University of Waikato

TE PIRINGA FACULTY OF LAW

Special Topic: International Investment Law 2014 Outline

1. International Investment Law. Paper: LAWS 443 – 14B HAM. Room: I.1.01 This paper carries 10 points

2. Staffing

Alberto Alvarez-Jimenez Phone: Room: G25. email: [email protected] office hours by appointment.

3. Description and Structure of Paper (a) Description of the paper in University Calendar

International investment law is one of the most dynamic and controversial areas of international law. The topic will be more relevant to New Zealand in the coming years given the likely inclusion of a Chapter on Investment Protection and investor/State arbitration in the future Trans-Pacific Partnership Agreement. This course will assess the standards of protection of foreign investment, the main features of investor/State arbitration, and some of the most contentious aspects of this field of law: its interactions with the protection of human rights and the environment.

(b) Structure of the Paper

Classes will be held every Tuesday from 11:00 a.m-1:00 p.m. We will have a 15 minute break approximately mid-way through each class. Classes will generally follow a lecture format, though there will be ample opportunity for class discussion. The course is conducted with the assistance of Powerpoint-based lectures. Students are expected to have completed the assigned readings in time for the class and should be prepared to discuss and analyze the relevant reading materials in an interactive classroom setting.

(c) Attendance Te Piringa Faculty of Law places great emphasis on providing students with opportunities for high achievement in law papers. Tutorials allow students to learn effectively in small groups. Attendance is therefore required for satisfactory completion of the paper. An understanding of

1 topics and materials discussed in tutorials is essential for success in both internal assessment and examinations. A record will be kept of student attendance at tutorials. Students who do not attend at least two of the first 3 tutorials will receive a letter from the faculty. The letter will restate the importance of tutorials. The letter will also say that tutorial attendance will be a factor taken into consideration in the event that the student is required to apply for re-entry.

4. Learning outcomes

A student who has successfully completed this paper will be able to:

1. Identify and understand the concepts related to the protection of international investment in factual situations. 2. Assess the specific factual situation from States, foreign investors and civil society´s standpoints. 3. Identify the potential policy implications for States, foreign investors and other stakeholders of the application of these concepts. 4. Identify and assess the main criticism to international investment law. 5. Form his or her own judgment on the benefits and limitations of international investment law and bilateral investment treaties.

5. Workload Students should expect to spend 100 hours in total on this paper. In addition to lecture attendance, significant time will need to be spent on background and complementary reading. Students should allow for periods of more-focused research time in the preparation of assignments.

6. Required and Recommended Reading

All law students are required to purchase, for use in all law papers, a copy of McLay, Murray & Orpin, New Zealand Law Style Guide, 2nd edition, Thomson Reuters (2011). This is available from Bennetts, at an approximate price of $37 incl GST.

In addition to the texts identified below, the Faculty of Law requires that students purchase the course materials book(s) for this paper. These are available from Waikato Print.

July 15. Introduction

Required Readings:

Lori Wallach, Brewing Storm over ISDR Clouds: Trans-Pacific Partnership Talks – Part I. Kluwer Arbitration Blog. Available at http://kluwerarbitrationblog.com/blog/2013/01/07/brewing-storm- over-isdr-clouds-trans-pacific-partnership-talks-part-i/

Eckhard R. Hellbeck, Investment Protection Under the New ASEAN-Australia-New Zealand Free Trade Agreement, White & Case. Newsletter. Winter 2010. Available at http://www.whitecase.com/idq/winter-2010-4/#.U5p4a_ldUbw

2 Lori Wallach, Brewing Storm over ISDR Clouds: Trans-Pacific Partnership Talks – Part II. Kluwer Arbitration Blog. Available at http://kluwerarbitrationblog.com/blog/2013/01/14/brewing-storm- over-isdr-clouds-trans-pacific-partnership-talks-part-ii/

Daniel Kalderimis, Investment Chapter of the NZ–China FTA, NEW ZEALAND LAW JOURNAL May 2009. Available at https://www.chapmantripp.com/publications/Documents/nzlj_2009_4_kal.pdf

July 22. Interpretation of Treaties and Definition of Investment

Required readings

Vienna Convention on the Law of Treaties. Articles 31 – 33. Ian Sinclair, THE VIENNA CONVENTION ON THE LAW OF TREATIES. (1984). 2nd ed. Malaysian Historial Salvors SDN BHD vs The Government of Malaysia, Decision on the Application for Annulment, ICSID Case No. ARB/05/10, 16 April 2009. Paras. 1 – 23. Paras. 56 – 83. Available at https://icsid.worldbank.org/ICSID/FrontServlet? requestType=CasesRH&actionVal=showDoc&docId=DC1030_En&caseId=C247

