Related Curriculum at Columbia Law School
The following Columbia Law School course offerings are designed to prepare exceptional law students to sucessfully engage in matters of International Arbitration. These courses are offered at various times throughout the year.
The American Review of International Arbitration is a quarterly law review that publishes scholarly articles, commentaries on recent developments, case notes, and other materials relating to international commercial arbitration. It is the only publication of its kind in the United States, and also one of the leading publications in the field internationally. International commercial arbitration itself is a practice area of significant, ever-increasing importance due to the need for resolving commercial disputes in the expanding global economy.
ARIA student editors will gain familiarity with international commercial arbitration as they complete the journal's requirements for cite-checking, editing and proof-reading. Most importantly, we encourage our students to write a student note. ARIA offers its student editors the opportunity to be directly supervised in their work by a managing editor who is an experienced lawyer. ARIA also offers to its student editors the possibility of serving as Senior Student Editors during the third year of law school.
This course covers the basic procedural problems that occur in disputes arising out of commercial transactions that cross national boundaries. The focus of the first half of the course is access to American courts by foreign litigants, jurisdiction over foreign defendants, parallel litigation, pleading and proof of foreign law, effecting service and obtaining evidence abroad (particularly in light of foreign blocking measures), transnational provisional relief, immunities and defenses (e.g., foreign sovereign immunity, sovereign compulsion, and act of state), international human rights litigation in US courts, and the enforcement of foreign judicial judgments. The second half of the course is devoted to all major aspects of international commercial arbitration including the U.S. and international law frameworks of arbitration, the conduct of international commercial arbitration, issues of international arbitral ethics, and the relationship between arbitral tribunals and courts. Occasional reference will be made throughout to the current ALI Restatement of the U.S. Law of International Arbitration, of which the instructor is chief reporter.
All these issues have planning, counseling and drafting implications: choice of law, choice of forum, waivers of immunities, litigation versus arbitration, arbitration agreements, etc. The course means to equip students to make various strategic decisions regarding the structuring of dispute resolution aspects of international transactions.
Since there is no single source of transnational litigation and arbitration law, we examine multiple sources: federal and state law, statute and common law, international treaties, Restatements, model or uniform laws, and of course party agreements.
Students who are without prior instruction in basic US civil procedure may want to avail themselves of an elementary book on US civil procedure as background.
The course does not systematically examine the conduct of transnational litigation or arbitration in other countries. But aspects of foreign comparative law will be considered for purposes of illuminating U.S. practice and policy.
Investment treaty arbitration is a new and quickly developing area of law that involves a unique blend of public international law, international commercial arbitration and public law principles. The course covers (1) the theoretical and policy background to investment treaties and investor-state arbitration, (2) the substantive standards governing investor-state relationships, including national treatment, most favored nation treatment, expropriation, and fair and equitable treatment, and (3) current controversies, such as the relationship between investment treaties and human rights and environmental protection, the availability of necessity and counter-measures as defenses, and developments in the European Union. The course examines controversial cases (such as the arbitrations against Argentina following its 2001 economic crisis), theoretical questions (such as the legitimacy of private tribunals deciding issues of public law) and the sociology of the field (such as how the interests of investment treaty advocates and arbitrators are shaping the field).
The Vis Arbitral Moot is an international competition designed to train students in the use of international commercial law and arbitration for resolution of international business disputes. The competition is structured in two phases: the writing of memoranda for the claimant and the respondent and the hearing of oral argument based upon the memoranda both settled by arbitral experts in the issues considered. The forensic and written exercises require determining questions of contract flowing from a transaction relating to the sale or purchase of goods under the United Nations Convention on Contracts for the International Sale of Goods ("CISG") and other instruments of uniform international commercial law (e.g., the UNIDROIT Principles on rInternational Commercial Contracts) in the context of an arbitration of a dispute under specified arbitration laws and rules. The teams and the arbitrators are from both common and civil law countries, permitting students to learn from approaches taken by lawyers from other systems. Moot court competitions focusing on the CISG and international commercial law and arbitration are currently organized not only by the Vis Arbitral Moot in Vienna (April), but also by the University of Buenos Aires and the University of Buenos Aires (Argentina) and El Rosario (Colombia) (September) and l'Ecole de Droit at Sience-Po (Paris) (May).
The seminar focuses on the law and practice of international commercial arbitration, including a detailed discussion on the validity and enforcement of an agreement to arbitrate; the network of international treaties, laws and rules applicable to international arbitration; the appointment and composition of an arbitral tribunal; powers and duties of arbitrators and the jurisdiction of arbitral tribunals; organization and conduct of the arbitral proceedings; the role, intervention and cooperation of national courts before and during the arbitration; the rendering of an arbitral award and its challenge before the courts of the place where the award was rendered; and the recognition and enforcement of arbitral awards.
