This course will provide an indepth study of specific topics in international commercial arbitration from both a theoretical and practical perspective. Topics to be considered will include:

1. the arbitration agreement - the separability doctrine, choice of law, parties to the agreement (including non-signatory issues), competence-competence, enforcement of the agreement and other types of national court intervention;
2. complex arbitrations - multiparty and multicontract issues, joinder of parties, consolidation of cases, parallel proceedings;
3. the arbitral tribunal - selection of arbitrators, duties of arbitrators, independence and impartiality issues, challenges of arbitrators;
4. the arbitral proceedings - bifurcation, interim measures, evidentiary rules, the conduct of hearings; and
5. the arbitral award - drafting of awards, enforcement and setting aside of awards, the 1958 New York Convention on the Recognition and Enforcement of Awards.

The course will refer to arbitration rules, case law, statutes and international conventions.

Students in this small seminar will receive individualized instruction in oral and written advocacy in advanced topics in international arbitration. The scope of instruction will include both procedural and substantive topics. The principle underlying the course is that students will learn by doing.

Enrollment will be based only on professor permission; students should not rank this course in the pre-registration process. Permission will be principally based on the results of a moot court try-out competition.

This course blends mock arbitration experiences with class discussion of techniques, strategy, and ethics in international arbitration proceedings. Students directly participate in a series of practical exercises based upon a series of international arbitration fact patterns, which will entail their role-playing as advocates, cross-examiners, and arbitrators. The course emphasizes advocacy in connection with jurisdictional and procedural issues, selecting and challenging arbitrators, and other scenarios that often arise in international arbitration.

Countries of the so called "Latin America" have seen a substantial increase in disputes submitted to arbitration. The last decade has seen, on the one hand, amendments in the arbitration laws of the region and, on the other, an increase in both commercial disputes and investor State claims under bilateral investment treaties and free trade agreements. But what is "Latin America"? Is there a Latin American arbitration? Is there a common approach to arbitration by the different countries in the region? Have the countries in the region simply adopted international standards and rules, or is there a Latin American contribution to the development of arbitration? Is there a Latin American way of conducting arbitration or rather an increasing adoption of practices and rules more akin to common law traditions? How can lawyers trained in the common-law tradition work in arbitrations subject to the laws of Latin American countries and located in Latin American venues? What have been the effects of the so-called “constitutionalization” of arbitration? Is there a uniform approach of Latin American countries to arbitration under investment treaties? Is there a trend to expand the relevance of local law in investment claims and to insist in the Calvo doctrine? Do human rights or rights of indigenous communities play a role in investment disputes? Where is the debate as to whether the existing investment treaties and the arbitration rules reflect the dominant interests of capital-exporting nations? What have been the defense strategies of Latin American states?

The mere definition of what is Latin America presents a challenge to both lawyers and historicists. This course will explore, with a brief introduction as to the historical differences and common grounds between the countries in the region, the responses to the different questions that arise in a region where the approach to arbitration swings from the magic solution to reduce work overload in courts to a public enemy that should be eliminated.

Over the past forty years, China has gone from one of the most isolated countries in the world to a major player in international affairs, a leading exporter, and a much more influential voice on regional security matters. Yet even with the rapid economic growth and increased influence that China has achieved over the past several decades, it maintains an ambivalent attitude towards many key aspects of international law and the architecture of global order. This class will explore China’s ambivalent engagement with international law in the context of its increasing prominence as an emerging power, and will in particular look to address the question of how China might adapt to the existing world order, and the ways in which it might look to influence its evolution. The class will cover a range of issues, including China’s membership in the WTO; its engagement with the international human rights regime; China’s approach to international cooperation on issues like global warming and nuclear non-proliferation; and international law aspects of the dispute over the South China Sea; among others.

Learning Objectives:

This class will provide you with a solid understanding of China’s approach to key international law issues, and also a sense of the Chinese government’s views on international law and international legal institutions more generally. By the end of the semester, you should have a sense of how China fits into the existing global legal order, and the ways in which it is seeking to influence or even alter it. In-class discussions will also bring out the ways in which other states have sought to influence Chinese behavior, which will give you a sense of how and when relatively powerful states like China can be convinced to alter their approach to key international law issues.

For students who have not previously taken a class on public international law, this course will serve as a basic introduction to key concepts of international law (although the readings will focus very heavily on the Chinese approach, rather than the underlying law itself); for those who have taken prior international law courses, this course will serve as a useful refresher.

A core goal of the class is to understand international law from the perspective of the Chinese state. In other words, students will develop a sense of why China makes the choices it does on key international law issues, and what values and political and historical dynamics drive its decision-making. In so doing, students will gain insight into a different political-legal culture, and seek to understand how different political-legal systems – including non-democratic ones like China – come to grips with legal questions in ways that may differ markedly from the approach of the U.S. government. At the same time, having taken steps to articulate China’s perspective, students may be able to see more clearly the values and political and historical factors that drive American decisions on key international law issues.

Finally, a core goal of the response papers – above and beyond demonstrating an understanding of the substance of the readings – will be to give students the chance to build their skills at analyzing legal arguments, and in building their own written arguments in response to them. As noted below, response papers will be graded both on the basis of demonstrated mastery of the material, and also on the basis of the successful construction of a persuasive and fact-based argument.

The course is designed to give students an overview and practical insight on the legal aspects of doing business with or investing in Latin America. The course will focus on Mexico, but will also address legal issues associated with doing business in Central and South American countries. Topics will be discussed from the perspective of U.S. investors doing business in the region, and will cover the legal implications of cross-border distribution, licensing and joint venture arrangements, acquisitions and direct investments, labor planning and creditor rights.

