S. International Arbitration and EU Law

The addition of this new seminar in the curriculum is prompted by the emergence of a series of matters on which the international arbitral regime and the European Union part ways and, indeed, enter into serious conflict. This represents one of the most dramatic set of clashes between international regimes that one can imagine. The reason is that the positions taken by each regime do not remain at the technical level, but rather reflect the most basic and contradictory assumptions underlying those regimes.

Thus, the European Union's expansive view of "public policy" as a defense to the enforcement of arbitral awards raises the prospect that public policy will no longer be a defense narrowly construed and non-threatening to the international arbitral regime. Also, it has been, and remains, the contention of the European Commission that investment disputes between a national on one Member State and another Member State may no longer be subject to arbitration under existing bilateral treaties (BITs) between those States. To that extent, the very authority of international investment tribunals is threatened. Not to mention the dilemma of arbitral tribunals and national courts when facing conflicting mandates from the law of international arbitration and the law of the European Union.

Finally, the EU has of recent date adopted a hostile view of international dispute settlement as we now know it, pressing for the establishment of permanent courts associated with individual BITs and free trade areas.

Grades in the seminar will; be based on seminar participation and a seminar paper due at the end of the course.