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International Trade and Investment Agreements

I
INTERNATIONAL TRADE AND INVESTMENT AGREEMENTS
PROFESSOR DONALD ARNAVAS
Examination Instructions: Please complete all four questions which are equally weighted.

1. There is disagreement among observers concerning the expropriation and compensation
provisions of most BITs. Some believe that—in the event of an expropriation—the guiding
principle must be to make the investor whole regardless of the circumstances and that anything
less will discourage investment in the countries that are in the most need of development
funding. Others take the position that there are certain risks which investors should be willing to
accept, including the possibility of incurring some of the loss that others must suffer when a
nation undergoes serious economic losses. See for instance, Chapter 11 of the AUSFTA, where
an investment is defined as including “the expectation of gain or profit, or the assumption of
risk.”
Discuss and evaluate these varying positions and state which you consider most equitable and
practical in view of the long-term goals of the bilateral investment program. Provide full support
for your conclusions.
2. The question of conflicts of interest (COI) and the extent to which they can result in the
disqualification of an arbitrator or the revocation of an award, is troublesome and tends to be
rather subjective. Consider the case of Commonwealth Coating v. Continental Cas. Co., 393 U.S.
145 (1968), including its concurring and dissenting opinions, as well as the opinion in Rustel
Trading v. Gill & Duffus, (2000) Lloyds Rep. 14 (QB) and related cases, and the language of the
Model Laws of International Commercial Arbitration and Mediation which , for example, require
a potential neutral to disclose, “any circumstance likely to give rise to justifiable doubts as to his
or her impartiality or independence,” and write a COI provision that you believe could be used
to protect against COIs and at the same time avoid being overly broad.
You should fully support you conclusions and your rationale. Do not necessarily limit your
research to the cases cited above in reaching your findings.
3. The World Trade Organization (WTO) in its discussion of Regional Trade Agreements (RTAs)
states; “by their very nature RTAs are discriminatory: they are a departure from the MFN
principle, a cornerstone of the multilateral lateral trading system.”
Discuss this statement and review the manner in which the WTO deals with what it terms
discriminatory action. To the extent possible present your suggestions for using RTAs so that
they will perform to their maximum potential.
4. Consider each of the following scenarios, mention the arguments likely to be raised by the
parties and give a reasoned opinion as to how each of the matters should be resolved. If
insufficient information is presented for you to reach a conclusion, so state.
The neutral arbitrator failed to disclose that she had performed some relatively minor
consulting work for the winning party about three years prior to this proceeding. She claims
that her failure to disclose was inadvertent although a more careful individual would not
have made this mistake, and she notes that all concerned agree that the award was just and
in keeping with the facts that were presented to the tribunal. Would set aside the award?
A party designated arbitrator acted more like a litigation consultant or non-testifying expert
than an arbitrator. Among other things, he assisted in preparing his party’s witnesses to
testify and he disclosed to his party’s attorney the discussions and comments that the other
arbitrators had while evaluating the merits of the case. Under what circumstances would
this conduct cause the award to be overturned?
You represent one of the parties in an arbitration, The panel refused your request for a oneweek continuance that you requested ,in order to accommodate the schedule of one of
your witnesses who was unable to appear at the scheduled time. At a result you were
required to take several witnesses out of turn which, in your opinion, made their testimony
significantly less effective. When the award was made against your client, your requested
that the award be revoked because the arbitral panel prevented you from effectively
presenting your party’s case. Should your request be granted?

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