This seminar provides an introduction to the increasingly important field of private international law as well as an opportunity to explore in depth specific issues now under active consideration in the various international and regional organizations working on the development, codification and harmonization of private international law. Beyond the “classic” PIL questions of jurisdiction, choice of law, judicial assistance and enforcement of judgments, we will explore such topics as international family law (including international adoption, abduction and enforcement of child support and family maintenance), alternative dispute settlement mechanisms (including international mediation and commercial and investment arbitration), as well as the cross-border aspects of such topics as data protection and privacy, bankruptcy/insolvency, secured transactions, securities law, intellectual property, transport of goods by sea, letters of credit, leasing law, consumer protection, and even wills and trusts. You may write your papers in any of these areas (among others).  All students will be expected to choose a topic to research, write and present to the class.

This course requires a paper and an oral presentation. It is open to J.D. and LL.M. students. For J.D. students who choose the 3 credit “writing seminar” option, the objective will be to research and write analytical papers of publishable quality on discrete topics of current importance in transnational practice. Students will be required to satisfy the WR requirement including (1) selection of a paper topic approved by the professor, (2) submission of an outline, followed by feedback from the professor, (3) submission of a draft paper of at least 6,000 words exclusive of footnotes, followed by feedback from the professor, and (4) submission of a final paper of at least 6,000 words exclusive of footnotes, incorporating the professor’s suggested revisions. The paper must use legal forms of citation, where appropriate.

Learning goals for this course:

Familiarity with substance of "Private International Law", where it is developed and how; understanding of the relationship between international and domestic law; ability to research effectively in the field; ability to write coherently and present conclusions orally. 

International investment arbitration is a fast moving field, with new issues rapidly becoming pivotal to legal practice.  This seminar will delve into the cutting-edge topics that promise to make a mark on the field.  For the 2023 edition of the course, these hot topics will include, among others, fundamental reform to the international investment dispute resolution system (ISDS), the problem of corruption allegations, the role of human rights in investment disputes, transparency in ISDS  The goal of this course is not only to inform students about these emerging issues, but also to give students the analytical tools needed to thrive in a field defined by rapid change.

The course will not rely on a casebook, but instead will use awards and articles to further its goal of exploring emerging issues.   Students are expected to read all of the materials and be prepared to engage in active discussion in each class.  Twenty-five percent of the grade will be based on class participation, twenty-five percent on participation in formal in-class debates during the last day of class, and fifty percent on a final paper (on an issue of the student’s choice) to be submitted at the end of November 2023. As this is a class on questions for which there are few clear answers, there will be no final exam.

This course involves an in-depth look, in a seminar-type setting, at different state-to-state dispute settlement systems in the international trade area.  Although the principal focus will be WTO dispute settlement, the course will also examine the new or re-invigorated mechanisms in regional agreements (e.g., RCEP, CPTPP) and bilateral trade and investment agreements of the United States (USMCA, CAFTA) and the EU. In addition to examining the treaty provisions themselves, the course will involve the close reading of arbitral decisions, as a medium to examine real-world systemic issues regarding dispute settlement, such as the function of terms of reference, approaches to treaty interpretation, confidentiality, coherence between different bodies of international law, the role of precedent, standard of review, the scope of appellate review, implementation and compliance, and remedies. At the same time, students will gain familiarity with some of the leading substantive issues in international trade law. 

This course will consider ethics principles governing the conduct of counsel, arbitrators and expert witnesses in international commercial and investment arbitrations. Topics will include recent developments in the IBA Guidelines on Conflicts of Interest in International Arbitration and the IBA Guidelines on Party Representation in International Arbitration, other soft law instruments such as the ABA/AAA Code of Ethics for Arbitrators in Commercial Disputes, national law regulation of the conduct of arbitrators and counsel in international arbitrations, ethics requirements included in international arbitration rules and ethics requirements for witnesses in international arbitrations, as well as recent ethics-related jurisprudence from ICSID, arbitral institutions and various national courts.

Learning objectives:

This course has the following goals:

• To enable the student to identify fundamental differences between the ethics obligations of principal participants (arbitrators, counsel and witnesses, particularly expert witnesses) in international arbitrations (involving participants from a multiplicity of States and legal systems and a forum intended to be perceived as neutral and thus largely outside the influence of the particular national legal systems of the parties) and the ethics obligations of principal participants in national judicial systems.
• To identify the complex regulatory, choice of law and legal culture problems involved in identifying the sources and content of ethics obligations of participants in international arbitrations in light of the diversity of legal and national cultures involved and to compare and contrast with the sources and content of ethics obligations of participants appearing in national courts.
• To identify possible remedies for breaches by participants in international arbitrations of their ethics obligations (if any) and to compare and contrast with remedies in national courts.

My objective will be to enable students, by the end of the sessions, to be able to:

• describe the subject areas covered (or not covered) by ethics responsibilities for principal participants (arbitrators, counsel and witnesses) in international arbitration
• describe how those areas may differ in sources and content, when compared with national court systems,
• recognize and explain reasons why the ethics responsibilities of participants in international arbitration differ from the ethics responsibilities of similar participants in national court systems
• describe important uncertainties with respect to ethics obligations of those participants, and
• apply that learning to advise clients and counterparties on complying with those responsibilities or, when the nature of those responsibilities are uncertain, how to manage the arbitral process in light of those uncertainties.

