This course explores how transnational commercial disputes may be resolved in an authoritative, binding legal way without resorting to litigation before a court. Court-related litigation is more familiar to both lawyers and non-lawyers alike, yet captures only a fraction of the activity towards resolving disputes that occurs before consensual arbitration. Much as there has been a focus in domestic law on 'alternative dispute resolution', so in our globalised economy there is a whole institutional architecture for resolving private commercial disputes with a transnational dimension. The availability of such trusted arbitration (and adjudication) forums is central to parties' confidence in contractual arrangements, and so to facilitating transnational commerce in general. The importance of international commercial arbitration to international commerce is a key theme throughout the course.

This course will cover topics such as the nature and sources of international arbitration; drafting and enforcing arbitration agreements; arbitral procedures and how domestic (state) courts support the international arbitral process and awards made by arbitrators; the law applicable to the merits in international arbitration; challenging, recognising and enforcing awards; and the role of public policy in international arbitration. It will also reflect on the composition, competency and competition among different major global forums for international commercial arbitration: who are arbitrators, where are they doing this, what trends can be discerned in the non-judicial but binding legal resolution of commercial disputes?

The course was designed primarily for intensive delivery, and/or for offshore delivery in cooperation with partners in a major Asia-Pacific arbitration city.

Learning Outcomes

Upon successful completion, students will have the knowledge and skills to:

1. Evaluate complex problems, concepts and theories in international / transnational commercial arbitration law and devise solutions appropriate to the specific context.
2. Undertake legal research, legal writing and resolution of complex legal problems with a transnational commercial arbitration dimension across a range of issues and topics.
3. Research and write on the practice or theory of transnational commercial arbitration law including in-depth legal research on an aspect of this field.
4. Incorporate social, policy, comparative or interdisciplinary approaches into legal analysis of transnational commercial arbitration law issues.
5. Communicate legal, policy and theoretical perspectives on transnational commercial arbitration law issues effectively, especially in writing.
6. Structure, sustain and evaluate legal argument in and about transnational commercial arbitration law.
7. Develop and apply legal knowledge to complex transnational commercial arbitration legal problems in an analytical and creative manner.

Research-Led Teaching

My interest in International Commercial Arbitration has come through my interest in remedy for transnational disputes in my main field of research, 'business and human rights' (see LAWS8254 in the ANU LLM program).

Required Resources

There are no required (prescribed) texts in this course, but the course centres around three instruments (provided on the Wattle page): The New York Convention 1958; the UNCITRAL Model Law on International Commercial Arbitration 1985 (updated 2006); and the International Arbitration Act 1974 (Cwth), which is Australia's domestic legislation giving the Convention effect in our national law, modelled on the UNCITRAL model. These instruments are far more important in this course than any textbook.

Recommended Resources

Recommended readings per topic are indicated in the Wattle page for the online period of the course, with links to electronic / digital source readings contained there.

The following book provides a basic introduction to this topic: Moses, 'Principles and Practice of International Commercial Arbitration' (3rd edition, Cambridge University Press, 2017). This basic set of materials relates to one of the main forums for international arbitration: 'Guide to ICC arbitration' (Court of Arbitration Paris : International Chamber of Commerce, 1994). Both are on Reserve through the ANU Law library.

Arbitration is one form of international dispute settlement: for those wishing to gain a broader view of the various mechanisms for international public and private dispute settlement, see Merrills, 'International Dispute Settlement' (Cambridge University Press, 2017), which has been placed on reserve in the ANU Law Library. 

Staff Feedback

Students will be given feedback in the following forms in this course:

• written engagement by Convenor on weekly discussion forums
• feedback to whole class where appropriate through the Wattle page or in person (especially in relation to Task 2, the Group Task)
• individual written feedback on submitted work for Task 3

Student Feedback

ANU is committed to the demonstration of educational excellence and regularly seeks feedback from students. Students are encouraged to offer feedback directly to their Course Convener or through their College and Course representatives (if applicable). Feedback can also be provided to Course Conveners and teachers via the Student Experience of Learning & Teaching (SELT) feedback program. SELT surveys are confidential and also provide the Colleges and ANU Executive with opportunities to recognise excellent teaching, and opportunities for improvement.

