International Commercial Dispute Resolution is an elective subject in postgraduate programs offered by the Faculty of Law. This subject provides students with a comprehensive understanding of how international commercial disputes are resolved. Students will learn about the basic principles of dispute resolution and mediation theory before spending the bulk of the subject analysing the framework and procedures of international arbitration. Particular attention will be given to uniform instruments such as the UNCITRAL Model Law on International Commercial Arbitration. Various institutional and ad hoc arbitration rules will be analysed and discussed in detail.
|Academic unit:||Faculty of Law|
|Subject title:||International Commercial Dispute Resolution|
Delivery & attendance
|Attendance and learning activities:||Students participate in a weekly chat with the course coordinator and other students. The weekly chat will be on weekdays at a time convenient to the course coordinator. At the end of the semester, students submit a portfolio of work, and the work of each week has been designed to contribute to the final portfolio submitted at the end of semester. There is a practical exercise involving the making of submissions as in an arbitration hearing.|
|Prescribed resources:||No Prescribed resources. After enrolment, students can check the Books and Tools area in iLearn for the full Resource List.|
|[email protected] & Email:||[email protected] is the online learning environment at Bond University and is used to provide access to subject materials, lecture recordings and detailed subject information regarding the subject curriculum, assessment and timing. Both iLearn and the Student Email facility are used to provide important subject notifications. Additionally, official correspondence from the University will be forwarded to students’ Bond email account and must be monitored by the student.|
To access these services, log on to the Student Portal from the Bond University website as www.bond.edu.au
|Restrictions: ?|| This subject is not available to|
Admitted into LA-43015 Master of Laws or LA-43050 Master of Laws or LA-43052 Master of Laws (External)
This subject is not available as a general elective. To be eligible for enrolment, the subject must be specified in the students’ program structure.
Assurance of learning
Assurance of Learning means that universities take responsibility for creating, monitoring and updating curriculum, teaching and assessment so that students graduate with the knowledge, skills and attributes they need for employability and/or further study.
At Bond University, we carefully develop subject and program outcomes to ensure that student learning in each subject contributes to the whole student experience. Students are encouraged to carefully read and consider subject and program outcomes as combined elements.
Program Learning Outcomes (PLOs)
Program Learning Outcomes provide a broad and measurable set of standards that incorporate a range of knowledge and skills that will be achieved on completion of the program. If you are undertaking this subject as part of a degree program, you should refer to the relevant degree program outcomes and graduate attributes as they relate to this subject.
Subject Learning Outcomes (SLOs)
On successful completion of this subject the learner will be able to:
- Contrast and evaluate the various forms of dispute resolution available for international trade and their specific mechanisms.
- Present orally and in writing arguments on behalf of a client in an international commercial dispute.
- Evaluate arguments and evidence by writing an award in an international arbitration case.
|Presentation||Portfolio Item # 05: In class Moot||25%||Week 8||2.|
|*Class Participation||Portfolio Item # 07: Have your preparedness and participation during the weekly chats assessed by your subject coordinator (overall grade of 10 out of 14 assessments)||10%||To Be Negotiated||1, 2, 3.|
|Essay||Portfolio Item # 02: Evaluation of Arbitration Agreement.||15%||To Be Negotiated||1, 3.|
|Essay||Portfolio Item # 03: Rework and submit the interim order written in week 10 (1500 words, no references).||15%||To Be Negotiated||1, 2, 3.|
|Essay||Portfolio Item # 04: Submit the partial award written in week 9 (1500 words, plus references)||15%||To Be Negotiated||1, 3.|
|Essay||Portfolio Item # 01: Rework and submit the essay written in week 7 (1500 words plus references).||20%||To Be Negotiated||1, 3.|
- * Assessment timing is indicative of the week that the assessment is due or begins (where conducted over multiple weeks), and is based on the standard University academic calendar
- C = Students must reach a level of competency to successfully complete this assessment.
|High Distinction||85-100||Outstanding or exemplary performance in the following areas: interpretative ability; intellectual initiative in response to questions; mastery of the skills required by the subject, general levels of knowledge and analytic ability or clear thinking.|
|Distinction||75-84||Usually awarded to students whose performance goes well beyond the minimum requirements set for tasks required in assessment, and who perform well in most of the above areas.|
|Credit||65-74||Usually awarded to students whose performance is considered to go beyond the minimum requirements for work set for assessment. Assessable work is typically characterised by a strong performance in some of the capacities listed above.|
|Pass||50-64||Usually awarded to students whose performance meets the requirements set for work provided for assessment.|
|Fail||0-49||Usually awarded to students whose performance is not considered to meet the minimum requirements set for particular tasks. The fail grade may be a result of insufficient preparation, of inattention to assignment guidelines or lack of academic ability. A frequent cause of failure is lack of attention to subject or assignment guidelines.|
For the purposes of quality assurance, Bond University conducts an evaluation process to measure and document student assessment as evidence of the extent to which program and subject learning outcomes are achieved. Some examples of student work will be retained for potential research and quality auditing purposes only. Any student work used will be treated confidentially and no student grades will be affected.
