MVV163K Selected Issues in International Investment Law and Arbitration

Faculty of Law
Spring 2016
Extent and Intensity
0/1. 5 credit(s). Type of Completion: k (colloquium).
Teacher(s)
Mgr. Josef Ostřanský (lecturer), prof. JUDr. Ing. Michal Radvan, Ph.D. (deputy)
Guaranteed by
prof. JUDr. Ing. Michal Radvan, Ph.D.
Department of Financial Law and Economics – Faculty of Law
Contact Person: Mgr. Věra Redrupová, B.A.
Supplier department: Department of Financial Law and Economics – Faculty of Law
Timetable of Seminar Groups
MVV163K/01: Wed 20. 4. 13:30–15:00 034, 15:05–16:35 034, Thu 21. 4. 9:35–11:05 038, 11:10–12:40 038, Mon 25. 4. 18:15–19:45 038, Tue 26. 4. 18:15–19:45 038, Wed 27. 4. 15:05–16:35 034, Thu 28. 4. 11:10–12:40 038, J. Ostřanský
Prerequisites
MP601Zk PIL II
Solid knowledge of the English language; private international law course passed; basic knowledge of public international law desirable. Enrolment exception will be granted on the basis of a motivation essay. Please contact Vera Redrupova for more details.
Course Enrolment Limitations
The course is only offered to the students of the study fields the course is directly associated with.

The capacity limit for the course is 30 student(s).
Current registration and enrolment status: enrolled: 0/30, only registered: 0/30
fields of study / plans the course is directly associated with
there are 31 fields of study the course is directly associated with, display
Course objectives
When a Czech company invests in a foreign country, what protections is it entitled to under international law? What are the remedies available to the company to enforce its rights in cases of prejudice to the company’s economic activities? Yet, what legal constraints faces the Czech Republic as a State when it intends to adopt regulation for the protection of a public interest that might negatively affect foreign investors? This course introduces the basic precepts of international law of foreign investments and addresses precisely this type of questions. It covers basic public international law aspects of the substantive investment protection (expropriation, fair and equitable treatment, national and most favoured nation treatment) both in customary and in treaty law (particularly bilateral investment treaties – BITs, NAFTA Chapter 11, Energy Charter Treaty, and comprehensive free trade agreements with investment chapters). The course examines procedural aspects of investment treaty arbitration, such as jurisdiction of the tribunal, admissibility of claims, and remedies. Lastly, the course also touches upon the relationship between international investment law and other branches of international law, in particular the EU law, as well as upon social, political and economic consequences of the current international investment regime.
Syllabus
  • 1. History and Evolution of International Investment Law (IIL), Institutional Structure of the current IIL, Rationales of the current form of IIL, Nature of Investor Rights, State Responsibility
  • • From diplomatic protection to investment treaty arbitration
  • • International investment agreements (IIAs) and investment treaty arbitration:
  • - Institutions and forums for investment disputes: ICSID, other arbitration institutions, and ad hoc investment treaty arbitration
  • • Sources of IIL
  • - Applicable law and the hybrid nature of the current system: commercial versus public law tensions
  • - Typical structure of an IIA
  • • Economic and other empirical justifications for IIAs
  • • Nature of the investor’s rights: direct versus derivative model
  • • Basic elements of State responsibility: violation of international obligation, attribution
  • • IIL as a special type of delictual responsibility?
  • 2. Investment Treaty Arbitration: Jurisdiction and Admissibility
  • • Notion of investment and investor and the quid pro quo nature of investment treaty arbitration
  • • Notion of jurisdiction
  • • Principle of consent as a basic principle of international dispute settlement
  • • Other jurisdictional requirements
  • • Jurisdiction versus admissibility
  • - Shareholders’ claims
  • 3. Treaty versus Contract Claims, Umbrella Clauses, and Plea of Illegality
  • • Basis of investment claims: Treaty versus Contract
  • • Umbrella Clauses and wide dispute resolution clauses
  • • Plea of Illegality and its characterisation
  • • Counterclaims in Investment Treaty Arbitration
  • 4. Substantive International Investment Law: State Responsibility and Expropriation
  • • Expropriation:
  • - Lawful and unlawful
  • - Direct and indirect
  • - Regulatory expropriation
  • • Compensation
  • 5. Substantive International Investment Law: Fair and Equitable Treatment (FET) and the International Minimum Standard (IMS)
  • • FET and IMS: Convergence or divergence? And does it even matter?
  • • The concept of Legitimate Expectations
  • • Full Protection and Security Standard
  • • Responsibility of State for Adjudication: Denial of justice
  • 6. Substantive International Investment Law: National Treatment, MFN Treatment
  • • Operation of relative standards
  • • National Treatment
  • • MFN:
  • - Substantive MFN
  • - MFN as a tool for incorporating different dispute settlement clauses
  • - MFN as a tool for incorporation of a new substantive standards
  • 7. Substantive International Investment Law: State Defences – Circumstances Precluding Wrongfulness, Treaty Exceptions and Carve-outs, Doctrine of Police Powers
  • • Defences:
  • - Treaty carve-outs and exceptions
  • - Customary international law defences: circumstances precluding wrongfulness
  • - Doctrine of necessity: a case study of misunderstanding of the public international context of IIAs
  • - Police powers doctrine and margin of appreciation
  • 8. Remedies and Enforcement, IIL and EU Law, Revision
  • • Remedies in general international law
  • • Remedies in IIL:
  • - damages (types and calculation)
  • • Enforcement of investment awards
  • • IIL and EU Law: a battle over hegemony
Literature
  • Students will be assigned only the pages/paragraphs relevant and necessary for the course. See Teacher's information for the full list.
Teaching methods
lectures, seminars, discussions
Assessment methods
Active class participation is expected and will count into the evaluation (20%). The remaining 80% of the student’s evaluation will be based on a written research paper of not more than 2,000 words on a topic assigned during the class.
Language of instruction
English
Further comments (probably available only in Czech)
Study Materials
The course is taught only once.
The course is also listed under the following terms Spring 2015.
  • Enrolment Statistics (recent)
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