successful participation in the course.
The attendance to the course is compulsory. The course follows a case - method approach. Students will be requested to actively participate by reporting cases to the class, discussing them, working in groups and taking part to moot courts and simulations.
Materiale didattico e bibliografia
Lectures will be based on specific reading materials indicated prior to each lesson, and excerpts from the following reference bibliography:
Blackaby and Partasides, Redfern and Hunter on International Arbitration, Student version, 5th edition, Oxford University Press, 2009; Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts, 2nd edition, Oxford University Press, 2004; Dworsky, The Little Book on Oral Argument, Fred B. Rothman & Company, 1991