Магистратура
2023/2024
Трансграничное исполнение судебных и арбитражных решений и поиск активов
Статус:
Курс по выбору (Право международной торговли и разрешение споров/Law of International Trade and Dispute Resolution)
Направление:
40.04.01. Юриспруденция
Кто читает:
Департамент международного права
Где читается:
Факультет права
Когда читается:
2-й курс, 1, 2 модуль
Формат изучения:
без онлайн-курса
Охват аудитории:
для всех кампусов НИУ ВШЭ
Прогр. обучения:
Право международной торговли и разрешение споров
Язык:
английский
Кредиты:
6
Контактные часы:
28
Course Syllabus
Abstract
The course “Cross-border enforcement of arbitration and court awards and asset tracing” is dedicated to study the main issues that arise at the stage of recognition and enforcement of both arbitration awards and decisions of international and domestic courts. Special attention is paid to tracing of assets which can be foreclosed.
During the course students will get acquainted with the main international conventions and other acts regulating enforcement of awards and decisions, as well as with the practice of courts of various jurisdictions. Furthermore, the course will allow students to get acquainted with the most debatable issues widely discussed in the international academic environment, as well as among practicing lawyers, including the issues of public policy, the place where the award was made, state immunity (including the immunity of the assets of central banks and diplomatic missions), controversies between the EU law and the international rules of enforcement of investment arbitration awards, compliance and enforcement monitoring procedures of permanent international courts.
The course will consist of individual and group exercises, including in-class discussions, and independent research assignments on various course related topics.
Learning Objectives
- 1. To provide students with general overview of rules of enforcement of both arbitral awards and decisions of foreign state courts; 2. To provide students with understanding of approaches that can be used to find assets of award debtor; 3. To help students to acquire the skills of professional evaluation of perspectives of the recognition and enforcement of foreign judgments and arbitral awards; 4. To introduce students to the most significant, debatable recent cases (both from common and civil law countries) dedicated to various problems connected with enforcement; 5. To develop such skills as critical thinking, legal argumentation and legal research skills, as may be required to practice law (especially, to assist clients with enforcement of awards and decisions) or to proceed with deeper academic study of various topics related to cross-border enforcement; 6. To introduce students to the specifics of enforcement of the awards of investor–state arbitral tribunals, the role of domestic courts and the peculiarities of enforcement of awards under the Convention on the settlement of investment disputes between States and nationals of other States (ICSID Convention); 7. To help students to understand the origin and evolution of international rules of state immunity, including immunities of the assets of the central banks and diplomatic missions; 8. To provide students with general overview of theories of compliance of states with awards of international courts and tribunals; 9. To introduce students to the legal background and relevant case-law of application of procedures securing compliance of the states with awards of permanent courts and tribunals.
Expected Learning Outcomes
- to demonstrate deep understanding of existing enforcement procedure applicable to arbitration awards and foreign state courts’ decisions, as well as to awards of investor–state arbitral tribunals and judgments of international courts, and also to demonstrate understanding of situations in which the court may refuse to enforce them
- to easily navigate in regulatory framework, including international conventions and customary international law, soft law and rules and procedures related to the topic
- to form an understanding of theories of compliance in international adjudication and current trends in the law of state immunity applicable to the claims of private litigants submitted against sovereign states in domestic and international courts and tribunals
- to elaborate the best litigation strategy in the case of jurisdictional conflicts between the rules of international law and provisions of legal orders of regional organizations of economic integration (the case of the EU)
- to demonstrate good understanding of current trends peculiar to asset tracing
- to choose the best strategy as applied to particular facts of the case, develop the plan of asset tracing process
- to form critical views and allegations based on excellent understanding of theoretical context and good knowledge of case law, as well as to substantiate their position by relevant references
- to work with large amounts of information (in particular, to make a research, evaluate, apply information, as may be necessary to work on scientific and professional assignments, as well as to apply systematic and comparative approaches)
Course Contents
- Subject 1. Recognition and enforcement of commercial arbitral awards.
- Subject 2. Enforcement of decisions of foreign state courts.
- Subject 3. The immunity of the assets of central banks and diplomatic missions.
- Subject 4. Controversies between the EU law and the international rules of enforcement of awards of investor–state arbitral tribunals.
- Subject 5. Compliance and enforcement monitoring procedures of permanent international courts.
- Subject 6. Asset tracing.
Assessment Elements
- Active work in seminars during the first part of the courseAssessment for the first part of the course dedicated to enforcement of commercial arbitral award (active work in seminars)
- Active work in seminars (for the second part of the course)Assessment for the second part of the course dedicated to enforcement of judgments of international courts and foreign state courts’ decisions as well as awards of investor–state arbitral tribunals.
- ExaminationOpen book take-home exam consisting of the analysis of the case/a statement/a piece of an article lasting for 1 hour and 20 minutes.
Interim Assessment
- 2023/2024 2nd module0.4 * Active work in seminars (for the second part of the course) + 0.2 * Active work in seminars during the first part of the course + 0.4 * Examination
Bibliography
Recommended Core Bibliography
- Comparative international commercial arbitration, Lew, J. D. M., 2003
Recommended Additional Bibliography
- Encyclopedia of private international law. Vol.1: Entries A-H, , 2017
- Encyclopedia of private international law. Vol.2: Entries I-Z, , 2017
- Encyclopedia of private international law. Vol.3: National reports A-Z, , 2017
- Encyclopedia of private international law. Vol.4: Legal instruments A-Z, , 2017