- Hello, everyone, and welcome to this live event for the International Dispute Resolution LLM. Today, we're meeting our academics. Today, we have with us Dr. Remy Gerbay and Ms. Norah Gallagher, which are our co-program directors for the dispute resolution program.
- Welcome from a miraculously warm and sunny day here in Ireland. I'm in Wicklow. And, in fact, just before we went live, Remy and myself were trying to figure out how long we've known each other. It's actually 17 years, which is quite a long time. It doesn't feel that long. We met when I was working in-- we were both working in Herbert Smith Freehills as it is now-- Herbert Smith as it was then. So I've been in international dispute resolution for well over 20 years now. I've been teaching at Queen Mary since 2002. And as I'm no longer working in a [INAUDIBLE] law firm, I'm not conflicted. I also sit quite regularly in ongoing arbitrations, often with an energy-specific and mining focus. Welcome.
- My name is Dr. Remy Gerbay. I'm one of the c-directors of the LLM program with Norah Gallagher. As Norah was explaining a minute ago, we met about 17 years ago when I started my career in international arbitration at English law firm Herbert Smith. And fast-forward 17 or 18 years later. I have now two jobs. I am an academic at Queen Mary University of London, where I teach international arbitration.
And I am also a partner in a law firm in Washington, DC called Hughes, Hubbard, and Reed-- in the arbitration group, where I act as counsel and as arbitrator in international arbitration proceedings-- both commercial arbitrations and investor-state arbitrations. And so Norah and I have been co-teaching and co-directing this program for about five years now, I think, although, as Norah explained, she has been teaching at primary for 20 years. And I've been teaching at Queen Mary for about 10 years.
- The School of International Arbitration that's based at the Center for Commercial Law Studies was the first dedicated institute to teach the discipline of international dispute resolution. In particular, obviously, it started in commercial arbitration and investment treaty arbitration. It was, I suppose, the brainchild, if you will, of Dr. Julian Lew, who, again, both Remy and I worked for in Herbert Smith. And it was supported by Sir Roy Goode. So that was back in 1985. So it is coming up close to 40 years.
There are, obviously, other institutions that now teach specifically LLM-focused arbitration courses. And there are many universities globally that now offer certain modules in commercial arbitration, mediation, ADR, and investment dispute resolution. But we were one of the first. We like to think that we're one of the best. We've been doing it quite a long time, and we have a lot of experience. We have a growing number of alumni. And I think that factor does set us apart. So, Remy, I was going to hand over to you to cover over the rest.
- Yes, I will simply add that, yes, of course, the School of International Arbitration at Queen Mary University of London is the oldest and largest academic institution dedicated to the study and research of international arbitration. [INAUDIBLE] has been often copied but never quite equaled, we like to believe. But one of the things that really distinguishes the teaching of arbitration at our school from other programs is the fact that we take an international and comparative approach to the study of international arbitration.
For example, when we study international commercial arbitration, we do not focus exclusively on English law. And even though the School of International Arbitration is based at an English university, of course, we cover English law-- the English Arbitration Act of 1996 and the case law. But we also study every single week court decisions and statutes from other jurisdictions-- from Asia, Africa, and North America. And, in fact, our student body very much reflects this diversity.
So when we study commercial arbitration, we study the rules of the Singapore International Arbitration Center, of the ICDR in the US, and of a number of other institutions. We look at court decisions from all over the world. And I think that really is a distinguishing feature. I don't think any of the other international arbitration programs take this comparative approach to international arbitration law.
- In order to be able to achieve an LLM, you have to have 180 credits. So you have to take a certain number of modules. And then you need to write a dissertation, which is also a credit-- I think, with 60 credits on that module. And they're divided between Remy and myself. Remy does the international commercial arbitration. There are two modules there dealing with specific aspects and, as Remy says, looks at more jurisdictions than just the UK.
So it has a comparative and international aspect, which, actually, a lot of students who have some work experience maybe in dispute resolution just in their home jurisdictions find incredibly useful because it broadens out their experience. And then there are modules on investment treaty arbitration. And, of course, that is, I suppose, entirely internationally focused because it has a huge amount of public international law that's relevant-- all of the investment treaties. We look at the ICSID Convention.
