LAWCOMM 702 : International Arbitration
Law
2022 Semester Two (1225) (30 POINTS)
Course Prescription
Course Overview
International arbitration involves many interesting facets of the law including customary international law, the law of treaties, conflict of laws, soft law and contract law. It has become the preferred dispute resolution option in international business. It has also been incorporated as the standard dispute resolution method in bilateral and multilateral investment treaties and in free trade agreements such as that between New Zealand and China (2008), New Zealand and Korea (2015) and the Trans Pacific Partnership (2016) (amended in 2018 as the Comprehensive and Progressive Agreement for Trans Pacific Partnership).
The course will begin on the first day with an introduction to the legal fundamentals of international commercial arbitration and some preliminary comparisons with investment treaty arbitration. The rest of the course will then focus on certain specific aspects of international commercial arbitration, and investment treaty arbitration including the usual substantive commitments on standards of treatment for foreign investors. We will cover both practical and more theoretical issues.
The course will be of particular interest to students contemplating a career in arbitration and/or international law, but we hope you all enjoy the course regardless of your future aspirations. On completion of the course, you should have developed an understanding of global diversity and harmonisation in approaches to resolution of commercial disputes, an understanding of the importance of choosing appropriate methods of dispute resolution to the enforcement of legal obligations; the dynamic features of transnational law making; and structure of, and policy issues relevant to, the arbitration of foreign investment disputes.
SYLLABUS
Topics will include:
• Applicable laws, conventions and “soft” law
• Arbitration clauses
• Confidentiality / transparency in arbitration
• Conflicts of interest
• Arbitrability
• Arbitral procedure
• The Role of the Courts in supporting arbitration
• Investment treaty arbitration
• Substantive protections in international investment law
LECTURER BIOGRAPHIES
Dr Anna Kirk
Dr Anna Kirk (LLB(Hons)/BA Waikato; PhD Cantab) is barrister and arbitrator at Bankside Chambers, with particular expertise in international arbitration and public international law. Anna is New Zealand’s member on the ICC Court of International Arbitration and is a Fellow of the Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ). Anna has practiced in international arbitration in London and New Zealand and now regularly acts as arbitrator in both international and domestic arbitrations. Anna is a member of the Panel of Arbitrators for AMINZ, ACICA, NZIAC, SIAC (Reserve Panel) and HKIAC. She also has considerable experience in investment treaty arbitration, having worked closely with Sir David Williams QC for several years. Anna is a contributing author to Williams & Kawharu on Arbitration and holds a PhD in international law from the University of Cambridge.
Professor Luke Nottage
Dr Luke Nottage (BCA LLB PhD VUW, LLM Kyoto) specialises in international arbitration, corporate governance and consumer (product safety) law. He is Professor of Comparative and Transnational Business Law at Sydney Law School and Associate Director of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS). He is Special Counsel at Williams Trade Law and qualified as a lawyer in New Zealand (1994) and NSW (2001). Luke has consulted for law firms world-wide, ASEAN, the EC, UNCTAD, UNDP, OECD and the governments of Japan and Saudi Arabia. He has made numerous public Submissions and given evidence to Australian government inquiries on arbitration and consumer law reform. Luke was also a Rules committee member of ACICA (2004-2021) and is listed on the Panel of Arbitrators for the AIAC (formerly KLRCA), BAC, JCAA, KCAB, NZIAC, SCIA and TAI. He was awarded “ADR Academic of the Year 2020” by the Australian Disputes Centre. Luke’s 19 books include International Commercial and Investor-State Arbitration: Australia and Japan in Regional and Global Contexts (Elgar, February 2021), New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution (eds, Kluwer, January 2021), International Investment Treaties and Arbitration Across Asia (eds, Brill, 2018) and International Arbitration in Australia (eds, Federation Press 2010). Over 130 manuscripts of his articles and chapters are at http://ssrn.com/author=488525.
