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Overview

Course Prescription

A study primarily of arbitration in commercial contexts, focused on New Zealand and international instruments, including some comparisons with mediation and especially investor-state arbitration. Assessment involves problem-type questions as well as individual research for a significant essay.

Course Overview

OVERVIEW

International arbitration involves many interesting facets of the law including customary international law, the law of treaties, conflict of laws, soft law and contract law. It has become the preferred dispute resolution option in international business. It has also been incorporated as the standard dispute resolution method in bilateral and multilateral investment treaties and in free trade agreements such as that between New Zealand and China (2008), New Zealand and Korea (2015) and the Trans Pacific Partnership (2016) (amended in 2018 as the Comprehensive and Progressive Agreement for Trans Pacific Partnership).

The course will begin on the first day with an introduction to the legal fundamentals of international commercial arbitration and some preliminary comparisons with investment treaty arbitration. The rest of the course will then focus on certain specific aspects of international commercial arbitration, and investment treaty arbitration including the usual substantive commitments on standards of treatment for foreign investors. We will cover both practical and more theoretical issues.

The course will be of particular interest to students contemplating a career in arbitration and/or international law, but we hope you all enjoy the course regardless of your future aspirations. On completion of the course, you should have developed an understanding of global diversity and harmonisation in approaches to resolution of commercial disputes, an understanding of the importance of choosing appropriate methods of dispute resolution to the enforcement of legal obligations; the dynamic features of transnational law making; and structure of, and policy issues relevant to, the arbitration of foreign investment disputes. 

SYLLABUS

Topics will include:

  • Applicable laws, conventions and “soft” law
  • Arbitration clauses
  • Confidentiality / transparency in arbitration
  • Conflicts of interest
  • Arbitrability
  • Arbitral procedure
  • The Role of the Courts in supporting arbitration
  • Investment treaty arbitration
  • Substantive protections in international investment law

LECTURER BIOGRAPHIES

Dr Anna Kirk

Dr Anna Kirk (LLB(Hons)/BA Waikato; PhD Cantab) is barrister and arbitrator at Bankside Chambers, with particular expertise in international arbitration and public international law. Anna is New Zealand’s member on the ICC Court of International Arbitration and is a Fellow of the Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ). Anna has practiced in international arbitration in London and New Zealand and now regularly acts as arbitrator in both international and domestic arbitrations. Anna is a member of the Panel of Arbitrators for AMINZ, ACICA, NZIAC, SIAC (Reserve Panel) and HKIAC. She also has considerable experience in investment treaty arbitration, having worked closely with Sir David Williams QC for several years. Anna is a contributing author to Williams & Kawharu on Arbitration and holds a PhD in international law from the University of Cambridge.

Professor Luke Nottage

Dr Luke Nottage (BCA LLB PhD VUW, LLM Kyoto) specialises in international arbitration, corporate governance and consumer (product safety) law. He is Professor of Comparative and Transnational Business Law at Sydney Law School and Associate Director of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS). He is Special Counsel at Williams Trade Law and qualified as a lawyer in New Zealand (1994) and NSW (2001). Luke has consulted for law firms world-wide, ASEAN, the EC, UNCTAD, UNDP, OECD and the governments of Japan and Saudi Arabia. He has made numerous public Submissions and given evidence to Australian government inquiries on arbitration and consumer law reform. Luke was also a Rules committee member of ACICA (2004-2021) and is listed on the Panel of Arbitrators for the AIAC (formerly KLRCA), BAC, JCAA, KCAB, NZIAC, SCIA and TAI. He was awarded “ADR Academic of the Year 2020” by the Australian Disputes Centre. Luke’s 19 books include International Commercial and Investor-State Arbitration: Australia and Japan in Regional and Global Contexts (Elgar, February 2021), New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution (eds, Kluwer, January 2021), International Investment Treaties and Arbitration Across Asia (eds, Brill, 2018) and International Arbitration in Australia (eds, Federation Press 2010). Over 130 manuscripts of his articles and chapters are at http://ssrn.com/author=488525.

