International Investment Law and Arbitration

Investor-State Arbitration also referred to as ?International Investment Arbitration? represents a significant development in international dispute resolution. The fact that an investor, either an individual or a corporate entity, may have standing to enforce international law obligations, and then receive monetary compensation from a state, is a relatively new phenomenon in the development of international law.

Investor-state arbitration, as a species of international dispute resolution has acquired special significance in recent years. On the one hand, the recent US$50 billion award against Russia in the Yukos arbitration demonstrates the far-reaching powers of an investor-state tribunal. On the other hand, there is an ongoing debate relating to the power of three unelected individuals (i.e., the arbitral tribunal) who review decisions of lawfully-elected representatives in matters that touch upon a state?s sovereignty. The recent arguments for restructuring investor-state arbitration in the context of the Trans-Atlantic Trade and Investment Partnership (TTIP) negotiations amplify this debate.

This lecture will examine the nuts and bolts of investor-state arbitration. There are two broad themes to be considered each week:
· What implications would a particular issue have for a sovereign?s police powers in relation to the rights for a foreign investor? Does a particular interpretation of a provision in an international investment agreement impede a state?s police powers? Does it arbitrarily restrict the rights of a foreign investor? Is there an interpretation which may appropriate balance the protection of foreign investment while preserving a state?s regulatory and police powers?
· Another underlying theme that students should consider in every lecture is whether the existing model for investor-state arbitration is a sustainable model. This proposition involves several sub-components that need to be examined: Are there any deficiencies in the model? Can these deficiencies be remedied? Are there other models (e.g., court model) that would be more desirable? Should we abandon the existing arbitral model altogether or should we modify it?

Students will be encouraged to debate the different interpretations by tribunals. The course will take a neutral approach to the various interpretations and various debates on investor-state arbitration while encouraging students to form their own opinion in the light of the jurisprudence and debates. Evaluation will be based on class attendance, class participation, and a final examination.

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C.L. Lim, Jean Ho, Martins Paparinskis, International Investment Law and Arbitration Commentary, Awards and other Materials (CUP 2018) will be the main text for the course, but will be supplemented with relevant cases that will be discussed during the week and will form part of the debate.

Students are expected to attend all the classes on time and have their videos (barring an exceptional circumstance)