Suggested Reading:

Francisco Orrego Vicuna, Of Contracts and Treaties in the Global Market. MAX PLANCK YEARBOOK OF UNITED NATIONS LAW, VOLUME 8 (2004). Available at http://www.mpil.de/files/pdf1/mpunyb_orrego_8.pdf

Christoph Schreuer, Traveling the BIT Route – Of Waiting Periods, Umbrella Clauses and Forks in the Road, 5 J. WORLD INVESTMENT & TRADE 231 (2004).

September 23. Defenses: State of Necessity. Emergency Clauses.

Required Reading:

Alberto Alvarez-Jimenez, The Interpretation of Necessity Clauses in Bilateral Investment Treaties After The Recent ICSID Annulment Decisions, YEARBOOK ON INTERNATIONAL INVESTMENT LAW AND POLICY 411 (2011).

4 Suggested Readings:

José Alvarez & Kathryn Khamsi, The Argentine Crisis and Foreign Investors: A Glimpse into the Heart of the Investment Regime, 1 YEARBOOK ON INTERNATIONAL INVESTMENT LAW AND POLICY 449 (2009).

Jürgen Kurtz, Adjudging the Exceptional at International Law: Security, Public Order and Financial Crisis, 59 INT’L & COMP. L. Q. 325, 359-71 (2010).

September 29. Protection of Investment and the Environment.

Required Reading

Jorge E Vinuales, Foreign Investment and the Environment in International Law: An Ambiguous Relationship, 80 BRITISH YEARBOOK OF INTERNATIONAL LAW 244 (2010).

October 7. Protection of Investment and Human Rights. Protection of Investment and Corruption

Required Readings: Bruno Simma, Foreign Investment Arbitration: A Place for Human Rights?, 60 INTERNATIONAL AND COMPARATIVE LAW QUARTERLY 573 (2011).

Patrick Dumberry and Gabrielle Dumas-Aubin, When and How Allegations of Human Rights Violations Can Be Raised in Investor-State Arbitration, 13 JOURNAL OF WORLD INVESTMENT & TRADE 349 (2012).

October 14. Improving the System

Required Reading

Karl P. Sauvant and Federico Ortino, Improving the International Investment Law and Policy Regime: Options for the Future. Available at http://ccsi.columbia.edu/files/2014/03/Improving- The-International-Investment-Law-and-Policy-Regime-Options-for-the-Future-Sept-2013.pdf

Further material may be provided on the paper site on Moodle (http://elearn.waikato.ac.nz), the University of Waikato’s online learning system. Any such material is provided on the following terms:

University of Waikato owns the intellectual property rights, including copyright, in and to this site, or has acquired the necessary licenses to display the material on the site. As a student of the Te Piringa Faculty of Law, you are granted a limited license to use (access, display or print a single copy) the material from the papers in which you are enrolled for the purposes of participating in the paper only, provided the information is not modified. Materials may not under any circumstances be copied, stored, distributed or provided in any form or method whatsoever to any third party. Any other use of the material is prohibited. None of the material may be otherwise reproduced, reformatted, republished or re-disseminated in any manner or form

5 without the prior written consent of University of Waikato. To obtain such consent, please contact the Te Piringa Faculty of Law.

7. Online support Online support for this paper is provided via Moodle.

8. Assessment

 Midterm test: 45 %: Case Analysis. Open-book. 1:30 hour examination. The marks for this assignment will be based on students’ understanding of the dynamics and complexities of regulating an assigned problem.

 Research Assignment: 55 %:

Components of Final Mark

Evaluation format Weight Date Midterm test 45 % 18 August 2014 Research assignment 55 % 17 October 2014 a) Requirements for assessed work Te Piringa Faculty of Law procedures for the presentation, submission and referencing of course work are set out in the Te Piringa Faculty of Law Undergraduate Handbook @ p.51 which is available from http://www.waikato.ac.nz/law/undergraduate. See also page 66 on plagiarism. Also refer to paragraph 12 in this document.

