Geneva Master in International Dispute Settlement Annual Report for the Academic Year 2008-2009
Table of contents Introduction 2 The MIDS curriculum 3 The 2008-2009 edition 4 The 2009-2010 edition 10 Developments for 2010-11 and beyond 11 The Journal of international dispute settlement 11 The MIDS: Quick facts 13
Introduction The Geneva Master in International Dispute Settlement (MIDS) was launched in September 2008 under the joint aegis of the Law Faculty of the University of Geneva and the Graduate Institute of International and Development Studies. Its purpose is to provide specialized full-time postgraduate legal education in the field of international dispute settlement to a limited group of students (25-35 students per year). The program is equivalent to an LL.M. It carries 65 ECTS credits. The purview of the MIDS encompasses the study of international commercial arbitration, international investment arbitration, WTO dispute settlement, international negotiation and mediation, proceedings before the ICJ and various other international courts and tribunals. Its broad scope makes it the only program in the world that covers all relevant aspects of the field, thereby acknowledging the interrelations and similarities that exist between most methods and mechanisms of international dispute settlement.. The MIDS was created in response to a growing need for specialists triggered by a true explosion of international disputes and dispute settlement mechanisms these last decades, which increasingly overlap and cover both public and private international law. For the creation of this unique program, Geneva was seen as the ideal place because of its longstanding tradition in international arbitration and the presence of numerous international organizations. The MIDS is designed for students who have a first complete law degree and a good command of the English language. Most students enrolled thus far already had professional experience in law, sometimes to a significant extent. Graduates from the program head for careers in the arbitration or international law departments of law firms, in the foreign affairs, trade or justice departments of governments, as in-house counsel in large companies, or as legal officers in international dispute settlement institutions, international organizations and NGOs. Some may also pursue an academic career in the area of international dispute settlement. The MIDS is taught in English for all its mandatory parts. It therefore has the potential of a global outreach with regard to both its student body and its faculty. This potential has materialized already in the first year: in 2008-2009, the 26 MIDS students came from 19 different countries and five continents, and the faculty comprised professors from Harvard Law School, Boston University Law School, China Foreign Affairs University, the Universities of Paris I and XII, as well as representatives of the WTO and WIPO, in addition of course to members of Geneva Law Faculty and the Graduate Institute, as well as other Swiss universities. The MIDS intends to take advantage of its global outreach. It aims at ranking among the first three choices worldwide for students seeking postgraduate education in international arbitration or international dispute resolution. Already a number of the graduates from the first year of the MIDS have been hired, even before their graduation and despite the economic crisis, for long-term positions or internships by some of the world s most prestigious arbitration law firms, by the WTO, by the American Arbitration Association, and by the International Court of Justice. The MIDS is directed by Gabrielle Kaufmann-Kohler (Geneva University Law Faculty). The board of directors is composed of Laurence Boisson de Chazournes, Jean-Michel Jacquet, Gabrielle Kaufmann- Kohler and Marcelo Kohen. Thomas Schultz serves as executive director. 2
The MIDS curriculum Students are admitted for one academic year of study in residence (September through June), typically followed by up to two months of independent research and writing. The structure of the program is largely elective, offering students great latitude to pursue their specific interests in dispute settlement while keeping within parameters set to ensure the acquisition of the indispensable knowledge in the field. The curriculum of most students during the year 2008-2009 thus included: - Two heavyweight, semester-long general courses providing a comprehensive overview of international dispute settlement. The first general course deals with the organization of international dispute settlement which disputes go to which dispute resolution mechanism, and how these mechanisms operate. The second general course reviews the main procedural issues that arise in the relevant proceedings, with an eye for comparisons and contrasts between the mechanisms. - A choice of intensive courses. Each course consists of nine hours of class spread over two or three days. These courses focus on a specific dispute settlement mechanism or explore in depth a particular topic.. Intensive courses typically elaborate on matters addressed more briefly in the general courses.. - A choice of optional courses drawn from a list of classes offered in the regular master program curricula of the Graduate Institute and Law School. These courses revolve broadly around international dispute settlement, allowing the students to pursue a specific interest in related fields, such as WTO law, international investment law or the law of international commerce. - Weekly tutorials, Oxford University style, held in small groups. - Attendance of a variety of conferences, colloquia, seminars and lectures. - Visits to institutions of dispute settlement, in Switzerland and abroad. - Completion of writing requirements, which include two short essays and a 40-50 page master thesis. - Participation in an international moot court competition, such as the Vis Arbitration Moot, the Frankfurt Investment Arbitration Moot, the Philip C. Jessup Moot, or the ELSA Moot on WTO Law. 3
