INTERNATIONAL COMMERCIAL ARBITRATION (LAW 741) SYLLABUS

Transcription

1 INTERNATIONAL COMMERCIAL ARBITRATION (LAW 741) Professor Helen E. Hartnell Golden Gate University School of Law Fall Semester 2010 Course Description SYLLABUS This course explores international arbitration, which for good or ill has become e principal meod of resolving disputes between individuals, companies, and countries in connection wi international trade and investment. Arbitration is in many respects a private form of dispute resolution at operates outside e bounds of any national legal system. Yet is does not mean at arbitration exists in a parallel universe at is entirely separate from e familiar world of national legal systems. Raer, it is e interaction between national legal rules and institutions, arbitration proceedings, and globalized law at makes up e bulk of expert knowledge in is field. Drafting considerations are also important, since arbitration most often occurs pursuant to a dispute arising under a contract at contains a clause in which parties agree to submit eir disputes to arbitration, raer an to litigation in a judicial forum. This introductory course focuses first and foremost on making students familiar wi e basic rules at guide e arbitration process from start to finish. By e end of e semester, you will be familiar wi e major sources of arbitration law, which include not only e laws of a handful of countries, including but not limited to e U.S. Federal Arbitration Act (FAA), which is found in Title 9, U.S. Code, Chapters 1-3), but also key treaties (e.g., e New York and Inter-American Conventions), oer international texts (e.g., e UNCITRAL Model Law), and e rules used by a number of e world s leading arbitration institutions (e.g., e International Chamber of Commerce (ICC), e China International Economic and Trade Arbitration Commission (CIETAC), e American Arbitration Association (AAA), e Arbitration Rules of e London Court of International Arbitration (LCIA), and e Swiss Rules of International Commercial Arbitration (Swiss Rules). After taking is course, you will be able to draft an arbitration clause, represent a client in an international arbitration proceeding, and enforce (or resist e Hartnell International Commercial Arbitration - Fall FINAL 1

2 enforcement of) a foreign arbitral award. In addition, we will consider eical issues at arise in connection wi arbitration, and take a critical look at e arbitration phenomenon as a whole. The course is designed bo to serve e needs of advanced international (LL.M. or S.J.D.) students, and to serve as an advanced procedure course for J.D. students. There are no prerequisites for taking is course. However, it might be useful to have taken (or to take simultaneously) e course on International Business Transactions. Course Readings The following texts are required for is course: (1) Várady, Barceló & von Mehren, INTERNATIONAL COMMERCIAL ARBITRATION: A TRANSNATIONAL PERSPECTIVE (West: 4 edition, 2009); and (2) Várady, Barceló & von Mehren, DOCUMENTS SUPPLEMENT TO INTERNATIONAL COMMERCIAL ARBITRATION: A TRANSNATIONAL PERSPECTIVE (West: 4 edition, 2009). In addition, a small number of materials will be distributed as handouts. The following book is recommended (but not required): Blackaby & Partasides wi Redfern & Hunter, REDFERN AND HUNTER ON INTERNATIONAL ARBITRATION (Oxford University Press, 5 Student Edition, 2009). We currently have e 4 edition of is book in e GGU law library, and I have asked e librarians to place it on Course Reserve for your use is semester. (The 5 edition will also be placed on Course Reserve, once it arrives at GGU.) Course Details and Requirements This is a ree credit course. For students in e LL.M. International Legal Studies program, it will satisfy one of your core course requirements. All students in is course are expected to: attend class meetings each Monday and Wednesday from 5:00-6:15 p.m.; come to each class prepared to discuss e assigned readings; and participate in class discussions and assigned exercises. Hartnell International Commercial Arbitration - Fall FINAL 2

3 Your grade for e course will be based primarily on a written, open-book final examination. The grade received on e basis of e final examination may be raised by one grade-step (e.g., from B+ to A-) in recognition of e quality not quantity! of a student s contribution to class discussion. If you feel disadvantaged by a grading system at takes class participation into account in is way, please discuss is wi me before e last day to drop e course, so at we can make oer arrangements. You are responsible for signing e attendance sheet at is circulated during each class meeting (except during e first week of e semester, when class membership is expected to fluctuate). The grade received on e basis of e final examination and participation may be lowered by one grade step (e.g., from A- to B+) for excessive absences or lack of preparedness. You are permitted ree (3) absences during e semester; us four (4) or more absences are deemed excessive (absent a doctor's excuse or oer accommodation). If you feel unprepared for a particular class, please be sure to give me a written note to at effect before class begins. Course TWEN Site Students are encouraged to join e TWEN site as soon as possible, in order to facilitate easy and timely communication, along wi distribution of pertinent course information. You can find e course TWEN site at: Date of Final Examination ; Review Session The final exam will be a 24-hour take-home examination between e period of 10:00 a.m. on Wednesday, December 1, and 4:00 p.m. on Thursday, December 9. Please note at it is not possible to start writing e exam on Friday, December rd 3 and return it on Monday, December 6. An optional review session will be held on Monday, 29 November Contact Information and Meetings I am available to meet wi students during posted office hours or by appointment. My office is in room 3334, which is near e back elevator. You can reach me at hhartnell@ggu.edu or at (415) to schedule a meeting. Hartnell International Commercial Arbitration - Fall FINAL 3