This course will provide students with a practical understanding of an International Centre for Settlement of Investment Disputes, ICSID, arbitration proceeding from the moment of the submission of a request for arbitration through the issuance of the award and post-award remedies. ICSID is one of the five organizations of the World Bank Group and the arbitral institution most commonly used for the resolution of international investment disputes. ICSID case law has played a major role in the development of modern international investment law.

After a short introduction on the creation of ICSID and its development, students will receive a basic overview of the modern investment treaty regime. The course will then focus primarily on the jurisdictional thresholds that are at the heart of an ICSID arbitration, including the existence of a dispute arising out of an “investment”, nationality requirements, and consent to arbitration under the ICSID Convention. Special procedures, including summary dismissal of the claim under ICSID Arbitration Rules, provisional measures, intervention of non-disputing parties, such as NGO’s or multilateral organizations in the proceedings, transparency requirements and post-award remedies will also be addressed.

The course may include guest lectures.

This course aims to familiarize students with international commercial arbitration and will follow the traditional steps of international arbitration proceedings from the registration of the dispute to enforcement and challenges of an award in national courts.  This course will not rely solely on US law but, instead, adopt a global approach to international arbitration. 

The New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards is generally considered as the most important legal cornerstone for international business arbitration. It is also acclaimed to be the most successful international convention in international private law. The New York Convention provides for the international enforcement of arbitration agreements and arbitral awards. There are now 156 Contracting States and more than 1,800 court decisions interpreting and applying the Convention. The course will analyze and compare the most important ones of those decisions. It will offer a unique insight in treaty design, statutory enactments, varying court approaches, and the practice of international arbitration. The course materials will be made available at www.newyorkconvention.org.

This is a year-long class restricted to students in the International Arbitration Scholars program. The course counts as one credit in the Fall, and three credits in the Spring (students will be enrolled for both semesters and will receive one grade for the class at the end of the Spring semester. Withdrawals are permitted up to the last day of class of the Fall semester, but withdrawal from the colloquium will also result in withdrawal from the Scholars program.) During the Fall semester, Scholars and faculty will meet for informal meetings to get to know each other and to be introduced to the arbitration community in Washington. Scholars will also meet individually during the Fall semester with Professor Whitesell and/or their faculty advisor to propose their research idea, present an outline and get feedback on the outline.

During the Spring semester, the Colloquium will meet on a weekly basis as a class. Spring classes will be a combination of student presentations, and specific topics presented by invited experts. Over the course of the Spring semester, class members will present their research to the group, with each class member presenting twice during the semester (once during the beginning of the semester to present their projects in the early stages, and once during the later part of the semester to present their near-final papers). The Scholars will also meet during the Spring on an individual basis with their advisors as they work to finalize their paper into publishable quality.

This course will examine how international disputes are resolved through arbitration in Asia. With the expansion of trade and investment, integration of global markets and the increasing complexity of transactions, international disputes inevitably arise. International arbitration has become the preferred means in Asia by which to resolve cross-border disputes, providing a critical pillar to the stability of international business and financial architecture. The emergence of Singapore, Hong Kong, Seoul and Beijing, among others, as hubs for arbitration offers alternatives to traditional centers such as London, Paris, Geneva or New York. With innovative arbitral institutions such as the Singapore International Arbitration Centre, Hong Kong International Arbitration Centre, China International Trade and Economic Arbitration Commission and Korean Commercial Arbitration Board, a wealth of case law and a mixture of common and civil law jurisdictions, an understanding of the commercial and investment arbitration practice in Asia should help practitioners and students interested in arbitration and Asia.

Main Textbook: The Developing World of Arbitration: A Comparative Study of Arbitration Reform in the Asia Pacific (Hart)

Additional Material to be provided.

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.

Learning Objectives:

Students will:

• 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.

The course explores issues common to litigation in U.S. courts arising from cross-border business transactions, including venue, jurisdiction, service of process, choice of law questions, discovery, evidence from abroad, privilege and ethical considerations, and the recognition and enforcement of foreign judgments in U.S. courts. The course covers the resolution of disputes in litigation, as well as in arbitral proceedings, and through regulatory and other internal investigations, and explores issues such as the Foreign Corrupt Practices Act.

This course is structured around a semester-long, simulated negotiation exercise in which the students in this class will represent a US pharmaceutical company (KJH Pharmaceutical Corporation) and the students in a similar class, at the University of Dundee in Scotland, will represent an African agricultural production company (Malundian Cassava Corporation). The two companies are interested in working together to exploit a new technology developed by KJH Pharmaceutical that uses the cassava produced by Malundian Cassava Corporation. The form of their collaboration could be a joint venture, a licensing agreement or a long term supply contract. The negotiations will take place through written exchanges and through live negotiation via videoconference. Substantive law issues related to the transaction, as well as negotiations strategy and related issues, will be addressed in this class.

The purpose of the course is to provide students with an opportunity (i) to gain an introduction to transactional law and experience the sequential development of a business transaction over an extended negotiation, (ii) to study the business and legal issues and strategies that impact the negotiation, (iii) to gain insight into the dynamics of negotiating and structuring international business transactions, (iv) to learn about the role that lawyers and law play in these negotiations, (v) to give students experience in drafting communications, and (vi) to provide negotiating experience in a context that replicates actual legal practice with an unfamiliar opposing party (here, the students at Dundee).

The thrust of this course is class participation and active involvement in the negotiations process. Students are expected to spend time outside of class, working in teams, to prepare for class discussions involving the written exchanges as well as preparing for the live negotiations. Class discussions will focus on the strategy for, and progress of, the negotiations, as well as the substantive legal, business and policy matters that impact on the negotiations. Grades will be based on participation in the exercises, students’ diaries, and a final paper.

