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 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.

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 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.	(Covered in the intensive classes)
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.	(Covered only briefly, not assessed)

Assessment Summary

Assessment task	Value	Due Date	Return of assessment	Learning Outcomes
Online Quiz 1	10 %	24/10/2022	01/11/2022	1,4,5,7
Discussion Forum	10 %	24/10/2022	*	1,2,3,6
Online Quiz 2	10 %	28/10/2022	28/10/2022	1,4,5,7
Group Work Arbitration Practical	20 %	27/10/2022	31/10/2022	1,2,3,6
Post-intensive Take-home Assignment	50 %	14/11/2022	07/12/2022	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 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 Academic Integrity . 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 online. Participation itself is not assessed. However, Assessment Task 2 requires the student to participate in a online written discussion forum moderated by the convenor, and Task 4 involves group work where the convenor visits each group (on Zoom) to help them with the question. Attendance for the intensive online is compulsory.

Assessment Task 1

Online Quiz 1

Details of Task: Online quiz of max. 10 questions addressing course content covered between 26 September and 14 October 2022.

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: 5pm, 17 October 2022

Duration: The quiz is open across the period 17-24 October. However, it has a time limit and may only be attempted once. This time limit is generous and affords enough time to review the questions and select an answer. Once the student initiates the quiz, they may not pause the quiz and must complete it in that session.

Due Date: 5pm, 24 October 2022. If you experience unavoidable and extenuating circumstances and cannot sit the quiz at the due date and time, you should apply for an extension here. The College will give you one opportunity to sit the quiz, at the same time one week later. This will be your final opportunity to sit the quiz. 

Estimated Return Date: 1 November 2022

Assessment Criteria: The mark for the quiz will be based on the number of correct responses.

Assessment Task 2

Discussion Forum

Details of Task: Individual analysis and insight on a special moderated shared online written discussion forum on Wattle in relation to a question or topic proposed by the Convenor. Each student must post their contribution(s) to the discussion forum during the period of the discussion. Further details of what is expected of students will be available 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: 10%

Release: 5pm, 10 October 2022

Word Limit: 600 words. The student may contribute more than once on the discussion forum, for example, to clarify their earlier post or comment on another's post. However, the total words from each student on the forum should not exceed 600 words. The ANU College of Law's Word Length and Excess Word penalties policy can be found here.

Due Date: 5pm, 24 October 2022

Estimated Return Date: N/A, the Convenor will indicate the students' results for the discussion forum before end of October 2022.

Assessment Criteria: This task is assessed on the what is demonstrates about the level of engagement shown by the student with the question and the material (reading) on which it is based. The focus is on evidence of close reading of the material, as shown by analytical insights by reference to key themes in this course (rather than mere summary or description of the reading's content). As this is a typed discussion forum, either a single 'blog'-type post of a succession of posts into the discussion (not exceeding 600 words in total), the marker's focus is not on highly precise writing or drafting as such.

Assessment Task 3

Online Quiz 2

Details of Task: Online quiz of maximum of 20 short questions (each worth 0.5 marks) with multiple choice answers, to assess engagement with the materials and provide feedback. 

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: 11am, 27 October 2022

Duration: The quiz is open across this 24 hour period. However, it has a time limit and may only be done once. This time limit is generous and affords enough time to review the questions and select an answer. Once the student initiates the quiz, they may not pause the quiz and must complete it in that session.

Due Date: 11am, 28 October 2022. Due to the nature of the task, late submission or extension is not permitted.

Estimated Return Date: 28 October 2022

Assessment Criteria: The mark for the quiz will be based on the number of correct responses. The quiz will be reviewed in the final day of the intensive online class, once the quiz is closed, as a feedback and learning / discussion exercise.

Assessment Task 4

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. The relates to drafting an agreement to arbitrate in the event of a dispute. 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 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: 20%

Release: 5pm, 26 October 2022

Word Limit: 1,200 words maximum. The assignment can be completed without using the full word limit. This is not primarily a drafting exercise, but a group work problem solving one. The ANU College of Law's Word Length and Excess Word penalties policy can be found here.

Due Date: 5pm, 27 October 2022. Due to the nature of the task, late submission or extension is not permitted.

Estimated Return Date: 31 October 2022

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).

Assessment Task 5

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.

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

Weighting: 50%

Release: 12nn, 28 October 2022

Word Limit: 3,000 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 2022

Estimated Return Date: 7 December 2022

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. At its heart, academic integrity is about behaving ethically, committing to honest and responsible scholarly practice and upholding these values with respect and fairness.

The ANU commits to assisting all members of our community to 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 be familiar with the academic integrity principle and Academic Misconduct Rule, 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 Academic Misconduct Rule is in place to promote academic integrity and manage academic misconduct. Very minor breaches of the academic integrity principle may result in a reduction of marks of up to 10% of the total marks available for the assessment. The ANU offers a number of online and in person services to assist students with their assignments, examinations, and other learning activities. Visit the Academic Skills website for more information about academic integrity, your responsibilities and for assistance with your assignments, writing skills and study.

Online Submission

You will be required to electronically sign a declaration as part of the submission of your assignment (Task 4). 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

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. 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 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