Capabilities Developed in this Course
| Capability 1: | Disciplinary Knowledge and Practice |
| Capability 2: | Critical Thinking |
| Capability 3: | Solution Seeking |
| Capability 4: | Communication and Engagement |
Learning Outcomes
- Gain an awareness of the key conceptual and jurisprudential foundations of arbitration (Capability 1.1, 2.1, 2.2 and 2.3)
- Develop a strong understanding of the arbitral process and the role of the courts in supporting arbitration (Capability 2.1, 2.2, 2.3, 3.1, 3.2 and 3.3)
- Become familiar with the UNCITRAL Model Law, the New York Convention and the ICSID Convention (Capability 2.3, 3.1, 3.2 and 3.3)
- Understand the key differences between commercial arbitration and investment treaty arbitration (Capability 2.1, 2.2, 2.3, 3.1 and 3.3)
- Critically analyse the role of arbitration within the broader dispute resolution landscape (Capability 2.1, 2.2, 2.3, 3.1, 3.2 and 3.3)
- Improve the research, critical thinking and legal writing skills through in-depth research and analysis of a chosen topic and completion of a research essay (Capability 2.1, 2.2, 2.3, 3.1, 3.2, 3.3, 4.1, 4.2 and 4.3)
Assessments
| Assessment Type | Percentage | Classification |
|---|---|---|
| Research outline | 10% | Individual Coursework |
| Research essay | 90% | Individual Coursework |
| 2 types | 100% |
| Assessment Type | Learning Outcome Addressed | |||||||||
|---|---|---|---|---|---|---|---|---|---|---|
| 1 | 2 | 3 | 4 | 5 | 6 | |||||
| Research outline | ||||||||||
| Research essay | ||||||||||
Whether choosing from our list of topics, or researching another approved by us as above, within two weeks of the end of classes each student must provide us with an essay outline of approximately 1000 words, on which we can provide some preliminary feedback to assist in completing a good essay. Each student must submit a research outline to Canvas.
The research outline should commence with an abstract that sets out the main thesis of the student’s research essay. The research outline then should provide an outline of the structure of the proposed research essay. This structure should follow Appendix 7 of the New Zealand Style Guide (3rd edition). That is, it should contain Major headings, Minor Headings, Sub-Headings and Paragraph Headings. The research outline will be worth 10% of the student’s grade for the course.
For the remaining 90% of the grade, each student is required to submit a research essay of no more than 12,500 words including an abstract/synopsis of up to 1,000 words. The essay is to be original work, relying on secondary and primary sources. It must be the work of the enrolled student. Another person, other than the enrolled student, MUST NOT write the essay nor do the research on behalf of the enrolled student. Plagiarism is not permitted and in that regard each student should read the University’s plagiarism policy and adhere to it. All students will be expected to sign a plagiarism declaration when submitting their essays. Students must also use proper legal citations and include a reading list at the end of their type-written essay, complying with the New Zealand Law Style Guide. The essay should be comprised of properly crafted English sentences. (Note form is unacceptable.) The use of sub-headings is encouraged and footnotes rather than Harvard style in-text referencing are to be used.
Descriptive essays are not encouraged. Instead students are expected to engage with relevant legal issues by, for example, critiquing the law; developing proposals for reform; examining the operation of law and policy in practice; and/or providing a conceptual analysis of the law.
Information on the Faculty grading guidelines is available on Canvas.
Essays must be submitted Canvas. Extensions will not be granted lightly and must be requested formally through the Postgraduate Manager.
Workload Expectations
This is a standard 30-point course. There will be around 36 hours of lectures in this course. As a general guide, you should expect a workload of three hours outside of the classroom for each hour spent in class. The guideline for the total workload for this course is 300 hours.
Delivery Mode
Campus Experience or Online
This course is offered in two delivery modes:
Campus Experience
Attendance is expected at scheduled activities including seminars to complete components of the course.
Lectures will be available as recordings. Other learning activities including seminar discussions will not be available as recordings.
The course will not include live online events including group discussions.
Attendance is expected at scheduled online activities including seminar to complete components of the course.
The course will not include live online events including group discussions and these will not be recorded.