Class Schedule

Week/Session	Summary of Activities	Assessment
1	B. Sources of law and forms:Domestic and international arbitration; international and transnational law; private international law and public international law; ad hoc and institutional arbitration.
2	C. The arbitration agreement:Form and content; arbitrability of the subject matter; applicable law; Distinction between clause/agreement and submission; Effectiveness; recognition by national courts; Separability.
3	F. Conservatory measures and joinder of parties:Means to preserve or to render protection to the subject matter of the arbitration; Joinder of parties; Multiparty arbitration.	Briefly: not assessed
4	L. Recognition and enforcement of arbitral awards.(i) Distinction between foreign and domestic awards (ii) History of recognition and enforcement: an international perspective (iii) The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (iv) Rules for enforcement (v) Meanings of grounds to refuse enforcement.	Outlined only in Week 4: covered in Intensive (Week 5)
5	M. Arbitration involving government and state owned entities.(i) The distinctions and significance of state, state entity and state enterprise (ii) Capacities and abilities as a party to an agreement to arbitrate (iii) Sovereign immunity; waiver (iv) Enforcement of award against sovereign.	(Mention only, and not assessed)

Assessment Summary

Assessment task	Value	Due Date	Return of assessment	Learning Outcomes
Discussion Forum	20 %	*	*	1,4,5,7
Group Work Arbitration Practical	10 %	26/10/2023	27/10/2023	1,2,3,6
Post-intensive Take-home Assignment	70 %	14/11/2023	30/11/2023	1,2,3,4,5,6,7

* If the Due Date and Return of Assessment date are blank, see the Assessment Tab for specific Assessment Task details

Policies

ANU has educational policies, procedures and guidelines , which are designed to ensure that staff and students are aware of the University’s academic standards, and implement them. Students are expected to have read the Academic Integrity Rule before the commencement of their course. Other key policies and guidelines include:

• Academic Integrity Policy and Procedure
• Student Assessment (Coursework) Policy and Procedure
• Extenuating Circumstances Application
• Student Surveys and Evaluations
• Deferred Examinations
• Student Complaint Resolution Policy and Procedure
• Code of practice for teaching and learning

Assessment Requirements

The ANU is using Turnitin to enhance student citation and referencing techniques, and to assess assignment submissions as a component of the University's approach to managing Academic Integrity. For additional information regarding Turnitin please visit the Academic Skills website. In rare cases where online submission using Turnitin software is not technically possible; or where not using Turnitin software has been justified by the Course Convener and approved by the Associate Dean (Education) on the basis of the teaching model being employed; students shall submit assessment online via ‘Wattle’ outside of Turnitin, or failing that in hard copy, or through a combination of submission methods as approved by the Associate Dean (Education). The submission method is detailed below.

Moderation of Assessment

Marks that are allocated during Semester are to be considered provisional until formalised by the College examiners meeting at the end of each Semester. If appropriate, some moderation of marks might be applied prior to final results being released.

Participation

This is a hybrid course, with an online study period of about 4 weeks preceding a two-and-a half day (2.5 days) intensive on campus. At some points in the course and the intensive we are joined virtually by practitioners from the Asia-Pacific region.

Participation itself is not assessed. However, (a) Assessment Task 1 requires the student to participate in a online written discussion forum moderated by the convenor, (b) Task 2 involves group work where the convenor visits each group to help them with the question; and (c) attendance for the intensive on campus is compulsory.

Assessment Task 1

Discussion Forum

Details of Task: A total of four (4) posts of no more than 250 words into a online interactive written discussion forum moderated by the Convenor. Each week for the first 4 weeks of the course (the online portion of the course), students type / post into the forum their input for that week relating to the material and in response to the Convenor's question and other students' posts. The forum is not 'live' (students can post at any time during the week). The Convenor participates in the discussion forum during the week to assist with the content and concepts.

Nature of Task: Compulsory and non-redeemable. Failure to post in the forum in each of the four weeks will result in a mark of zero for this assessment task.

Weighting: 20%

Release: Each week's discussion question is posted at 5pm Wednesday (the day of the weekly seminar) and is completed by students during the week ahead until the next seminar. There are 4 weekly seminars (5pm Weds 27 September; Weds 4 October; Weds 11 October; Weds 18 October)

Duration: Each forum is open for 1 week from release (until the next weekly seminar).

Due Date: 5pm on the day of the following weekly seminar (i.e. 1 week to post into the forum for that week: the course Wattle page will clearly indicate the release and due date information for the forum posts). Due to the nature of the task, late submission or extension is not permitted.

Estimated Return Date: n/a, the Convenor will moderate the discussion forum and provide feedback on the submissions in this way, and once that week's forum is closed.

Assessment Criteria: The course Wattle page will contain a full rubric of criteria, which relate to showing evidence of engagement with that week's materials and with the existing discussion forum posts.