Students must check the [email protected] subject site for detailed assessment information and submission procedures.
Policy on late submission and extensions
A late penalty will be applied to all overdue assessment tasks unless an extension is granted by the subject coordinator. The standard penalty will be 10% of marks awarded to that assessment per day late with no assessment to be accepted seven days after the due date. Where a student is granted an extension, the penalty of 10% per day late starts from the new due date.
Policy on plagiarism
University’s Academic Integrity Policy defines plagiarism as the act of misrepresenting as one’s own original work: another’s ideas, interpretations, words, or creative works; and/or one’s own previous ideas, interpretations, words, or creative work without acknowledging that it was used previously (i.e., self-plagiarism). The University considers the act of plagiarising to be a breach of the Student Conduct Code and, therefore, subject to the Discipline Regulations which provide for a range of penalties including the reduction of marks or grades, fines and suspension from the University.
Feedback on assessment
Feedback on assessment will be provided to students within two weeks of the assessment submission due date, as per the Assessment Policy.
If you have a disability, illness, injury or health condition that impacts your capacity to complete studies, exams or assessment tasks, it is important you let us know your special requirements, early in the semester. Students will need to make an application for support and submit it with recent, comprehensive documentation at an appointment with a Disability Officer. Students with a disability are encouraged to contact the Disability Office at the earliest possible time, to meet staff and learn about the services available to meet your specific needs. Please note that late notification or failure to disclose your disability can be to your disadvantage as the University cannot guarantee support under such circumstances.
Additional subject information
Students may be asked to respond to questions from the subject coordinator regarding the content of their assessments. Students are expected to keep evidence of drafting and research.
The first module of the subject covers the main sources of law in international dispute resolution: International Conventions, statute and case law, party autonomy in the contract, UNCITRAL etc. models, institutional rules, “soft law”: IBA, CIArb, ICCA guidelines; the role of precedent in arbitration. The Dispute Resolution Spectrum, overview of available techniques; focus on comparing mediation, arbitration, litigation. Distinguish international arbitration from state court litigation practices regarding costs. Allocation of the cost of arbitrating. Agreements regarding costs. What are the costs in an arbitration procedure? Costs of the award, party costs, reasonableness of amounts claimed for costs. Simple and compound interest. Pre and post-award interest.
Advantages and disadvantages of arbitration. Ad hoc or administration by an institution; Contrast the features of Ad hoc / institutional arbitration, compare administration offered by various institutions, and evaluate when to choose each.
Form and validity – Extent of and limits on party autonomy: capacity, arbitrability and scope of the submission; the doctrines of separability, competence-competence; preclusive effects.
Distinguishing the seat as the place to which the arbitration is legally connected from the place where it physically takes place; choosing the seat or place of the arbitration – characteristics of a “good” seat, importance and role of courts in supervising the process; strategic considerations in choosing the seat; logistics and cost. Party freedom to choose applicable law – merits, procedure, DR clause, challenge, enforcement.
The Request/Notice, and what goes with it. Tolling the limitation time by initiating proceedings. Requirements of chosen institution or rules; is the dispute “ripe” for arbitration? Parties’ right to choose the arbitrator(s): Why is choosing so important to the parties? The unique role of the arbitral tribunal; Qualifications of a good arbitrator; Methods of choosing the tribunal; diversity; ethical considerations; conflicts and challenges of arbitrators for cause. This module also considers scope (which disputes shall be arbitrated), challenges to jurisdiction and content; multi-party/multi-contract pitfalls; problems caused by pathological clauses.
Oral/written traditions, requests for documents, privilege, who can give evidence, hearsay, expert testimony, weight, adverse inferences. Marrying (or at least, managing) divergent expectations of parties in an international context; using the flexibility of the arbitral process to ensure a fair, efficient and legitimate procedure which will be respected by both parties.
Purpose and organization; (contrast litigation in both common and civil traditions); is a hearing necessary? Managing logistics to ensure fairness and equal treatment; party representation prior to the hearing, in the hearing and subsequently.
Students argue a case orally, developing oral advocacy skills in arbitration
What they do (and cannot do), examples of possible orders, who is bound by an order of the arbitral tribunal, deciding in which forum to apply for such orders and why; Emergency arbitrators.
Award contrasted with Order; Deliberations of the tribunal. Collegiality, confidentiality, role of the tribunal chair; Interim, partial, and final awards; consent awards; essentials of the international award; majority awards; dissenting awards; post-award changes (addition, correction, interpretation); Who drafts the award? Scrutiny of an award; the concept of functus officio.
The one-stop shop (or not?). Typically, in agreeing to international arbitration, the parties renounce completely or partially their right to appeal. What then are the avenues used by a party unhappy with the Award? Res Judicata.
Students prepare for a 5 minute in-class presentation on one of a selection of special topics as part of the weekly chat. Topic will be current and relevant, for example issues such as third party funding in international arbitration, cybersecurity, etc. These special topics will be selected by the subject coordinator during the semester.