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syllabus - Fall 2007 556-20 — International Arbitration...

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Unformatted text preview: Fall 2007 556-20 — International Arbitration John Crook This two-hour course will provide an introduction to arbitration as a mechanism for resolving disputes in international commercial, investment, and governmental transactions and relationships. It will also briefly address mediation and some other dispute settlement mechanisms. Arbitration topics covered will include the bases of international arbitration, relationships with national legal systems, designing arbitration agreements, arbitration rules, the process of arbitration, challenging and enforcing arbitral awards, investor-State arbitration, and some contemporary issues. Grades will be based on‘ a two-hour m—book exam. Much of the course content will be developed through lectures and class discussions of the assigned materials. You will miss a great deal if you do not read the materials carefully beforehand, or do not attend class regularly. The basic text will be Varady, Barcelo and von Mehren, INTERNATIONAL COMMERCIAL ARBITRATION (3nd ed) (hereinafter “V, B & VM”). A collection of photocopied additional materials is also available, including basic arbitration rules, statutes, treaties, etc. A few additional readings may also be assigned during the term and will be available through the Web Portal. Preliminary reading assignments are indicated below; these may be revised during the term. You will be notified of any changes in the reading assignments before the relevant class by e-mail. We will refer frequently to the New York Convention, the UNCITRAL Arbitration Rules, the UNCITRAL Model Law and other texts in the photocopied materials. You should become familiar with these documents and bring the materials to class. I do not have an office at the Law School, but will arrange appointments on request either before or after class on class days. I can be reached most reliably by e-mail at jrcl [email protected], or (during business hours) at 301-765-0333. Please feel free to contact me if you have a question or concern. WEEK 1 (August 29) -- Basic Concepts — What is Arbitration? -- Basic concepts: what is arbitration? -- States’ evolving views regarding the roles of arbitration and courts. -- Why arbitrate? The special needs of international commerce. _2_ Reading Assignment: V, B & vM pp. 17-21, 38-58 (top), 451-453. WEEK 2 (Sept. 5) -— The Surrounding Legal Environment. -- What does national law have to do with international arbitration? -— States’ dual roles: supervision and support. Assignment: Think about (and be ready to discuss) some things that might go wrong in an international arbitration. What are the points where a system of private decision- making might (need to) intersect with national legal systems? Review the Background Note on UNCITML Model Law (in additional materials, beginning at p. 18 of Model Law); V, B & v M pp. 58-65 (top), 68-78, 95—102. WEEK 3 (Sept. 12) -- The Arbitration Agreement: The Foundation of the Process. (Mr. John Townsend, author of the assigned article, may join us first hour.) -- Fundamental role of the agreement to arbitrate. -- What goes into an arbitration clause? Why do some clauses fail? -- Who decides if there’s an effective agreement to arbitrate ~ “arbitrability.” Reading Assignment: V, B& VM pp. 85-95, 103-106, 113-119, 122-28; AAA model clause (with AAA Arbitration Rules); Townsend, “Drafting the Arbitration Clause” (to be provided). WEEK 4 (Sept. 19) -- Constituting the Tribunal. -- Enforcing the agreement to arbitrate. -- How do you create the tribunal? -— What makes a good arbitrator, and where do you find her? -- Disclosures, conflicts. —- Role of the party-appointed arbitrator; relations between arbitrators and parties. -3- Reading Assignment: Review UNCITILAL and AAA International Arbitration Rules on constituting