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 is intended primarily for intensive delivery, and for offshore delivery in Hong Kong (a global arbitration hub), in cooperation with partners at the City University of Hong Kong.

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 transnational civil dispute settlement in the area of torts, and arbitration as a form of 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. This book is on reserve with ANU Law Library and provides a basic introduction to this topic: Moses, 'Principles and Practice of International Commercial Arbitration' (3rd edition, Cambridge University Press, 2017). Also on reserve is this basic set of materials relating to one of the main forums for international arbitration: 'Guide to ICC arbitration' (Court of Arbitration Paris : International Chamber of Commerce, 1994).

Recommended Resources

Recommended readings per topic are indicated in the Wattle page for the online (6 week) period of the course.

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 comments on discussion forums
• written feedback on the course quiz
• feedback to whole class where appropriate through the Wattle page
• individual written feedback on submitted work

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). The feedback given in these surveys is anonymous and provides the Colleges, University Education Committee and Academic Board with opportunities to recognise excellent teaching, and opportunities for improvement. The Surveys and Evaluation website provides more information on student surveys at ANU and reports on the feedback provided on ANU courses.

Class Schedule

Week/Session	Summary of Activities	Assessment
1	A. Introduction: International dispute settlement The legal nature of international commercial arbitration
2	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.
3	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.
4	D. Appointment of the arbitrator Procedures, qualifications, composition of the tribunal; Role of domestic courts; Challenge to appointment; Nature of the role of party-appointed arbitrator; Immunity of international arbitrators.
5	E. Authority of the arbitrator Nature and extent of arbitrator’s power in international arbitration; The ability of the arbitrator to determine his/her jurisdiction; international public policy and international commercial arbitration; Challenge to jurisdiction and the role of the national courts; Supervision and assistance by national courts.
6	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.
7	G. The law governing the arbitration Lex arbitri and the arbitration agreement, procedure and subject matter; Identifying the law of the arbitration; Importance of the place of the arbitration; delocalisation theory; Transnational arbitrations.
8	H. International arbitration in practice Initiating arbitration proceedings; The impact of arbitration rules, with special reference to the UNCITRAL Rules and the rules of the Hong Kong International Arbitration Centre; Choice of the mode of hearing, settling language and venue; Pleadings; Discovery and inspection of documents; Procedure at a hearing; Evidence; Authority of arbitrator to make orders; Expert witnesses; Dissenting awards; Harmonization of arbitration practice: the UNCITRAL Rules; ICSID Rules; the IBA Rules of Evidence.
9	I. The determination of the applicable law. (i) Introduction to private international law with particular reference to principles concerning contracts and arbitration (ii) Convergent substantive law rules (iii) Conflicts avoidance (iv) General principles of law - their meanings and effect.
10	J. The law applicable to the dispute. (i) Express and implied provisions in the agreement to arbitrate; party autonomy (ii) Lex Mercatoria - its meaning, sources, effect and limitation (iii) Non legal standards: amiables compositeurs and awards made ex aequo et bono.
11	K. The award. (i) Form of award (ii) Delivery of award (iii) Appeal and challenge of the award.
12	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.
13	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.

Assessment Summary

Assessment task	Value	Due Date	Return of assessment	Learning Outcomes
Online Quiz	10 %	30/09/2019	30/09/2019	1,4,5,7
Opinion Piece	20 %	28/10/2019	01/11/2019	1,4,5,7
Research essay	70 %	19/11/2019	01/12/2019	1,2,3,6

* 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 Misconduct Rule before the commencement of their course. Other key policies and guidelines include:

• Student Assessment (Coursework) Policy and Procedure
• Special Assessment Consideration Policy and General Information 
• Student Surveys and Evaluations
• Deferred Examinations
• Student Complaint Resolution Policy and Procedure

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 ANU Online 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 6 weeks preceding 2-day intensive face-to-face classroom study.

