I have to start somewhere…

Different to what almost everybody thinks, if you are doing a PhD, you must have a solid background on your research area before you even embark in the programme. Well I think I am the opposite. I have travelled in quite a number of research areas / areas of interest before I end up abruptly in International Investment Law as my area of concentration. And before I realize it, I have to catch up quick, very quick.

I see masters students here have undergone their investment law classes, and thus it is quite weird introducing yourself during the first two months after enrolment that ‘ I am doing my PhD, in investment law’, when you have almost no basic on it. And so, I started to audit classes. I have audited Investment Arbitration Practice, which is meant to be an advanced class. My supervisor said that it doesn’t matter if you have not audited the prerequisites, because you are a PhD student. On that juncture I knew that I have to work extremely hard so as not to seem so apparent to be ‘one who is very new in the area’.


This is the picture of my classmates.


My Singapore friend gave me a remark, ‘well, you have to start somewhere’..

It appeared that the whole class was actually a mooting activity, organized systematically by the instructor. The instructor was a prominent figure ( I have googled his name, and it appeared on top of the list), an American lawyer from an international law firm who has represented in many arbitration cases and has also the experience as an arbitrator in many investment tribunals. When I say many, I really mean ‘many’ cases….he seemed to have a role in almost all of the cases. Just imagine how lucky we were in his classes, as we suddenly believe that the long, winding ICSID cases we read seemed very close and real with all the spices of details from the instructor.

We got our group, we did our memorial (or rather, skeleton of arguments), submitted it and got ready for our presentation the next day. The whole thing seemed smooth, maybe because of the way the instructor conducted the course, we practically were able to present our arguments well, using the key cases correctly ( at least not in haywire). I compared this to the days my students were preparing their memorials for international mooting competitions, they had all the difficulties to understand the moot problem, researching the materials etc and always led to tears of emotions and conflicts.

These are the cases that we started with in the one week course:

Azinian v. Mexico
AMT v. Zaire
CMS v. Argentina
CMS v. Argentina (Merits)
CMS v. Argentina (Annulment)
Enron v. Argentina
Inceysa v. El Salvador
Loewen v. United States
Metalclad v. Mexico
MHS v. Malaysia
MHS v. Malaysia Annulment
Mitchell v. Congo (Annulment)
Parkerings v. Lithuania
Romak v. Uzbekistan
Salini v. Morocco
SD Myers v. Canada
Tokios Tekeles v. Ukraine
Tokios Tekeles v. Ukraine (dissent)
Wena v. Egypt

One quite interesting part was that the Malaysian Memorial for MHS v Malaysia, was prepared quite well. The instructor said that it was quite a good example for a country like Malaysia which has no experience in ICSID, could prepare like that. (Well, the main reason the Malaysian memorial was taken as an example was because the parties – Malaysia-UK had consented that all the statements/ documents issued are transparent and would become public domain, unlike other disputes) . And of course, there are other memorials which were better, except that they are not available on-line. From my quick glance of reading, I have came across a few other Malaysian cases like Gruslin.

The MHS v Malaysia Annulment was controversial as well. Especially on the point ‘ whether the investment contributed to the economic development of Malaysia’…

The course was fun.