LAW 7065 - International Commercial Arbitration (PG)

North Terrace Campus - Semester 1 - 2015

International commercial arbitration has become the primary form of dispute resolution in international trade settings. This course will consider: The nature of international arbitration including its advantages and disadvantages as a form of dispute resolution in the international trade context; The distinction between international and domestic arbitration; Jurisdictional issues relevant to international arbitration; Choice of Law in International Arbitration; UNCITRAL Model Law and its application in Australia and elsewhere; Other model rules; Enforcing international arbitration agreements; Appointment and qualifications of arbitrators; Due process review of the arbitration - including bias, failure to observe procedural fairness; Privacy and Confidentiality of the parties and evidence; Challenging the award; Enforcing the award.

  • General Course Information
    Course Details
    Course Code LAW 7065
    Course International Commercial Arbitration (PG)
    Coordinating Unit Adelaide Law School
    Term Semester 1
    Level Postgraduate Coursework
    Location/s North Terrace Campus
    Units 3
    Contact Intensive
    Available for Study Abroad and Exchange Y
    Course Description International commercial arbitration has become the primary form of dispute resolution in international trade settings. This course will consider: The nature of international arbitration including its advantages and disadvantages as a form of dispute resolution in the international trade context; The distinction between international and domestic arbitration; Jurisdictional issues relevant to international arbitration; Choice of Law in International Arbitration; UNCITRAL Model Law and its application in Australia and elsewhere; Other model rules; Enforcing international arbitration agreements; Appointment and qualifications of arbitrators; Due process review of the arbitration - including bias, failure to observe procedural fairness; Privacy and Confidentiality of the parties and evidence; Challenging the award; Enforcing the award.
    Course Staff

    Course Coordinator: Professor Christopher Symes

    Course Timetable

    The full timetable of all activities for this course can be accessed from Course Planner.

    This course is taught on an intensive basis on over four days, Monday 30 March to Thursday 2 April 2015 (inclusive), from 9.30 am – 4.30 pm.  All the classes will be held in this teaching period, as well as some of the assessment exercises. However, there will be
    reading required to be undertaken before, during and after the teaching period, and the major assignment will be undertaken after that period
  • Learning Outcomes
    Course Learning Outcomes
    The course is designed to enable students to achieve the following learning outcomes:

    1.       The ability to advise in relation to international commercial arbitration, the merits and demerits, the practice and procedure.

    2.       The ability to draft arbitration agreements.

    3.       The ability to draft arbitration submissions.

    4.       The ability to evaluate the various procedures that may be adopted and the interim measures and the final remedies that may   be available in arbitration.

    5.       The ability to construct oral and written arguments concerning such matters as: procedure (lex arbitri), jurisdiction, choice of law, evidence, enforcement and other matters that may be considered in arbitration.

    6.       The ability to draft arbitration orders and awards.

     

    University Graduate Attributes

    This course will provide students with an opportunity to develop the Graduate Attribute(s) specified below:

    University Graduate Attribute Course Learning Outcome(s)
    Knowledge and understanding of the content and techniques of a chosen discipline at advanced levels that are internationally recognised. Advanced understanding of the law in the commercial, international and comparative context of the course
    The ability to locate, analyse, evaluate and synthesise information from a wide variety of sources in a planned and timely manner. The ability to evaluate and synthesise information concerning international commercial arbitration and the norms applicable in international commercial arbitration from many sources, including case law, statutes, treaties and institutional rules
    An ability to apply effective, creative and innovative solutions, both independently and cooperatively, to current and future problems. Ability to appreciate the changing bases of the law and to respond to the demand for change in law and legal procedure
    Skills of a high order in interpersonal understanding, teamwork and communication. Ability to exercise and appreciate the teamwork and communication skills in the context of advice and arbitrations
  • Learning Resources
    Required Resources
    The prescribed text book is International Commercial Arbitration, Rana and Sanson, Lawbook Co, 2011.