The 2008-2009 edition To start the first edition the MIDS, 26 students were chosen among approximately 120 applicants. The average age of the students was slightly above 30. All but one had practical experience in law, often substantial. Many had worked for law firms, some as judges or court clerks, as in-house counsel, or for international organizations and NGOs. All but two had a first complete degree in law, a large number were admitted to the bar and almost half of them had already earned a prior LL.M. degree. These 26 students represented 19 countries and five continents: 2 came from Africa (Benin and Eritrea); 5 from Asia (China, Japan, Turkey (2) and Taiwan); 13 from Europe (Belgium, France, Greece, Italy, Portugal, Russia (Moscow), Spain and Switzerland (6); 1 from North America (USA); 5 from South America (Argentina, Ecuador, Mexico (2) and Paraguay). On a trip home from a conference, Gabrielle Kaufmann-Kohler discussing with a student what had been said during the event Preparing for a moot hearing at the Court of Arbitration for Sport Training for the moot court The MIDS in Paris for a visit to the ICC, with Caroline Kleiner and Thomas Schultz The MIDS was formally inaugurated by a lecture delivered on 1 October 2008 by James Crawford (University of Cambridge), who addressed the proliferation of international dispute settlement mechanisms and their historical continuity. 4
During this first edition of the MIDS, the students were taught the following courses: General Courses The Organization of International Dispute Settlement International Legal Proceedings Laurence Boisson de Chazournes Gabrielle Kaufmann-Kohler (both Geneva Law Faculty) Marcelo Kohen (Graduate Institute) Brigitte Stern (University of Paris I) Sébastien Besson (Geneva Law Faculty) Intensive Courses (students choose eight) Jurisdictional Immunities The Concept of Due Process in the Case-Law of the European Court of Human Rights ICSID Arbitration Contrats d Etat Arbitration in China WTO Dispute Settlement Negotiation Arbitration in the United States Sports Arbitration Philosophical Aspects of Dispute Settlement ICC Arbitration Arbitration and Mediation of Intellectual Property Disputes at WIPO Andrea Bianchi (Graduate Institute) Lucius Caflisch (Graduate Institute) Emmanuel Gaillard (University of Paris XII; Shearman & Sterling) Jean-Michel Jacquet (Graduate Institute) Song Lu (China Foreign Affairs University) Gabrielle Marceau (Geneva Law Faculty and WTO) Robert Mnookin (Harvard Law School) William Park (Boson Law School) Antonio Rigozzi (University of Neuchâtel) Thomas Schultz (Geneva Law Faculty) Pierre Tercier (University of Fribourg) Erik Wilbers (WIPO) 5
Members of the Hong Kong Vis Moot Court shortly before the welcome ceremony After a class in the second General Course with Marcelo Kohen, Brigitte Stern and Sébastien Besson Optional Courses (students choose three or, if they take part in a moot court, one. Optional courses are drawn from a list of classes offered in the regular master program curricula of the Graduate Institute and Law School. The courses listed below are those that MIDS students actually picked in 2008-2009). La vente internationale des marchandises Brierly's "Law of Nations" Revisited: General Course on Public International Law International Legal Framework for the Protection of Human Rights Garanties du commerce international United Nations and International Law Treaty Making in Contemporary International Society Conflits de juridictions et arbitrage dans le contentieux économique international L'illicéité en droit du commerce international Problèmes juridiques des contrats internationaux Règlement des litiges dans l'union européenne Arbitrage international Les relations économiques en droit international privé Droit de l OMC International Trade Law Advanced Seminar on WTO Jurisprudence Droit diplomatique international The Security Council and Issues of Responsibility under International Law Droit international et européen de la propriété intellectuelle Christine Chappuis (Law Faculty) Andrew Clapham (Graduate Institute) Andrew Clapham (Graduate Institute) Bénédict Foëx (Law Faculty) Vera Gowlland (Graduate Institute) Vera Gowlland (Graduate Institute) Jean-Michel Jacquet (Graduate Institute) Jean-Michel Jacquet (Graduate Institute) Jean-Michel Jacquet (Graduate Institute) Christine Kaddous (Law Faculty) Gabrielle Kaufmann-Kohler (Law Faculty) Gabrielle Kaufmann-Kohler (Law Faculty) Gabrielle Marceau (Law Faculty) Joost Pauwelyn (Graduate Institute) Joost Pauwelyn (Graduate Institute) Eric Wyler (Graduate Institute) Vera Gowlland (Graduate Institute) Jacques de Werra (Law Faculty) 6