Assessment Task 2

Group Work Arbitration Practical

Details of Task: Students, placed in randomly-generated groups, negotiate how collectively to complete a practical task or tasks relating to certain practical legal aspects of an international arbitration. For example, drafting an agreement to arbitrate in the event of a dispute. The group submits a record of their group's negotiated or agreed position on the issues raised. More guidance on this task, and a rubric for assessing it, will be available on the course Wattle page. The group work occurs during the intensive teaching period, and allows for the lecturer or convenor to join groups for periods of time to help guide their completion of the task, so reinforcing the learning.

Nature of Task: Compulsory and non-redeemable. Failure to submit this assessment will result in a mark of zero for this assessment task.

Weighting: 10%

Release: In class, Wednesday 25 October 2023

Word Limit: 800 words maximum. The assignment can be completed without using the full word limit. This is not primarily a drafting exercise (assessment is not based on excellence in writing), but a group work problem-solving one, where the written submission simply records the group's position. The ANU College of Law's Word Length and Excess Word penalties policy can be found here.

Due Date: In class, Thursday 26 October 2023. Due to the nature of the task, late submission or extension is not permitted.

Estimated Return Date: The Convenor will provide feedback in class in reviewing the group submissions, and return the mark by end of the 2.5-day class (27 October 2023).

Assessment Criteria: Because this is a group exercise completed in a restricted time period, the marker does not put much weight (roughly 10% weighting) on quality of written expression. Instead, the group answers are assessed on (a) their ability to judge whether a given arbitration clause is likely to be held valid or not (roughly 20% weighting) and, more importantly, (b) the group's reasoning as to why they reached their answer as to likely validity or invalidity, by reference to materials and concepts taught in the course (70% weighting in overall mark). More detail will be available ahead of the class, on the course Wattle page. This task does not assess 'participation' as such i.e. individual performance in the group discussion is not assessed in any way.

Assessment Task 3

Post-intensive Take-home Assignment

Details of Task: Take-home assignment comprising up to 20 tasks and questions requiring individual written answers. There is a specified mark and specified word limit for each question. The tasks and questions will require students to engage with the primary resources in the course (those hosted on Wattle), and to draw on online materials, and the teaching and discussion in the intensive period. This task includes a short portion reflecting on the presentation of one of the various outside experts who give guest lectures into the intensive class. More detail will be posted on the course Wattle page.

Nature of Task: Compulsory and non-redeemable. Failure to submit this assessment will result in a mark of zero for this assessment task.

Weighting: 70%

Release: By 5pm, 29 October 2023

Word Limit: 4,200 words across all answers. The ANU College of Law's Word Length and Excess Word penalties policy can be found here.

Due Date: 5pm, 14 November 2023. Late submission (without an extension) is permitted, although late penalties will apply. Please be mindful that if you are in your final semester, late

submissions will have an impact on your eligibility to graduate on time. 

Estimated Return Date: Official end of semester results release date via Turnitin.

Assessment Criteria: This course adopts the generic ANU College of Law LLM-level criteria: 

a)      Understanding of the Issues

• addresses the question and covers the salient, relevant and important points;
• evidence of close consideration of the question and the research materials drawn on;
• issues raised by the topic are clearly and concisely identified;
• material chosen relates clearly to the topic and is analysed not just summarised or quoted extensively;

b)      Communication and Development of Argument

• shows a clear theme or argument;
• argument(s) logical and well-organised;
• ideas/paragraphs linked coherently; 

c)      Argument/Analysis

• originality of ideas and critical analysis of the material;
• complexity and insight in dealing with theory/ideas;
• suggestions for change where appropriate;
• interdisciplinary perspective where appropriate;
• addressing opposing arguments;
• well-reasoned conclusions;

d)      Research

• research covering primary and secondary materials;
• good organisation of sources and ability to synthesise all the research materials used;
• use of theoretical material where appropriate;
• range of research sources;
• integration of material from research resources into the essay. 

e)      Presentation, style and referencing

• good use of structure, section headings and paragraphs;
• clarity and conciseness of expression, interesting and engaging of reader;
• use of appropriate terminology and correct grammar, syntax and spelling;
• full and accurate footnotes together with a bibliography;
• style according to Australian Guide to Legal Citation where appropriate;
• adherence to word limit.

Academic Integrity

Academic integrity is a core part of the ANU culture as a community of scholars. The University’s students are an integral part of that community. The academic integrity principle commits all students to engage in academic work in ways that are consistent with, and actively support, academic integrity, and to uphold this commitment by behaving honestly, responsibly and ethically, and with respect and fairness, in scholarly practice.

The University expects all staff and students to be familiar with the academic integrity principle, the Academic Integrity Rule 2021, the Policy: Student Academic Integrity and Procedure: Student Academic Integrity, and to uphold high standards of academic integrity to ensure the quality and value of our qualifications.