    Students will also require copies of or access to the following documents:

    ·        International Arbitration Act 1974 (Cth)

    ·        UNICTRAL Model Law on International Commercial Arbitration

    ·        Convention for the Recognition and Enforcement of Foreign Arbitral Awards 1958

    ·        UNCITRAL Model Arbitration Rules

    ·        ICC Rules

    ·        LCIA Rules

    ·        CIETAC Rules

    ·        SIAC Rules

    Links to the all these documents can be found on the “External Links‟ section of the MyUni course site.

     

    Recommended Resources
    International Commercial Arbitration, Greenberg, Kee and Weeramantry, Cambridge University Press, 2011

    Principles and Practice of International Commercial Arbitration, Moses, Cambridge University Press, 2d ed, 2012

    International Arbitration in Australia Nottage and Garnett, Federation Press, 2010
     
    Comparative International Commercial Arbitration Lew, Mistelis and Kroll, Kluwer, 2003
     
    Redfern and Hunter on International Arbitration, Blackaby and Parasides, Oxford University Press, 5th ed, 2009
     
    Redfern and Hunter on International Arbitration, Blackaby and Parasides, Student Version, Oxford University Press, 5th ed, 2009  
     
    International Commercial Arbitration: A Transnational Perspective, Varady, Barcelo III and Von Mehren, West Publishing, 5th ed, 2012

    Online Learning
    Required reading will be specified on the course MyUni site. The course profile, discussion questions, assignment questions and supplementary reading materials will also be available on MyUni.

    In addition, MyUni will be used to post announcements, post additional lecture materials (including slides) and announce assignment tasks. It will also contain electronic copies of the Course Information, Lecture and Seminar Guides, and Course Materials.

    Students are expected to check MyUni regularly to keep up to date with these materials and additional learning resources throughout the course.

  • Learning & Teaching Activities
    Learning & Teaching Modes
    Classes will be held between 9.30 – 4.30 each day of the scheduled intensive period. Generally, there will be two or three lectures each day, interspersed with presentations to the class and discussion of material identified in advance.  Students will also be expected to undertake assigned tasks in small groups.

     

    Workload

    The information below is provided as a guide to assist students in engaging appropriately with the course requirements.

    In addition to the formal contact time required for each of your courses, students will need to allocate non-contact time for a range of activities which may include, but are not limited to, assessment tasks, reading, researching, note-taking, revision, writing, consultation with staff, and informal discussions with other students. While the relative proportion of contact and non-contact time may vary, as a guide, a full-time student should expect to spend, on average, a total of about 156 hours (contact and non-contact time) on each 3 unit course, no matter how it is delivered. In an intensive course much of this time must be found in preparation prior to the course, in evenings, and in work before and after the formal presentation of the course is completed. An intensive course does require intensive and time-consuming involvement: do not expect that you will be able to have other commitments during the presentation of the course.

    Learning Activities Summary
    The topics to be covered in this course will include the following:


    Introduction

    ·        Definition
    ·        Methods of dispute resolution
    ·        Different kinds of arbitration
    ·        Sources of law


    The Arbitration Agreement

    ·        Drafting arbitration agreements
    ·        Ad hoc submissions and pre-dispute agreements
    ·        Formation – capacity and power, consent, and arbitrability
    ·        Doctrine of separability
    ·        Arbitration agreements and conflicts of laws
    ·        Law governing


    The Consequences of the Arbitration Agreement

    ·        Exclusion of court jurisdiction
    ·        Stay of court proceedings
    ·        Jurisdiction and competence
    ·        Rights of non-signatories to an arbitration agreement
     

    The Arbitration Tribunal

    ·        Nomination
    ·        Chair
    ·        Impartiality
    ·        Immunity
    ·        Remuneration
    ·        Removal
    ·        Emergency arbitrators