The MIDS further organized, primarily for its students, a guest lecture by David Rivkin (Debevoise & Plimpton) on arbitration at the Olympic Games, and a seminar by John Gotanda (Villanova University) on damages and interest in international arbitration. Pieter-Jan Kuijper (University of Amsterdam) also contributed as guest professor during one of the general courses. Pierre Lalive gave an informal talk during which he gave the students valuable in sights into his lifelong experience as arbitrator and counsel in some of the most famous cases taught in the curriculum. To supplement these classes and lectures, the MIDS students also attended a number of conferences, including conferences organized by the University of St Gallen on international dispute settlement, by the Swiss Arbitration Association on competition law in international arbitration, and on arbitration in China, by the Latin-American Society of International Law on international investment arbitration, the European Association of Judges for Mediation on mediation, and the Global Arbitration Forum. Many of them also attended other academic events, such as: the lecture delivered by Steven Ratner of Michigan Law School at the Law Faculty on How to Stop Worrying about Fragmented International Two MIDS students in Barcelona for the WTO Moot Court Law: Lessons from the Law(s) on Investment ; the Second Annual Update on WTO Dispute Settlement organized by the Graduate Institute s Centre for Trade and Economic Integration; and the Lalive Lecture 2009, delivered by Jan Paulsson on the topic Looking Rigorously at National Law from the Outside: How Does and International Tribunal Distinguish Droit from Loi? The Jessup team in Washington, D.C., with coach Makane Mbengue A collaboration day was also held with the Master s program in arbitration and international commerce of the University of Versailles, during which students presented papers and engaged in critical discussions. In order to encourage students to interact more regularly with other people in the field, they were all offered to become part of Young OGEMID, one of the most important electronic discussion forums in the field of international arbitration. Education in the field of international dispute resolution cannot remain solely academic. The MIDS therefore asked the Foundation for International Arbitration Advocacy (FIAA) to organize a two-day clinical workshop on advocacy in international arbitration. The instructors of the FIAA workshop were advocacy teachers and experienced arbitration practitioners from Europe, the USA and Canada. The 2008-2009 MIDS students also participated in several moot court competitions. For the Vis International Commercial Arbitration Moot (East), a team of students travelled to Hong Kong, where they earned the Honorable Mention for Best Memorandum on behalf of Respondent. Another team went to Washington, D.C., to take part in the Jessup International Law Moot Court Competition, and still another to Frankfurt to compete in the Frankfurt Investment Arbitration Moot Court. In Barcelona, where the regional round of the ELSA WTO Moot Court Competition took place, the MIDS team finished fourth and 7
should therefore have qualified for the finals in Taipei. As a result of an administrative error by the moot court organizers which was uncovered too late and much to its disappointment, the team was not admitted to the finals. Further along the road to practice, the MIDS also took its students to institutional site visits, to allow them to attend hearings and to better understand the operation of dispute settlement institutions. The students made visits to the ICC, the ICJ, the International Criminal Tribunal for the former Yugoslavia, the Permanent Court of Arbitration, the Mediation and Arbitration Center of WIPO, the WTO and the Advisory Center on WTO Law, and the Court of Arbitration for Sport. In order to help students set the right professional priorities, to identify their next moves and how to start or reorientate their careers, the MIDS staged several career With Judge Mohamed Bennouna at the ICJ events with practitioners in the fields of commercial and investment arbitration, trade law and trade dispute resolution. Several students were able to secure full positions or internships through these events. Other internships were organized by the MIDS, in arbitration departments of law firms and in dispute settlement institutions or organizations. Successful studies are not only about contents. They also require the right atmosphere, friends to share experiences with, occasions to enjoy a year away from professional constraints. For the students, it is equally important to create contacts for the future to stay connected to the program as alumni. For these purposes, the MIDS organized a number of social events, in particular a welcome lunch, drinks and dinner with faculty members, a reception at the Law Faculty, a cocktail party following the Inaugural Lecture (which brought together most of the actors of the Geneva world of international dispute settlement), drinks after the career events with potential employers, a dinner for the start of the second semester, and a farewell dinner. Trips gave further occasion to socialize and small and larger groups were also taken out for drinks by staff members at various junctures of the program. Welcome