S. The Arbitration Agreement and Procedure: Key Issues and Controversies

This course entails a practical examination of international arbitration, with a focus on the scope and limits of issues governed by the arbitration agreement. It begins with an introduction to arbitration and so-called “gateway issues” -- who decides? It then moves quickly to the issues associated with every phase in the life cycle of an international arbitral proceeding: the arbitration agreement (e.g. its scope and validity); means of enforcement of the arbitration agreement; the importance of the arbitral situs (e.g., providing the applicable legal framework of the arbitration); allocation of authority between courts and tribunals as to the enforceability of the agreement and the tribunal's jurisdiction; composition of the tribunal (e.g. ethical issues, conflicts of interest); choice of governing law; all aspects of the arbitral procedure itself (e.g., interim relief, evidence, issue and claim preclusion); judicial involvement during the course of the proceedings (e.g. interim relief and production of documents); challenges to the resulting award in annulment actions; and recognition and enforcement of the award (chiefly in terms of the New York Convention and the special circumstances raised by the presence of sovereign States and state instrumentalities). Finally, attention is given to the contemporary challenges facing arbitration as a means of resolving international disputes. Readings will consist of Gary B. Born, International Commercial Arbitration (Third Edition), supplemented with relevant court decisions and international instruments (including international conventions and “soft law”).