This simulation course is structured around a semester-long negotiation exercise in which the students on one team of lawyers will be negotiating with students on another team of lawyers. One team will represent an African agricultural production company (Malundian Cassava Corporation) and the other team will represent a multi-national pharmaceutical company (KJH Pharmaceutical Corporation). In the simulation, the two companies are interested in working together to exploit a new technology developed by KJH Pharmaceutical that requires use of a plant crop (cassava) produced in Malundi and sold by Malundian Cassava Corporation. The form of their business collaboration could be a joint venture, a licensing agreement, or a long-term supply agreement. The negotiations will take place through written exchanges and through face-to-face negotiation sessions. Substantive legal topics related to the transactions, as well as to the process of international negotiation and related issues, will be covered  in this course.

The goals of this course are (i) to introduce students to transactional law and practice, (ii) to provide negotiations training and experience in the context of international transactional practice, and (iii) to develop legal-practice skills. Students will apply their legal and non-legal knowledge in the role of lawyers negotiating an international business transaction, within the controlled environment of the classroom.

This experiential course is built around active involvement in the transactional negotiations process. Students may expect to spend some time outside of the class meetings working in teams to prepare the written exchanges and prepare for the negotiations. Class meetings will focus on the strategy for and the process of the negotiations as well as on many of the substantive legal, business and policy issues that arise in the course of business negotiations. Grades will be based on 1) written self-evaluation “journal” entries and 2) a final paper (see “Course Requirements” below).

This three credit course is an introductory survey of legal issues that arise in connection with international business transactions.  Subjects covered include:  (1) laws and treaties involved in cross-border business transactions; (2) core international business transactions, including international sales and letters of credit, non-establishment (agency, distribution, contract manufacturing, franchising, licensing) and establishment (branch, subsidiary, joint venture) forms of doing business, equity and debt/project finance transactions, and mergers and acquisitions; (3) fundamental legal concepts such as choice of law, choice of forum, jurisdiction, investment protection (expropriation), anti-corruption and competition regulation, and dispute resolution, focusing on litigation and arbitration, (4) the transfer and protection of intellectual property, and (5) corporate social responsibility.

The learning outcomes for this International Business Transactions course include: (1) basic knowledge and understanding of (a) substantive and procedural laws concerning international business transactions, and (b) the role of private and public international law in the conduct of international business; and (2) international legal analysis and reasoning, problem solving, professional skills, and written and oral communication in the context of international business transactions.

An introductory survey course examining transactional and litigation issues faced by international businesses. The goal of this course is to familiarize students with the broad scope of issues affecting international business prior to the students choosing other courses for further specialization and to introduce students to analytical tools used by lawyers who advise on matters related to international business. Emphasis is given to the actual practice of international business law.  Topics will include the international sale of goods (including letters of credit), international contract issues, cross-border investment, and international investments including project finance. 

This course presents an introduction to international commercial arbitration. It examines the nature of arbitration, the procedures used in international arbitration (both institutional and ad hoc) and the enforcement and setting aside of arbitral awards. The course will also cover drafting arbitration agreements, the law applicable to arbitrations (including the New York Convention, the ICSID Convention and various institutional rules), challenges to arbitration, multi-party arbitrations, jurisdiction, preliminary or interim measures and selection of the arbitral tribunal. The course also provides an introduction to arbitration between investors and states. Grades will be based primarily upon short papers addressing current issues in international arbitration.

In today's global economy, parties to cross-border commercial transactions usually choose to resolve their disputes through international arbitration. This course provides students with an understanding of the law and practice of international arbitration from the perspective of United States law. Among other things, the course will consider the alternatives to international arbitration; the international conventions and U.S. arbitration statute; the arbitration agreement; the role of courts and tribunals in determining issues of arbitrability; international arbitration rules; provisional measures; judicial enforcement of arbitration agreements and arbitration awards; and judicial setting aside of arbitration awards.

This class looks at international commercial arbitration in cross-cultural context and considers the various ways in which arbitral procedure borrows from the common and civil law traditions. Students will study various practices that are typical in arbitration and that can give rise to particular difficulties when the parties, counsel and/or arbitrators come from different legal traditions.

Among other things, students will engage in hands-on exercises involving interviewing, cross-examination, drafting of witness statements and the like. The goal is to provide students with a deeper understanding of how international commercial arbitration differs from other types of national and international dispute resolution and to provide students with the tools needed to excel in this growing area of law and practice.

After taking this course, students will have an increased ability to:
• appreciate the special nature of international arbitration as compared to other national and international dispute resolution processes;
• draft and revise international arbitration agreements;
• select an appropriate arbitrator in international matters;
• challenge arbitrators in international disputes;
• conduct cross-examination in international arbitral settings; and
• draft and review document requests in international arbitration. 

Resolution of disputes between private sector companies and sovereigns arising under international contracts and projects typically are resolved by international commercial arbitration, giving rise to unique challenges, issues, and opportunities.

This class will address the relationship between international arbitration and court litigation, key fora and features that exist in this realm, proper negotiation and mediation techniques, analysis of foreign sovereign immunities, choice law issues, the importance of language and culture in these disputes, interplay with treaty arbitration, issues arising under arbitration clauses, critical trends in case law and arbitral institutions, and enforcement of arbitration awards globally. The course will feature guest speakers, hands-on exercises, use of materials from actual arbitrations, optional field trips to local courts, and a two-class practical moot--all focused on the dynamics and practicalities of dealing with the disputes of sovereigns and private parties.

