Dr Oliver Hailes

This course is available on the LLM (extended part-time), LLM (full-time) and University of Pennsylvania Law School LLM Visiting Students. This course is available with permission as an outside option to students on other programmes where regulations permit.

This course has a limited number of places and demand is typically high. This may mean that you’re not able to get a place on this course.

None, but students would benefit from enrolling in LL4E6 International Dispute Resolution: Courts and Tribunals, LL4E7 International Investment Law and Arbitration, and/or LL4C5 International Commercial Arbitration. Commercial lawyers with no background in public international law are invited to read Roberts and Sivakumaran, ‘The Theory and Reality of the Sources of International Law’ in Evans (ed), International Law (2018). Students may also wish to consult one of three recent manuals that address interactions among different forms of international arbitration: Kröll, Bjorklund & Ferrari (eds), Cambridge Compendium of International Commercial and Investment Arbitration (2023); Lim (ed), The Cambridge Companion to International Arbitration (2021); Schultz & Ortino (eds), The Oxford Handbook of International Arbitration (2020).

From the Alabama Claims to climate change, international arbitration remains the preeminent procedure for resolving commercial disputes, protecting foreign investment, and delimiting sovereign entitlements. Such matters may be determined by public international law, when dealing with states in their governmental capacity, or commercial parties’ choice of domestic contract law. The law governing the arbitration agreement and the law of the seat may also play decisive roles. Practitioners of interstate, investment, and commercial arbitration must be able to codeswitch among applicable laws and procedural rules when representing businesses or governments, whilst appreciating where these different types of disputes may overlap. Similarities and differences across these forms are equally important for academics and policymakers who take arbitration as an object of criticism or reform.

The three main forms of international arbitration are introduced in LL4E6 (interstate), LL4E7 (investment) and LL4C5 (commercial). Through a programme of wide reading and discussion, this course connects these specialised forms to develop a generalist perspective on international arbitration as a unified field of practice. Analytical essays should appraise this perspective, whereas problem questions call for strategic choices in making or facing claims that could be brought before any of the three forms of international arbitration and the application of legal techniques to resolve possible conflicts.

The course is organised in three parts. Part I (Foundations) introduces the theoretical debates, historical development, common rules of procedure, and sociological factors that underpin modern practice. Part II (Forms) digs deeper into the three main forms, including the relevant bases of consent, sources of applicable law, typical claims, and available remedies. This part also highlights connections among the three forms through issues such international public policy, territorial disputes affecting natural resources, and contract claims under investment treaties. Part III (Frictions) turns to cross-cutting problems in arbitral practice and policy debates, including the protection of public interests, force majeure and other changes in circumstances, parallel proceedings, and the enforcement of arbitral awards.

There will be 20 hours of teaching content in Winter Term and an additional two hours of teaching in the Summer Term. There will be a Reading Week in Week 6 of Winter Term. The first half of the course will include a mix of lecture material and class discussion, whereas Weeks 7 to 10 will include group presentations in response to problem questions, thus preparing students for practical scenarios and summative assessment.

One 2,000 word essay.

Alongside excerpts from arbitral awards (mainly ad hoc, ICC, ICSID or PCA) and domestic judgments (mainly UK Supreme Court but also Paris Court of Appeal and others), students will become familiar with key instruments: eg Arbitration Act 1996 (UK); ICC Arbitration Rules (2021); ICSID Arbitration Rules (2022); ICSID Convention (1965); ILC Articles on State Responsibility (2001); New York Convention (1958); UNCITRAL Arbitration Rules (2021); UNCITRAL Model Law on International Commercial Arbitration (2006); UNIDROIT Principles of International Commercial Contracts (2016); Vienna Convention on the Law of Treaties (1969).

Students will engage with foundational texts and recent literature: eg Crawford, ‘Continuity and Discontinuity in International Dispute Settlement’ (2010) 1 JIDS 3; Demirkol, ‘Peaceful Settlement of Inter-State Energy Disputes: Applicable Law, Defence Arguments, and Remedies in the ICC Arbitration between Iraq and Turkey’ (2023) 26 JIEL 786; Douglas, ‘The Umbrella Clause Revisited’ (2023) 38 ICSID Rev 472; Fietta and Upcher, ‘Public International Law, Investment Treaties and Commercial Arbitration: An Emerging System of Complementarity?’ (2013) 29 Arb Intl 187; Grisel, ‘Treaty-Making between Public Authority and Private Interests: The Genealogy of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards’ (2017) 28 EJIL 73; Kaufmann-Kohler, ‘Arbitral Precedent: Dream, Necessity or Excuse?’ (2007) 23 Arb Intl 357; Lalive, ‘Transnational (or Truly International) Public Policy and International Arbitration’ in Sanders (ed), Comparative Arbitration Practice and Public Policy in Arbitration (1987); Paulsson, ‘Arbitration in Three Dimensions’ (2011) 60 ICLQ 291; Pathak, ‘Jurisdictional Conflicts between Investment Treaty and Commercial Arbitration—The Role of Lis Pendens’ (2021) 12 JIDS 367; Viñuales, ‘Defence Arguments in Investment Arbitration’ (2020) 18 ICSID Rep 9.

Key journals, databases, and reports include Arbitration International, ICSID Reports, ICSID Review, International & Comparative Law Quarterly, Investment Arbitration Reporter, Journal of International Arbitration, Journal of International Dispute Settlement, Jus Mundi, and Reports of International Arbitral Awards.

Exam (100%, duration: 2 hours and 30 minutes) in the spring exam period.

Out of the six possible questions, students must answer one essay question and one problem question.