So it's divided up into various number of modules. And depending on what choice students make, there are three different levels that can be chosen. You can do a certificate, which requires a certain number of modules, and then the diploma and then the LLM. And you don't necessarily have to at the very beginning, if you're not sure of your workload or your personal commitments, commit to doing the LLM. You can actually do it on a progressive basis. So get the certificate first. And maybe then take a bit of time if you want to decide to go back and do the diploma and/or the LLM.
So it is, I suppose, progressive. Obviously, most of our students are working full-time. So they do have that concern about being able to balance the workload and the modules over time. And so that ability to be able to choose the level of commitment that you're giving at any point in time on those three different levels-- certificate, diploma, and then LLM-- has been found to be quite useful for students in the past.
- So we have two commercial arbitration modules which you take sequentially. And in the first commercial arbitration module, over a period of a few months, we give you a full introduction to international arbitration. And we cover such issues, for example, as the consent to arbitrate, arbitration agreements, the procedure, constitutional arbitration tribunals, et cetera, et cetera-- all the way to the enforcement of arbitration rules.
In the second commercial arbitration module, we dig a little bit deeper in some of the more complicated issues in international arbitration. So we look at issues of evidence, for example, and privilege. We look at the issues of enforcement and things like that. And so we build upon what we've learned in the first module. Now, the way we've designed this course on commercial arbitration is that we are very much catering both for students who already have extensive knowledge of international arbitration and students who are new to it.
And so the way we have designed our lecture notes, our readings, and the progression over each of the two commercial arbitration modules is such that somebody who is brand new to arbitration will be able to gradually acquire the required knowledge on the topic. But individuals who have been practicing in law firms for many years-- and we have a lot of students like that-- are also getting a lot out of these first and second modules because we are building into our courses advanced the readings. And, typically, we find that both experienced and novice students are really getting a lot out of these commercial arbitration modules.
- Thank you, Remy. Actually, before I even get into any of the content of the two investment modules, I'll answer a question that I often get asked by students at the very beginning. Do I need to have a background in public international law? And I say, no. In fact, based on some of the student feedback, what we tend to do before the first investment treaty module is we have a session dedicated to the main public international law principles that you would need to be aware of.
So for students who've never done any public international law, we have, as Remy says, quite a lot of students who have a lot of experience in, maybe, a particular area-- maybe in construction, maybe in litigation in their home jurisdiction but not necessarily in international law. So we would look at the Vienna Convention on the Law of Treaties in that session. So how are tribunals interpreting the treaty provisions that are negotiated by states? We look at the international law in relation to state responsibility. When and how can a state be held accountable for its actions or inactions?
So we really have worked to try and make sure that there's a certain level of awareness of those principles. So you don't need to have studied public international law in the past. The two investment modules cover, obviously, a quite exciting, I suppose, a growing area. Since I started when there was only one or two investment treaty arbitrations filed at ICSID, which is the International Center for Settlement of Investment Disputes in Washington, DC, where Remy is today-- two every year. Now, you know, it could be 40, 50, 60 a year. And that's just at ICSID.
So we look very closely at, I suppose, the background and evolution of the investment treaty arbitration process, which, to put it simply, is what they call a mixed arbitration where you have either an individual or a company that is upset at the treatment it has received by a host state. So somebody went in and made an investment in Ireland, where I am today. And the government expropriated or adversely interferes with it in some way by changing the regime, and they feel that has impacted their investment.
So we look at how do you get to go to ICSID, the requirements for consent, the jurisdictional limitations, and actually quite a lot of the procedural and mechanical aspects, including a topic that has come up recently for much discussion. And many of you may have already read a lot about this in the paper-- about issue conflict, repeat appointments, having a very small pool of arbitrators who act on very many of these cases. And also, we look at what makes ICSID arbitration unique because it obviously was set up by a treaty.
And it has an annulment process which is completely different to the New York Convention, which you will have learned about from Remy on enforcement of commercial awards. And then the second module that I said we're just finishing now really goes into a lot of detail on the specifics of those substantive protections provided in these treaties. And we're always updating the material. So we're actually looking now at treaties that are being signed today-- that have completely different focus and a lot of additional requirements and obligations, both on states-- and even trying to impose ESG obligations on investors.