Assignment resources are available online at http://www.waikato.ac.nz/law/student/ b) Coursework: Final Examination Ratio: 1 : 0 c) Assessment Components

Component Percentage of overall mark Due date

Research assignments for this paper should:  present an original thesis, reform proposal or critique regarding a particular legal issue or area of law so as to provide a reader familiar with the issues with valuable knowledge or insights; or  synthesize the existing literature (cases, legislation and commentary) relating to a particular area of law in order to either clarify a difficult area, speculate as to the application to new issues, or evaluate the existing law.

Assignments will be evaluated according to the following criteria:

(a) Selection of Topic and Research Skills  novelty and difficulty of topic  evidence of research, including identification and review of primary materials (e.g. 6 law, treaties) and secondary sources (e.g. articles and books)  currency of research and diversity of sources

(b) Thesis  expression and development of thesis  analysis supporting thesis

(c) Analysis  identification of relevant domestic legal principles  identification of relevant international legal principles  analysis of relevant legal principles  practical application of legal principles  coherence

(d) Creativity  contribution to the discussion and resolution of an issue or issues in a creative manner

(e) Presentation  structure (e.g. use of headings, logical development)  clarity of expression  style  use of footnotes (no endnotes) and authorities

Some ideas for topics will be posted at the beginning of the paper. Assignments should be between 25 and 40 pages (double spaced), Times New Roman 12 with one inch margins. Papers are due no later than 17 October 2014. d) Handing in, marking time and collection All assignments must be submitted electronically through Moodle (http://elearn.waikato.ac.nz). See Te Piringa Faculty of Law Undergraduate Handbook, available at http://www.waikato.ac.nz/law/undergraduate. It is the policy of Te Piringa Faculty of Law to return marked work to students within five weeks of submission.

If you require assistance with Moodle, or encounter any problems, please contact the Help Desk. You can send a message to Help Desk by using the instant message service in your paper (from the participants list within the People block). Alternatively, you can email them directly at [email protected] or call 838 4008. e) Measurement of Achievement Achievement in examinations and tests will be measured primarily in terms of levels of understanding and knowledge gained. Achievement in assignments will be measured also in terms of fluency and accuracy of expression and referencing. Major deficiencies in structure, style, grammar and spelling will result in lower marks. f) Management of assessment deadlines, process for requesting extensions and special consideration, and for appeals 7 (i) Extensions Students are required to complete and submit all internal assessments by specified dates. The meeting of deadlines is a mark of professionalism and its enforcement is essential for fairness to all students taking the paper. Handing in course work on or before the due date also facilitates the timely return of marked work by academic staff. Students should meet requirements as to time deadlines for course work, or make a request for an extension or special consideration in appropriate circumstances (see Undergraduate Programmes Manual available from the School of Law Undergraduate website http://www.waikato.ac.nz/law/undergraduate/). Failure to comply with requirements as to the time deadlines for internal assessment without having successfully applied either for an extension or special consideration with supporting evidence before the due date will result in deduction of 2.5 marks for each day the work is late. Lateness of more than a week may result in the work not being marked. No deadlines may be extended beyond two weeks after the last teaching day of the semester(s) in which the paper is taught as final grades must go to the Board of Examiners at this time. Unless an extension in writing has been granted, a lecturer may refuse to accept a piece of work which is submitted after the specified date, and automatically award it no mark, or may lower the mark as a penalty for lateness.

Applications for extension, on the form obtainable from the Law Reception, must be submitted to the Chief Examiner or nominee. Students should not submit the extension form to the lecturer, nor should students seek extensions from the lecturer via other forms of communication. Extensions will be granted only on evidence of illness, family bereavement, or serious personal accidents or circumstances. Please note that too many assignments due at the same time is NOT an acceptable reason, neither are claims that computers and/or printers have crashed. Account will be taken of the time in which the student has had to complete the internal assessment before the intervening event occurred. It will be important to consider if the grant of the extension will give the student in question an unfair advantage over other students. A maximum period of 14 days will be given as an extension unless there are exceptional circumstances. In determining applications the Chief Examiner or nominee may consult with the Convenor or lecturer of the relevant paper.

When the Chief Examiner or nominee has made a decision on the application for extension, the nominated Administrative Assistant will advise the student of the decision by email. Following this, the extension form will be given to the relevant lecturer who will retain it until after the assignment is marked and returned to students. The form will then be placed on the student’s file. It should be noted that if an extension of longer than 14 days is granted, the assignment will not be automatically printed out and delivered to the lecturer, therefore the lecturer is responsible for ensuring the assignment is printed. In appropriate cases, when a student’s application for extension is declined the Chief Examiner or nominee will inform the student of the process for applying for special consideration. ii) Special Consideration The Assessment Regulations 2005 as set out in the University Calendar 2014 list in detail the university-wide policies and procedures, which apply concerning missed examinations, impaired performance or impaired preparation time for an examination, and missed or impaired course work. Students are responsible for ensuring that they comply with these regulations. Application forms for special consideration for internal assessment are available from law reception.

