Browse Hierarchy SOLM048: Investment Treaty Arbitration: Agreements and Substantive Protection

"The aim of this course is to establish students' knowledge and critical understanding as well as provide an insight into the practice of international investment arbitration at the juncture of dispute resolution and public international law and policy. The focus will be on BITs, FTAs and other International Investment Agreements, Investor Protection and State Defences. There are a number of reasons why a course on substantive protection of investors through investment arbitration is important at this time. Indeed, recent and rapid changes in investment arbitration prompted by globalisation and widespread foreign investment. There are also debates about legitimacy crisis and further debates about the negotiation and drafting of new generation treaties - so-called mega-regionals. The course is divided into three main topics: (1) Major Treaty Systems - Fragmentation and new Regionalisation, (2) Case Law of and case studies relating to Substantive Protection, (3) Specific Policy issues and State Perspectives to Investment Arbitration and ISDS. The classes will address the content and negotiations of Bilateral Investment Treaties (BITs) and Multilateral Treaties (Energy Charter Treaty, NAFTA, CAFTA, ASEAN, CETA, TPP (CPTPP) and TTIP). The discussions will focus on substantive protection and the evolution of such protection as well as policy considerations associated with BITs and MITs. The second section of the class will focus on substantive protection as developed through jurisprudence of international tribunals. The classes will cover (1) expropriation, (2), fair and equitable treatment, (3) umbrella clauses and fork-in-the-road, (4) full protection and security and (5) MFN clauses. The third section of the course will discuss balancing interests - public interest, public policy and regulatory chill and typical state defences raised in investment disputes (including corruption and admissibility defences). Specific attention will also be paid to treaty Shopping, Transparency and Third-Party-Funding and assessment of damages by investment tribunals."