International Law / Litigation
LL.M Seminar (cross-listed) | 3 credit hours
The seminar will be a combination of the theoretical and practical aspects of international commercial arbitration, with an emphasis on the practical. Its centerpiece will be the handling of a mock international arbitration case from the drafting of the arbitration agreement to the drafting of a final award, with units in between on the appointment and challenge of arbitrators, discovery of documents, and a live arbitration hearing. Teams of students will participate (as counsel to the parties) in the negotiation of arbitration agreements, in the drafting of motions and replies, in oral argument on such issues as the disqualification of arbitrators and the production of documents in discovery, in the hearing in a case, and in brief writing. Playing the role of arbitrators, students will also write final arbitral awards.
To the extent time permits, the course will also consider a handful of the many difficult and, to a large extent, still unanswered questions of national and international law that are emerging as the practice of international arbitration expands, including choice of law issues and, particularly in the United States, issues of the relation between federal and state laws.
The course will be limited to 12 students. It will meet once a week for two hours. There will be no final exam.
Prerequisite: A general course in international commercial arbitration. Students not having this precise prerequisite but having had a course in arbitration generally or substantial law practice experience in arbitration may apply for admission to the course by emailing Professor Joelson at email@example.com.
Mutually Excluded Courses: This course is mutually exclusive with the other spring course by this same name (LAWG 2073).
Note: This course does not meet the J.D. writing requirement (WR).
LL.M Seminar (cross-listed) | 2 credit hours
This course blends mock litigation experiences with class discussion of techniques, strategy, and ethics in international arbitration proceedings. Students directly participate in a series of practical exercises based upon proceedings brought by a foreign investor against a State before the International Centre for Settlement of Investment Disputes (ICSID), including role-playing as litigators and arbitrators. The course emphasizes advocacy in connection with jurisdictional and procedural issues, selecting and challenging arbitrators, limits on the enforceability of awards, and other litigation problems that arise in the globalized environment of international investment and arbitration. There will be a number of oral advocacy assignments throughout the semester. The course grade will be a function of those assignments and class participation.
Recommended: International Law I: Introduction to International Law
Note: Students participate in in-class exercises and are graded on those exercises and productive class participation. Students may not withdraw from this class after the add/drop period ends without the permission of the professor.
J.D. Course | 3 credit hours
International criminal law studies a grim but important subject: the prosecution of war crimes, crimes against humanity, genocide, and aggression. These are “core crimes” tried by tribunals like the International Criminal Court (ICC) and the tribunals for Rwanda, Sierra Leone, former Yugoslavia, and elsewhere. In addition, we will study the extraterritorial application of domestic criminal law to address crimes of transnational character such as terrorism, torture, and international money laundering. Along with the substantive law on these issues, we examine procedural law on topics such as extradition and immunity from prosecution. The course will also examine the problems confronting international criminal justice today, including the political backlash against accountability. Finally, we will spend some time on alternatives to criminal prosecution such as truth and reconciliation commissions. The aim of the course is to introduce students to basic doctrines of international criminal law, as well as doctrines concerning the extraterritorial application of U.S. criminal law. It also provides an overview of the work of international criminal tribunals and the challenges they face. The course combines law, policy, and history.
Mutually Excluded Courses: Students may not receive credit for both this course and the graduate course, International Criminal Law or International Criminal Law Seminar: Tribunals and Crimes or International Humanitarian Law and International Criminal Courts.
Note: This course is a first-year elective. First-year day students select an elective offered in the spring.
LL.M Course (cross-listed) | 2 credit hours
This survey course covers both basic and advanced concepts in the evolving rules governing modern international sales, distribution and investment transactions. The conduct and structure of international litigation that can arise from these transactions, as well as ways to avoid such international litigation, are also examined. Emphasis is on practical problem solving. Specific areas to be covered will include INCOTERMS, the U.N. Convention on Contracts for the International Sale of Goods, payment mechanisms for international sales, international electronic commerce, the structure of international acquisitions, U.S. and European merger notification controls, foreign ownership restrictions, export controls, corruption, and cross-border litigation and arbitration. There will be an open book final exam.
Prerequisite: Contracts (or the equivalent Bargain, Exchange, and Liability) or for foreign-educated LL.M. students, Foundations of American Law, Introduction to U.S. Legal Methods or a Contracts equivalent course from the home country.
J.D. Seminar (cross-listed) | 1 credit hour
Almost a decade has passed since the uprisings of the Arab Spring swept across the Middle East, causing political unrest and economic instability. These waves of upheaval and their aftermath have caused severe disruption to foreign investment inflows and cross-border business transactions, propagating a number of high-profile commercial and investment disputes and rendering arbitration an essential tool for doing business in the region more than ever.
