78256 International Commercial Arbitration

Warning: The information on this page is indicative. The subject outline for a particular session, location and mode of offering is the authoritative source of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.

Subject handbook information prior to 2017 is available in the Archives.

UTS: Law
Credit points: 6 cp
Result type: Grade and marks

Requisite(s): ( 78101c Postgraduate Legal Research OR ((94 credit points of completed study in spk(s): C04236 Juris Doctor OR 142 credit points of completed study in spk(s): C04250 Juris Doctor Master of Business Administration) AND 70106c Principles of Public International Law AND 70107c Principles of Company Law) OR ((22 credit points of completed study in spk(s): C04264 Master of Legal Studies OR 22 credit points of completed study in spk(s): C07122 Graduate Diploma Legal Studies OR 22 credit points of completed study in spk(s): C04147 Master of Legal Studies OR 22 credit points of completed study in spk(s): C07074 Graduate Diploma Legal Studies)))
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
There are course requisites for this subject. See access conditions.

Description

This subject is essential grounding for legal practitioners who seek to improve commercial and legal outcomes within the context of international commercial arbitrations. Commercial disputes in a global context are largely resolved by international arbitration, which is a state-sanctioned private means of dispute resolution. Unlike court-based litigation, arbitration provides parties with confidential resolution of their proceedings in a neutral forum before a panel of one or three selected arbitrators. This is particularly attractive to parties who may be unfamiliar or untrusting of the counter-party's home jurisdiction.

This subject examines the enforceable arbitration clause, arbitration proceedings and awards under international conventions and Australian law. By engaging students in the processes of preparing, managing and running a moot international commercial arbitration, students develop oral and written advocacy skills as legal practitioners. Students also learn to critically analyse the value and relevance of arbitration for clients and the broader legal and commercial communities in a global context.

The subject aims to build core skills in oral and written advocacy by focusing on the way global institutions, the New York Convention of the Recognition and Enforcement of Awards 1958 and the International Arbitration Act 1974 (Cwlth) structure disputes, international arbitrations, and competing legislative aims. Students develop a critical view of the organisation and function of international arbitrations through evaluating the preparation and representation of commercial matters.

Students apply their legal knowledge of arbitration in the international commercial context in order to develop key skills in engaging with international commercial disputes, including a practice-oriented understanding of the roles of national courts and international conventions in arbitration. Students work with experienced arbitration practitioners to develop the framework and skills to engage in the challenge of progressing legal and commercial advocacy and reform in the context of an international commercial system.

Subject learning objectives (SLOs)

1.	Analyse and apply the key processes and strategies associated with arbitrations in the resolution of international commercial disputes, including how international conventions and the International Arbitration Act 1974 (Cth) regulate these dispute resolution processes.
2.	Deliver a persuasive and coherent oral argument in an international commercial moot arbitration.
3.	Demonstrate professional communication skills by preparing written submissions in the context of international commercial disputes.
4.	Critically analyse and synthesise a diverse range of legal materials in the context of real world scenarios of international commercial disputes.

Course intended learning outcomes (CILOs)

This subject also contributes specifically to the development of the following graduate attributes:

• Legal Knowledge
  An advanced and integrated understanding of a complex body of legal knowledge including the Australian legal system, social justice, cultural and international contexts, the principles and values of ethical practice, and contemporary developments in law and its professional practice (1.0)
• Critical Analysis and Evaluation
  A capacity to think critically, strategically and creatively including an ability to identify and articulate complex legal issues, apply reasoning and research to generate appropriate theoretical and practical responses, and, demonstrate sophisticated cognitive and creative skills in approaching complex legal issues and generating appropriate responses (3.0)
• Communication and Collaboration
  Effective and appropriate professional communication skills including highly effective use of the English language, an ability to inform, analyse, report and persuade using an appropriate medium and message and an ability to respond appropriately (5.0)

Teaching and learning strategies

Strategy 1: Preparing for seminar activities

Prior to each class there are key resources available on UTSOnline introducing topics that students are required to engage with in preparation for the seminar. Instructions on UTSOnline provide students with preparatory work, including readings, questions and the research essay topic and individual facilitation topics. Student preparation is essential for engagement in seminar activities including collaborative discussions and individual facilitations for the purpose of developing advanced oral communication skills. Structured preparation will provide an introductory base for the moot arbitration at the end of the teaching period.

Strategy 2: Engaging in seminars

Seminars are conducted in an interactive format. Students should be prepared to engage in collaborative discussions. This preparation and engagement will form the basis for a more advanced level of facilitation as a discussion leader of an allocated topic. This facilitation is a preparatory step to the moot arbitration undertaken at the end of the teaching period.

Students will receive ongoing formative feedback from the academic or practitioner leading the activities. This feedback will respond to students’ capacity for critical analysis and evaluation of issues and topics demonstrated in their individual facilitation and seminar collaborations.

