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Course Description
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The seminar is a survey of the law and regulation of international commercial arbitration as seen from the perspective of the United States courts. It is divided into four units: Overview of Core Legal Sources; The Agreement to Arbitrate; The Arbitral Process and The Award. In all phases of the course, attention will be given to the interaction of national courts and the arbitral process and the limits of party autonomy and the consequences of its exercise. The student will write a publishable-quality work on a subject selected with the participation of the professor and present his or her work at the conclusion of the course. Class participation is encouraged. The objective of the seminar is to provide the student with a comprehensive understanding of the core concepts of international commercial arbitration.
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Course Schedule
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08-12-2019 - 11-21-2019
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T
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7:30 PM-9:20 PM
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F408
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Course Frequency
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This course is usually offered once every academic year
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Course Information
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Credits:
2
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Pass/Fail Option:
No
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Prerequisite:
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Grading:
Graded
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Method of Evaluation:
Paper
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Graduation Requirements Fulfilled By Course:
General
Writing Requirement
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Special Attributes:
None
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Course Delivery:
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Special Restrictions:
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Law Track(s):
Business & Taxation
- Related
International & Comparative Law
- Specialized
Litigation
- Specialized
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Bar Subject(s):
None
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Concentration(s):
Litigation & Dispute Resolution (Concentration)
More information
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Course Book(s):
TBD/None
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First Class Assignment(s):
-
Assignment:
Introduction to topic: Definition of Terms: (1) Arbitration, (2) Commercial, (3)
International; Historical Antecedents; Meeting of the civil and common law systems; Lex
Mercatoria; Globalization; Overview of The Legal Infrastructure: International, National
and Foreign.
Background
The ability to resolve international commercial disputes in a neutral forum using
persons selected by the parties and applying the rules of decision that they choose has
proven an attractive alternative to the use of national judicial systems. Often, in the
international business transaction, the parties are reluctant to submit to the jurisdiction
of the courts of the other for resolution of disputes. Consequently, the possibility of a
forum related to, often dependent upon, but nevertheless independent of a national
judicial system is attractive. Indeed, some courts have held that in determining the
scope of an arbitration clause, a court or an arbitrator should interpret and construe the
clause broadly, because the resolution of international business disputes through
arbitration is considered to be customary in international business.
The consent or will of the parties is not enough. The resolution of disputes through
arbitration would not be effective without the support of national and international law.
If national law did not recognize the end-product of arbitration to be binding or did not
oblige a party to submit to arbitration after doing so, the institution would be of limited
utility. Likewise, assuming that the parties are from different countries and assets may
be located in different jurisdictions, an international framework for the recognition and
enforcement of the result of the arbitral process—the award is also necessary.
Consequently, the support of legal systems is needed for the execution of the
arbitration agreement (because the right and duty to submit claims to arbitration is born
of the will of the parties), the administration and protection of the arbitral process, and
the recognition, enforcement or set aside of the product of the arbitration: the arbitral
award.
Likewise, countries must be willing to assume obligations in connection with the
recognition and enforcement of the arbitral award issued in another country.
The structure of this class follows the course of the typical arbitration, with time set
aside at the beginning to study the legal sources and principles that define the juridical
2019 International Commercial Arbitration Syllabus
Rooney
6
environment in which arbitrations take place. We will look at international commercial
arbitration through the optic of United States law and practice in the area. However, this
point of reference will permit you to draw conclusions applicable generally to the
regulation of the institutions in other jurisdictions. We will also consider some of the
sources of substantive principles, such as the Convention on Contracts for the
International Sale of Goods and the UNIDROIT General Principles of Contract Law, and
address the different ways that the common law and the civil law interpret contracts.
In this first class, we begin with consideration of the meaning of the terms
“arbitration,” “commercial,” and “international,” and proceed to an introduction to the
Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known
as the New York Convention) and finish with a general discussion of the Termorio
opinion, a recent decision of a panel of the United States Court of Appeals of the District
of Columbia, and the COMMISA opinion, a more recent decision of the United States
Court of Appeals for the Second Circuit. Both address the question of whether an award
set aside in the jurisdiction in which it was made can nevertheless be enforced by a
competent authority in another jurisdiction. We will return to those opinions in the last
class of the seminar.
Some considerations as to the meaning of the terms:
Arbitration: What is the objective of arbitration? From what source or sources does
it draw its legitimacy? Can we compare and contrast arbitration to other concepts?