Workload Expectations

This is a standard 30-point course. There will be around 36 hours of lectures in this course. As a general guide, you should expect a workload of three hours outside of the classroom for each hour spent in class. The guideline for the total workload for this course is 300 hours.

Advice on Course Limits

This is a limited entry course: there is a limit on the number of enrolments due to staff or space capacity. In cases where the courses is taught under two separate codes (e.g. concurrently taught courses, general education courses) the course limit specified is the total across both versions of the course. For more information, please see the Programme and Course Limitations section of the University Academic and General Statutes and Regulations.

Locations and Semesters Offered

LocationSemester
City

Teaching and Learning

Campus Experience or Online

This course is offered in two delivery modes:

Campus Experience

Attendance is expected over the five day intensive because the course is designed to be participatory, it depends upon students being personally present and contributing. The discussions will often go in interesting directions precisely because of the contributions of the class.

The classes will not be available as recordings.

Learning Resources

Taught courses use a learning and collaboration tool called Canvas to provide students with learning materials including reading lists and lecture recordings (where available). Please remember that the recording of any class on a personal device requires the permission of the instructor.

Additional Information on Learning Resources

All of the required readings will be contained in the materials on Canvas, except for the excerpts from Williams & Kawharu on Arbitration.  Williams & Kawharu is available for purchase from the University of Auckland bookshop, Ubiq, or from www.lexisnexis.co.nz. The text is also available on Short Loan in the Davis Law Library. We strongly recommend that you read chapter 1, chapter 20, and [25.1.1] of chapter 25 in Williams & Kawharu, before you begin working through the reading list. We expect that students will have read the materials before class and will come prepared to discuss them.

Copyright

The content and delivery of content in this course are protected by copyright. Material belonging to others may have been used in this course and copied by and solely for the educational purposes of the University under license.


You may copy the course content for the purposes of private study or research, but you may not upload onto any third-party site, make a further copy or sell, alter or further reproduce or distribute any part of the course content to another person.

Learning Continuity

In the event of an unexpected disruption, we undertake to maintain the continuity and standard of teaching and learning in all your courses throughout the year. If there are unexpected disruptions the University has contingency plans to ensure that access to your course continues and course assessment continues to meet the principles of the University’s assessment policy. Some adjustments may need to be made in emergencies. You will be kept fully informed by your course co-ordinator/director, and if disruption occurs you should refer to the university website for information about how to proceed.

Other Information

Contact Details

Law Student Centre Level 2, 1-1 Short St

postgradlaw@auckland.ac.nz

Study Programme

The course can be studied under an LLM, MLS, MTaxS or a PG Certificate in Law. If you wish to complete this course as a stand alone course you may do so under a Certificate of Proficiency (COP). The Certificate of Proficiency provides students with the opportunity to supplement their current knowledge before proceeding to advanced study, or undertake a small number of courses in specific areas without enrolling in a formal qualification.

Academic Integrity

The University of Auckland will not tolerate cheating, or assisting others to cheat, and views cheating in coursework as a serious academic offence. The work that a student submits for grading must be the student's own work, reflecting their learning. Where work from other sources is used, it must be properly acknowledged and referenced. This requirement also applies to sources on the internet. A student's assessed work may be reviewed for potential plagiarism or other forms of academic misconduct, using computerised detection mechanisms.

Similarly, research students must meet the University’s expectations of good research practice. This requires:

  • Honesty - in all aspects of research work
  • Accountability - in the conduct of research
  • Professional courtesy and fairness – in working with others
  • Good stewardship – on behalf of others
  • Transparency – of research process and presentation of results
  • Clarity - communication to be understandable, explainable and accessible

For more information on the University’s expectations of academic integrity, please see the Academic Conduct section of the University policy hub.

Disclaimer

Elements of this outline may be subject to change. The latest information about taught courses is made available to enrolled students in Canvas.

Students may be asked to submit assessments digitally. The University reserves the right to conduct scheduled tests and examinations online or through the use of computers or other electronic devices. Where tests or examinations are conducted online remote invigilation arrangements may be used. In exceptional circumstances changes to elements of this course may be necessary at short notice. Students enrolled in this course will be informed of any such changes and the reasons for them, as soon as possible, through Canvas.


