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International Investment Law and Arbitration (Burke-White/Born)
Fall 2020   LAW 630-001  

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Meeting Times/Location
MW 10:30AM - 11:50AM

Faculty
William W. Burke-White

Professor of Law

wburkewh@law.upenn.edu
Gary Born

Bok Visiting International Professor

garyborn@law.upenn.edu
Additional Information

Skills Training
Oral Presentations
Other Professional Skills: Skills training will include the reading of investment tribunal awards and the practice of international arbitration.

Grading
30% Participation,
70% Paper,
Other (Students will be required to write brief (approximately 2 paragraphs, and certainly less than 1 page) responses for 5 class sessions throughout the semester. Students will get to select between a take home exam in essay format (with a world limit) that asks students to respond to a set of questions related to the course material OR a research paper option between fifteen and twenty pages (double-spaced) in length and selected by the student with approval from the Professors. )

Exam
Essay,
Take Home,
Open-Book

Satisfies Senior Writing Requirement

With Permission of Instructor
If the student choses to pursue the research paper option for the course, with permission of the instructor it can satisfy the senior writing requirement.

Location

Class meets online.

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.

- If you are absent, due to illness or some other unavoidable circumstance, email me and I can ask for volunteers among your classmates to share their notes with you.

- If you are absent due to illness or some other unavoidable circumstance, email me and I can make PowerPoint slides or other class materials available to you.

Category
Upper-Level

Credits
3.0

Over the past decades international law has come to provide sweeping protections for foreign investors through thousands of bilateral investment treaties and an investor-state arbitration system. States granted these protections to foreign investors in an effort to attract foreign direct investment and promote economic development. 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, Europe, Asia and elsewhere today. The new US-Mexico-Canada Agreement (USMCA) alters the protections available to foreign investors in significant ways. Some 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.

This course provides an introduction to international investment law and arbitration from the perspectives of both public international law and the legal practice of international arbitration. 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 Centre 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 then turns to select topics and issues in international investment arbitration, including: the creation and substance of bilateral investment treaties, state compliance with investment tribunal awards, the interplay of investor-state arbitration and domestic litigation, enforcement of ICSID awards, recent attempts to bring class action arbitrations, the enforcement of bond debt through investor-state arbitration, the role and independence of arbitrators, present challenges to the ICSID system, and the recent state backlash against investor-state arbitration.

The course will offer a balance between 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. He brings a wealth of expertise from the practice of international arbitration. Please note that Professor Born will only be present for select sessions.

Course Concentrations

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.

International Corporate and Trade Law