How does it differ from litigation? How does it differ from mediation and conciliation?
Are there similarities?
Commercial: Should any relationship that affects commerce be considered
commercial? If not, which types of relationships that affect commerce should not be
considered to be commercial? To which law should one look to determine whether a
relationship is commercial?
International: How do we determine if a relationship is international? Do we look to
the nationality of the parties? Do we look to the place or places in which execution or
performance of a contract is required or in fact takes place? In the case of arbitration,
does the place where the arbitration is located or sitused make a difference? Does the
place where or from which the award is issued determine whether the arbitration or the
award is international?
We will also consider briefly the differences between international commercial
arbitration and investor-state arbitration. Thirty years ago, the field of investor-state
arbitration was virtually non-existent. An international convention called the Convention
on the Settlement of Investment Disputes between States and Nationals of Other States
(Washington Convention or the ICSID Convention) was offered to the international
2019 International Commercial Arbitration Syllabus
Rooney
7
community for ratification and adhesion in 1965. The Convention provides an
institutional framework administered by the International Centre for the Settlement of
Investment Disputes (ICSID) for the resolution of disputes between a state and a foreign
person or entity that made an investment in the state that received the investment.
Although the Washington Convention provided a framework for the administration of
those disputes, by ratifying or adhering to the Convention a state did not consent to the
arbitration of any specific dispute or to the arbitration of future disputes. Generally, a
state manifests its consent to arbitration by entering into or becoming a contracting state
of a Bilateral Investment Treaty (BIT) or a multilateral trade agreements (such as NAFTA
and the Energy Charter Treaty), although it may also do so through other acts, such as
legislation or agreement.
In the years following the entry in force of the Washington Convention, many BITs
and multilateral trade agreements were entered into that provided for the resolution of
investor-state disputes through arbitration. There are many pending cases before ICSID
and an indeterminate number of investor-state arbitrations being conducted under the
other rules such as the UNCITRAL Arbitration Rules and the ICC International Arbitration
Rules.
Although distinguishable from international commercial arbitration on many levels,
investor-state arbitration and the reaction of the international community to it has both
directly and indirectly affected international commercial arbitration. We will discuss
some of those differences in this first class.
I have also included in Suggested Readings the recent opinions of the United States
Supreme Court in the area of arbitration.
During the semester, we will continue to refer to refer to both opinions.
Required Readings:
Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New
York Convention)
Inter-American Convention on International Commercial Arbitration (14 I.L.M. 336
(1975))
Termorio S.A. E.S.P. v. Electranta S.P., 487 F. 3d 928 (D.C.Cir 2007)
Corporación Mexicana De Mantenimiento Integral, S. De R.L. De C.V. v. Pemex-
Exploración Y Producción, No. 13-4022 (2nd Cir. – August 2, 2016)
2019 International Commercial Arbitration Syllabus
Rooney
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Suggested Readings:
Convention on the Settlement of Investment Disputes between States and
Nationals of Other States (Washington Convention)
2012 United States Model Bilateral Investment Treaty
American Express Co. v. Italian Colors Restaurant, No. 12-133 (United States
Supreme Court – June 20, 2013).
Oxford Health Plans LLC v. Sutter, No. 12-135 (United States Supreme Court -
June 10, 2013)
Nitro-Lift Technologies, L.L.C. v. Howard, No. 11-1377 (United States Supreme
Court – November 26, 2012)
Marmet Health Care Center, Inc. v. Brown, No. 11-391 (United States Supreme
Court – February 21, 2012)
Compucredit Corp. v. Greenwood, No. 10-948 (United States Supreme Court -
January 10, 2012)
KPMG LLP v. Cocchi, No. 10-1521 (United States Supreme Court – November 7,
2011)
ATT Mobility LLC v. Concepción, No. 09-893 (United States Supreme Court – April
27, 2011
Rent-A-Center, West, Inc. v. Jackson, No. 09-497 (United States Supreme Court -
June 21, 2010)
Granite Rock Co. v. International Brotherhood of Teamsters, No. 08-1241 (United
States Supreme Court – June 24, 2010)
Arbitral Power and the Limits of Contract: The New Trilogy, 22 American Review of
International Arbitration 435 (2011).
Additional Information:
First lecture will take place on September 3rd. Make-Up lecture will be on October 18th from 12:30 - 6:00 pm.
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View Book Information
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