City University of Hong Kong. Information on a Course offered by School of Law with effect from Semester A in 2012/2013

Transcription

1 Form 2B City University of Hong Kong Information on a Course offered by School of Law with effect from Semester A in 2012/2013 Part I Course Title: International Arbitration Course Code: LW6408 Course Duration: One Semester Credit Units: 3 Level: P6 Medium of Instruction: English Prerequisites: LW6405 Arbitration Law Precursors: Nil Equivalent Courses: Nil Exclusive Courses: Nil LW6408 Form 2B[R]

2 Part II Course Aims This course aims to:- (i) build on the student s knowledge of arbitration by providing a thorough understanding of the special character and particular issues of international commercial arbitration; (ii) acquaint the student with the important institutional structures and rules for international arbitration; and (iii) provide a comparative examination of the relevant laws, institutions, rules and practices in Hong Kong, the Mainland China, and England. The course will further innovate a student s ability to grasp the fundamental concepts with the ultimate goal of discovering how international arbitration functions from a practical stand point. Course Intended Learning Outcomes (CILOs) Upon successful completion of this course, students should be able to: No. CILOs Weighting (if applicable) 1. apply in a real life situation the knowledge of the special Nil character and the complex features peculiar to international commercial arbitration and to discuss how effective such features are applied into practice 2. acquire familiarity through discovery/innovation/creativity Nil about the principal international arbitration institutions and their procedures 3. apply the applicable laws, as well as the active institutions and their respective rules and practices, which are applicable to international commercial arbitrations conducted in Hong Kong, the Mainland China and England Nil LW6408 Form 2B[R]

3 Alignment of CILOs with PILOs Programme Intended Learning Outcomes Upon successful completion of the MAArbDR / LLMArbDR Programme, students should be able to: 1 explain the origins, practices, principles and theory of arbitration, mediation and other related alternative dispute resolution methods 2 identify, analyse, evaluate and critically comment on the legal issues and procedural issues of arbitration, mediation and other related alternative dispute resolution methods 3 reflect on their knowledge and understanding to participate effectively as a party, as advocate, as expert, as arbitrator or as mediator in dispute resolution processes 4 develop a sense of curiosity to knowledge and critical thinking skills to assess ideas; and demonstrate original discovery/innovation/creativity in applying their knowledge and skills in further research and/or professional development Programme Course Intended Learning Outcomes Intended Learning Outcomes 1 1, 3 2 1, 2, 3 3 1, 2, 3 Rationale for Teaching/Learning method(s) Rationale for Assessment method(s) The students will be asked to read assigned materials prior to the lectures. The style of lecture will involve interactive discussion to a great extent. Tutorials will be conducted on a seminar model. Students will in turn take responsibility to lead the discussion. Many of the lectures will take advantage of sophisticated mock arbitration scenarios which generate multiple issues of principle and practice. Coursework will consist of a written assignment of about 4,000 words incorporating issues of law and practice in international arbitration. There will be one three-hour examination. It will be an open book examination. Students will be permitted to bring into the examination room at the start, and during the examination refer to, such notes, texts, reference works or other materials (except CityU Library books) as they may wish. Assessment Method Value/Weight Course Learning Outcomes Assessed Coursework 40% 1, 2, 3 Examination 60% 1, 2, 3 Note: Both coursework and examination may be used to assess all the CILOs, but they will focus on different topics. Teaching and Learning Activities (TLAs) (Indicative of likely activities and tasks designed to facilitate students achievement of the CILOs. Final details will be provided to students in their first week of attendance in this course) CILO No. TLAs Hours/week (if applicable) CILO 1, 2, 3 Lecture, seminar and tutorial 3 hours LW6408 Form 2B[R]

4 Assessment Tasks/Activities (Indicative of likely activities and tasks designed to assess how well the students achieve the CILOs. Final details will be provided to students in their first week of attendance in this course) CILO No. Type of Assessment Weighting (if Remarks Tasks/Activities applicable) CILO 1, 2, 3 Coursework 40% See below CILO 1, 2, 3 Examination 60% See below Remarks: (i) A student must obtain a minimum mark of 40% in both coursework and examination and an overall mark of 40% in order to pass a course. (ii) Students must meet the attendance requirement of 70% for the above course. If students fail to fulfil a 70% attendance requirement, their coursework will not be marked and they will not be allowed to take the final examination unless there is justification. The School may accept deviation of the proposed minimum attendance requirement if students have justifiable grounds. Grading of Student Achievement: Refer to Grading of Courses in the Academic Regulations for Taught Postgraduate Degrees. Based on students performance in assessment tasks/activities. LW6408 Form 2B[R]

