Course | Columbia Law School

This seminar is devoted to studying the phenomenon of international investment arbitration as an instrument to settle disputes between private investors and host States under specialized treaty and other regimes — particularly arbitration under the auspices of the World Bank's International Centre for Settlement of Investment Dispute (ICSID). ICSID arbitration is booming, with some 120 cases pending as of November 2007. Having replaced litigation as the preferred mechanism for settling investment disputes, the advent of investment arbitration, which provides private investors with one-tier binding redress against host States, is a watershed development in international public law adjudication. The interaction between practice and academics, between common law and civil law, and between private and public international law, is particularly acute in the field of investment arbitration, making it especially suitable for comparative study.

This seminar examines the modern concept of investment arbitration by studying aspects of the law of evidence, procedure, remedies, ethics, and jurisprudence, as applied to investment protection. The focus will be on the compulsory arbitration of investor-State disputes, including the initiation and organization of an investment arbitration, the appointment and role of the party-appointed arbitrators and the presiding arbitrator, jurisdictional issues and defenses, provisional relief, procedure and proof, the role of expert witnesses, the conduct of hearings, advocacy, transparency and the role of NGOs/Amicae, the tribunal's deliberations and award, and the enforcement and annulment of investment awards. Various mock exercises and case studies from practice will be analyzed in class.

Although not a prerequisite, students participating in this course will benefit from taking/having taken the Seminar in Foreign Investment, which focuses on the type of treatment that by law ought to be accorded foreign investors once established in a country (i.e., the regulation of foreign investment). The present seminar assumes that some type of investor mistreatment has already taken place. The dual aim of this seminar is to educate students about the comparative complexities of the law and procedure of investment arbitration as a hybrid form of dispute resolution, and to prepare them for the actual conduct of an investment arbitration by focusing on the ins and outs of settling disputes arising out of a foreign investment through arbitration as opposed to litigation, from the initiation of the case until the enforcement of the award. This seminar does not deal with litigation of disputes arising out of international business transactions before national courts. Nor is it a course about the substantive law of foreign investment, even though we will touch upon fundamental legal concepts of foreign investment (notably, expropriation and fair and equitable treatment) in the context of claims and defenses. It also is not a course about foreign investment and public policy. No economics knowledge is assumed or required. This seminar may serve as a general introduction to international arbitration.