The Academic Integrity Rule 2021 is a legal document that the University uses to promote academic integrity, and manage breaches of the academic integrity principle. The Policy and Procedure support the Rule by outlining overarching principles, responsibilities and processes. The Academic Integrity Rule 2021 commences on 1 December 2021 and applies to courses commencing on or after that date, as well as to research conduct occurring on or after that date. Prior to this, the Academic Misconduct Rule 2015 applies.

 

The University commits to assisting all students to understand how to engage in academic work in ways that are consistent with, and actively support academic integrity. All coursework students must complete the online Academic Integrity Module (Epigeum), and Higher Degree Research (HDR) students are required to complete research integrity training. The Academic Integrity website provides information about services available to assist students with their assignments, examinations and other learning activities, as well as understanding and upholding academic integrity.

Online Submission

You will be required to electronically sign a declaration as part of the submission of your assignment (Task 3). Please keep a copy of the assignment for your records. Submission must be through Turnitin.

Hardcopy Submission

Not applicable

Late Submission

Individual assessment tasks may or may not allow for late submission. Policy regarding late submission is detailed below:

• Late submission not permitted. If submission of assessment tasks without an extension after the due date is not permitted, a mark of 0 will be awarded.
• Late submission permitted. Late submission of assessment tasks without an extension are penalised at the rate of 5% of the possible marks available per working day or part thereof. Late submission of assessment tasks is not accepted after 10 working days after the due date, or on or after the date specified in the course outline for the return of the assessment item.
• Late submission is not accepted for tests or examinations.
• Late submission with an extension. To ensure equity for all students, the 5% penalty per working day for late submission of work does not apply if you have been given an extension. Where an extension is granted, the revised due date and submission time is provided in writing. Please note that the revised due date is calculated by including weekends and public holidays. Regardless of which day of the week the revised due date falls on, students who submit after that date are penalised by 5% of the possible marks available for the assessment task per day or part thereof. Late submission of assessment tasks is not accepted after 10 working days after the due date, or on or after the date specified in the course outline for the return of the assessment item.

Referencing Requirements

The Academic Skills website has information to assist you with your writing and assessments. The website includes information about Academic Integrity including referencing requirements for different disciplines. There is also information on Plagiarism and different ways to use source material.

Extensions and Penalties

Extensions and late submission of assessment pieces are covered by the Student Assessment (Coursework) Policy and Procedure. Extensions may be granted for assessment pieces that are not examinations or take-home examinations. If you need an extension, you must request an extension in writing on or before the due date. If you have documented and appropriate medical evidence that demonstrates you were not able to request an extension on or before the due date, you may be able to request it after the due date.

Privacy Notice

The ANU has made a number of third party, online, databases available for students to use. Use of each online database is conditional on student end users first agreeing to the database licensor’s terms of service and/or privacy policy. Students should read these carefully. In some cases student end users will be required to register an account with the database licensor and submit personal information, including their: first name; last name; ANU email address; and other information.
In cases where student end users are asked to submit ‘content’ to a database, such as an assignment or short answers, the database licensor may only use the student’s ‘content’ in accordance with the terms of service – including any (copyright) licence the student grants to the database licensor. Any personal information or content a student submits may be stored by the licensor, potentially offshore, and will be used to process the database service in accordance with the licensors terms of service and/or privacy policy.
If any student chooses not to agree to the database licensor’s terms of service or privacy policy, the student will not be able to access and use the database. In these circumstances students should contact their lecturer to enquire about alternative arrangements that are available.

Distribution of grades policy

Academic Quality Assurance Committee monitors the performance of students, including attrition, further study and employment rates and grade distribution, and College reports on quality assurance processes for assessment activities, including alignment with national and international disciplinary and interdisciplinary standards, as well as qualification type learning outcomes.

Since first semester 1994, ANU uses a grading scale for all courses. This grading scale is used by all academic areas of the University.

Support for students

The University offers students support through several different services. You may contact the services listed below directly or seek advice from your Course Convener, Student Administrators, or your College and Course representatives (if applicable).

• ANU Health, safety & wellbeing for medical services, counselling, mental health and spiritual support
• ANU Access and inclusion for students with a disability or ongoing or chronic illness
• ANU Dean of Students for confidential, impartial advice and help to resolve problems between students and the academic or administrative areas of the University
• ANU Academic Skills and Learning Centre supports you make your own decisions about how you learn and manage your workload.
• ANU Counselling Centre promotes, supports and enhances mental health and wellbeing within the University student community.
• ANUSA supports and represents all ANU students