The course begins with an introduction to international energy arbitration, followed by discussion of the international energy industry, its sources, segments, and players, including its evolution during the energy transition. An extensive presentation on the legal framework for international energy arbitration covers international laws and norms, national constitutions, national petroleum laws and regulations, and, in particular detail, the historical evolution of upstream host government petroleum contracts, including petroleum fiscal systems. To place the subject of host government contracts in its proper setting, the next section describes resource cycles and resource nationalism, as well as the legal status of host government contracts. Segments on contract stabilization and choice of law come next. Discussion then moves to the early international oil and gas arbitration awards, from there to several modern international oil and gas arbitration awards, and finally to contemporary energy disputes with host governments. The course next covers commercial disputes arising out of joint operating agreements, gas contracts, and LNG sales contracts. Following a discussion of enforcement of energy awards, the final segment concerns building an international energy arbitration practice. The course is designed to provide an in-depth knowledge of the main types and key drivers of international energy disputes, past and present, not only to aid in understanding the international energy industry, its business relationships and contracts, its broader legal framework, and its disputes, but to build better advocates to represent international energy companies and host governments in these contentious proceedings.

International investment law consists of those international legal principles that define the obligations of states toward the investments of aliens within their territory. Like all international law, it has developed in response to the concerns of States. The goal of this seminar is to develop in the student a rather full understanding and appreciation of the important principles of international investment law that now prevail and of the issues that are currently the subjects of serious debate. The seminar aims to develop this understanding by studying the historical development of this area of the law and considering the fundamental concerns of States that have driven this development.

We will begin by considering, as a normative matter, what a state’s responsibility toward private property should be and then review the legal principles espoused by the United States and other Western countries at the beginning of the last century, when there were few independent countries interested in challenging these views. We then will consider the development of dissent from this Western consensus in Latin America and in the newly independent states of Asia and Africa that emerged following the Second World War. Our consideration of this period of discord will be followed by discussion of the so-called "Washington consensus" that developed in the 80s and 90s, some parts of which are reflected in the thousands of bilateral investment treaties that have been concluded, largely in the last 30 years. We then will focus on those investment treaties, and the many arbitral awards that have interpreted them, to identify (1) key principles of investment law on which a broad consensus has emerged and (2) difficulties that arise in applying those principles to particular situations. Finally, the seminar will consider the relationship between international investment law and efforts by states -- jointly or separately -- to promote environmental protection, labor rights, and investments that serve the long-term interests of the population of the host state. We will discuss whether these goals can be pursued effectively under the principles on which a consensus now exists, whether these principles need to change, or whether some additional principles need to evolve. We will end by discussing some of the policy issues now being debated that relate to the desirability of investor-state dispute-settlement procedures and to the contents of international investment agreements, including two now being negotiated, the Transatlantic Trade and Investment Partnership (TTIP) and the Trans-Pacific Partnership (TPP)

Foreign investments today enjoy international legal protection through a global network of more than 3,000 investment treaties. Many of these treaties offer recourse to international arbitration to investors whose investments have been subject to interference in the state hosting the investment. Public interest in investment treaty arbitration is growing and both developed and developing countries have begun to revisit their treaties. Investment treaty arbitrations often focus on the interface between domestic and international law, and turn on how to balance the rights of private investors against the wider public interest.
 
Over the last two decades, international investment law has become one of the most dynamic areas of international law. Public attention has focused on the Transatlantic Trade and Investment Partnership, NAFTA, and the Trans-Pacific Partnership Agreement. In the wake of a rapid increase in the number of investment disputes, including those arising out of Argentina’s 2001 financial crisis, Germany’s exit from nuclear power, the expropriation of Yukos shareholders and Australia’s plain tobacco packaging legislation, awareness of investment treaties and their robust investor-state dispute resolution mechanism, has grown. The legitimacy and fairness of decision-making by investment tribunals have come under scrutiny.
 
This seminar addresses the substantive and procedural legal issues arising in investment law and arbitration today, principally – but not exclusively – from the perspective of practice. We will consider the ambit and substance of the protections afforded to foreign investors through treaties, including investment chapters of free trade agreements, while focussing on the specific legal and practical issues that can arise for claimant investors, respondent states, arbitrators and third parties during the course of a case. We will learn about the institutions and rules that govern investor state arbitration, we will consider the theoretical and policy background that underpins the governing framework, and we will scrutinize the relationship between investment treaty law and other areas of international law, public law, and human rights law

This survey course introduces students to the mechanisms used to resolve cross-border commercial disputes—international litigation and international arbitration—from the perspective of a practitioner. Among the topics examined are (1) the legal and practical advantages and disadvantages of litigation and arbitration, (2) the international legal framework for international arbitration and litigation (including key treaties), (3) key elements of international arbitration agreements (including the negotiation of those agreements), (4) key principles regarding the enforcement of international arbitral awards, (5) basic conflicts of laws principles in international arbitration and litigation, (6) principles and tactics involved in litigating and arbitrating against foreign sovereigns and their instrumentalities, (7) the jurisdiction of US courts over foreign defendants in cross-border cases, (8) the enforcement of US judgments in other national courts, (9) the practice and strategic use of parallel international litigation and arbitration proceedings, and (10) unique features of civil and common law in the resolution of international commercial disputes.

