Investment Dispute.

GENERAL INSTRUCTIONS
This is an open source exam. You may consult any online or hard-copy source, provided you do all your own work, and give credit to your sources by precise citation. It is important to give your sources and authority, and to not merely provide an answer free of support.
This is not a group project. If you have questions in interpreting or completing this exam, consult only me.
Observe the stated word limits. Avoid unnecessary words and repetition (flowery transitions and verbose sentence structure is unhelpful to you; restating the facts given you is not a high-quality answer unless it is combined with legal analysis). Legal analysis requires you to apply rules, doctrines, statutes, and established practices to the facts given, and to state a reasoned conclusion. You are being graded on how well you identify, understand and frame the relevant issues, your precision in using technical terms and concepts and the reason and insight you demonstrate in answering. Devote space according to the importance and complexity of the questions you frame. When in doubt as to an issue’s importance, at least overtly touch on it and indicate an answer and source or principle that would govern.
You should put citations in footnotes (not endnotes), and you may use footnotes to elaborate on points made in the main text (in the manner of a law review article). Footnote text is counted against your word limit, but you may use an abbreviated citation format of your own design as long as the source is clear (e.g., Reed, at p. 22 or NYC, art. V(1)(e)).

EXAM QUESTION ONE [Maximum total words allowed: 2500; no minimum]
You are a member of a Specialists Working Group (WG) which is part of a larger Task Force constituted by UNCITRAL. This QUESTION will ask you to analyze discrete procedural, jurisdictional and substantive elements often involved in the arbitration of BIT-based disputes and to do so by addressing numerus questions raised in connection with a proposal to establish an International Investment Court (IIC). The plan is that the IIC will be listed as a third option in future generations of Model BITs to be used by several major trading countries.
Your WG’s specific mandate is to help formulate the IIC Statute that will form the blue print for the IIC. The Task Force has solicited comments from the international community, and from those comments has formulated a number of questions for you concerning several aspects of the proposed Court.
Assignment: Answer the below questions in a manner that will explain each question referred to you and provide an answer to the non-specialist members of the Task Force. In other words, as to each question, be a teacher and an expert. Give a reasoned opinion based all the authority available to you, and cite the sources upon which you rely. If you conceive of more than one potential answer or solution, you should discuss the alternative(s).
1. The Court’s jurisdiction will be limited to “investment” disputes. Should that jurisdictional condition be tested against a new definition of “investment” specific to the IIC, or should “investment” remain undefined (as in the ICSID Convention) or should the only definition of investment be that set forth in the BIT? Should it be a two definition barrier (like the ICSID dual keyhole system)?
2. If an investor’s complaint is that the State or a state organ did not fulfill its promises under a contract (such as a toll-road construction contract), should that claim be considered within the jurisdiction of the IIC? It may be that your answer depends on or varies with various factors; if so, discuss those in detail.
3. When, if ever, should either of the following play a role in access to the court:
a. Fork-in-the road analysis?
b. Exhaustion of local remedies?
4. Should the IIC adopt the existing body of investment jurisprudence as expressed in past awards or should it start with a clean slate?
5. In what ways, if at all, will the jurisprudence applied by the IIC depend on the content of BIT in question?
6. Should the IIC Judges (Arbitrators) consist in a fixed panel whose members are assigned by the IIC to one case after another, or should the decision makers be selected by the parties in the usual way, or should the system be some kind of hybrid mix of party choice and institutional appointments?
7. Will challenges to judges be allowed? If so, how will such challenges be decided?
8. Will amicus filings be allowed and if so subject to what conditions and level of tribunal discretion?
9. Apart from the amicus question (question 8), will the IIC have other transparency features or policies?
10. Will claims supported by third party funders be allowed and if so, subject to what terms and conditions?
11. Will the awards of the IIC be subject to set-aside?
12. Assume that IIC awards will be subject to set aside. On what grounds will that occur, and who will decide if the award should be set aside.
13. Assume that some kind of post-award review will be available to dissatisfied parties; will that review be conducted by an appellate level panel and will the review include review for errors of law (as opposed to only for only jurisdictional and procedural defects)?
14. Will the concept of the “seat” of arbitration have any relevance to the IIC?
EXAM QUESTION TWO [Maximum total words allowed: 2000; no minimum]
Generally, a claimant relying on a BIT to bring a claim against a host State will have a choice between UNCITRAL Rules arbitration and an arbitration administered by ICSID. Provide a systematic account of the consequences of choosing, on the one hand UNCITRAL Rules arbitration, and on the other hand ICSID Convention arbitration. Focus on points of comparison with an emphasis on the differences between the two regimes, especially those differences that make ICSID Convention arbitration distinctive. Use as your organizational approach the time-line beginning when the dispute arises and ending with the completion of post-award activities.

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