Internat Investment Law and Arbitration

This subject is not offered in 2014.

Applicants without legal qualifications should note that subjects are offered in the discipline of law at an advanced graduate level. While every effort will be made to meet the needs of students trained in other fields, concessions will not be made in the general level of instruction or assessment. Most subjects assume the knowledge usually acquired in a degree in law (LLB, JD or equivalent). Applicants should note that admission to some subjects in the Melbourne Law Masters will be dependent upon the individual applicant’s educational background and professional experience.

The Melbourne Law Masters welcomes applications from students with disabilities. The inherent academic requirements for study in the Melbourne Law Masters are:

• The ability to attend a minimum of 75% of classes and actively engage in the analysis and critique of complex materials and debate;
• The ability to read, analyse and comprehend complex written legal materials and complex interdisciplinary materials;
• The ability to clearly and independently communicate in writing a knowledge and application of legal principles and interdisciplinary materials and to critically evaluate these;
• The ability to clearly and independently communicate orally a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
• The ability to work independently and as a part of a group;
• The ability to present orally and in writing legal analysis to a professional standard.

Students who feel their disability will inhibit them from meeting these inherent academic requirements are encouraged to contact the Disability Liaison Unit: www.services.unimelb.edu.au/disability/

International investment law regulates the entry and operation of foreign investment and is one of the fastest-growing fields of public international law. This subject begins by tracing the historical, political and economic causes for the protection of foreign investment across custom, bilateral and regional investment treaties. It then focuses on the unique system of dispute resolution in this field, which gives private (foreign) actors the right to pursue claims for damages against states. The subject explores a series of case studies to evaluate the impact of investment law across a range of core values, including public health, environmental regulation and the protection of human rights.

Principal topics will include:

• Nature, evolution and context of international investment law
• Overview of bilateral investment treaties (BITs), the North American Free Trade Agreement (NAFTA), the Energy Charter Treaty and parts of the World Trade Organization (WTO)
• Scope of protection: Definition of ‘investor’ and ‘investment‘
• Relative obligations of non-discrimination: Most-favored-nation (MFN) and national treatment
• Obligation to accord foreign investors ‘fair and equitable treatment‘
• Expropriation and the quantification of compensation
• Contract claims versus treaty claims: The ‘umbrella’ clause
• Arbitration under the International Centre for Settlement of Investment Disputes (ICSID) Convention.

A student who has successfully completed this subject should:

• Be familiar with key bilateral, regional and multilateral investment treaties
• Be able to advise clients on the substantive rights afforded to them under these treaties (including protections against state discrimination and expropriation)
• Understand the nature of investor–state arbitration as a form of dispute resolution at international law
• Be familiar with the specialised forms of institutional arbitration in the field (including the International Convention on the Settlement of Investment Disputes) and their similarities and differences with respect to commercial arbitration
• Have a critical understanding of current controversies surrounding the impact of investment treaty disciplines on regulatory autonomy, development strategies and the human rights of citizens in host states.

• Take-home examination (100%) (24 – 27 October)
  or
• 10,000 word research paper (100%) (8 December) on a topic approved by the subject coordinator

Core subject materials will be provided free of charge to all students. Some subjects require further texts to be purchased. Details regarding any prescribed texts will be provided prior to the commencement of the subject.

This subject is not available as a breadth subject.