The International Negotiation course will focus on the methods and objectives for successfully engaging in international negotiations. This course will include in-depth reviews and class discussions of negotiations conducted by governments, the private sector, non-governmental organizations, as well as international institutions. The course will provide important insight into the necessary preparations and research necessary to conduct international negotiations as well as a better understanding of the complexities and nuance of actual negotiations. The course will provide students an opportunity to review and dissect previous negotiations and prepare and conduct negotiations based on their understanding of what works and what does not. Discussions will focus on the most important aspects of negotiations -- mutual understanding of the expected outcome, in-depth review of the expected positions of the parties, how to accurately understand the extent of any leverage and how to assess a successful outcome. Cultural, linguistic and other possible impediments to a successful negotiation will also be explored to provide students a full understanding of all that goes in to a successful negotiation.

This seminar seeks to develop skills and knowledge to participate in negotiations and in particular international business negotiations. Approximately a third of course time is devoted to the negotiating process and analysis of negotiation principles and dynamics. Another third is spent on the cultural, practical, legal and strategic elements of international business transactions. The balance is spent on a series of "mock" negotiations. Students, individually and in groups, experiment with different negotiating techniques and fact situations of increasing complexity. The course requirement is principally satisfied through preparation of a comprehensive negotiated agreement and follow-up memorandum. Heavy emphasis is placed on class participation, including the negotiations. The final negotiating problem requires substantial team work with others, including strategy, analysis, and preparation. Negotiations are carried on both inside and outside normal class time.

After introductory lectures on negotiation theory and practice, the seminar students will be divided into teams for a series of simulated negotiations covering government-to-government, government-private and transnational private negotiations.  Student performance in these negotiations and class discussions will comprise most of the course grade; no research paper or examination is required.

This course deals with international protection of intellectual property through the World Trade Organization (WTO) and the WTO agreements which cover intellectual property: the TRIPS Agreement, The Paris Convention and the Berne Convention. The course will also cover the General Agreement on Tariffs and Trade (GATT) and the Dispute Settlement Understanding, which are essential in enforcing these agreements.

The course examines in detail the relevant U.S. law and how the extraterritorial application of these laws effects international enforcement of intellectual property. These laws are Section 337 of the Tariff Act of 1930 which prohibits the importation of articles into the United States which infringe U.S. patents, trademarks, or copyrights, and Section 301 of the Trade Act of 1974 which allows retaliation against foreign countries which impose unjustifiable or unreasonable restrictions against U.S. commerce.

The main WTO cases in intellectual property will be read and analyzed. These will include the cases on Sections 337 and 301, which have limited the United States’ ability to unilaterally affect intellectual property law. Other cases will include the U.S. – Cuba Havana Club case, the Indian Pharmaceutical case, the Internet Gaming case, the U.S. Musical Copyright case, the European Geographical Indication (GI) case, the Canada Pharmaceutical patent case, and the China Intellectual Property Violation case. The course will study the Doha Agreement, which allows the compulsory licensing of pharmaceutical patents to fight pandemic diseases particularly HIV/AIDS. Finally, the course will review any significant changes in trade law or existing trade agreements, particularly as relates to intellectual property, that may occur under the Trump administration

This three-credit course introduces students to the legal and policy aspects of international trade and investment law, two pillars of international economic law that have developed dispute settlement systems. These two areas of law affect a broad array of national legislation, regulation, and administrative practice, as well as other areas of international law and policy, such as development, human rights, climate change, and other environmental issues. Both trade law and investment law have raised anxieties regarding their linkages, effects, and overlaps with non-economic issues. The United States, European Union, China, and many other countries have actively engaged in litigation and new negotiations in both fields of law. In international trade law, governments bring legal claims against each other for breaches of obligations, while private lawyers work with private commercial interests behind the scenes and often directly on behalf of governments. International investment law, in contrast, provides direct rights to private foreign investors to bring claims against governments. These disputes are proliferating and sometimes overlap with international trade law claims. In the past, the U.S. always sought protection for its investors in developing countries, but with shifts in the global economy, the U.S. increasingly became subject to such suits by foreign investors. This course will introduce students to both of these areas of international law practice.

This course will teach students the practical aspects involved in litigation of international trade and investment disputes. Its goal is to prepare students entering either private practice or government service to handle complex litigation in those fields. The course will provide a comparative analysis of the dispute settlement mechanism of the World Trade Organization (WTO) and Investor-State arbitration. While it will focus on procedural issues and case management, the first sessions will provide an overview of the legal framework of the multilateral trading system and investment treaty law. It will identify and analyze each phase of the proceedings of WTO disputes (under the Dispute Settlement Understanding) and of investor-State arbitrations (mainly under the arbitration rules of the International Centre for Settlement of Investment Disputes and Chapter Eleven of the North American Free Trade Agreement). Some of the topics that will be covered include: pre-trial preparation, formal initiation of a dispute, constitution of panels and tribunals, discretionary procedural issues, evidentiary issues, jurisdictional and other preliminary objections, written pleadings, conduct of hearings, use of witnesses and experts, awards and rulings, recourses, implementation and enforcement, and in general case management. The analysis and discussions in class will be based on treaty text, jurisprudence and the practical, hands-on experience of the professors. Guest-speakers – including practitioners, government officials, or staff from relevant international organizations – will be invited to a few sessions. Students will be expected to participate in class discussions and in simulations.

