Specialisation: Procedural law

Applicable laws and procedures in international commercial arbitration

Students wishing to study and be examined in this course are advised to successfully complete 'Regulation and infrastructure of international commercial arbitration' in full before attempting 'Applicable laws and procedures in international commercial arbitration'.

Module A [LWM03A]

Applicable law issues in arbitration

Determination of applicable law

Applicable substantive law

Transnational rules, lex mercatoria and trade usages

Arbitration and EU Laws

Module B [LWM03B]

Procedure and evidence in arbitration

Law governing the arbitration procedure

Commencement of arbitration; terms of reference / procedural directions

Procedural issues

Taking evidence

Module C [LWM03C]

Jurisdictional issues in arbitration

Arbitrability

Determination of jurisdiction

Provisional measures

Multi-party and multi-contract disputes

Module D [LWM03D]

Arbitration award – form, content, challenge and enforcement

Form and content

Finality and challenges to award

Recognition and enforcement

Sequence:
Module A first.

Textbook:
Julian D.M. Lew, Loukas A. Mistelis and Stefan Kr

Law and policy of international courts and tribunals

Module A: [LWM38A]

Introduction to international dispute resolution

Introduction and historical background: from arbitration to the International Criminal Court

The concept of an international dispute

Participation in international disputes

Module B: [LWM38B]

Non-adjudicatory dispute resolution processes

The obligation to settle disputes peacefully

Overview of the processes for the peaceful settlement of disputes; negotiation; fact-finding; mediation; conciliation; arbitration and adjudication. Points of similarity and distinction; advantages and disadvantages; factors that influence recourse to particular processes

Fact-finding as a dispute resolution process; fact-finding by governmental and non-governmental actors; Inspection Panels; the role of fact-finding in disputes concerning violations of human rights

Negotiation and mediation

Module C: [LWM38C]

Role and functioning of international courts and tribunals: institutional aspects

Appointment and role of adjudicators

Role of registry/secretariat

Participants (and non-participants in proceedings) and their representation

Applicable law: procedural and substantive

Issues of access, including jurisdiction (contentious and advisory), standing and admissibility

Financing of international courts and tribunals and proceedings before them

Module D: [LWM38D]

Role and functioning of international courts and tribunals: procedural aspects

Third party participation, including intervention and amicus curiae briefs

Preparation and filing of written pleadings and the role of oral arguments

Provisional measures

Evidentiary rules and principles

The powers of the various courts and tribunals, including remedies

Interpretation, appeal and review

Sequence:
For students who chose to study and be examined in this course prior to January 2007, sections A and B must be attempted before Module D. Students choosing to study this course with effect from 1 January 2007 will be required to attempt the sections in order.

Textbooks:
Ruth Mackenzie, Cesare Romano, Yuval Shany and Philippe Sands (eds), Manual on International Courts and Tribunals (Oxford: Oxford University Press, 2010), ISBN: 9780199545278

John Merrills, International Dispute Settlement 4th ed (Cambridge: Cambridge University Press, 2005), ISBN: 9780521617826

Legislation and statutory interpretation

Module A: [LWM79A]

Introduction to legislation

Legislation as a tool for regulation

Nature and types of legislation

Geographical extent of legislation

Temporal extent of legislation

Supranational legislation

Module B: [LWM79B]

Making legislation

Policy process

Legislative process

Drafting process

Legislative impact assessment

Module C: [LWM79C]

Statutory interpretation

Interpretation of legislation

Literal rule

Mischief rule

Purposive rule

Presumptions and maxims of interpretation

Module D: [LWM79D]

Tests for quality of legislation

Rule of law test

Human rights and constitutionality test

Good law test

Functionality test – effectiveness

Sequence:
Module A must be attempted before Module B

Textbooks:
Helen Xanthaki, Thornton’s Legislative Drafting 5th rev. ed. (Bloomsbury Professional, 2013), ISBN: 978-1780432090

Helen Xanthaki, Drafting legislation: art and technology of rules for regulation. (Oxford: Hart Publishers, 2014), ISBN: 9781849464284

Private international law in international commercial litigation

Note: This course does not cover family law or the law of succession.

Module A: [LWM67A]

Introduction to private international law in international commercial litigation

History of private international law

The individualist theories of private international law

The state theories of private international law

The economic theories of private international law

Module B: [LWM67B]

Jurisdiction and competence of courts in private international law

Introduction to the jurisdiction and competence of courts

The Brussels Regulation (No. 44/2001) system

The traditional rules of jurisdiction in England and Wales

The rules and restrictions on jurisdiction in the United States

Insolvency under Regulation (EC) No. 1346/2000

Module C: [LWM67C]

Applicable law in private international law

Introduction to applicable law

Rome I Regulation and the Rome Convention

Rome II Regulation

Other choice of law rules in England and Wales

The rule for applicable law under the Insolvency Regulation

Choice of law in the United States.

Module D: [LWM67D]

Recognition and enforcement of judgments in private international law

Introduction and considerations for the enforcement of foreign judgments

The recognition and enforcement of judgments under the Brussels Regulation

Other European regimes

The enforcement of judgments in England and Wales

The approach of the United States to the enforcement of judgments

Sequence:
Module A first.

Textbooks:
Cheshire, North & Fawcett, Private International Law 14th edition (Oxford University Press: Oxford, 2008), ISBN: 978-0199284382

Hay, P., P. J. Borchers and S. C. Symeonides Conflict of laws (St. Paul, MN: Thomson/West, 2010) 5th edition ISBN 9780314911605

Regulation and infrastructure of international commercial arbitration

Students wishing to study and be examined in this course are advised to successfully complete 'Regulation and infrastructure of international commercial arbitration' in full before attempting 'Applicable laws and procedures in international commercial arbitration'.

Module A [LWM42A]

Regulation and infrastructure of arbitration

Delimitation, definition and juridical nature

Institutional and regulatory infrastructure

Constitution, human rights and arbitration

Arbitration and the courts

Module B [LWM42B]

Arbitration agreement

Autonomy, types, and applicable law

Formal and substantive validity

Interpretation of agreements

Drafting arbitration clauses

Module C [LWM42C]

Arbitration tribunal

Selection and appointment of arbitrators

Rights and duties of arbitrators

Independence and impartiality of arbitrators

Challenge and removal of arbitrators

Module D [LWM42D]

Investment arbitration and specialist arbitration

Arbitration with states and state-owned entities

Arbitration of investment disputes

Specialist and mixed arbitration

Online dispute resolution

Sequence:
Module A first.

Textbook:
Julian D. M. Lew, Loukas A. Mistelis and Stefan Kr