    The Seat of Arbitration

    ·        Denationalised, delocalised andfloating arbitrations


    The Commencement of Arbitral Proceedings

    ·        Notice of dispute
    ·        Time limits
    ·        Preliminary conferences
    ·        Pleadings/ submissions
    ·        Security for costs
    ·        Conservatory measures
    ·        Confidentiality

     
    The Conduct of a Hearing

    ·        Witnesses of fact
    ·        Expert witnesses
    ·        Documentary and real evidence
    ·        Representation
    ·        Arbitration not “in person”: “documents only” and electronic arbitration

     
    The Powers of the Court

    ·        The role of the national court conduct of a hearing

     
    Applicable Law(s)

    ·        Conflicts of laws – general principles
    ·        Party autonomy
    ·        Mandatory application of laws
    ·        Lex mercatoria
     

    The Award

    ·        Form and content
    ·        Interest
    ·        Costs
    ·        Finality
    ·        Interim awards
    ·        Corrections to an award
    ·        Reasons


    Challenging the Award

    ·        Jurisdictional grounds
    ·        Procedural fairness
    ·        Appeals on questions of law or fact
    ·        Public policy issues
    ·        Limits on review
    ·        Waiver and estoppel

     
    Recognition and Enforcement of Awards

    ·        Convention for the recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention)
    ·        Procedure
    ·        Grounds
    ·        Waiver and estoppel
    ·        Discretion


    Arbitrations involving States

    ·        Arbitrability
    ·        Sovereign immunity
    ·        Act of State


    Investor State Arbitrations

  • Assessment

    The University's policy on Assessment for Coursework Programs is based on the following four principles:

    1. Assessment must encourage and reinforce learning.
    2. Assessment must enable robust and fair judgements about student performance.
    3. Assessment practices must be fair and equitable to students and give them the opportunity to demonstrate what they have learned.
    4. Assessment must maintain academic standards.

    Assessment Summary




    Assessment Task

    % of final mark


    Due date Group or individual assessment
    Redeemable Learning objectives
    Class participation 10%

    daily throughout class

    individual no all

    Written précis,
    500 words x 3
    20%

    during the course

    individual no all
    Class presentation 10% during the course individual no all
    Research essary 60% 4.00 pm, 29 May 2015 individual no all


    Attendance at class is essential as the assessment includes two forms of participation:
    (1) participation in the general class discussion; and
    (2) presentation to the class of identified material on each day throughout the course.


    Assessment Detail
    Participation                                                                                                               10%

    It is expected that students will attend classes -- having undertaken any required reading beforehand -- and will be prepared to discuss relevant issues and raise questions. Students are expected to engage in the class discussions and this will form part of their assessment.

    3 x 500 word précis of assigned reading material                                                   20%

    Students are required to submit a 500 word précis of an assigned case or article on Tuesday, Wednesday and Thursday of the course. The assigned reading will be given the previous day in the class. Each student will submit the précis by email before
    8.00 am of the relevant day, and it will be distributed to other members of the class. The précis will be marked and returned
    on the day following its submission.

     

    Presentation and discussion in class of the material in the précis                         10%

    Each student will present to the class the summary of the assigned case or article and lead the discussion concerning it in the seminar, pointing out the main issues and the relevance of the legal or other issues raised.

     

    Research Essay                                                                                                       60%

    The research essay is designed to promote critical thinking about international commercial arbitration and, in order to obtain
    a high mark, students must display evidence of critical analysis as well as an understanding of law and practice. The essay must address the essay question.

    Assessment will also take into account written communication skills – including in particular the ability of students to write clearly and concisely in a logical and coherent structure. Students are expected to engage in independent legal research to identify and use resources, and the quality and range of resources used will form part of the assessment criteria.

    Students must attach a bibliography to their essays, listing all references referred to in the essay, and are expected to comply with the Australian Guide to Legal Citation (http://mulr.law.unimelb.edu.au/aglc.asp).

    Word limit:  5000 words


    DUE DATE

    The research essay is due by 4.00pm Friday 29 May 2015.

