- Run: Yearly (January – August)
- Rating: 45 credits
- Assessment: Seven assignments (best 5 marks – 10% each) and Take Home Exam (50%)
- Module convenor: Ms Norah Gallagher
The main aim of the course is to introduce the students to the fundamental principles of international commercial arbitration. Arbitration has become an increasingly popular option for the settlement of international disputes with an estimated 8,000 cases world-wide. The Module will deal with eight core topics of international arbitration ranging from drafting a valid and effective arbitration clause to enforcement of an award. The course also deals with the distinction between institutional and ad hoc arbitrations. The course covers both practical and theoretical aspects of arbitration law and should provide a good overall review of the international commercial arbitration process
The course will cover eight main topics within which there will be a number of Units to study each week throughout the duration of the module. The Modules deals with the following issues:-
Arbitration: Concept and Regulation: 4 weeks
- (Unit 1) Delimitation, Definition and Juridical Nature
- (Unit 2) Institutional and Regulatory Infrastructure
- (Unit 3) Constitution, Human Rights and Arbitration
- (Unit 4) Arbitration and the Courts
- (Rev 1) REVISION TUTORIAL
Arbitration Agreement: 3 weeks
- (Unit 5) Autonomy, Types, and Applicable Law
- (Unit 6) Formal and Substantive Validity, Interpretation of Agreements
- (Unit 7) Drafting Arbitration Clauses
- (Rev 2) REVISION TUTORIAL
Arbitration Tribunal: 3 weeks
- (Unit 8) Selection and Appointment of Arbitrators
- (Unit 9) Rights and Duties of Arbitrators
- (Unit 10) Independence and Impartiality of Arbitrators
- (Unit 11) Challenge and Removal of Arbitrators
- (Rev 3) REVISION TUTORIAL
Jurisdiction of Arbitration Tribunal: 2 weeks
- (Unit 12) Arbitrability
- (Unit 13) Kompetenz-Kompetenz
- (Rev 4) REVISION TUTORIAL
Applicable Laws: 5 weeks
- (Unit 14) Law Governing the Arbitration Procedure
- (Unit 15) Determination of Applicable Law
- (Unit 16) Applicable Substantive Law
- (Unit 17) Lex Mercatoria and Trade Usages
- (Rev 5) REVISION TUTORIAL
Procedure and Evidence Issues: 4 weeks
- (Unit 18) Provisional Measures in Support of Arbitration
- (Unit 19) Commencement of Arbitration
- (Unit 20) Terms of Reference / Procedural Directions
- (Unit 21) Procedural Issues
- (Unit 22) Taking Evidence
- (Unit 23) Multi-party and Multi-contract Arbitration
- (Rev 6) REVISION TUTORIAL
Arbitration Award: 3 weeks
- (Unit 24) Form and Content
- (Unit 25) Finality and Challenges to Award
- (Unit 26) Recognition and Enforcement
- (Rev 7) REVISION TUTORIAL
Arbitration with State Parties: 2 weeks
- (Unit 27) State Immunity and Arbitration
- (Unit 28) Investment Disputes
By the end of the module, you should be able to:
- Understand the international regulatory framework within which international commercial arbitration takes place.
- Be able to draft and recognise a valid and effective arbitration agreement thereby avoiding including a pathological or defective arbitration agreement in to a contract, with its added complications and increased costs.
- Understand the significance of the selection of the arbitral panel at the start of the arbitration. This is one of the key choices a party makes in the process as usually one arbitrator is nominated by the claimant and the other by the respondent. Parties can choose an arbitrator with a particular expertise in an industry sector. Also, understand how to challenge an arbitrator in the event a party suspects a lack of impartiality or independence.
- Be aware of the limitations of the tribunals jurisdiction and the difficult concept of arbitrability. This deals with certain types of disputes that may not be submitted to arbitration at all. The tribunal can decide on its own jurisdiction under the well know concept of competence-competence. This is often included in national laws for example section 30 of the Arbitration Act 1996 of England & Wales.
- Understand and be able to identify the various applicable laws that may be relevant in an arbitration, including the procedural law, substantive law applicable to the merits of the case, the law governing the arbitration agreement (often the law of the place of arbitration but may be different), general principles of law, lex mercatoria and common trade usages within a particular industry.
- Appreciate the importance that interim relief (also called provisional measures) may be to the running of an international arbitration and how they can support that process. They can help a party prevent the other side dissipating assets or provide for security of costs if required.
- Be aware of the usual procedure of an arbitration or how it is conducted from filing a claim to the oral hearing, witness evidence and how to deal with a complex multiparty arbitration. There is an emerging accepted international arbitration procedure in arbitration although it will depend on whether the arbitration is institutional or ad hoc. The ICC, for example, requires the tribunal to conclude Terms of Reference as soon as it has received the file from the ICC Secretariat, it is signed by all parties.
- Understand the significance of the enforcement stage of arbitration. No party will want to have obtained a favourable award and then be unable to recover the sums due. The New York Convention 1958 with 148 state parties is the single most significant international treaty to commercial arbitration relating as it does to the recognition and enforcement of foreign arbitration awards. The grounds for challenging an award are narrowly defined and relate to procedural errors and public policy breaches.
- Be aware of the difference when arbitration involves a state party which brings with it principles of public international law such as sovereign immunity from suit at the outset and later on when seeking execution of the award where many state assets will be immune.