LALIVE/UNITAR e-Learning Course on "Introduction to Investment Arbitration" - Course Outline
Content and Structure outline
The course is divided into four modules, covering the following topics:
Module 1. Introduction and Procedure
a. Introduction
b. Contracts and Treaties
c. BITs
d. The ICSID Convention
e. Applicable law
f. Bifurcation
g. Interim measures
h. Amici and confidentiality
i. Other procedural issues
Module 2. Jurisdiction and Admissibility
a. Consent
b. Ratione temporis
c. Ratione personae
d. Ratione materiae
e. Cooling-off, fork-in-the-road and parallel proceedings
f. Denial of Benefits
g. Counterclaims
Module 3. Substantive Protections
a. Contract claims
b. Expropriation
c. FET
d. FPS
e. MFN
f. Umbrella clause
g. Defences
h. Attribution
Module 4. Award, Enforcement and Challenge
a. Available remedies
b. Costs
c. Annulment
d. Recognition and enforcement of ICSID awards
e. Immunity
The first module is aimed at setting the scene, by discussing the concepts and instruments peculiar to investment arbitration. Treaty arbitration is compared to contractual arbitration and the evolution of investment arbitration is tracked. Consideration of the development and main features of BITs is followed by outlining the ICSID Convention and the International Centre for the Settlement of Investment Disputes. Applicable law is particularly important to investment arbitration and is thus considered before procedural issues peculiar to investment arbitration: bifurcation, interim measures and transparency (including amicus submissions and public hearings).
The second module addresses jurisdiction and admissibility. The issue of consent and how it is often formed by two separate instruments is considered first. The three jurisdictional requirements of ratione temporis, ratione personae (the definition of investor), and ratione materiae (the definition of investment) are discussed next under the dual requirements of the ICSID Convention and the applicable BIT. Admissibility requirements relating to the procedure, such as cooling off periods and fork-in-the-road provisions are then reviewed, followed by a consideration of substantive inadmissibility arising from a host State denial of benefits. The module finishes with a discussion of the possibility of host States bringing counterclaims into investment arbitration proceedings.
The third module covers (a) contractual protections under investment contracts and (b) the main substantive protections provided to foreign investors under investment treaties. The treaty protections discussed have been chosen because they have been the ones most often relied upon in investment arbitration (such as expropriation and fair and equitable treatment) or because they have given rise to most controversy and uncertainty in interpretation (such as full protection and security, most-favoured nation treatment and umbrella clauses). The module will also consider defences available to the respondent State, such as abuse of rights, necessity and international public policy, and issues relating to attribution of actions to the State.
The fourth module focuses on the award, and what happens after it has been rendered. It considers first remedies that are available in investment arbitration and then the allocation of costs of the procedure. In discussing the annulment of awards, emphasis is placed on the system provided under the ICSID Convention, although some consideration is also given to the setting aside of other forms of investment arbitration awards. Enforcement of arbitral awards is an enormous topic in its own right, but since there are little differences between recognition and enforcement of commercial and investment awards under the New York Convention, the present course focuses on the specific enforcement regime under the ICSID Convention. The module ends with a consideration of a key element when dealing with sovereign states as disputing parties: immunity and its impact on the enforcement of awards.