In addition to serve as an introduction to the law and practice of international commercial arbitration, the seminar pays special attention to recent developments in Latin America, with particular emphasis on the bilateral investment treaties concluded by Latin American countries with capital-exporting countries, giving rise to international arbitration under the ICSID (Washington) Convention of 1965.
International investment arbitration, also known as "investor-state" arbitration, represents a significant development in international adjudication. The fact that an investor, such as 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. These arbitrations typically occur under international law before select tribunals of individuals which include some of the highest regarded practitioners in the international law community. The mix of public international and municipal law interaction, international commercial arbitration practices permeating the arbitral process, as well as the ever present tension between public policy and private interest, make international investment arbitration a particularly topical course of study. In particular, students interested in a general introduction to international adjudication, or those who have already taken the investment law or policy courses, should consider this seminar as a means to delve further into this fascinating area of international law practice.
From a few published decisions per year only ten years ago to tens of decisions in 2012, investment arbitration has become an active testing ground for the development of international adjudication. This seminar will examine the practical issues that commonly arise in the course of an investor-state arbitration, from the initial claim and organization of the tribunal and arbitration process, through the building of the claim, and the defense, to the final award. We will study aspects of the law of evidence, arbitral procedure, remedies, ethics and jurisprudence as applied to investment protection. Our focus will be on arbitrations conducted pursuant to bilateral investment treaties (or equivalent provisions in free trade agreements) and under the rules of the International Centre for the Settlement of Investment Disputes at the World Bank (ICSID) and the UN Commission on International Trade Law (UNCITRAL). Perhaps most importantly, we will focus on the key players in investment arbitration, the parties, counsel, arbitrators and the institutions, including such matters as the appointment of arbitrators, the role of the key arbitral institutions, and the avoidance of parallel proceedings.
This course does not deal with litigation of disputes arising out of international business transaction before national courts. Nor is it a course about the substantive law of foreign investment (even though we will touch upon the fundamental obligations, such as compensation for expropriation and fair and equitable treatment). It is also not a course about foreign investment and public policy, the WTO or trade in goods. Although sometimes helpful, knowledge of economics is not assumed nor required.
Evaluation will be based on class participation and 7 Response Papers to be written by each student during the semester.
This seminar will provide advanced studies of selected topics of both theoretical and practical interest in international commercial arbitration. Classes will meet once a week for two hours. Specific topics and reading materials will be posted on the courseweb. After three weeks of classes, students will choose from among a list of Optional Topics, or may formulate a topic of their own choice in the consultation with the teacher, and take the lead in presenting those topics for discussion during class. Each student will be required to submit a paper on the topic he or she has selected. This seminar is intended for students who have completed an overview course on international commercial arbitration, or who are otherwise generally familiar with the field.
NOTE: Students need not have taken the course on international commercial arbitration at Columbia, but they are expected to have a basic understanding of international arbitration law-either from a course taken in their home country or actual practical experience in arbitration-in order to participate constructively in the advanced seminar in which students take the lead in presenting and analyzing specific topics of their choice in international arbitration.
This new spring term offering co-taught by Professor George Bermann and Viren Mascarenhas is designed to meet the needs of students seeking an opportunity to bridge theory and practice in the context of international commercial arbitration. Unlike many courses in international arbitration (including the fall term course in Transnational Litigation and Arbitration), the seminar will not deal primarily with arbitration in the courts or with the judicial role in enforcing arbitration agreements or entertaining challenges to awards. Rather, the focus of the seminar is on the conduct of international commercial arbitration itself.
The seminar proceeds through a series of major phases of international commercial arbitration in sequence, dealing with: drafting the arbitration agreement; arbitrator disclosures and challenges; anti-suit and anti-arbitration injunctions; threshold issues in arbitration (the preliminary hearing, conditions precedent, applicable law, confidentiality); multi-party and class arbitration; arbitrating with states and state entities; interim relief; discovery; conduct of the hearing (witness testimony, use of experts); arbitrator deliberations and the award; post-award relief (correction, modification, supplementation); and procedural reform and innovation.
In preparation for each week's session, students will read a combination of (a) academic and professional literature and (b) instruments and documents from practice.
At the initial seminar session, students will be asked to select a topic from a list proposed by the instructors. Although there may be 3 or 4 students assigned to each topic, each student will prepare and submit his or her seminar paper on the topic independently. However, at the final seminar session, students working on the same topic will make a joint presentation of that topic to the seminar.
Student evaluation will be based on (1) seminar participation, (2) the individual seminar paper, and to a much lesser extent (3) the group presentation.
It is desirable for students in the seminar to have had prior study of international commercial arbitration, either through the fall term course in Transnational Litigation and Arbitration or other previous classroom study of the subject.