This course will examine the history of arbitration in the Middle East and its evolution from the Islamic era, through the early colonial twentieth century’s oil & gas arbitrations, to the modern-day proliferation of commercial and investor-State arbitration cases. The classes will draw upon a wide range of materials including law journal articles, arbitral awards, regional treaties, domestic arbitration laws and court decisions to discuss and provoke debate over core topics in the international arbitration field, such as the impact of Sharia law on the arbitration process; the internationalization of contract-based disputes; the contribution of the Iran-US Tribunal to the development of international investment law; the role of consent to arbitration contained in domestic laws; attribution and State responsibility in the context of the Arab Spring, enforcement of arbitral awards in the region; and the rise of inter-Arab investment arbitration through the investment treaty of the Organization of Islamic Conference.
This course is designed for students, young scholars, and practitioners who are interested in understanding the unique features of arbitration theory and practice in the Middle East, and appreciating the legal and cultural context within which the current arbitration practice in the region has developed. The course will also provide practical insights and commentary on domestic arbitration regimes of selected countries, and arbitration rules and processes of some of the region’s arbitral institutions, including CRCICA, DIAC, DIFC-LCIA, ADGM-ICC, BCDR, and SCCA.
- Better understand the origins of the concept of arbitration in Islam, and the role that Sharia law plays in today’s arbitration process in the Arab world.
- Develop familiarity with the arbitration practice and its evolution in the region through the lens of landmark cases involving Arab States and assess the contribution of these cases to the overall development of the international arbitration field.
- Gain knowledge of the protections and guarantees afforded to investors by regional treaties and domestic investment laws of Arab countries, including dispute resolution clauses that refer to international arbitration.
- Identify some of the legal challenges faced by investors when attempting to enforce a foreign or international arbitral award in the Middle East.
- Develop familiarity with some of the major regional arbitral institutions and their common structures and procedural rules.
Note: Withdrawals are permitted up until the last class for this specific course.
J.D. Course (cross-listed) | 3 credit hours
In international criminal law, we begin by examining the basics: what criminal law is supposed to do and the fundamentals of international law and jurisdiction. We then study issues relating to transnational application of domestic penal codes, such as extradition and the extraterritorial application of U.S. criminal law and the U.S. Constitution. We may choose a transnational crime—such as money laundering or corruption—as a vehicle for examining the efficacy of transnational application of domestic standards. The focus of the course then shifts to truly international, rather than transnational, law. We examine the history of international tribunals intended to enforce international crimes (Nuremberg, the ICTY, and the ICTR), and delve into the structure and operation of the International Criminal Court. We focus on substantive international crimes such as genocide and crimes against humanity, and may also cover war crimes, crimes of sexual violence, and/or torture. The course closes with a consideration of alternatives to criminal prosecution, such as truth and reconciliation commissions.
Mutually Excluded Courses: Students may not receive credit for both this course and the J.D. first-year elective or the graduate course with the same title.
LL.M Course (cross-listed) | 2 credit hours
Examines selected issues involving the application of criminal law to international activities and across national boundaries. The course covers both the procedural aspects of international cooperation in criminal matters (including extradition, cross-border investigations, mutual legal assistance, and recognition of foreign penal judgments) as well as the developing substantive international law (e.g., war crimes, crimes against humanity, genocide, cybercrime, and trafficking in drugs, people and firearms). Particular attention is paid to the question of jurisdiction over criminal activities at the international level, in the context of activities such as money laundering, organized crime, and computer crime, including the reach of Constitutional protections to investigations and law enforcement activities overseas. Addresses the structure, jurisdiction, and jurisprudence of the ad hoc criminal tribunals for the former Yugoslavia and Rwanda and the statute and rules of evidence and procedure of the International Criminal Court.
Recommended: Criminal Law, Conflict of Laws: Choice of Law (or the equivalent Conflict of Laws: Choice of Law (International Focus)); International Law I: Introduction to International Law.
Mutually Excluded Courses: Students may not receive credit for both this course and the J.D. course with the same title; the J.D. first year elective, Criminal Law Across Borders; or the J.D. seminar International Criminal Law Seminar: Tribunals and Crimes; or the J.D. course International Humanitarian Law; or the J.D. course International Criminal Courts.
LL.M Course | 2 credit hours
This course examines key issues arising from the criminalization of transnational business conduct and attempts to enforce national laws extraterritorially, as well as how to counsel clients to comply with inconsistent or conflicting legal regimes. Topics covered will include: bribery of foreign officials, crime on the internet, economic embargoes and export and reexport controls, securities fraud, money laundering, and price-fixing. Attention will be paid to foreign governmental opposition to U.S. assertions of jurisdiction via "blocking" statutes, secrecy laws, and use of local court injunctions, as well as to mechanisms for resolving jurisdictional conflicts, including international agreements for notification, consultation, mutual legal assistance, "positive comity," and exchanges of confidential information among enforcement authorities. The course will also focus extensively on compliance and ethics issues and on techniques for dealing with government law enforcement agencies.
Recommended: International Law I: Introduction to International Law (or the equivalent of International Law I, which is a 3 credit course in public international law).