Where possible, study material will be available at the commencement of the course.
This course runs to the University semester timetable and all the associated completion dates and deadlines will apply.
Learning Resources
Course materials are made available in a learning and collaboration tool called Canvas which also includes reading lists and lecture recordings (where available).
Please remember that the recording of any class on a personal device requires the permission of the instructor.
Student Feedback
At the end of every semester students will be invited to give feedback on the course and teaching through a tool called SET or Qualtrics. The lecturers and course co-ordinators will consider all feedback and respond with summaries and actions.
Your feedback helps teachers to improve the course and its delivery for future students.
Class Representatives in each class can take feedback to the department and faculty staff-student consultative committees.
Other Information
Venue Room 340, Level 3, Building 810
1-11 Short Street
Contact Details
Law Student Centre Level 2, 1-1 Short St
postgradlaw@auckland.ac.nz
Study Programme
The course can be studied under an LLM, MLS, MTaxS or a PG Certificate in Law. If you wish to complete this course as a stand alone course you may do so under a Certificate of Proficiency (COP). The Certificate of Proficiency provides students with the opportunity to supplement their current knowledge before proceeding to advanced study, or undertake a small number of courses in specific areas without enrolling in a formal qualification.
Academic Integrity
The University of Auckland will not tolerate cheating, or assisting others to cheat, and views cheating in coursework as a serious academic offence. The work that a student submits for grading must be the student's own work, reflecting their learning. Where work from other sources is used, it must be properly acknowledged and referenced. This requirement also applies to sources on the internet. A student's assessed work may be reviewed against online source material using computerised detection mechanisms.
Class Representatives
Class representatives are students tasked with representing student issues to departments, faculties, and the wider university. If you have a complaint about this course, please contact your class rep who will know how to raise it in the right channels. See your departmental noticeboard for contact details for your class reps.
Inclusive Learning
All students are asked to discuss any impairment related requirements privately, face to face and/or in written form with the course director, lecturer or tutor.
Student Disability Services also provides support for students with a wide range of impairments, both visible and invisible, to succeed and excel at the University. For more information and contact details, please visit the Student Disability Services’ website http://disability.auckland.ac.nz
Special Circumstances
If your ability to complete assessed coursework is affected by illness or other personal circumstances outside of your control, contact a Student Academic and Support Adviser as soon as possible before the assessment is due.
If your personal circumstances significantly affect your performance, or preparation, for an exam or eligible written test, refer to the University’s aegrotat or compassionate consideration page https://www.auckland.ac.nz/en/students/academic-information/exams-and-final-results/during-exams/aegrotat-and-compassionate-consideration.html.
This should be done as soon as possible and no later than seven days after the affected test or exam date.
Learning Continuity
In the event of an unexpected disruption, we undertake to maintain the continuity and standard of teaching and learning in all your courses throughout the year. If there are unexpected disruptions the University has contingency plans to ensure that access to your course continues and course assessment continues to meet the principles of the University’s assessment policy. Some adjustments may need to be made in emergencies. You will be kept fully informed by your course co-ordinator/director, and if disruption occurs you should refer to the university website for information about how to proceed.
Student Charter and Responsibilities
The Student Charter assumes and acknowledges that students are active participants in the learning process and that they have responsibilities to the institution and the international community of scholars. The University expects that students will act at all times in a way that demonstrates respect for the rights of other students and staff so that the learning environment is both safe and productive. For further information visit Student Charter https://www.auckland.ac.nz/en/students/forms-policies-and-guidelines/student-policies-and-guidelines/student-charter.html.
Disclaimer
Elements of this outline may be subject to change. The latest information about the course will be available for enrolled students in Canvas.
In this course students may be asked to submit coursework assessments digitally. The University reserves the right to conduct scheduled tests and examinations for this course online or through the use of computers or other electronic devices. Where tests or examinations are conducted online remote invigilation arrangements may be used. In exceptional circumstances changes to elements of this course may be necessary at short notice. Students enrolled in this course will be informed of any such changes and the reasons for them, as soon as possible, through Canvas.