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: aalvarez@waikato.ac.nz
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
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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-stormover-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
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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-stormover-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&docI
d=DC1030_En&caseId=C247
Recommended Reading
Christoph Shreuer, Diversity and Harmonization of Treaty Interpretation in Investment Arbitration,
in TREATY INTERPRETATION AND THE VIENNA CONVENTION ON THE LAW OF TREATIES: 30 YEARS ON, Malgosia
Fitzmaurice, Olufemi Elias, and Panos Merkouris (eds) (2010) 129.
Julian Davis Mortenson, The Meaning of "Investment": ICSID's Travaux and the Domain of
International Investment Law, 51 HARVARD INTERNATIONAL LAW JOURNAL 257 2010
July 29. National Treatment.
Requested Readings. See course material.
August 5. Fair and Equitable Treatment.
Requested Reading
Jason Haynes, The evolving nature of the fair and equitable treatment (FET) standard, 14 JOURNAL
OF WORLD INVESTMENT AND TRADE 114 (2013).
Suggested Reading.
Alberto Alvarez-Jimenez, Minimum Standard of Treatment of Aliens, Fair and Equitable Treatment
of Foreign Investors, Customary International Law and the Diallo Case Before the International
Court of Justice, 9 JOURNAL OF WORLD INVESTMENT & TRADE 51 (2008).
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Hussein Haeri, A Tale of Two Standards: ‘Fair and Equitable Treatment’ and the Minimum
Standard in International Law, 27 ARBITRATION INTERNATIONAL 27 (2011).
August 12. Most Favoured Nation Treatment
Suggested Reading
R. Doak Bishop, James Crawford & W. Michael Reisman, FOREIGN INVESTMENT DISPUTES: CASES,
MATERIALS AND COMMENTARY 1087-1102; 1133-1165 (2005).
September 9. Expropriation
Requested Readings
W. Michael Reisman & Robert D. Sloane, Indirect Expropriation and Its Valuation in the BIT
Generation, 74 THE BRITISH YEARBOOK OF INTERNATIONAL LAW 115 (2004)
Suggested Reading:
Caroline Henckels, Indirect Expropriation and the Right to Regulate: Revisiting Proportionality
Analysis and the Standard of Review in Investor-State Arbitration, 15 JOURNAL OF INTERNATIONAL
ECONOMIC LAW 223 (2012).
September 16. Umbrella clauses
Required Reading:
James Crawford, Treaty and Contract in Investment Arbitration, 24
ARBITRATION INTERNATIONAL 351
(2008).
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).
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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
COMPARATIVE LAW QUARTERLY 573 (2011).
AND
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/ImprovingThe-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
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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
Research assignment
45 %
55 %
18 August 2014
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
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

evidence of research, including identification and review of primary materials (e.g.
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
help@waikato.ac.nz 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.
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f)
Management of assessment deadlines, process for requesting extensions and special
consideration, and for appeals
(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
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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.
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.
(a)
(b)
Referencing guidelines and caution against plagiarism
Referencing must be in accordance with the New Zealand Law Style Guide (2nd Ed)
Thomson Reuters 2011.
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.
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(c)
“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
applies to assessment presented through a written, spoken, electronic, broadcasting,
visual, performance or other medium.” See section 3, Assessment Regulations (2014
Calendar)
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: student.reps@waikato.ac.nz.
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.
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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
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
Investment
and
the
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