Assessment and Learning Outcomes

Additional Information on Assessment

A take home assessment worth 50% of the grade will be assigned by the end of the seminar period.

A list of research essay topics will be provided to the class by the start of teaching.

For the remaining 50% of the grade, each student is required to submit a research essay of no more than 6,500 words (including citations and everything in footnotes), including an abstract/synopsis of up to 500 words. The essay is to be original work, relying on secondary and primary sources. It must be the work of the enrolled student. Another person, other than the enrolled student, MUST NOT write the essay nor do the research on behalf of the enrolled student. The use of Artificial Intelligence is not permitted. Plagiarism is not permitted and in that regard each student should read the University’s plagiarism policy and adhere to it. All students will be expected to sign a plagiarism declaration when submitting their essays. Students must also use proper legal citations and include a reading list at the end of their type-written essay, complying with the New Zealand Law Style Guide. The essay should be comprised of properly crafted English sentences. (Note form is unacceptable.) The use of sub-headings is encouraged and footnotes rather than Harvard style in-text referencing are to be used.

Descriptive essays are not encouraged. Instead students are expected to engage with relevant legal issues by, for example, critiquing the law; developing proposals for reform; examining the operation of law and policy in practice; and/or providing a conceptual analysis of the law.

Information on the Faculty grading guidelines is available on Canvas.

Essays must be submitted Canvas. Extensions will not be granted lightly and must be requested formally through the Postgraduate Manager.

Course Learning Outcomes

CLO #OutcomeProgramme Capability Link
1
2
3
4
5
6

Assessments

Assessment TypeAssessment PercentageAssessment Classification

Assessment to CLO Mapping

Assessment Type123456

Student Feedback, Support and Charter

Student Feedback

Feedback on taught courses is gathered from students at the end of each semester through a tool called SET or Qualtrics. The lecturers and course co-ordinators will consider all feedback and respond with summaries and actions. Your feedback helps teachers to improve the course and its delivery for future students. In addition, class Representatives in each class can take feedback to the department and faculty staff-student consultative committees.

Additional Information on Student Feedback

Student feedback will be sought.

Class representatives

Class representatives are students tasked with representing student issues to departments, faculties, and the wider university. If you have a complaint about this course, please contact your class rep who will know how to raise it in the right channels. See your departmental noticeboard for contact details for your class reps.

Tuākana

Tuākana is a multi-faceted programme for Māori and Pacific students providing topic specific tutorials, one-on-one sessions, test and exam preparation and more. Explore your options at Tuakana Learning Communities.

Inclusive Learning

All students are asked to discuss any impairment related requirements privately, face to face and/or in written form with the course coordinator, lecturer or tutor.

Student Disability Services also provides support for students with a wide range of impairments, both visible and invisible, to succeed and excel at the University. For more information and contact details, please visit the Student Disability Services’ website.

Wellbeing

We all go through tough times during the semester, or see our friends struggling. There is lots of help out there - please see the Support Services page for information on support services in the University and the wider community.

Special Circumstances

If your ability to complete assessed work is affected by illness or other personal circumstances outside of your control, contact a member of teaching staff as soon as possible before the assessment is due. If your personal circumstances significantly affect your performance, or preparation, for an exam or eligible written test, refer to the University’s aegrotat or compassionate consideration page. This should be done as soon as possible and no later than seven days after the affected test or exam date.

Student Charter and Responsibilities

The Student Charter assumes and acknowledges that students are active participants in the learning process and that they have responsibilities to the institution and the international community of scholars. The University expects that students will act at all times in a way that demonstrates respect for the rights of other students and staff so that the learning environment is both safe and productive. For further information visit Student Charter.

Student Academic Complaints and Disputes

Students with concerns about teaching including how a course is delivered, the resources provided, or supervision arrangements, have the right to express their concerns and seek resolution. The university encourages informal resolution where possible, as this is quicker and less stressful. For information on the informal and formal complaints processes, please refer to the Student Academic Complaints Statute in the Student Policies and Guidelines section of the Policy Hub.