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Oliver Hailes

This course is available on the LLM (extended part-time), LLM (full-time) and University of Pennsylvania Law School LLM Visiting Students. This course is available with permission as an outside option to students on other programmes where regulations permit.

This course has a limited number of places and demand is typically high. This may mean that you’re not able to get a place on this course.

None, but students may benefit from enrolling in LL4E6 International Dispute Resolution, LL4E7 Investment Treaty Law, or LL4C5 International Commercial Arbitration. Commercial lawyers with no background in international law should refer to chapters 2, 25, 28 and 32 in J Crawford, Brownlie’s Principles of Public International Law (9th edn, OUP 2019). Students may also find it helpful to consult one of the recent introductory manuals: CL Lim (ed), The Cambridge Companion to International Arbitration (CUP 2021); or T Schultz & F Ortino (eds), The Oxford Handbook of International Arbitration (OUP 2020).

From the Alabama Claims to climate change, international arbitration has emerged as the preeminent procedure for disciplining sovereign conduct, protecting foreign property, and resolving commercial disputes. In substance, these matters may be determined by public international law, the parties’ choice of domestic law, or questions of law and fact from several systems. Practitioners of inter-State, investor-State, and commercial arbitration must be able to codeswitch between these applicable laws and legal traditions when representing businesses or governments. Differences among forms of arbitration are equally important for scholars and policymakers who study their interaction with economic regulation or the role of domestic or international courts.

The main forms are introduced in LL4E6 International Dispute Resolution, LL4E7 Investment Treaty Law, and LL4C5 International Commercial Arbitration. Through a programme of wide reading and group discussion, this course connects these specialised forms to develop a generalist perspective on international arbitration as a unified but diverse field of transnational practice. Problem questions will call for strategic choices in making or facing claims involving, for example, breach of contract by a State, allegations of corruption, or environmental protection.

To compare the three forms of contemporary practice and their possible futures, this course addresses the following topics:

• Theoretical, historical, and sociological perspectives

• Key institutions and instruments, such as the Permanent Court of Arbitration, New York Convention, ICSID Convention and Rules, UNCITRAL Arbitration Rules and Model Law on International Commercial Arbitration, and ICC Rules of Arbitration

• Consent to jurisdiction and choice of applicable law

• Sources and interpretation of domestic and international law

• Parallel proceedings, anti-suit injunctions, and res judicata

• Remedies, enforcement, and annulment

• Third-party participation and reform proposals

• Contract-based investor-State arbitration

• Umbrella clauses in investment treaty arbitration

• Energy, natural resource, and territorial disputes with environmental dimensions

• Allegations of fraud, corruption, or illegality

• State-owned enterprises as claimants, respondents, or attributable entities

There will be 20 hours of teaching content in Lent Term and an additional two hours of teaching in the Summer-Term. There will be a Reading Week in Week 6 of Lent Term.

One 2,000 word essay.

Alongside excerpts from arbitral awards and other primary materials, students will engage with foundational and current secondary literature: eg A Stone Sweet & F Grisel, The Evolution of International Arbitration: Judicialization, Governance, Legitimacy (OUP 2017); C McLachlan, ‘Lis Pendens in International Litigation’ (2008) 336 Recueil des Cours 199; C Gray & B Kingsbury, ‘Developments in Dispute Settlement: Inter-State Arbitration Since 1945’ (1992) 63 British Yearbook of International Law 97; E Gaillard, Legal Theory of International Arbitration (Brill 2010); GB Born, International Arbitration: Cases and Materials (2nd edn, Wolters Kluwer 2015); I de la Rasilla & JE Viñuales (eds), Experiments in International Adjudication: Historical Accounts (CUP 2019); J Crawford, ‘Treaty and Contract in Investment Arbitration’ (2008) 24 Arbitration International 351; J Paulsson, ‘Arbitration Without Privity’ (1995) 10 ICSID Review 181; J Ho, State Responsibility for Breaches of Investment Contracts (CUP 2018); M Scherer (ed), International Arbitration in the Energy Sector (OUP 2018); M Schinazi, The Three Ages of International Commercial Arbitration (CUP 2021); R Radovic, Beyond Consent: Rethinking Jurisdiction in Investment Treaty Arbitration (Brill 2021); S Rosenne, The Hague Peace Conferences of 1899 and 1907 and International Arbitration: Reports and Documents (Asser 2001); T St John, The Rise of Investor-State Arbitration: Politics, Law, and Unintended Consequences (OUP 2018); Y Dezalay & BG Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (Chicago 1996).

Exam (100%, duration: 2 hours, reading time: 15 minutes) in the summer exam period.