Strategy 3: Simulated practice as an arbitration lawyer

Students participate in a moot arbitration that focuses on the integration of key knowledge, concepts and skills. Mooting is a practical learning experience designed to give students exposure to a comprehensive range of real-world scenarios that may be encountered in legal and arbitration settings. Development of students' oral advocacy skills will be a particular focus of this subject. Students will advance their oral communication skills through the class facilitations. They will then practise for the moot arbitration in the mooting master class. Through active participation in the mooting master class and in a simulation of a real world scenario commercial arbitration, students will gain practical real world focussed experience of oral advocacy. During the seminars, students will practise written submissions and receive formative feedback from the academic or practitioner leading the activity. Students will discuss exemplars of written submissions and apply these exemplars to their own drafting.

Strategy 4: Applying research skills

Students develop advanced legal research and writing skills throughout the session by practising written submissions. Students build on their ability to synthesise new and complex materials and to critically analyse issues and information through the in-class drafting of written submissions. Examples of high quality written submissions and research plans are discussed and evaluated in seminars. Students receive formative feedback on their draft submissions from the academic or practitioner leading the activity. Students are also shown how to self-evaluate professional writing such as written submissions.

Subject Delivery:

This subject is taught using a variety of teaching and learning strategies. The strategies emphasise applied approaches to developing key skills and knowledge.

This subject engages students through interactive learning. Seminars involve student participation through class discussion, individual student facilitation, mooting and the development of legal skills. Interactive learning is enabled by student preparation prior to class. Students will be provided with ongoing formative feedback that will address the development of legal skills and knowledge.

Content (topics)

• Introduction to International Commercial Arbitration –Why do Parties Arbitrate? Which Parties can Arbitrate?
• Materials and preparation work will be posted on UTSOnline.
• The Agreement to Arbitrate
• The Law Governing the Arbitration and the Agreement to Arbitrate
• The Arbitral Tribunal
• Powers, Duties and Jurisdiction of the Tribunal
• The Conduct of the Arbitral Proceedings and the Role of National Courts during the Proceedings
• Investment Treaty Arbitration and the Arbitral Award
• Challenging and Enforcing Awards
• The Arbitral Institutions and their Rules – ICC, LCIA, SIAC, ACICA
• International Arbitration in Australia – the International Arbitration Act
• Mooting Master Class
• Moot

Assessment

Assessment task 1: Class Participation

Objective(s):	This task addresses the following subject learning objectives: 1, 2 and 4 This task contributes specifically to the development of the following graduate attributes: 1.0, 3.0 and 5.0
Weight:	20%
Criteria:	Attentiveness in class and evidence of preparation for class demonstrated by ability to identify and discuss relevant issues Quality of participation demonstrating evidence of critical analysis in relation to the topics led by the class facilitator Quality of preparation and clarity of expression/articulation showing an ability to lead class discussion as facilitator Giving and receiving effective feedback on contributions and facilitation

Assessment task 2: Essay

Objective(s):	This task addresses the following subject learning objectives: 1 and 4 This task contributes specifically to the development of the following graduate attributes: 1.0, 3.0 and 5.0
Weight:	30%
Length:	2,500 words
Criteria:	Logical, succinct, persuasive academic writing and plain English expression Evidence of an advanced understanding of the international arbitration framework Ability to apply legal knowledge within the professional context of international commercial disputes Evidence of independent research that identifies relevant material Provides original insights into the issues Logical, supported conclusion Footnoting and bibliography in accordance with AGLC (3rd ed)

Assessment task 3: Moot

Objective(s):	This task addresses the following subject learning objectives: 1, 2, 3 and 4 This task contributes specifically to the development of the following graduate attributes: 1.0, 3.0 and 5.0
Weight:	50%
Length:	2,000 words for the written submission; 10 minutes for the oral submission
Criteria:	Written Submissions: 20% Effectively collaborates with peers in the facilitation of a large group discussion and resolution process Application and coherent use of facts and authorities appropriate to the moot problem Focused, integrated and logical development of a persuasive argument Economy and clarity of language (observance of word limits) Appropriate structure (footnotes, paragraphs, headings and sections). Oral Submissions: 30% Application and coherent use of facts and authorities appropriate to the moot problem Focused, integrated and logically staged persuasive argument Professional oral delivery (volume, pace and composure) Responds effectively and flexibly to opponent’s argument Responds to questions from the Bench in a focused and succinct manner Professional courtroom manner in dealing with the Bench (use of appropriate language and professional dress)

Minimum requirements

A combined total of 50% or more for all assessment tasks

Required texts

Nigel Blackaby?, Constantine Partasides, Alan Redfern and Martin Hunter, Redfern & Hunter on International Arbitration (Oxford University Press, 2015) (Student Edition)

Recommended texts

Simon Greenberg, Christopher Kee and J. Romesh Weeramantry, International Arbitration – An Asia-Pacific Perspective (Cambridge University Press, 201I)

Gary Born, International Commercial Arbitration (Kluwer Law International, 2nd Edition, 2014)

Other resources

International Arbitration Act 1974 (Cth)