5 Part III Keyword Syllabus International commercial arbitration. Institutional structures. Arbitral rules. Law and practice international arbitration. International treaties and conventions. Detailed Syllabus Introduction The legal nature of international commercial arbitration Sources of law and forms (i) Many of these topics will be referred to in lectures throughout the course, and need not be examined in detail as a discrete subject on the syllabus; (ii) Domestic and international arbitration; international and transnational; private international and public international; (iii) Ad hoc and institutional arbitration; (iv) Given the emphasis of the course, it will include close analysis of the rules and practices of: the Hong Kong International Arbitration Centre; China International Economic and Trade Arbitration Commission; and the London Court of International Arbitration; (v) The subject would not be adequately considered, however, without detailed consideration of: the International Chamber of Commerce Court of Arbitration; the Chartered Institute of Arbitrators; and the American Arbitration Association; (vi) Reference will be made to other institutions as well, including: regional centres such as those in Kuala Lumpur (the Asian-African Legal Consultative Committee), Sydney, Hawaii, and Vancouver; The Japan Commercial Arbitration Association; USSR Foreign Trade Arbitration Commission; USSR Maritime Arbitration Commission; Stockholm Chamber of Commerce; Netherlands Arbitration Institute; Euro-Arab Chambers of Commerce; (vii) International arbitration under public international law: (viii) Permanent Court of Arbitration, The Hague; The International Centre for the Settlement of Investment Disputes; US-Iran Claims Tribunal; (ix) Forms as adopted by trade usage: China Maritime Arbitration Commission; The London Maritime Arbitrators Association; The Grain and Feed Trade Association; Federation of Oil, Seeds and Fat Association; (x) Legislation: - Arbitration Ordinance LHK Cap Arbitration Law of China - General Principles of the Civil Law of China & Civil Procedure Law of China - Arbitration Acts 1950, 1975 & 1979; The Arbitration Act The Commercial Arbitration Act of the Republic of China LW6408 Form 2B[R]

6 (xi) Treaties and instruments, including:- - Geneva Conventions of 1923 and New York Convention of European Convention of World Bank Convention of UNCITRAL Model Law and Arbitration Rules The arbitration agreement (i) Form and content (ii) Arbitrability of the subject matter; applicable law (iii) Distinction between clause/agreement and submission (iv) Effectiveness; recognition by national courts (v) Separability Appointment of the arbitrator (i) Procedures, qualifications, composition of the tribunal (ii) Role of domestic courts (iii) Challenge to appointment (iv) Nature of the role of party-appointed arbitrator (v) Immunity of international arbitrators Authority of the arbitrator (i) Nature and extent of arbitrator s power in international arbitration (ii) The ability of the arbitrator to determine his jurisdiction: competenz competenz; international public policy and international commercial arbitration (iii) Challenge to jurisdiction and the role of the national courts (iv) Supervision and assistance by national courts Conservatory measures and joinder of parties (i) Means to preserve or to render protection to the subject matter of the arbitration (ii) Joinder of parties (iii) Multiparty arbitration The law governing the arbitration (i) The laws which may be involved in an international commercial arbitration; lex arbitri and the arbitration agreement, procedure and subject matter (ii) Identifying the law of the arbitration (iii) Importance of the place of the arbitration; delocalisation theory (iv) Transnational arbitrations LW6408 Form 2B[R]

7 International arbitration in practice (i) Initiating arbitration proceedings (ii) The impact of arbitration rules, with special reference to the UNCITRAL Rules and the rules of the Hong Kong International Arbitration Centre (iii) Choice of the mode of hearing, settling language and venue (iv) Pleadings (v) Discovery and inspection of documents (vi) Procedure at a hearing (vii) Evidence (viii) Authority of arbitrator to make orders (ix) Expert witnesses (x) Dissenting awards (xi) Harmonization of arbitration practice: the UNCITRAL Rules; ICSID Rules; the IBA Rules of Evidence The determination of the applicable law (i) Introduction to private international law with particular reference to principles concerning contracts and arbitration (ii) Convergent substantive law rules (iii) Conflicts avoidance (iv) General principles of law - their meanings and effect The law applicable to the dispute (i) Express and implied provisions in the agreement to arbitrate; party autonomy (ii) Lex Mercatoria - its meaning, sources, effect and limitation (iii) Non legal standards: amiables compositeurs and awards made ex aequo et bono The award (i) Form of award (ii) Delivery of award (iii) Appeal and challenge of the award Recognition and enforcement of arbitral awards (i) Distinction between foreign and domestic awards (ii) History of recognition and enforcement: an international perspective (iii) The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (iv) Rules for enforcement (v) Meanings of grounds to refuse enforcement LW6408 Form 2B[R]