dinner in September 2008 Throughout the academic year, in addition to the Program Director, the students relied on a staff of four people. Caroline Kleiner and Makane Mbengue, both Maîtres-assistants or lecturers at the University of Geneva Law Faculty, were in charge of general academic guidance for the students. They further gave the tutorials that accompany the two general courses, and coached the MIDS moot court teams. Evelyne Bryden provided administrative support. And Thomas Schultz, Maître d enseignement et de recherche or Senior Lecturer at Geneva University Law Faculty, served as Executive Director of the program. In 2008-2009, nine out of the 26 students received financial aid, thanks to generous financial support from the Karl Popper Stiftung and another foundation that wishes to remain anonymous. Financial support for the program, in kind or in cash, was provided by the Swiss Network for International Studies, the University of Geneva Law Faculty and the Graduate Institute of International and Development Studies. The MIDS received media attention in the International Herald Tribune, the Global Arbitration Review, Le Temps, the Why Geneva Magazine, IQSensato, and various blogs. 8
James Crawford delivering the Inaugural Lecture of the MIDS 1 October 2008 Some student quotes on the 2008-2009 edition: What I will remember from the MIDS is the wonderful organization, the excellent quality of the professors, the willingness to help of the directors and the staff. The MIDS faculty are certainly among the best professors I have had throughout my education. I will always remember the human aspect of the MIDS. I am very happy and still cannot believe that it has happened to me.... Indeed, I will be always thankful to you for this great support and advice. I can only say two words: thank you! On 28 September 2009, the MIDS will hold its first graduation ceremony. The degree of Master of Advanced Studies in International Dispute Settlement will be conferred to 22 students, out of the 26 who started the program in September 2008. Two students abandoned the program in the course of the year for personal reasons and two further students of the 2008-2009 class have elected to do the program over two years, as they work part time in law firms as arbitration practitioners; they are expected to graduate in September 2010. 9
The 2009-2010 edition of the MIDS For the entering class of the 2009-2010 edition, close to 200 applications were submitted. The selection committee has chosen 37 students, with a professional background and average age similar to the students of the first edition. Their geographical diversity is again significant. They represent 29 countries and four continents: 4 come from Africa (Ethiopia (2), Kenya, Sudan); 9 from Asia (China, Georgia (2), India, Iran (2), Nepal, Saudi Arabia, Sri Lanka); 17 from Europe (Belgium, Denmark, Estonia, France (2), Germany, Greece, Italy (2), Romania, Slovenia (2), Sweden, Switzerland, UK, Ukraine (2)); 7 from South America (Argentina, Brazil, Ecuador (2), Guatemala, Mexico, St Vincent & the Grenadines). While the curriculum remains fundamentally the same, the MIDS offers in 2009-2010 a few additional features and new professors have joined its faculty. Among the main new features is an increased attention to instruction in the practical side of law or clinical education. In addition to the FIAA workshop on arbitration advocacy, the MIDS now offers a course on legal writing, a clinic on mediation, and a seminar on financials for damage analysis. The new professors who will teach in the MIDS during the 2009-2010 academic year are Georges Abi- Saab (Graduate Institute), Albert Jan van den Berg (Erasmus University Rotterdam; Hanotiau & van den Berg), Jan Paulsson (Miami Law School; Freshfields Bruckhaus Deringer) and Joost Pauwelyn (Graduate Institute). In 2009-2010, the MIDS students will compete in the ICC International Commercial Mediation Competition, in addition to three of the moot courts that the MIDS class of 2009 already participated in, namely the Vis International Commercial Arbitration Moot, the Jessup International Law Moot Court Competition and the ELSA WTO Moot Court Competition. In September 2009, in order to handle the increase in the number of students, the staff of the MIDS has been joined by Antonella Ghio, who serves as part-time administrative assistant. The summer of 2009 was also marked by the move of the MIDS offices to new premises: the Villa Moynier. This villa, which bears the name of one of the founders of the International Committee of the Red Cross and is situated on the shores of the Lake Geneva in the beautiful Parc Mon Repos, has been undergoing important renovation work. It offers the MIDS an exceptional center of operations. Out of the 37 students who will participate in the MIDS in 2009-2010, 16 will receive financial aid, thanks to generous donations of the Hans Wilsdorf Foundation, the Karl Popper Stiftung, the Edmond J. Safra Foundation, and a foundation that wishes to remain anonymous. Financial support for the program is provided by tuition fees (CHF 25 000) and, in kind or in cash, again by the Swiss Network for International Studies, the University of Geneva Law Faculty, and the Graduate Institute of International and Development Studies. The start of the academic year will be marked by an opening lecture delivered on 28 September 2009 by Emmanuel Gaillard, Professor of Law, Paris XII University, Head of the International Arbitration Group, Shearman & Sterling. 10
