KDEC 9435 - International Investment Law and Arbitration

Economic globalisation has created a world in which foreign investment is increasingly an essential part of any local economy. Foreign investors typically aim to ensure that their investment in a foreign country will be protected by the international investment law system and that they will have access to a neutral dispute resolution forum in case of a dispute with the State hosting their investment. As a result, thousands of investment treaties were concluded by States with the objective of protecting their nationals who invest in foreign markets and/or encouraging foreign investors to invest in their local market. Hundreds of arbitral awards have been issued on the basis of these treaties. This course aims to provide an in-depth understanding of the salient features of the law and practice of investment arbitration. It seeks to combine a robust understanding of the theoretical questions underpinning investment law with practical illustrations of how these questions arise in real life. Should an investment tribunal be allowed to order a State to award an investor lost profits for having banned construction of new nuclear power plants in the wake of the Fukushima disaster after having issued a license allowing the investor to do so? Should a French investor with no ties to Canada be allowed to incorporate an affiliate in Canada with no real economic activity in that country merely to benefit from the investment treaty between Canada and Brazil where the French investor wants to establish a project? These are all practical questions which turn on a proper understanding of the intellectual underpinnings of investment arbitration. The course will address the rules governing the jurisdiction of investment tribunals as well as the substantive standards of protection, which are generally found in most investment treaties (e.g. fair and equitable treatment, full protection and security, protection against expropriation without compensation as well as most favoured nation clauses and umbrella clauses) and principles of monetary compensation. Because the practice of investment arbitration involves multiparty disputes before different tribunals and under different rules, the course will also examine how investment arbitration deals with parallel proceedings. In terms of examination, students will be given two weeks to draft a memorial either on behalf of a State or an investor in mock-arbitration proceedings.

Drafting of a memorial in mock-arbitration proceedings (80%); participation 20%