8 Arbitration involving government and state owned entities (i) The distinctions and significance of state, state entity and state enterprise (ii) Capacities and abilities as a party to an agreement to arbitrate (iii) Sovereign immunity; waiver (iv) Enforcement of award against sovereign International arbitration in China re-examined (i) Rules of the China International Economic and Trade Arbitration Commission (ii) Rules of the China Maritime Arbitration Commission (iii) Practice and enforcement of awards Recommended Reading Text(s) Christopher To & Damon So, Arbitration Law (2012) Lexis Nexis, Butterworths B. Beaumont (ed), People s Republic of China in Arbitration Procedures in Asia (2002), Sweet & Maxwell. J. Mo, Probing the Uniformity of the Arbitration System in the PRC (2000) 17 Journal of International Arbitration 1. J. Mo, Arbitration Law in China (2001), Sweet & Maxwell Asia. Justice Ma, G., Dennis Brock and a team of expert contributors (ed), Arbitration in Hong Kong: A Practical Guide (2011) Sweet & Maxwell Asia. Kaplan, Spruce, & Moser, Hong Kong and China-Cases and Materials (1994) Butterworths Redfern and Hunter, Law and Practice of International Commercial Arbitration (3nd ed, 1999) Sweet & Maxwell M. Hunter, J. Paulsson, N. Rawding & A, Redfern, Freshfield s Guide to Arbitration and ADR - Clauses in International Contracts (1993) Kluwer Morgan (Annotator), The Annotated Ordinances of Hong Kong, Arbitration Ordinance (Cap 341) (1996), Butterworths Cheng, Moser & Wang, International Arbitration in the People s Republic of China - commentary Cases and Materials (1995) Butterworths Asia Wang Sheng Chang, Resolving Disputes in the PRC - A Practices Guide to Arbitration and Conciliation in China (1996) FT Law & Tax Asia Pacific R. David, Arbitration in International Trade (1985) Kluwer T.E. Carbonneau, Arbitral Adjudications: A Comparative Assessment of its Remedial and Substantive Status in Transnational Commerce (1984) 19 Texas International Law Journal 33 P. Sanders (ed), International Handbook on Commercial Arbitration (1984) Kluwer LW6408 Form 2B[R]

9 W.L. Craig, W.W. Park & J. Paulsson, International Chamber of Commerce Arbitration (2nd rev ed, 1990) ICC Publications W.L. Craig, W.W. Park & J. Paulsson, International Chamber of Commerce Arbitration (2nd rev ed, 1990) ICC Publications M. Sornarajah, International Commercial Arbitration: The Problem of State Contracts (1990) Longman J. Uff & E. Jones (ed), International and ICC Arbitration: Conference Papers and Source Materials (1990) University of London Report No. 20: Arbitration (1991) NZ Law Commission M. Rubino-Sammartano, International Arbitration Law (1990) Kluwer I.I. Dore, Arbitration and Conciliation under the UNCITRAL Rules (1986) Kluwer Ren Jianxin et al, Legal Aspects of Foreign Investment in the PRC (1988) China Trade Association, Hong Kong E. Lee: Encyclopedia of International Commercial Arbitration Law (Lloyd s) J.D.M. Lew, Contemporary Problems in International Arbitration (1986) University of London Albert Slabotzky: Grain Contracts and Arbitration (1984) Lloyd s D.K. Johnson: International Commodities Arbitration (1990) Lloyd s Anthony Brown, London Maritime Arbitration (1996) Lloyd s J. Stewart McClendon & Rosabel E. Everard Goodmann (ed), International Commercial Arbitration in New York (1986) Transnational Publishers Inc Hans Smit & Vratislav Pechota (ed), World Arbitration Reporter (1986) Butterworths C.M. Schmithoff, International Commercial Arbitration (1974) Oceana Parker School of Foreign and Comparative Law, Columbia University, Arbitration and the Courts, A Bibliography of Articles and Publications (1990) Transnational Juris Publications A.H.A. Soons, International Arbitration - Past and Prospects. A Symposium to Commemorate the Centenary of the Birth of Professor J. H. W. Verzijl ( ) (1990) Martinus Nijhoff Publishers Vincent Coussirat-Coustere & Pierre Michel Eisemann, (ed), Repertory of International Arbitral Jurisprudence Vol & Vol (1989) Martinus Nijhoff Publishers F. D. Rose, International Commercial and Maritime Arbitration (1988) Sweet & Maxwell Rahmatullah Kahn, The Iran-United States Claims Tribunal Controversies, Cases and Contribution (1989) Martinus Nijhoff Publishers R. Merkin, Arbitration Law (1991) Lloyd s LW6408 Form 2B[R]