tribunals, V, B & vM pp. 265-268, 273-287, 289-299, 304- 308. WEEK 5 (Sept. 26) -- Constituting the Tribunal, Cont’d; Role of Arbitral Institutions; Challenges. —- Institutional vs. ad hoc arbitration. -- Appointing authorities. -- Challenges. -- Administration and logistics. Reading Assignment: V, B & vM pp. 21-29, 364-370, 374-378, 416-426, 484- 489. Review the AAA International Arbitration Rules, and consider the roles that they assign to the administering institution. WEEK 6 (Oct. 3) -- Jurisdiction and Applicable Law; Begin Arbitral Procedure -- Who decides what’s arbitrable, courts, or the arbitrators? -- What law governs the arbitral procedure? The substance of the dispute? —- Lex mercatoria. -- Some basic procedural principles: party equality, control by the arbitrators. Reading Assignment: V, B & vM pp. 453-464 (top), 615—26, 639-641, 650—655. Optional additional reading: Buckeye Check Cashing, Inc. v. Cardegna, 126 S. Ct. 1204 (2006), available at <http://www.supremecourtus.g0v/0pini0ns/05pdf/04- 1264.pdf>. WEEK 7 (Oct. 10) -- Arbitral Procedure, cont’d. I MUST BE AWAY THIS WEEK. I WILL TRY TO VIDEOTAPE A LECTURE FOR VIEWING AT YOUR CONVENIENCE. -- Sequence of a typical case. -— Some differences in basic arbitration rules (terms of reference). -- Evidence, discovery. Reading Assignment: Review the UNCITRAL and AAA arbitration rules on conducting the arbitration and evidence. Study the IBA Evidence Rules. V, B & vM pp. 467-472, 478-484; In re Application ofRoz Trading Ltd., 2006 WL 3741078, 469 F.Supp.2d 1221 (N.D. Ga. Dec. 19, 2006). WEEK 8 (Oct. 17) — Procedure cont’d. Interim Measures, Public Interest, Multiple Parties, Confidentiality. -- The tribunal’s powers: preliminary proceedings, interim measures of protection. -- Arbitration involving questions that may affect broader public interests. -- Situations involving multiple parties (construction). Reading Assignment: UNCITRAL Rule 26, AAA International Arbitration Rule 21. V, B & VM pp. 217-222 (to end of introductory facts), 231-243, 414-416. State Department letter on consolidating proceedings. NB: This week’s reading assignment is a bit shorter than usual, and the next two weeks’ are longer. Plan accordingly. WEEK 9 (Oct. 24) -- The Award, Review, Correction, Confidentiality -— Confidentiality. -- Elements of the award. Reasoned and unreasoned awards. Forrnalities. -- Correction. -- Begin: awards in national courts. Reading Assignment: V, B & vM pp. 544-553, 573 (bottom)—581, 705-719, 732— 737 (top), Free Trade Commission decisions on document access and non-party participation. WEEK 10 (Oct. 31) -- More on the Awards in National Courts. -- Roles of national courts. -5- -- Enforcement under the New York Convention. -- Setting aside. —- Confirmation. Assignment: Read the New York Convention carefully — how you would go about enforcing an award if there were no Convention? Review UNCITRAL Model Law Art. 34. Read V, B & vM pp. 668-687, 732-737, 797—798, 814-826. Optional additional reading: T ermorio SA ESP v. Electranta SP, DC. Cir, N0. 06- 7058 (May 25, 2007), available at <htt ://www.ll. eor etown.edu/ ederal/‘udicial/dc/o imam/060 inions/06- 7058a. th>. WEEK 11 (Nov. 7) — Investor-State Arbitration -- The special problems of States as parties. -- BITS. -- ICSID. -- NAFTA. Reading Assignment: Skim U.S. Model BIT. Read “About ICSID”, ICSID Introduction to Bilateral Investment Treaties and Joy Mining award. We may have a guest speaker this week. WEEK 12 (Nov. 14) -- Other Methods -- Conciliation and Mediation. —- Inquiry: outside fact-finding. -- Other methods. Reading Assignment: AAA International Mediation Rules. V, B&vM pp. 1-17. Additional materials will be provided. [THANKSGIVING HOLIDAY — Nov. 21—23] -6- WEEK 13 (Nov. 28) -- Review and Summing Up. -- Catch up as required. —- Review of the course. -- Some current issues. Reading Assignment: to be determined. Final, 13 Aug. 2007 ...
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