Economic interdependence between countries and across production chains has grown exponentially. Yet, today, economic globalization is under attack. In this context, existing rules on international trade, and negotiating fora to potentially change those rules, are key. This course focuses on the rules and institutions established under the World Trade Organization (WTO) as well as selected regional trade agreements. What are the benefits and risks of trade liberalization from legal, economic and political perspectives? How can trade liberalization go hand in hand with pursuing public policy goals such as protecting the environment or labour standards ("non-trade concerns"), job creation or promoting the economic development of poor countries? The course will offer an in-depth, practical knowledge of substantive WTO law drawing heavily on case law from dispute settlement practice. It will address the basic principles of trade in goods and trade in services as well as more specific WTO agreements on, for example, health measures, subsidies, trade remedies and intellectual property rights. The course will also focus on the unique WTO mechanism for the settlement of trade disputes, and especially on how it balances trade liberalization with non-trade concerns as well as how it copes with increasing trade tensions between OECD countries and emerging economies like Brazil, China, India and Russia.

Examines international trade laws and regulations and World Trade Organization agreements affecting international trade, and the relationship of the General Agreement on Tariffs and Trade 1994 and other international agreements to U.S. law and practice. Considers, in detail, the U.S. antidumping, countervailing duty, safeguards (Section 201) laws and regulations and the WTO agreements that establish multinational standards applicable to the use of those remedies. Examines the WTO agreements on services, intellectual property, and technical barriers to trade. Examines the statutory remedies, particularly Section 301, that are available to address foreign restrictions on U.S. exports of goods, capital, services, and intellectual property. Analyzes the U.S.-China "trade war" and resulting tariffs and agreements.  Evaluates the role of Congress, the U.S. Trade Representative, and other U.S. agencies in setting trade policy and overseeing administration of the trade laws. Analyzes the WTO procedures for dispute resolution and key WTO panel and Appellate Body decisions. Reviews free trade agreements, including the U.S.-Mexico-Canada Agreement, as well as bilateral investment treaties. The course includes a weekly discussion of current events affecting international trade law and regulation.

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?  

This course will introduce the basic concepts of international commercial arbitration from both a theoretical and practical perspective. It will provide a general overview of the subject, and subsequently focus on issues including the agreement to arbitrate, the constitution and duties of the arbitral tribunal, the conduct of the proceedings and the arbitral award. The course will refer to the ICC Rules of Arbitration in discussing many of the practical aspects of these issues.

This seminar will lay out the basic principles of international investment treaty arbitration by analyzing and studying the underlying principles of public international law as well as landmark decisions of the Permanent Court of International Justice and the International Court of Justice (ICJ) that influence Investor-State arbitration. The curriculum and calendar of the seminar will follow the procedural structure of a proceeding at the International Centre for Settlement of Investment Disputes (ICSID) — i.e., first covering registration of a request for arbitration under articles 25 and 36 of the ICSID Convention, then discussing preliminary objections under Rule 41(5) of the ICSID Rules of Arbitration, provisional measures, objections to jurisdiction, merits, and ending with quantum.

The objective of the seminar is to provide students interested in investment treaty arbitration and/or public international law with a solid understanding of the principles and judgments of the ICJ and other relevant public international law instruments, including the International Law Commission’s 2001 Articles on State Responsibility, which together form the basis for the rules and principles that guide investment treaty arbitration.

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.

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.

This seminar focuses on modern issues related to litigation and dispute resolution as well as the role of private enforcement in our overall system of divided government. In particular, the seminar will dedicate discussion to the doctrinal and litigation history that produced our present litigation landscape, questions of policy and theory that cut across class actions and other litigation alternatives, and questions regarding the role of private enforcement, the judiciary, and the rule of law in our system of government.

The seminar will integrate guest speakers that include some of the leading practitioners, judges, and scholars in the country.

This seminar is intended for students who wish to pursue advanced, in-depth study of our system of litigation and private enforcement. Civil Procedure (or Legal Process and Society), torts, and contracts are pre-requisites.

Students will write short response papers on the readings, which—depending upon the particular reading—will be assigned either weekly or bi-weekly.

As firms from developed countries expand overseas, there is a growing demand for lawyers able to negotiate two types of contracts of increasing importance worldwide: contracts governing international joint-ventures and contracts governing investment by firms in countries other than their own, in particular in developing countries.

The purpose of this experiential course is to make it possible for LL.M. students to acquire the practical knowledge and to hone the skills needed to serve effectively in teams negotiating such contracts.

To this end, the course will be structured around three simulated negotiations of increasing difficulty:

• A simulated negotiation focused on the international licensing of a medical technology, because the transfer of technology is an increasingly important dimension of international joint-ventures and of foreign investments.
• A simulated negotiation focused on the formation of an international joint-venture to produce and commercialize green hydrogen based upon a new technology.
• A simulated negotiation focused on an investment by a firm from a developed country, into an oil-rich developing country, to make it possible to transform gas currently flared, a major source of pollution, into non-polluting products of significant commercial value.

For each simulated negotiation, the class will be divided into two teams that will negotiate with each other. The composition of the teams will differ for each simulated negotiation. During the simulated negotiations, each student will serve at least once as spokesperson for her/his team, engaging the other team on specific issues. After each simulated negotiation, the students who were not spokespersons will draft a memorandum of understanding summarizing what the parties agreed upon.

Learning Objectives:

By the end of the course, the students:

1. Will have gained an understanding of: a) the main issues that arise in the negotiation of each type of contract mentioned above (international joint venture; foreign direct investment), and b) the usual contractual ways to address such issues.
2. Will have honed three main types of skills: a) analysis skills required to design contracts that help both parties in a negotiation reach key strategic objectives; b) interpersonal skills required to constructively engage the other side during a negotiation; and c) writing skills needed to prepare memorandums of understanding (MoUs) that will be a solid basis for the drafting of durable contracts.

