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Fall 2021

6371 Transnational Investment Law and Arbitration - CARDENAS- 19133

Professor(s): Julian Cardenas Garcia (RESEARCH PROFESSOR)

Credits: 3

Course Areas: Energy, Natural Resources and Environmental Law 
International Law

Time: 4:00p-5:30p  TTH  Location: 211  TUII

Course Outline: The Transnational Investment Law and Arbitration course provides to JD and LLM students, the tools to understand and to perform complex transnational investment transactions in a globalized economy. The course covers the transnational regulation that governs long-term investments in different sectors of the global economy such as oil and gas, mining, power, renewable energy, nuclear, international construction projects and housing.
During the last 50 years, more than 3000 Bilateral Investment Treaties have been agreed between States in order to promote the development of investment projects by providing special protection to private investors. Also, Multilateral Investment Treaties such as NAFTA, the USMCA, the Energy Charter Treaty or the Trans-Pacific Partnership are creating a network of transnational standards that govern the business relations in a transnational community of States and investors. During the last two decades, these transnational standards have been under the scrutiny of the special jurisdiction of arbitration tribunals which have contributed to the development of a system of investment law and promoting a transnational legal practice for lawyers and corporations.
Therefore, for students looking to build a career path in the field of transnational business transactions, this class offers a focus on the legal practice of investment projects involving investors, corporations and national governments. Additionally, this course features special training on the interaction between sources of law such as investment contracts, investment treaties, industry practices, national regulations, and arbitration awards and decisions, and provides an overview of the current transnational legal practice in a globalized economy.

This course features:

1) An overview of international investment arbitration: history and statistics.
2) The notion of investment, relations between foreign investors, shareholders, state and state companies.
3) The network of sources of law that govern transnational investment transactions.
4) The consent of international arbitration related to investment transactions: Contracts, Treaties, and National Law.
5) Rules of Jurisdiction: ratione materiae, ratione personae and ratione temporis. Treaty Shopping strategies.
6) Rules of Arbitration Procedure: The rules for arbitration of different institutions such as ICSID, UNCITRAL, ICC, LCIA, and SCC. The arbitrability of Disputes, objections of jurisdictions, and provisional measures.
7) The Applicable Law to the jurisdiction and merits phase of an investment dispute
8) Bilateral Investment Treaties Standards: Expropriation, fair and equitable treatment, national treatment, most favored nation treatment, security and protection clauses, umbrella clauses, survival clauses, and free transfer of funds.
9) The Arbitration Award.
10) The annulment of an arbitral award. The challenge of an award before national courts and ICSID Ad hoc Committee.
11) The transnational recognition and enforcement of arbitration awards.

Course Syllabus: Syllabus

Course Notes:   Whether this course will be distance education, or will have a physical room assigned, and if so the extent to which the instructor might use the room during the semester, is not determined at the time when registration initially opens for this course.  You may see contrary indications in the UH systems where you actually register for the course.  In other words, this course might be distance education with no use of a physical classroom. It might be the “HyFlex” mode in which some Law Center courses used a physical room during 2020-21. As we get closer to the start of the term/semester for this course, this course note will be updated as decisions are determined. The instructors will be involved in those decisions, but decisions about modalities may not be invariant throughout the term/semester or between now and when the course starts.


First Day Assignments:

Final Exam Schedule: Paper      

This course will have:

Satisfies Senior Upper Level Writing Requirement: No

Experiential Course Type: No

Bar Course: No

DistanceEd ABA:

Pass-Fail Student Election: Available

Course Materials

Special Case

Course Materials: Materials provided in class by professor.