The course is aimed at providing students with a complete view of the principles, rules and practices that govern international arbitration (both commercial and investment), i.e. the main mechanism for resolving disputes arising, on the one hand, from economic and commercial transactions between private parties (companies or individuals) and, on the other, from the so-called foreign direct investment (or FDI) between States (or entities attributable to them) and private investors (natural or legal persons), located in a jurisdiction other than that State.
The course will first highlight the main differences between domestic and international arbitration, as well as between arbitration and other frequently used Alternative Dispute Resolution mechanisms in relation to commercial disputes (such as mediation, mini-trials, 'expert determination ...). It will therefore provide a historical perspective of the evolution of the arbitration phenomenon, with a particular focus on its peculiar characteristics within different legal traditions and geographical areas (Europe, Latin America, China and Japan, India, Australia, Russia). It will then deal with the main legal sources that govern the matter (international conventions, arbitration laws, arbitration rules, soft law instruments, lex mercatoria ...).
The course will then address, in a critical and comparative perspective, all the main procedural issues related to this alternative dispute resolution method (the arbitration agreement - definition, validity, the law applicable to it, multi-party scenarios, pathological arbitration clauses); the problem of arbitrability of disputes in some controversial sectors (such as competition law, financial transactions, industrial property, bankruptcy law) and in some peculiar circumstances (when fraud or corruption are alleged in the course of an arbitration procedure); the relationship between arbitration and EU law (the duty of arbitrators to apply ex officio rules of European public policy; the possibility for them to address the Court of Justice with a preliminary ruling's application; the relationship between the Brussels I bis Regulation and arbitration); the arbitral tribunal and all related issues (impartiality and independence of the arbitrators; their appointment and challenge; their duties and responsibilities); the question of the arbitration jurisdiction and its conflict with the state courts' jurisdiction (the phenomenon of parallel procedures on the same subject-matter; anti-suit injunctions ...); the conduct of the arbitration procedure (principles and rules governing the procedure, the law applicable to the merits, the process of taking of evidence, the provisional measures); the role of national courts during the procedure; the arbitration award (form and content); national setting aside procedures; recognition and enforcement of awards abroad under the New York Convention.
The course will then focus on international investment arbitration, i.e. the preferred method to resolve disputes between States (or entities attributable to them), on the one hand, and private investors (natural persons or companies) located in a different State, on the other hand, deriving from international investment agreements. The phenomenon, known as Foreign Direct Investment (or "FDI"), represents one of the most relevant legal and economic developments of the last decades at an international level. FDI concerns economic and industrial operations which are among the most strategic for States (concerning sectors such as energy, telecommunications, financial activities, procurements, distribution, waste disposal, etc.). Technically, FDI can be defined as an economic operation carried out by an investor (a natural or legal person) of a specific State (the so-called home State) through the implementation of an investment (ie an undertaking) in the territory of another state (the so-called host State), over which the investor exercises a significant degree of control. In principle, the resolution of disputes arising from an international investment can take different forms (state judicial proceedings, mediation, arbitration and diplomatic protection), but arbitration, especially on the basis of ICSID rules, is by far the most used method.
The course, after a brief historical introduction on investment law, will address issues such as the characteristics of the different means of dispute resolution in this field, the notion of "investment", the notion of "investor", the peculiarities of the arbitration procedure between States and private investors compared to "ordinary" commercial arbitration procedures, as well as the new European investment policy.
- Docente titolare: Albert Henke