LLAW6230 Law and practice of investment treaty arbitration

1.1 Course details

Course code: LLAW6230 / JDOC6230
Course name: Law and Practice of Investment Treaty Arbitration
Programme offered under: LLM Programme / JD Programme
Semester: Second
Prerequisites / Co-requisites: No
Credit point value: 9 credits / 6 credits
Cap on student numbers: 35

1.2 Course description

The course covers international arbitration between foreign investors (companies or individuals) and their host states to settle claims arising from the alleged breach of standards laid down in bilateral or multilateral treaties protecting foreign investment. There are now more than 3,300 of such treaties, a total of more than 1,000 investor-state cases that have so far been brought before international arbitral tribunals. Investment treaty arbitration has become one of the most dynamic (but also controversial) areas of transnational law.

As the compensation claims concern large sums of money, global law firms are particularly interested in competing in this evolving field of international legal business. Due to the involvement of a state and the relevant treaty provisions, investor-state dispute settlement has distinct elements compared to international commercial arbitration and combines features of private dispute settlement, international law and public policy concerns.

The course begins with an overview of the history, economics and policy of investment treaty law and investment dispute resolution, as well as the main institutions and instruments. The next part looks at issues relating to jurisdiction and admissibility in investor-state arbitral disputes. The course then addresses the main substantive guarantees laid down in treaties, such as compensation for expropriation, fair and equitable treatment, full protection and security, national treatment, most-favoured-nation treatment, and so-called “umbrella clauses” protecting rights of foreign investors that may be stipulated, for example, in investment contracts with the host state or its agencies.

After turning to procedural aspects, including the review and enforcement of arbitral awards, it further discusses various points of general criticism made against the current investment treaty arbitration system and possible reforms (including the EU proposal for a multilateral investment court). The course finally takes a more specific look at the Asian context, with emphasis on the relevant practice of Mainland China (including the importance for the “One Belt One Road” initiative) and Hong Kong.

A basic knowledge of international law and/or international arbitration would be beneficial, but it is not a prerequisite for the course.

1.3 Course teachers

Name E-mail address Office Consultation
Course convenor Peter Malanczuk malanczu@hku.hk TBA By email

2.1 Course Learning Outcomes (CLOs) for this course

CLO 1 Demonstrate an awareness of how investor-State dispute settlement has evolved and how it differs from international commercial arbitration and inter-state arbitration.

CLO 2 Describe and explain various treaty-based standards for the protection of foreign investors.

CLO 3 Describe and explain the different approaches to, or “models” of, investor-state dispute settlement adopted in UK, French, US, “Asian” (etc.) treaties.

CLO 4 Apply the evolving jurisprudence of arbitration tribunals

CLO 5 Develop a general awareness of how arbitrations are conducted – e.g. under the “ICSID Rules” (and “Additional Facility Rules”).

2.2 LLM Programme Learning Outcomes (PLOs)

PLO A On successful completion of the curriculum, students should be able to demonstrate a solid understanding of the body of legal knowledge and the capacity to conduct research on, critically analyse and evaluate legal principles, at a level required to meet the standards and expectations of the legal profession and the community at large.

PLO B On successful completion of the curriculum, students should be able to apply their legal knowledge and research skills to practical situations or theoretical challenges, and utilise their comparative understanding of the law and its political, social and cultural contexts to provide original and creative insights to legal problems.

PLO C On successful completion of the curriculum, students should be able to apply the knowledge, lawyering skills and legal reasoning to real and novel situations in life, with a view to resolving issues, problems and disputes within the legal parameters.

PLO D On successful completion of the curriculum, students should be able to demonstrate the ability to present effectively legal arguments in the professional context, as well as conveying and explaining the law effectively to lay clients and members of the larger community.

PLO E On successful completion of the curriculum, students should be able to appreciate the underlying moral values of the law and ethics in the profession and the legal system in the broad social, economic, political and cultural contexts: justice, the Rule of Law, and protection of rights and liberties which form the fabrics of a civilised society, and the importance of upholding these values by the legal community.

PLO F On successful completion of the curriculum, students should be able to develop a strong awareness of social issues and conditions, and utilise analytical abilities and rhetorical advocacy to provide leadership for the betterment of the human community.

2.3 Programme Learning Outcomes to be achieved in this course

PLO A PLO B PLO C PLO D PLO E PLO F
CLO 1  ✓
CLO 2  ✓  ✓
CLO 3  ✓
CLO 4
CLO 5

3.1 Assessment Summary

Assessment task Due date Weighting Feedback method* Course learning outcomes
Research paper 18 May 2021 100% 1, 2, 3, 4, 5

 

  *Feedback method (to be determined by course teacher)
1 A general course report to be disseminated through Moodle
2 Individual feedback to be disseminated by email / through Moodle
3 Individual review meeting upon appointment
4 Group review meeting
5 In-class verbal feedback

3.2 Assessment Detail

To be advised by course convenor(s).

3.3 Grading Criteria

Please refer to the following link: http://www.law.hku.hk/course/grading-criteria/

 

4.1 Learning Activity Plan

Seminar: 3 hours / week for 12 teaching weeks
Private study time: 9.5 hours / week for 12 teaching weeks

Remarks: the normative student study load per credit unit is 25 ± 5 hours (ie. 150 ± 30 hours for a 6-credit course), which includes all learning activities and experiences within and outside of classroom, and any assessment task and examinations and associated preparations.

4.2 Details of Learning Activities

To be advised by course convenor(s).

5.1 Resources

Reading materials: Reading materials are posted on Moodle
Core reading list: Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law, (2nd ed. Oxford University Press 2012) (3rd ed. when available)
[textbook order form can be obtained via Moodle]
Recommended reading list: TBA

5.2 Links

Please refer to the following link: http://www.law.hku.hk/course/learning-resources/

By the publication of the course profile online, the Faculty deems the student as having been notified of the course requirements.