DISCIPLINA: International Investment Arbitration
Docentes:
Tiago José Pires Duarte

Sítio da Disciplina: http://sca.lisboa.ucp.pt/e-sca/moodle.aspx?CdDis=14C430820173

Programa:
COURSE INFORMATION____________________________________________________
Faculty: Prof. Doutor Tiago Duarte
Academic Year: 2017/2018 | 1st Semester | Elective Course
Teaching Hours: 15h | 3 ECTS
Teaching Method: Theoretical-Practical Classes

LEARNING OBJECTIVES___________________________________________________
The purpose of this course is to introduce students into the main aspects of international investment arbitration. Students will be able to understand the importance and success of the Washington Convention that has created the ICSID ? International Centre for Settlement of Investment Disputes. Students will also learn about the importance of BIT ? bilateral investment treaties, where States grant mutually relevant standards of protection to the investors that are nationals of the other State. In those BIT States give their consent in order to allow investors to launch an international arbitration directly against the State if they consider that it has failed to respect those standards granted in the BIT. ICSID arbitral awards are binding for the States cannot be set aside, can only be annulled in quite a few situations and are enforceable in all States that are members of the Washington Convention, which is a very relevant aspect. Although Investment Arbitration has enjoyed a great success, it is also subject to relevant criticism that should not be forgotten.

PROGRAM CONTENTS____________________________________________________
The origin of International Investment Arbitration: the role of the World Bank.

The importance of the ICSID ? International Centre for the Settlement of Investment Disputes and the importance of the BIT ? Bilateral Investment Treaties.

The jurisdiction of the Centre/Arbitral Tribunals:
(i) ratione voluntatis (the consent of the State and of the investor).
(ii) ratione temporis (entry into force of the BIT and its applicability to previous disputes).
(iii) ratione materiae (definition of investment; the importance of "umbrella clauses" and "MFN clauses").
(iv) ratione personae (definition of investor and determination of the nationality of the investor).

The most common Standards of Protection contained in a BIT (no expropriation, fair and equitable treatment. The relationship between the States? right to regulate and the Investors? legitimate expectations.

The execution and enforcement of ICSID awards according to the Washington Convention. The grounds for the annulment of ICSID awards.

The future of investment arbitration: Criticism and reform.


STATEMENT OF CONSISTENCY BETWEEN THE PROGRAM CONTENTS AND THE COURSE OBJECTIVES___________________________________________________________
The program covers the main topics regarding International Investment Arbitration and therefore it will allow students to achieve the course objectives. During classes case law will be given and students will be able to acknowledge the leading cases regarding each topic.

TEACHING METHOD AND ASSESSMENT _______________________________________
Classes will be both theoretical and practical and students will have the possibility to analyze both BIT and case law and to discuss the pros and cons of investment arbitration. Since they will be facing new concepts and a new paradigm of settlement investment disputes using international globalized administrative law, classes will give students the possibility to clarify any doubts they may have. Assessment will be made by a final written exam.

STATEMENT OF CONSISTENCY BETWEEN THE TEACHING METHODS AND THE COURSE OBJECTIVES ___________________________________________________________
The openness of the teaching methods allowing students to discuss the issues in class and to raise questions and clarify doubts as they learn is in line with the course objectives since students will be facing new concepts and a new paradigm. Besides that the study of case law is also in line with the course objectives since international investment arbitration has mainly been developed by case law. Each arbitral award is relevant de per se since there is no appeal and no precedent.

LESSONS? PLAN_________________________________________________________
1. The origin of International Investment Arbitration: the role of the World Bank. The importance of the ICSID ? International Centre for the Settlement of Investment Disputes and the importance of the BIT ? Bilateral Investment Treaties.

2. The jurisdiction of the Centre/Arbitral Tribunals:
(i) ratione voluntatis (the consent of the State and of the investor).
(ii) ratione temporis (entry into force of the BIT and its applicability to previous disputes).

3. The jurisdiction of the Centre/Arbitral Tribunals:
(iii) ratione materiae (definition of investment; the importance of "umbrella clauses" and "MFN clauses").
(iv) ratione personae (definition of investor and determination of the nationality of the investor).

4. The most common Standards of Protection contained in BIT (no expropriation, fair and equitable treatment. The relationship between right of the States to regulate and legitimate expectations of the investors).

5. The execution and enforcement of ICSID awards according with the Washington Convention. The grounds for annulment of ICSID awards. The future of investment arbitration: Criticism and reform.


LEGISLATION___________________________________________________________
The Washington Convention (Decreto do Governo n.º 15/84, de 3 de Abril)
BIT references will be given in class

SELECTED BIBLIOGRAPHY _________________________________________________

? Zachary Douglas, The International Law of Investment Claims, 2012
? Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law 2012
? Antonio R. Parra, The History of ICSID, 2012.
? R. Doak Bishop and Silvia M. Marchili, Annulment under the ICSID Convention, 2012
? Chester Brown and Kate Miles, Evolution in Investment Treaty Law and Arbitration, 2011
? Stephan W. Schill, International Investment Law and Comparative Public Law, 2010
? Lucy Reed, Jan Paulsson, Nigel Blackaby, Guide to ICSID Arbitration, 2010
? Richard Happ and Noah Rubins, Digest of ICSID Awards and Decisions vol. I 1974-2002, 2013 e vol. II, 2003-2007, 2009
? Christina Binder, Ursula Kriebaum, August Reinisch and Stephan Wittich, International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer, 2009.
? Christoph H. Schreuer, Loretta Malintoppi, August Reinisch and Anthony Sinclair, The ICSID Convention: A Commentary, 2009.
? Gus Van Harten, Investment Treaty Arbitration and Public Law, 2008
? Campbell McLachlan, Laurence Shore and Matthew Weiniger, International Investment Arbitration ? Substantive Principles, 2008
? August Reinisch, Standards of Investment Protection, 2008