Mutually Excluded Courses: Students may not receive credit for both this course and International Economic Crime and Corruption.
Note: Please note, the two sections of this course have different requirements. Please be sure to register for CRN 13649 if you wish to elect the section with a final exam and CRN 24229 if you wish to elect the section requiring a paper. The cutoff date to select either an exam or paper requirement is Tuesday, September 7, 2021.
LL.M Seminar | 3 credit hours
The subject of investor-state disputes and their resolution lies at the cutting edge of international law, and is a major factor in the development of the global economic system in years to come. Study of this form of arbitration provides insight into the evolving shape of customary international law, the conflict between capital-importing and capital-exporting states, and the status of individuals in the international legal order. This seminar will provide students with a firm grounding in the history, present practice, and future implications of arbitration between foreign investors and host states, sanctioned by multilateral and bilateral investment treaties. Topics that will be covered in this course are the history of the treatment of aliens and investments under international law; an overview of the most important international treaties that give investors a right to arbitration of claims; the most important elements of procedure that characterize investor-state arbitration, including tribunal composition, jurisdiction, evidence, award and challenge or annulment; substantive law of investment arbitration, the standards that apply when a tribunal determines whether a breach of the treaty has occurred; and the future development of investor-state arbitration including the challenges of globalization and other stresses, the clash of capital-importing and capital-exporting countries, environmental protection and free trade, restrictions on state sovereignty, the construction of an international investment jurisprudence, the limits on arbitrability, and the expansion of multilateral investment protections worldwide. Active participation in discussion of the course materials is required.
Recommended: International Commercial Arbitration
Note: For the Spring section: Student who no longer wishes to remain enrolled will not be permitted to drop the class but may request a withdrawal BY PROFESSOR PERMISSION ONLY.This course requires a paper. J.D. Students: this will fulfill the J.D. Upperclass Legal Writing Requirement.
LL.M Course (cross-listed) | 2 credit hours
As economies globalize and organizations increasingly form cross-border relationships, there should be more focus on problems facing legal practitioners caused by cross-cultural differences. While international transactions comprise of distinct phases, the aim of this course is to explore the importance of pre-negotiation phase of international transactions. The legal training in the United States tend to devote far too little time and attention to the pre-negotiation phase than most of our counterparts from other countries. American lawyers generally want to “dispense with the preliminaries” and “to get down to cases” at the negotiation table. For seasoned lawyers and executives, however, this phase of Pre-negotiation is the most important stage to determine whether they want to negotiate at all and, if so, what they will talk about, and how, when, and where they will do it. Without a proper pre-negotiation phase, one may not get to that negotiation table, let alone explore any dispute resolution mechanisms.
Pre-negotiation phase can be characterized by information-gathering efforts to evaluate the parties’ interests and comprises of a process entailing rational choice to pursue negotiation or not. This course, “Pre-negotiation Strategies,” will attempt to introduce an analytical framework for understanding and formulating culturally responsive legal strategies for international lawyers. This highly interactive class will utilize case studies as well as various international agreements to highlight the importance of evaluating and analyzing the negotiating environment before it actually takes place. The course will address the need for practitioners to research and identify certain cultural mores and behavioral patterns in dealing with an unfamiliar culture as well as examine foreign bureaucracies, foreign laws, and multiple currencies in order to develop cross-culturally sensitive strategies in international transactions.
Active in-class participation and simulations will be required.
Note: First class attendance is strongly encouraged.
LL.M Seminar (cross-listed) | 2 credit hours
Modern interstate dispute resolution finds its basis in a string of ad hoc arbitrations and claims commissions from the 18th, 19th, and early 20th centuries. The United States was an early adopter of arbitration as a means of resolving interstate disputes, first agreeing with the United Kingdom in 1794 in the Jay Treaty to resolve certain disputes remaining from the Revolutionary War.
In the first part of the 20th century, there was an effort to formalize such disputes, first through the PCA and then the PCIJ and ICJ. In the latter half of the 20th century and into the 21st century, there was a rapid increase in formal mechanisms or courts to hear state to state disputes, including the WTO and ITLOS mechanisms, other specialized courts, and a host of regional courts and tribunals. Ad hoc arbitration and claims commissions continue to be used to resolve disputes as well.
This course will tackle state-to-state disputes a historical and comparative perspective, tracking the development of interstate dispute resolution over time and across institutions. We will approach the history of interstate dispute resolution from both a legal and political science perspective. In so doing, the course will ask the following questions:
- Why have states agreed to submit their disputes to arbitration or other dispute resolution mechanisms? What were the international relations factors that permitted the use of such mechanisms?
- How successful are such means in resolving disputes between states? What sorts of disputes can be resolved through arbitration or similar mechanisms?
- How does interstate dispute resolution work in practice?
- What are common procedures for such disputes?
- How do international courts develop international law?
- What are the prospects for interstate dispute resolution going forward?