8 iii) Appeals (University Calendar 2014, Assessment Regulations 2005, Reg. 24) A student may appeal against any decision taken under these regulations. An appeal, comprising a written statement of the circumstances of the appeal, together with supporting evidence if available, must be submitted by the student in writing to the Head of Student & Academic Services not more than seven days after the date on which notification of the relevant decision is received. Appeals under this section are considered and decided by the Deputy Vice-Chancellor by delegated authority of the Academic Programmes Committee. A decision by the Deputy Vice-Chancellor is notified in writing, and is final. iv) No electronic devices are allowed in any internal test or exams. v) If you wish to submit your Internal Assessment in Mãori, you need to obtain an application form from the Law Reception at least 14 days before the assessment is due. vi) If you wish to apply to write your official exams in Mãori, you need to complete the official application form from the University’s Assessment Office. (refer to the Policy on the Use of Mãori for Assessment in the University Calendar)

9. University Calendar Regulations and Policies Your attention is drawn to the following regulations and policies, which are published in the University Calendar 2014: Assessment Regulations 2005 Student Discipline Regulations 2008 Computer Systems Regulations 2005 Policy on the Use of Māori for Assessment Student Research Regulations 2008 Ethical Conduct in Human Research and Related Activities Regulations 2008.

10. Links to other papers

Public international law is recommended as preparatory for this course, but is not required.

11. Fees Refer to http://calendar.waikato.ac.nz/admission/tableoffeesandcharges.html.

12. Referencing guidelines and caution against plagiarism (a) Referencing must be in accordance with the New Zealand Law Style Guide (2nd Ed) Thomson Reuters 2011. (b) All written work submitted for the purposes of assessment must be your own work. Copying or paraphrasing all or part of another person’s work, be it published or unpublished, without clear attribution, is plagiarism. Plagiarism is misconduct and is dealt with under the disciplinary procedures of the University as outlined in the Student Discipline Regulations 2008 in the University Calendar. “Plagiarism means presenting as one’s own work the work of another, and includes the copying or paraphrasing of another person’s work in an assessment item without acknowledging it as the other person’s work through full and accurate referencing; it

9 applies to assessment presented through a written, spoken, electronic, broadcasting, visual, performance or other medium.” See section 3, Assessment Regulations (2014 Calendar) (c) The Te Piringa Faculty of Law’s policy regarding plagiarism is contained in the Te Piringa Faculty of Law Undergraduate Handbook and the Te Piringa Faculty of Law Undergraduate Programmes Manual, available from http://www.waikato.ac.nz/law/undergraduate/.

13. Health and safety The Law School’s Health and Safety representative is Renee Rew, but if there is a problem, please report the incident to the Law Reception - Room Law G.44 or call ext 4167.

14. Class representation See p.43 Te Piringa Faculty of Law Undergraduate Handbook available from http://www.waikato.ac.nz/law/undergraduate/. Contact details for the Student Representation Coordinator, Academic Services Division, are as follows: Jeanie Richards, Student Services, ext. 8221, email: [email protected].

15. Complaints procedures The brochure Student Concerns and Complaints Policy provides details of the University’s process for handling concerns and complaints and is available from Faculty and School Offices, The Gateway and Student Services Division and is contained in the Calendar 2014. See also the document Student Support Structure at Te Piringa Faculty of Law, available from law reception.

10 Lecture Schedule B semester

Week Commencing Programme of lecture topics

14 July (Semester B Starts) Introduction to international investment law.

21 July Interpretation of treaties and definition of investment.

28 July National Treatment.

4 August Fair and Equitable Treatment

11 August Most Favoured Nation Treatment

18 August Midterm exam.

25 August Teaching Recess

1 September Teaching Recess

8 September Expropriation

15 September Umbrella clauses.

22 September (Kingitanga Day TBC) Defenses: State of Necessity. Emergency clauses.

29 September Protection of Investment and the Environment.

6 October Protection of Investment and Human Rights. Protection of Investment and Corruption.

13 October Improving the System

20 October Study Week

27 October Examinations 27 October Labour Day

3 November Examinations