So we're predicting that this may actually change the type of investment dispute that we'll see in the future. But we run through all of those standard protections-- so expropriation, which is one of the older and more established protections provided to investors, minimum standard of treatment, most-favoured-nation, national treatment-- freedom of transfer because, obviously, you don't want your money to get trapped. We also look at state defenses. And, again, this is an area that we've seen significant change. Even within the last three years, there's been much more willingness of states to take a counterclaim against an investor maybe for, say, breach of their own national environmental laws.
And so of those have been upheld by tribunals. There are some very interesting changes and developments that are being made, both by states in the type of treaties that they're running into and also, I suppose, the willingness of tribunals to grapple with issues such as human rights, which definitely, I can tell you when I started my first case back in 1998, would not have been anticipated-- so quite an interesting area-- a lot of detail. As Remy says, we do try and streamline the reading. But for such a topic, it's quite difficult.
And, obviously, the awards can also themselves be quite long. But it's a very interesting and dynamic area of public international law. And, also, probably many of you will have seen in newspapers. A lot of the disputes can be quite high-profile because they are often in the public domain, much in the same way that everybody's heard about the Yukos case against Russia. So they are the two investment treaty modules.
- There are a number of benefits. The first one is that, as I said, we've designed a program specifically with working professionals in mind. This is not a traditional face-to-face LLM like the one that we have in London-- that will just put on Zoom because of the pandemic. This is a program that has been designed specifically and built specifically in order to be delivered online and in order to accommodate working professionals. And that, I think, is something that becomes very clear when you start studying the LLM. You see the platform. We use Canvas and all of the tools that we use on a weekly basis to teach the LLM.
- Yeah I just would stress there that those webinars are incredibly useful. So that's a time when I always try to encourage students to come to them. Obviously, depending on the time zone, it's not always possible this year, much like the investment treaty module that we're just finishing with some students in North America-- some students in Singapore. So it's quite difficult. So some people have to watch back the recording.
And then, obviously, if they have any questions that arise that they didn't understand or they need clarified, they can then put that in the forum. So our teaching team is super. They're very experienced. They've worked in both commercial and investment treaty arbitration. And they're very active in that kind of online discussion platform. But we do try and address any of the confusions each week on that live webinar where you have a chance to put your question, turn your camera on, turn your microphone on, and actually speak with us.
And I think that that's a really important option, especially when the material can be a bit confusing. Or maybe you know about commercial arbitration, but you don't know about investment treaty arbitration. And you need some things clarified on how the umbrella clause is working or what tribunals are doing in relation to the minimum standard and fair and equal treatment. So it's a really useful function. A student [INAUDIBLE] helps to clarify certain points.
And just to confirm [INAUDIBLE] right, so the module is kind of iterative. We start at the very beginning of the process. So what is investment treaty arbitration? How do you get to go to ICSID? We spend a whole week on consent because it's so important-- then the jurisdiction requirements. So each week follows on from and adds to what it is you've learned the week before. So that's quite an important point as well.
- Maybe two points to add-- the first one is that Nora and I are the co-directors of the program. We're teaching. But we have with us a team of lecturers who are teaching with us. And, really, this team is quite incredible. And that really makes the difference between our program, I think, and even what happens in London. Whether you come to Queen Mary, to the LSE, to UCL, or any other English universities, typically, if you study an LLM program, you're going to have your lectures with the professor. And then you're going to have tutorials with, typically, PhD candidates who are teaching assistants. And their job is to support the professor.
What's different with our online program is because a lot of our students are very senior, we've recruited lecturers who have extensive experience of arbitration. So our associate lectures who are teaching with us and animating, if you want, these weekly webinars with us are not your average teaching assistants. We're talking individuals who have practiced arbitration in big law firms-- who are in the process of finishing a PhD because they're moving away from big law into academia, for example-- so individuals who have actually been in arbitrations-- who truly understand what it is that they're talking about.
And so the quality of our associate lecturers is really quite incredible and, frankly, unique. I've never seen that anywhere else. It's been a lot of work for Nora and I to recruit these people, but we're very happy with that. And the second thing is that when you do this LLM, you very much learn from the students as well. When you do these tutorials at the end of the week, you learn a lot from the class participation-- the interventions of your fellow students. As I said, some of our students are new to arbitration.