Assessment Task 1

Online Quiz

Nature of Task: Online quiz of max. 10 questions addressing course content covered between 2 and 20 September

Weighting: 10%

Word limit: n/a

Release: 23 September 2019 at 12pm noon

Due date: 30 September 2019 at 23:59 (11:59pm)

Estimated return date: 30 September 2019 (the quiz automatically generates a grade result as well as indicative feedback)

This task is compulsory and non-redeemable, failure to complete the task will result in the award of a mark of 0 for this task

Assessment Task 2

Opinion Piece

Nature of Task: Lightly referenced, relatively informal and short ‘blog style’ critical reflection on 1 of 3 questions, intended to begin engaging with the essay topic/s

Weighting: 20%

Word limit: maximum 1,200 words, no bibliography and only basic references required.

Release: 20 October 2019 at 17h00 (5pm)

Due date: 28 October 2019 at 17h00 (5pm)

Estimated return date: 1 November 2019

This task is compulsory and non-redeemable, failure to complete the task will result in the award of a mark of 0 for this task

This course adapts the generic ANU College of Law LLM-level criteria:

a)     Understanding of the Issues

• addresses a chosen question and outlines relevant and important points;
• shows evidence of consideration of the course materials drawn upon;
• clearly and concisely identifies the chosen issue focused upon;
• engages in analysis not just summary or quotation of issues.

b)     Communication & Development of Argument

• shows a clear theme or argument;
• argument(s) logical and well-organised;
• ideas/paragraphs linked coherently;
• identifies a viable topic for proposed deeper study in Task 3 (research essay).

c)      Argument/Analysis

• originality of ideas and analysis of the chosen material;
• suggestions for change where appropriate (within space constraints).
• consideration of opposing arguments (within space constraints).
• well-reasoned provisional conclusions or hypotheses ahead of Task 3 essay.

d)      Research

• this short critical blog-style essay is not a research task as such, but must show evidence of close engagement with and critical reflection upon a chosen topic within the scope of the course.

e)      Presentation, style and referencing

• stylistic and structural issues are less significant for this short essay format, but the assignment should display clarity and conciseness of expression, be interesting and engaging of reader, and reveal the writer’s own informed views and arguments clearly (as distinct from those of authors in the literature);
• although relatively informal (‘blog-like’) in style, the essay should make use of appropriate terminology and contain correct grammar, syntax and spelling;
• full and accurate footnotes and citation are not significant in this assignment, which is a structured preliminary task to help refine topic choice for Task 3 (essay).
• adherence to word limit

Assessment Task 3

Research essay

Nature of Task: original critical research essay produced to an ANU post-graduate law standard

Weighting: 70%

Word limit: maximum 4,200 words.

Release: 20 October 2019 at 17h00 (5pm)

Due date: 19 November 2019 at 2359 (11:59pm)

Estimated return date: 1 December 2019

This task is compulsory and non-redeemable, failure to complete the task will result in the award of a mark of 0 for this task

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 our culture as a community of scholars. At its heart, academic integrity is about behaving ethically. This means that all members of the community commit to honest and responsible scholarly practice and to upholding these values with respect and fairness. The Australian National University commits to embedding the values of academic integrity in our teaching and learning. We ensure that all members of our community understand how to engage in academic work in ways that are consistent with, and actively support academic integrity. The ANU expects staff and students to uphold high standards of academic integrity and act ethically and honestly, to ensure the quality and value of the qualification that you will graduate with. The University has policies and procedures in place to promote academic integrity and manage academic misconduct. Visit the following Academic honesty & plagiarism website for more information about academic integrity and what the ANU considers academic misconduct. The ANU offers a number of services to assist students with their assignments, examinations, and other learning activities. The Academic Skills and Learning Centre offers a number of workshops and seminars that you may find useful for your studies.

Online Submission

You will be required to electronically sign a declaration as part of the submission of your assignment. Please keep a copy of the assignment for your records. Unless an exemption has been approved by the Associate Dean (Education) submission must be through Turnitin.

Hardcopy Submission

Not applicable: please use online submission only except where you encounter difficulties.

Late Submission

• 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 take-home examinations.

Referencing Requirements

Accepted academic practice for referencing sources that you use in presentations can be found via the links on the Wattle site, under the file named “ANU and College Policies, Program Information, Student Support Services and Assessment”. Alternatively, you can seek help through the Students Learning Development website.

Extensions and Penalties

Extensions and late submission of assessment pieces are covered by the Student Assessment (Coursework) Policy and Procedure. The Course Convener may grant extensions 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 Diversity 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 undergraduate and ANU College students
• PARSA supports and represents postgraduate and research students