    The essay topics will be available on the MyUni course site from the beginning of the course, under Assignments.

     

    Submission
    The submission of the assigned written material must be made by email to by 8.00 am of the morning of the day of presentation (ie immediately prior to the commencement of the day’s class), or by other arrangement made at the class.

    The final research assignment is to be submitted electronically via MyUni. Students must ensure their name and student number appear on all written work submitted for assessment. By submitting an assignment electronically, a student is taken to declare that the assignment is their own work.

    Students must retain a copy of all assignments submitted.

    All assignments in this course are to be submitted in hard copy and electronically through Turnitin.  All hardcopy submissions must be accompanied by the assignment cover sheet (ACS) that sets out the word length, and contains a signed declaration that the assignment consists of the student’s own work.  A student’s results will be withheld until such time as the student has signed the ACS.  Markers may refuse to accept assignments which do not have a signed acknowledgement of the University’s policy on plagiarism.

    Details for electronic submission through Turnitin will be provided with the assignment instructions.

    All written work in the law school is required to comply with the approved law School style guide: The Australian Guide to Legal Citation.

    Extensions: Requests for extensions must be made via email to the course coordinator. Extensions will be granted only for  unexpected illness, hardship or on compassionate grounds in accordance with University Policy. Work commitments, travel, holidays or sporting engagements are not unexpected circumstances.

    Penalties: Late Submission: Penalties of 5% (of the total mark of the assignment) each day (or part thereof) will be deducted for late  submission (including weekends and public holidays), (eg an essay graded 63% will have 5 % deducted if it is one day late, for a final mark of 58%, 10% if it is two days, etc).

    Word Length: Assignments which exceed the allocated word length will be subject to a penalty of 5% of total marks available per 100 words or part thereof (eg with a word limit of 3,000, an essay graded 63% will have 5% deducted if it is 3001 words long, for a final grade of 58%, 10% if it is 3101 words long, etc).  Words are calculated including all footnotes and headings within the text but excluding cover page information.  Quotations and all referencing information are included in the word count.

    Turnaround time: The interim written work for this course will be returned to students on the day after its submission and presentation to the class. Group feedback, together with written, individual feedback will be provided. The final assignment will be returned to students within six weeks of the submission date with written individual feedback.  Students will be notified by email when assignments are ready for collection from the law school front office.

     

    Course Grading

    Grades for your performance in this course will be awarded in accordance with the following scheme:

    M10 (Coursework Mark Scheme)
    Grade Mark Description
    FNS   Fail No Submission
    F 1-49 Fail
    P 50-64 Pass
    C 65-74 Credit
    D 75-84 Distinction
    HD 85-100 High Distinction
    CN   Continuing
    NFE   No Formal Examination
    RP   Result Pending

    Further details of the grades/results can be obtained from Examinations.

    Grade Descriptors are available which provide a general guide to the standard of work that is expected at each grade level. More information at Assessment for Coursework Programs.

    Final results for this course will be made available through Access Adelaide.

  • Student Feedback

    The University places a high priority on approaches to learning and teaching that enhance the student experience. Feedback is sought from students in a variety of ways including on-going engagement with staff, the use of online discussion boards and the use of Student Experience of Learning and Teaching (SELT) surveys as well as GOS surveys and Program reviews.

    SELTs are an important source of information to inform individual teaching practice, decisions about teaching duties, and course and program curriculum design. They enable the University to assess how effectively its learning environments and teaching practices facilitate student engagement and learning outcomes. Under the current SELT Policy (http://www.adelaide.edu.au/policies/101/) course SELTs are mandated and must be conducted at the conclusion of each term/semester/trimester for every course offering. Feedback on issues raised through course SELT surveys is made available to enrolled students through various resources (e.g. MyUni). In addition aggregated course SELT data is available.

  • Student Support
  • Policies & Guidelines
  • Fraud Awareness

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