But some others have been practicing for a long time. We have, every year, individuals who have practiced arbitration for many years but who want to become full-time arbitrators and stop working as counsel-- as partners in law firms. We have very senior partners in big law firms in Singapore and elsewhere. And so you can imagine the quality of the discussions. So in this intake-- the most recent intake-- we're doing commercial arbitration. One of the people that's studying with us is in charge of defending arbitrations for governments of a big country. So you can imagine the quality of the interventions.
And we learn from each other about how arbitration works in different countries. And it really is a unique learning environment and a great networking environment as well. By participating in the weekly webinars, even though you're not flying to London and you're connecting from wherever you're located, you're able to network with individuals who, like yourself, are studying on this LLM program. Well, I think the answer very much depends on a number of factors, including where you are already in your career and what you want to do with it.
What I can say is that every year, we have students who are both junior and senior lawyers who decide to do this LLM. And they do it for different reasons because they want to get different things out of it in their careers. Often, junior lawyers have recently finished their undergraduate law degree and decide to do an LLM in arbitration like ours because they want to gain a specialist knowledge in the field and to start building credibility as young, budding arbitration lawyers.
And the idea is that it will help them become more employable-- get a better job in whatever jurisdiction they're placed. And also, for the lawyers that are already working as young associates in law firms, there is the perception that doing a specialist degree in arbitration will help them build credibility within their firms so that they can have first dibs when it comes to being allocated to international arbitration matters and become the specialist in their firms.
- So it's generally allocated as 20 notional hours. And what that will mean is that there are some weeks where you will actually probably have to spend a bit more on the material because it will be maybe something new-- something more difficult. As Remy mentioned at the very beginning, we do get a huge amount of students who have some dispute resolution either experience or exposure-- maybe as engineer in construction disputes. So there might be some parts of the module where you wouldn't have to spend any more than five or six hours in a week.
So we use 20 on average throughout the course. And, basically, I suppose there is an element of organization here. So you would have to be able to try and dedicate your time throughout the week. I'm not saying that you have to sit down and do a whole block of four or five hours but just to be able to log on and off at various points of time. Make sure that you're covering the material because the course will be much more enjoyable and, in fact, a lot easier if you are able to follow.
Even in something you're familiar with, it's good to be able to revise. I mean, we have a practitioners week where we try and get really high-profile speakers. In fact, a year or two ago, I had Professor Schreuer. And he's a professor from Vienna who has written the entire book on the ICSID Convention-- literally article by article. And so the students were delighted to have him come. But you always learn something from that. So, if it's going to help, revise each week-- even the stuff that you know.
And then spend a bit more time on the material that may be new to you. So, for sure, some people may have some exposure. We had a couple of students who had worked for the Egyptian government on their disputes. So they knew quite a bit about part of the investment treaty process but not others. So they were able to spend a bit less time on some of the weeks and more time on others. And then, as I say, it's just a matter of fitting it in. We're conscious that you're all working-- have family commitments and, obviously, life.
So there will be times when you'll end up having to do some of your study over the weekend. I know it's not very popular to hear. But it is a distance learning program, and you will continue to be working. So there will, by necessity, be times where it will eat into your personal life. But I think that, inevitably, students who sign up for a distance learning program and who are going to continue to work know that there are going to find a way to make that balance between work and study.
Remy, I wasn't sure if you wanted to add anything on to the time allocation there. Yeah, I agree. I mean, we aim to make the modules as fun, entertaining, and interactive as we possibly can online. But in the end, it's up to each student individually to assess their own time commitments at any point in time. Now, obviously, I just wanted to add something on, Remy. We have had students who had looked at their calendar, thought that it would all fit in, and then maybe something happened right in the middle.
And so they had to interrupt, which you can do. And they came back and completed it later. So, obviously, if something very unusual happened or we had some students who fell ill, there are ways to be able to manage that. But in the end, despite all our best efforts at making it as engaging as possible, we try to future look, as I mentioned, to climate change disputes that we're beginning to look at because we think that is the direction-- in particular, in investment treaty arbitration-- that it will be going. But in the end, you have to decide for yourself about timing and balancing those commitments.