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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.

Students may benefit from enrolling in LL4E6 International Dispute Resolution, LL4E7 International Investment Law and Arbitration, 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 are also invited to consult one of three recent introductory manuals, from which key readings in this course will be drawn: S Kröll, A Bjorklund & F Ferrari (eds), Cambridge Compendium of International Commercial and Investment Arbitration (CUP 2023); CL Lim (ed), The Cambridge Companion to International Arbitration (CUP 2021); T Schultz & F Ortino (eds), The Oxford Handbook of International Arbitration (OUP 2020).

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.

From the Alabama Claims to climate change, international arbitration has emerged as the preeminent procedure for resolving commercial disputes, protecting foreign investment, and delimiting sovereign entitlements. Such matters may be determined by public international law or the parties’ choice of domestic contract law. The law of the arbitral seat may also play a decisive role. Practitioners of inter-State, investor-State, and commercial arbitration must be able to codeswitch between applicable laws and procedural rules when representing businesses or governments, whilst appreciating opportunities for doctrinal convergence. Similarities and differences among these forms of arbitration are equally important for academics and policymakers.

The three main forms are introduced in LL4E6 (inter-State), LL4E7 (investor-State) and LL4C5 (commercial). Through a programme of wide reading and discussion, this course connects these specialised forms to develop a generalist perspective on international arbitration as a unified but diverse field of transnational practice. Analytical essays should appraise this perspective, whereas problem questions call for strategic choices in making or facing claims that could be brought before any of the three forms and the application of legal techniques to resolve possible tensions.

The course is organised in three parts. Part I (Foundations) introduces the theoretical debates, historical development, common rules of procedure, and sociological factors that underpin modern practice. Part II (Forms) digs deeper into the three main forms, including the relevant bases of consent, sources of applicable law, typical claims, and available remedies. This part also highlights connections among the three forms through issues such international public policy, territorial disputes affecting natural resources, and contractual protection under umbrella clauses in investment treaties. Part III (Frictions) turns to cross-cutting problems that have current or perennial salience in arbitral practice and policy debate, including parallel proceedings and interim measures, enforcement against States or State-owned entities, and force majeure or other changes in circumstances.

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

One 2,000 word essay.

Alongside excerpts from arbitral awards (mainly ad hoc, ICC, ICSID or PCA) and domestic judgments (mainly UK Supreme Court but also Paris Court of Appeal), students will become familiar with key instruments: eg Arbitration Act 1996 (UK); ICC Arbitration Rules (2021); ICSID Arbitration Rules (2022); ICSID Convention (1965); ILC Articles on State Responsibility (2001); New York Convention (1958); UNCITRAL Arbitration Rules (2021); UNCITRAL Model Law on International Commercial Arbitration (2006); UNIDROIT Principles of International Commercial Contracts (2016); Vienna Convention on the Law of Treaties (1969).

Students will engage with foundational texts and recent literature: eg N Blackaby, C Partasides & Alan Redfern, Redfern and Hunter on International Arbitration (7th edn, OUP 2023); F Bortolotti & DU Ufot (eds), Hardship and Force Majeure in International Commercial Contracts: Dealing with Unforeseen Events in a Changing World (ICC Dossier Vol 18 2019); E Gaillard, Legal Theory of International Arbitration (Brill 2010); J Ho, State Responsibility for Breaches of Investment Contracts (CUP 2018); C McLachlan, L Shore & M Weiniger, International Investment Arbitration: Substantive Principles (2nd edn, OUP 2017); M Scherer (ed), International Arbitration in the Energy Sector (OUP 2018); M Schinazi, The Three Ages of International Commercial Arbitration (CUP 2021); T St John, The Rise of Investor-State Arbitration: Politics, Law, and Unintended Consequences (OUP 2018); A Stone Sweet & F Grisel, The Evolution of International Arbitration: Judicialization, Governance, Legitimacy (OUP 2017).

Key journals, databases, and reports include Arbitration International, ICSID Reports, ICSID Review, International & Comparative Law Quarterly, Investment Arbitration Reporter, Journal of International Arbitration, Journal of International Dispute Settlement, Jus Mundi, and Reports of International Arbitral Awards.

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

Out of the six possible questions, students must answer one essay question and one problem question.