030397 KU Procedural Challenges for Investors and for States in Investment Arbitration (2017S)

Procedural complications abound in virtually every aspect of investment arbitration. From the commencement of the case to the execution of any resulting judgment claimant investors and respondent states will confront procedural challenges and arbitrators will be obliged to make decisions about them. This course will focus on challenges that commonly arise in investment arbitrations based on international investment treaties (including the investment chapters of free trade agreements). It will roughly follow the progress of an investment treaty arbitration to identify and discuss the primary hurdles that are likely to arise in a given case. The course thus commences with hurdles that investors encounter when they initiate a claim; proceeds to the constitution of the arbitral tribunal and the consideration of challenges to arbitrators; the possible challenges to jurisdiction and admissibility that states are likely to raise, including those relating to denial of benefits and abuse of process; the transparency of the process in a broad sense; control mechanisms, and future challenges to investment arbitration.