4 INTERNATIONAL COMMERCIAL ARBITRATION (LAW 741) Professor Helen E. Hartnell Golden Gate University School of Law Fall Semester 2010 CLASS MEETING SCHEDULE AND READING ASSIGNMENTS The reading assignments labeled TEXTBOOK refer to Várady, Barceló & von Mehren, INTERNATIONAL COMMERCIAL ARBITRATION: A TRANSNATIONAL PERSPECTIVE (West: 4 edition, 2009). You are also responsible to read pertinent materials in e DOCUMENTS SUPPLEMENT at accompanies e TEXTBOOK, even if ey are not specifically indicated in e assignments below, whenever e TEXTBOOK refers to e materials contained in e DOCUMENTS SUPPLEMENT. As a practical matter, you should bring bo e TEXTBOOK and DOCUMENTS SUPPLEMENT wi you to class. A. INTRODUCTION AUGUST 16 (M) & AUGUST 18 (W) APPROACHES TO DISPUTE RESOLUTION TEXTBOOK: Chapter 1, Section I.1, pages 1-44 AUGUST 23 (M) THE EVOLUTION OF THE STANDING OF ARBITRATION WITHIN THE LEGAL SYSTEM TEXTBOOK: Chapter 1, Section I.2, pages AUGUST 25 (W) SOURCES OF RELEVANT NORMS TEXTBOOK: Chapter 1, Section I.3, pages Hartnell International Commercial Arbitration - Fall FINAL 4

5 B. ON THE AUTHORITY OF ARBITRATION TRIBUNALS AUGUST 30 (M) THE ARBITRATION AGREEMENT TEXTBOOK: Chapter 2, Section II.1.a. - II.1.b., pages SEPTEMBER 1 (W) THE ARBITRATION AGREEMENT: KOMPETENZ-KOMPETENZ TEXTBOOK: Chapter 2, Section II.1.c., pages SEPTEMBER 6 (M) SEPTEMBER 8 (W) LABOR DAY HOLIDAY (NO CLASS MEETING) THE ARBITRATION AGREEMENT: KOMPETENZ-KOMPETENZ (CONTINUED) TEXTBOOK: Chapter 2, Section II.1.c., pages SEPTEMBER 13 (M) THE FORM OF THE ARBITRATION AGREEMENT TEXTBOOK: Chapter 2, Section II.1.d.- II.1.e., pages , & ; (optional) SEPTEMBER 15 (W) THE FORM OF THE ARBITRATION AGREEMENT(CONTINUED); SCOPE OF THE ARBITRATION CLAUSE TEXTBOOK: Chapter 2, Section II.1.f - II.1.g., pages SEPTEMBER 20 (M) LIMITS ON ARBITRABILITY TEXTBOOK: Chapter 2, Section II.2.a. - II.2.c.i., pages Hartnell International Commercial Arbitration - Fall FINAL 5

6 C. THE ARBITRATORS SEPTEMBER 22 (W) QUALIFICATIONS, RIGHTS AND RESPONSIBILITIES TEXTBOOK: Chapter 3, Section III.1.a. - III.i.b. & III.1.f., pages & SEPTEMBER 27 (M) QUALIFICATIONS, RIGHTS AND RESPONSIBILITIES TEXTBOOK: Chapter 3, Section III.1.g., pages SEPTEMBER 29 (W) APPOINTMENT AND APPOINTING AUTHORITIES TEXTBOOK: Chapter 3, Section III.2.b. - III.2.c.ii., pages ; Section III.2.a., pages (optional background) OCTOBER 4 (M) CHALLENGES TO ARBITRATORS TEXTBOOK: Chapter 3, Section III.3.b. - III.3.c., pages ; Section III.3.a., pages (optional background) D. FOCAL POINTS IN THE ARBITRATION PROCESS OCTOBER 6 (W) SELECTED ELEMENTS OF PROCEDURE TEXTBOOK: Chapter 4, Section IV.1.a. - IV.1.e., pages OCTOBER 11 (M) SELECTED ELEMENTS OF PROCEDURE TEXTBOOK: Chapter 4, Section IV.h.i. & IV.j.i, pages & Hartnell International Commercial Arbitration - Fall FINAL 6