All lawyers, irrespective of their specialty, must negotiate. This intensive, interactive seminar will explore the theoretical and practical aspects of negotiating and mediating transactions and disputes in our legal system. The goal is to improve students’ understanding of negotiation and mediation as well as their ability to negotiate effectively.

Students will learn to negotiate by studying the negotiation theory, concepts and principles, and by participating in simulations and exercises from a variety of practice areas. The simulations are designed to familiarize students with the negotiating and mediation processes, sensitize them to their own negotiating behaviors, teach them how to use a mediator in aid of their negotiations, and raise a number of ethical and practical questions. 

Through in-class negotiation exercises, students will develop and sharpen skills in the areas of listening, asking questions, creative thinking, and persuasive communication. Class lectures and discussions will focus on such topics as the difference between competitive and integrative bargaining, the psychological and ethical dimensions of negotiations, and the importance of context in choosing negotiation strategies. Students will be videotaped while conducting at least one of their negotiations, followed by instructor evaluation and feedback.

Grades are based on the quality of student participation, several short “think pieces” and journal entries based on in-class experience, readings and lectures, and a final 10-15 page paper.

The Workshop is intensive (9:00 a.m. - 4:30 p.m. for six sessions spread over two weekends). Full attendance and participation is required at all six sessions.

Learning Objectives:

• Familiarization with negotiation and mediation theory, concepts and principles.
• Deepening of behaviors, processes and mindsets required for effective negotiation and mediation.
• Sharpening skills in the areas of listening, asking questions, creative thinking, and persuasive communication.
• Engaging in reflective practice.
• Awareness of the role that assumptions, differences (e.g., culture, gender) and psychology play in shaping negotiation/conflict dynamics.

This intensive, interactive seminar is designed to teach both the theory and practice of negotiation. The goal is to improve students’ understanding of negotiation as well as their ability to negotiate effectively. Students will spend much of their time participating in negotiation exercises and simulations from a variety of practice areas. Through the in-class negotiation exercises, debriefings, and lectures, students will develop and sharpen skills in the areas of listening, asking questions, creative thinking, and persuasive communication. Class lectures and discussions will focus on such topics as the difference between competitive and integrative bargaining, the psychological and ethical dimensions of negotiations, and the importance of planning and choosing negotiation strategies.

The seminar will meet for five sessions spread over two weekends. Attendance at all sessions is mandatory. Between weekend sessions, students will negotiate with a classmate and write a short reflection paper about the experience. In addition, a final paper (10-15 pages) is required, in which students should demonstrate that they have learned the concepts, principles, and theories from lectures, readings, and exercises.

Grades will be based on:

• Participation in class (30%)
• Midterm reflection paper (20%)
• Final paper (10-15 pages) (50%).

Learning Objectives:

• Gain knowledge about negotiation theory, including the differences between competitive bargaining and integrative bargaining.
• Know how to prepare to conduct an effective negotiation.
• Feel more comfortable negotiating and become more effective negotiators.
• Develop and sharpen skills in the areas of listening, asking questions, creative thinking, and persuasive communication.
• Engage in effective problem solving with respect to the simulated exercises, whether alone or in teams.
• Identify and appreciate ethical considerations related to negotiations.
• Engage in self-reflection and peer critique, including applying lessons learned in exercises to future performances and providing constructive criticism to classmates.

This interactive seminar is designed to teach both the theory and practice of negotiation. The goal is to improve students’ understanding of negotiation as well as their ability to negotiate effectively. Students will spend much of their time participating in negotiation exercises and simulations from a variety of practice areas. Through the in-class negotiation exercises, debriefings, and lectures, students will develop and sharpen skills in the areas of listening, asking questions, creative thinking, and persuasive communication. Class lectures and discussions will focus on such topics as the difference between competitive and integrative bargaining, the ethical dimensions of negotiations, the importance of reputations, and the value in planning and choosing negotiation strategies.
The seminar will meet during Week One (Monday - Friday). Attendance at all sessions is mandatory. The class sessions are designed to provide an environment that is conducive for all students to experiment with different negotiation skills and behaviors. Students are not graded on the outcomes or results of negotiations, but on commitment to the materials and exercises. 

This interactive seminar is designed to teach both the theory and practice of negotiation. The goal is to improve students’ understanding of negotiation as well as their ability to negotiate effectively. Students will spend much of their time participating in negotiation exercises and simulations from a variety of practice areas. Through the in-class negotiation exercises, debriefings, and lectures, students will develop and sharpen skills in the areas of listening, asking questions, creative thinking, and persuasive communication. Class lectures and discussions will focus on such topics as the difference between competitive and integrative bargaining, the ethical dimensions of negotiations, the importance of reputations, and the value in planning and choosing negotiation strategies.

While arbitration is most often thought of as an alternative to litigation in national courts, arbitration between sovereign states developed as an alternative to war. This course examines the use of arbitration to resolve the most complex and politically sensitive disputes between governments.

Drawing heavily on the experience of the Permanent Court of Arbitration, students will learn the reasons for the renaissance of this form of dispute settlement and how it differs from more conventional forms of arbitration and from international courts with pre-appointed judges. Students will evaluate arbitration's effectiveness in a series of recent high-profile cases. The course will include video clips of hearings and interactive exercises.

The course analyzes the World Trade Organization (WTO) and its agreements, including the General Agreement on Tariffs and Trade (GATT), and the substance and status of negotiations to amend the agreements. It concentrates on the coverage of the agreements, based on their text and interpretive guidance from key dispute settlement decisions. The course also reviews the relevant economic, policy and legal aspects of the international trading system.