International Investment Law (Burke-White/Born)
Faculty
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| William W. Burke-White Professor of Law wburkewh@law.upenn.edu |
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| Gary Born Bok Visiting International Professor garyborn@law.upenn.edu |
Additional Information
Skills Training
Expository Writing
Other Professional Skills:
Grading
30% Participation,
70% Paper,
Other (Class participation (including 5 response papers): 30%
Students may elect to either write a research paper or take an in-class final examination. The Research paper (15-20 pages) OR final exam will be worth 70% of the final grade.)
Exam
Essay,
In Class,
Open-Book (Note that students have an option between the in-class exam and a take home research paper.)
With Permission of Instructor
Students electing the research paper option may complete the senior writing requirement through this course. Papers meeting the Senior Writing Requirment must be at least 20 pages in length, be submitted in Blue Book Form
Class meets in person.
Course Continuity
Students are encouraged to stay home if you are ill or experience flu-like symptoms. If you miss a class for any reason, it is still your responsibility to make up the work missed.
I offer the following to students who miss class due to illness:
- Class sessions are regularly recorded. If you are absent due to illness or some other unavoidable circumstance, email me and I can send you an email with instructions for accessing the recording for the class session(s) you missed.
Meeting Times/Location
TR 3:00PM - 4:20PM
Gittis Hall 213
Category
Upper-Level
Credits
3.0
Foreign direct investment powers much of the global economy, with more than USD$1.4 trillion in global FDI flows in 2024. International law facilitates and incentivizes these investment flows through thousands of bilateral investment treaties and an investor-state arbitration system. This course provides an introduction to law of international investment protection and the arbitral mechanisms available to investors to protect their rights. The course draws on both public international law and the legal practice of international arbitration to provide both theoretical and practial perspectives on the protection of foreign investment.
The course explores the protections international law provides to foreign investments; the relationship between those international protections and both investment contracts and applicable domestic law; the means of recourse available to foreign investors when their legal interest are harmed; and the practice of international arbitration itself. While the course will combine theory and practice, particular attention will be paid to the changing substantive protections accorded to foreign investment, the impact of investor-state arbitration on both the behavior of states and the international legal system as a whole, and the ways in which arbitration practitioners approach investment dispute settlement.
The course begins with an introduction to international investment law, including the substantive protections provided to foreign investors under international law, the rapid growth of bilateral investment treaties, the goals and purposes of investor-state arbitration, and the International Center for the Settlement of Investment Disputes (ICSID). The course then explores international investment arbitration as a sub-set of the general practice of international arbitration, considering both the unique aspects of investment litigation and the parallels between investment arbitration and other forms of transnational dispute settlement. The course next turns to domestic laws governing foreign investment, including investment promotion regimes and tax incentives, as well as new investment screening mechansims such as the Committee on Foreign Investment in the US (CFIUS). The course concludes with an exploration of the interaction between investment law and other areas of the law such as corruption, human rights, and climate change.
Despite the growing importance of foreign investment law in investment choices and the structures of investment deals, the international investment law system is today subject to significant controversy. New international agreements, such as the Trans-Pacific Partnership, include investment chapters and are hotly debated in the US and Europe today. States have raised concerns that the protections given to foreign investors may limit their ability to regulate in the public interest. Many NGOs argue that foreign investment protection impairs human rights, environmental protection, and labor rights. The course will engage and evaluate these critiques and consider reforms to invevstment protection law going forward.
The course seeks to engage both theory and practice, drawing on both instructors' expertise as well as the experience of several guest speakers actively working in the field. William Burke-White brings particular expertise in the theoretical questions raised by international investment law and the place of investment law in the broader context of international law. Gary Born, the Chair of the International Arbitration Practice Group at WilmerHale, is widely regarded as the world’s preeminent authority on international commercial arbitration and transnational litigation. A range of guest speakers will join the class throughout the semester. No prior knowledge of international law is expected.
Business and Corporate Law Learning outcomes: Demonstrate a core understanding of business and corporate law; Perform legal analysis in the context of business and corporate law; Communicate effectively on topics related to business and corporate law; Demonstrate an understanding of the interconnection between the world of business and finance and that of business and corporate law, and how they affect other areas of law and society.
International and Comparative Law Learning outcomes: Demonstrate a core understanding of international and comparative law, both substantively and procedurally; Perform legal analysis in the context of international and comparative law; Communicate effectively on topics related to international and comparative law; Demonstrate an understanding of the role of international and comparative law, and their interconnection with domestic law.
Courts and the Judicial System Learning outcomes: Demonstrate a core understanding of both substantive and procedural issues in the operation of our legal system; Perform legal analysis in the context of procedural issues and the judicial process; Communicate effectively on topics related to procedure and the judicial process; Demonstrate an understanding of how procedural issues and the judicial process affect all other area of our legal system.
International Corporate and Trade Law
Environmental Law Learning outcomes: Demonstrate a core understanding of environmental law; Perform legal analysis in the context of environmental law; Communicate effectively on topics related to environmental law; Demonstrate an understanding of how environmental law affects other areas of law.
Administrative and Regulatory Law Learning outcomes: Demonstrate a core understanding of administrative and regulatory law and the administrative process, including the role of statutory authorization and work of administrative agencies; Perform legal analysis in the context of administrative and regulatory law; Communicate effectively on topics related to administrative and regulatory law; Demonstrate an understanding of the role administrative and regulatory law play in our legal system and in society as a whole.
Textbooks
"International Investment Law and Arbitration: Commentary, Awards and other Materials" by C.L. Lim, Jean Ho and Martins Paparinskis |