7 OCTOBER 13 (W) CHOICE OF LAW ISSUES TEXTBOOK: Chapter 4, Section IV.3.a. - IV.3.d., pages OCTOBER 18 (M) CHOICE OF LAW ISSUES TEXTBOOK: Chapter 4, Section IV.3.e. - IV.3.f., pages E. THE EFFECTS AND LIMITS OF AWARDS RENDERED IN INTERNATIONAL COMMERCIAL ARBITRATION OCTOBER 20 (W) CONFIRMATION, MERGER INTO JUDGMENT, CONCURRENT AND CONSECUTIVE PROCEEDINGS TEXTBOOK: Chapter 5, Section V.1.a. - V.1.d., pages OCTOBER 25 (M) CONCURRENT PROCEEDINGS; JUDICIAL CONTROL OVER THE AWARD: SETTING ASIDE TEXTBOOK: Chapter 5, Section V.1.e. & V.2.a. - V.2.b, pages , & (Questions 1-5) OCTOBER 27 (W) JUDICIAL CONTROL OVER THE AWARD: SETTING ASIDE TEXTBOOK: Chapter 5, Section V.2.c., pages NOVEMBER 1 (M) JUDICIAL CONTROL OVER THE AWARD: SETTING ASIDE TEXTBOOK: Chapter 5, Section V.2.d.i & V.2.e., & Hartnell International Commercial Arbitration - Fall FINAL 7

8 NOVEMBER 3 (W) JUDICIAL CONTROL OVER THE AWARD: RECOGNITION AND ENFORCEMENT TEXTBOOK: Chapter 5, Section V.3.a. - V.3.a.ii & V.3.b., pages & NOVEMBER 8 (M) PROCEDURAL GROUNDS UNDER THE CONVENTION FOR REFUSING RECOGNITION AND ENFORCEMENT TEXTBOOK: Chapter 5, Section V.3.c.i. - V.3.c.iv., pages NOVEMBER 10 (W) PROCEDURAL GROUNDS UNDER THE CONVENTION FOR REFUSING RECOGNITION AND ENFORCEMENT TEXTBOOK: Chapter 5, Section V.3.c.v., pages NOVEMBER 15 (M) REVIEW OF THE MERITS UNDER THE CONVENTION TEXTBOOK: Chapter 5, Section V.3.d., pages F. OVERVIEW OF INVESTOR- STATE ARBITRATION 1 NOVEMBER 17 (W) & NOVEMBER 22 (M) OVERVIEW OF INVESTMENT ARBITRATION, WITH EMPHASIS ON ICSID AND NAFTA HANDOUT: TBS 1 If time permits, we will cover is topic briefly. GGU offers a stand-alone course on International Investment Law, which covers such issues in much greater detail. However, if we are running behind e Syllabus on core issues covered by e Várady, Barceló and von Mehren book, we will use ese classes to wrap up ose issues instead. Hartnell International Commercial Arbitration - Fall FINAL 8

9 G. CONCLUSION OF COURSE NOVEMBER 29 (M) OPTIONAL PRE-EXAMINATION REVIEW SESSION TIME & PLACE TO BE ANNOUNCED DECEMBER 1 (W), TIME PERIOD FOR COMPLETION OF 24-HOUR 10 A.M. TAKE-HOME FINAL EXAMINATION: THROUGH STUDENTS MUST PICK UP THE EXAM AT GGU DECEMBER 9 (TH), AND RETURN THE EXAM TO GGU 4 P.M. DURING REGULAR BUSINESS HOURS WITHIN THIS TIME-PERIOD. THUS, TO GET THE BENEFIT OF THE FULL 24-HOUR PERIOD, THE LATEST YOU CAN PICK UP YOUR EXAM IS WEDNESDAY, DECEMBER 8 AT 4 P.M. PLEASE NOTE THAT IT IS NOT POSSIBLE TO PICK UP THE EXAM ON FRIDAY, DECEMBER 3 AND TO RETURN IT ON MONDAY, DECEMBER 6, SINCE THIS WOULD EXCEED THE MAXIMUM ALLOWED TIME OF 24 HOURS. FURTHER DETAILS REGARDING EXAMINATION WILL BE PROVIDED IN WRITING LATER IN THE SEMESTER. Hartnell International Commercial Arbitration - Fall FINAL 9