International Investment Law and Arbitration

Module title	International Investment Law and Arbitration
Module code	LAWM081
Academic year	2020/1
Credits	30
Module staff	Dr Kyriaki Nousia (Convenor)

Duration: Term	1	2	3
Duration: Weeks		11

Number students taking module (anticipated)	15

Module description

International investment law regulates the entry and treatment of foreign investment, and is one of the fastest-growing fields of public international law. There has been exponential growth in the number of investment treaties and the invocation of their unique systems of dispute settlement (against developed and developing states alike) over the last 30 years. Because foreign investment often involves a host State, in related disputes public international law principles apply alongside the commercial interests of private parties. This module exposes you to a comprehensive analysis of the protections afforded under a typical investment treaty, raises your awareness of the complex international legal elements involved in the resolution of investment and trade disputes. Furthermore, it introduces you to the framework of international arbitration that governs the dispute settlement systems established under such treaties. The module also offers you an opportunity to investigate the common criticisms of both the substance and procedure of investment arbitration. Prior knowledge of arbitration law as well as public international law is highly desirable and is an added element for this module.

Module aims - intentions of the module

This module aims to provide you with :

Essential knowledge of the connection of public international law and international investment disputes and of the relevant public international law principles.
Essential knowledge of the key international treaties that protect investments (i.e. bilateral, regional, multilateral investment treaties, Free Trade Agreements – FTAs);
Essential knowledge of the investment treaties substantive and procedural protections;
Skills and knowledge needed to advise clients on the substantive rights afforded to them both under the investor host state contract and the bilateral and multilateral investment treaties (including protections against state discrimination and expropriation);
An understanding of the unique nature of investor-state arbitration as a form of dispute resolution in international law;
Essential knowledge of the specialised forms of institutional arbitration in the field, and their similarities and differences to commercial arbitration, in particular examination of international arbitration under the ICSID.
A critical understanding, enriched by discussion of contemporary research, of current controversies surrounding the impact of investment treaty disciplines on regulatory autonomy, development strategies and the human rights of citizens in host states.

Intended Learning Outcomes (ILOs)

ILO: Module-specific skills

On successfully completing the module you will be able to...

1. Demonstrate deep and systematic knowledge and understanding of international investment law, and an extensive range of major concepts, values and principles relevant to the field; in doing so also highlight the changing legal regime in international investment arbitrations
2. Demonstrate deep and systematic knowledge, in particular, of the jurisdictional requirements for bringing a claim under a typical investment treaty, the means of dispute resolution available to foreign investors in investment disputes, the substantive protections available to foreign investors protected by an investment treaty, the likely remedies awarded for a successful claim, and the different methods of determining the amount of compensation due
3. Undertake complex critical evaluation of the main legal rules, institutions and procedures relevant to international investment law, using specialist literature and current research;
4. Identify, explain and evaluate key criticisms of investment arbitration and proposals for reform, applying relevant rules and theories systematically;

ILO: Discipline-specific skills

On successfully completing the module you will be able to...

5. Integrate and assess complex information from primary and secondary legal sources and advanced legal scholarship comprehensively, using appropriate interpretative techniques;
6. Select, integrate, evaluate and present relevant law and complex legal/theoretical arguments, clearly, autonomously and competently;

ILO: Personal and key skills

On successfully completing the module you will be able to...

7. Communicate and engage in debate effectively, confidently and autonomously, in a manner appropriate to an international legal audience; and
8. Demonstrate confident, independent and comprehensive learning ability required for continuing professional development, managing own requirements and contributing to the learning of others.

Syllabus plan

Whilst the precise content may vary from year to year, it is envisaged that the syllabus will cover all or some of the following topics:

Introduction to international investment law and policy and to international investment out-of-court disputes
The historical treatment of aliens in international law
Regulatory / legal framework &Institutional background in relation to international arbitration for investment disputes
Principles of investment dispute resolution.
ICSID Disputes (- Jurisdiction: ‘investment’ and ‘investors’, applicable law - Substantive protections: non-discrimination; expropriation; fair and equitable treatment; denial of justice and the ‘effective means’ clause – Procedure - Reservations and exceptions, - Remedies: compensation, valuation techniques and non-monetary remedies, - Awards)
Bilateral Investment Treaties (BITs)
Case studies
Current developments and proposals for systemic reform

Learning activities and teaching methods (given in hours of study time)

Scheduled Learning and Teaching Activities	Guided independent study	Placement / study abroad
30	270	0

Details of learning activities and teaching methods

Category	Hours of study time	Description
Scheduled Learning and Teaching Activities	30	10 x 3 hour seminars involving lectures with discussion activities, individual and group presentations
Guided independent study	113	Individual research, reading and seminar preparation
Guided independent study	63	Assessment preparation (presentation)
Guided independent study	94	Assessment preparation (essay and case study)