Developments for 2010-11 and beyond The brochure for the third edition is ready and will be released shortly to allow for applications to be filed from October 2009. Among the new developments, one may emphasize that the MIDS will strengthen its ties with Harvard Law School. Robert Bordone and Dan Shapiro, both from Harvard, will indeed join Bob Mnookin as faculty members. The first one will teach a course on the design of dispute settlement systems and the second will teach a course on mediation. The new list of intensive courses will include classes by Pierre-Marie Dupuy (Graduate Institute) on the function of the international judge or arbitrator and by Francisco Orrego Vicuña (University of Chile) on recent developments in arbitration in Latin America. The third MIDS program will also comprise a joint three-day academic event with Jan Paulsson s LL.M. program in international arbitration at Miami Law School. The event will encompass workshops, student presentations, debates and a variety of networking events. As an important medium-term objective, the MIDS seeks to increase the focus on topics and the involvement of teachers from regions of the world where international dispute settlement is currently less developed but has a very strong potential for growth. In particular, the MIDS faculty is expected to include more members from Asia, Latin America and the Arab World. The Journal of International Dispute Settlement (JIDS) The MIDS is associated to another Geneva-based development in the field of international dispute settlement: The Journal of International Dispute Settlement (JIDS). The JIDS, published by Oxford University Press, in association with the University of Geneva Law Faculty and the Graduate Institute of International and Development Studies, concerns itself primarily with fundamental and lasting issues of international dispute settlement, and aims to publish articles of enduring importance concerning significant trends in the field. Toward this end, the journal is open to strictly legal approaches as well as to studies inspired by other disciplines, such as legal sociology, legal theory, the history of law, law and political science, and law and economics. It will publish a limited number of heavyweight and reflective articles, as opposed to news-driven works. JIDS will appear twice a year, starting February 2010. The first two issues of JIDS, forming Volume 1, 2010, will contain articles by: Anthony Aust on advisory opinions Gary Born and Wendy Miles on the Sudan case and the inclusion of arbitration clauses in peace treaties Peter van den Bossche on a general matter of international dispute settlement James Crawford on Continuity and Discontinuity in International Dispute Settlement Emmanuel Gaillard on The Representations of International Arbitration Kaj Hober on Energy Charter arbitration 11
Pierre Lalive on the reasoning of arbitral awards Chang-Fa Lo on WTO dispute settlement Donald McRae on WTO dispute settlement Pierre Mayer on international commercial arbitration Gabrielle Marceau and Julian Wyatt on jurisdictional clauses in RTAs and WTO dispute settlement William Park on either truth-seeking or ethics in international arbitration Sang-Myon Rhee on economic aspects of international maritime disputes Christoph Schreuer on international investment arbitration Daniel Shapiro on international negotiation Ivan Shearer on the individual petition procedure of the UN Human Rights Committee as a species of international dispute settlement Pierre Tercier on international arbitration V.V. Veeder on international arbitration Rüdiger Wolfrum on a general topic of international dispute settlement In its first issue, JIDS will also publish a Master thesis of exceptional quality authored by a student of the MIDS 2008-2009. The JIDS is the fruit of a project led by Managing Editor Thomas Schultz, with Associate Editors Tom Grant (University of Cambridge) and Andrew Mitchell (University of Melbourne), under the patronage of General Editors Gabrielle Kaufmann-Kohler and Joost Pauwelyn. 12
The MIDS: Quick Facts Master of Advanced Studies (equivalent to an LL.M.), full-time, one academic year Joint venture of Graduate Institute and Law Faculty of University of Geneva Program in English, with the possibility to take optional courses in French Covers international dispute settlement broadly speaking, including international commercial arbitration, international investment arbitration, WTO dispute settlement, proceedings before the International Court of Justice, international negotiation and mediation. Curriculum includes: variety of semester-long courses and short intensive courses, clinical workshops, tutorials held in small groups, participation in international moot court competitions, field trips to institutions of international dispute settlement, a variety of conferences and lectures In 2008-09, 26 students, representing 19 different nationalities, from 5 continents. In 2009-10, 35-37 students, representing an even greater variety of nationalities, selected among approximately 200 applicants. About one third of these students benefit from a full scholarship arranged by the program. 13