10 ICC Court of Arbitration, International Arbitration: 60 Years of ICC Arbitration. A Look at the Future (1984) ICC J. Schultz & A. Van Den Berg (ed), The Art of Arbitration. Liber Amicorum for Pieter Sanders (1983) Kluwer Howard M. Holtzmann, A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary (1988) Kluwer A. Broches, Commentary on the UNCITRAL Model Law on Commercial Arbitration (1990) Kluwer J.D.M. Lew, Immunity of Arbitrators (1991) Lloyd s Adam Samuel, Jurisdictional Problems in International Commercial Arbitration: A study of Belgian, Dutch, English, French, Swedish, Swiss, U. S. and West German Law (1989) Schulthess Polygraphischer verlag Zurich M. Rubino-Sammartano & C.G.J. Morse, Public Policy in Transnational Relationships (1990) Kluwer David W. Shenton & Dr. Wolfgang Kuhn (ed), Interim Court Remedies in Support of Arbitration - A Country by Country Analysis (1987) Committee on Procedures for disputes of the International Bar Association Section on Business Law Isaak I. Dore, Theory and Practice of Multiparty Commercial Arbitration (1990) Martinus Nijhoff Publishers J.D.M. Lew, Applicable Law in International Arbitration (1978) Transnational Publishers Inc. Thomas E. Carbonneau (ed), Resolving Transnational Disputes through International Arbitration, Sixth Sokol Colloquium (1984) University Press of Virginia C. Platto (ed), Obtaining Evidence in another Jurisdiction in Business Disputes (1993) Graham & Trotman C. Platto, ed: Pre-Trial and Pre-Hearing Procedures Worldwide (1990) Martinus Nijhoff Publishers William F. Fox Jr., International Commercial Agreements, A Functional Primer on Drafting Negotiating and Resolving Disputes (1992) Kluwer J. Gillis Wetter, The International Arbitral Process: Public and Private (1979) Oceana Publications Ludwik Kos-Rabceiwicz-Zabkowski & Paul J. Davidson, Commercial Arbitration Associations, An International Directory and Guide (1992) Oceana Publications P.M. North & J.J. Fawcett, Cheshire and North on Private International Law (12th ed, 1992) Butterworths T. Carbonneau, Lex Mercatoria and Arbitration (1990) Parker School of International and Comparative Law, University of Columbia A J van den Berg, The New York Arbitration Convention of 1958 (1981) Kluwer LW6408 Form 2B[R]

11 Charles Lewis, State and Diplomatic Immunity (1990) Lloyd s J. Tackaberry (ed), International Commercial Arbitration for Today and Tomorrow (1991) Euro-Conferences S.J. Toope, Mixed International Arbitration: Studies in Arbitration between States and Private Persons (1990) Grotius F. Kemicha (ed), Euro-Arab Arbitration III; Conference Proceedings (1991) Graham & Trotman Kerr, Arbitration and the Courts; The Alexander Lecture (1984) 50 Arbitration 3 Brenner, Delays and Delaying Tactics in International Arbitration (1983) 49 Arbitration 9 J.A. Cohen, The Role of Arbitration in Economic Cooperation with China in Michael Moser, ed: Foreign Trade, Investment and the Law in the People s Republic of China (Oxford, OUP, 1987) Online Resources LW6408 Form 2B[R]