Formative assessment

Form of assessment	Size of the assessment (eg length / duration)	ILOs assessed	Feedback method
Essay	2,000 words	1-8	Written/Oral
Presentations	10-20 minutes	1-8	Oral
Case Studies	500 words	1-8	Oral discussion and comments

Summative assessment (% of credit)

Coursework	Written exams	Practical exams
80	0	20

Details of summative assessment

Form of assessment	% of credit	Size of the assessment (eg length / duration)	ILOs assessed	Feedback method
Essay	80	7,500 words	1-8	Written/Oral
Small group presentations on previously assigned topics	20	15 minutes for each group presentation	1-8	Written/Oral

Details of re-assessment (where required by referral or deferral)

Original form of assessment	Form of re-assessment	ILOs re-assessed	Timescale for re-assessment
Essay	Essay (7,500 words)	1-8	August/September re-assessment period
Small group presentation	Individual presentation	1-8	August/September reassessment period

Indicative learning resources - Basic reading

CAMPBELL MACLACHLAN, LAURENCE SHORE AND MATTHEW WEINIGER, International Investment Arbitration (OUP 2007

RUDOLF DOLZER & CHRISTOPH SCHREUER, Principles of International Investment Law (Oxford 2013)

ICSID Convention (available online at https://icsid.worldbank.org/apps/ICSIDWEB/Pages/default.aspx )

Investment treaty arbitral awards - as directed by lecturer (available online at www.italaw.com )

R DOAK BISHOP, JAMES CRAWFORD AND W MICHAEL REISMAN, Foreign Investment Disputes- Cases, Materials and Commentary (Kluwer Law International, 2014

TODD WEILER (ED), International Investment Law and Arbitration – Leading Cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law (Cameron May, 2005)

Indicative learning resources - Web based and electronic resources

ICSID website https://icsid.worldbank.org/apps/ICSIDWEB/Pages/default.aspx

UNCTAD Inter-treaty database http://unctad.org/en/Pages/DIAE/FDI%20Statistics/Interactive-database.aspx

Investment Treaty Arbitration website: www.italaw.com (database of publicly-available investment treaty arbitral awards)

Investment Arbitration Reporter http://www.iareporter.com/

Indicative learning resources - Other resources

CAMPBELL MCLAHJAN, LAWRENCE SHORE, MATHEW WEINIGER, International Investment Arbitration, Substantive Principles (OUP 2008)

CHRISTOPHER DUGAN, DON WALLACE, JR., NOAH RUBINS, & BORZU SABAHI, Investor-State Arbitration (OUP 2008)

ZACHARY DOUGLAS, The International Law of Investment Claims (Cambridge UP 2009)

NORAH GALLAGHER AND WENHUA SHAN, Chinese Bilateral Investment Treaties. Policies and Practice (Oxford 2009)

JULIAN D M LEW, LOUKAS A MISTELIS, STEFAN M KRÖLL, Comparative International Commercial Arbitration (Kluwer, 2003)

J MERRILLS, International Dispute Settlement (Cambridge UP, 4th ed, 2005) – another good text for a part of the course

PETER MUCHLINSKI FEDERICO ORTINO & CHRISTOPH SCHREUER (EDS), Oxford Handbook of International Investment Law (Oxford 2008) – a comprehensive coverage

ANDREW NEWCOMBE AND LLUIS PARADELL, Law and Practice of Investment Treaties. Standards of Treatment (Kluwer 2009)

D PALMETER & P C MAVROIDIS, Dispute Settlement in the World Trade Organization – Practice and Procedure (2nd edition 2003)

AUGUST REINISCH (Ed), Standards of Investment Protection (Oxford 2008)

NOAH RUBINS AND STEPHEN KINSELLA, International Investment, Political Risk and Dispute Resolution: A Practitioner’s Guide (OUP 2005)

MONIQUE SASSON, Substantive Law in Investment Treaty Arbitration. The Unsettled Relationship between International Law and Municipal Law, Kluwer Law International, 2010

CHRISTOPH SCHREUER WITH LORETTA MALINTOPPI, AUGUST REINISCH, ANTHONY SINCLAIR, The ICSID Convention: A Commentary (Cambridge UP and ICSID, 2nd edition 2009)

M SORNARAJAH, The International Law on Foreign Investment, (Cambridge UP, 2nd ed, 2004)

PETER VAN DEN BOSSCHE, The Law and Policy of the World Trade Organization: Text, Cases and Materials (Cambridge 2008)

KATIA YANNACA-SMALL (Ed), Arbitration Under International Investment Agreements - A Guide to the Key Issues (OUP 2010)

Key words search

Investment, arbitration, international law, state responsibility, ICSID, UNCITRAL, BIT, IIA, NAFTA, ECT

Credit value	30
Module ECTS	15
Module pre-requisites	None
Module co-requisites	None
NQF level (module)	7
Available as distance learning?	No
Origin date	08/07/2013
Last revision date	11/08/2020