In the preparation and conduct of litigation no area of law is more important than the law of evidence. Advanced Evidence aims to provide students with an enhanced understanding of the law of evidence. This subject focuses on key provisions of the uniform evidence legislation, which now operates in all Commonwealth, Victorian, New South Wales, Tasmanian, Australian Capital Territory and Northern Territory courts, and primarily examines the law of evidence in the context of criminal proceedings, where it is is strictly applied. Students can expect to refresh, deepen and develop their understanding of the factual, legal and policy issues associated with the law of evidence and to learn to analyse the admissibility of evidence at an advanced level

This subject is primarily based on a detailed examination of those rules of evidence regarding admissibility that are of particular significance in trials, especially criminal trials.

Principal topics may include:

• Relevance
• Hearsay evidence
• Opinion evidence
• Admissions
• Tendency and coincidence evidence
• Credibility evidence
• Identification evidence
• Discretionary and mandatory exclusion of evidence.

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Dispute resolution and problem-solving lie at the core of modern professional life for lawyers, business people and anyone who works with more than one other person. This subject provides an overview of the range of dispute resolution techniques used internationally. This subject differentiates the most prominent dispute resolution methods, including traditional litigation, arbitration (in its many forms, including international commercial arbitration negotiation) and mediation (also in its many forms, including partnering, mini-trials and dispute resolution coordinators). It also includes skills training in negotiation and mediation, designed to increase effectiveness in both resolving disputes and enhancing problem-solving abilities.

Principal topics include:

• The nature and varieties of disputes, how they arise and how they are avoided
• The options for resolving disputes: litigation, arbitration, negotiation, mediation and conciliation
• Factors considered by people when they choose a dispute resolution method, including social, cultural and economic factors
• Relevant law reform initiatives, with an emphasis on Australia, other common law countries and selected Asian countries
• Cross-cultural issues in the dispute resolution process
• The roles of judges, lawyers and the courts in the alternative dispute resolution process
• An analysis and comparison of the dispute resolution processes in environmental and native land title disputes, with an emphasis on Australia, Canada and the United States
• Basic skills for successful negotiation and mediation, including theory and practical exercises.

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The complexities of the commercial and technical environment in which construction projects are undertaken make disputes virtually inevitable. Participants in the industry – whether lawyers or industry professionals – therefore need to be aware of, and able to apply, a range of dispute avoidance and management techniques when putting together contractual documentation or administering projects. These options are constantly evolving, with recent examples including the increasing use of disputes boards and court-initiated procedures such as those being implemented by the Technology Engineering and Construction List of the Victorian Supreme Court.

The subject lecturer, David Opperman, is able to bring to the classroom extensive experience in the active resolution of disputes in construction projects by mediation and other alternative dispute resolution processes, as well as through international and domestic arbitration and litigation processes. He also involves guest lecturers who have specialist, cutting-edge experience in dispute avoidance and alternative dispute resolution techniques.

Principal topics will include:

• Construction contract provisions relating to disputes: Objectives, approaches and enforceability
• Conflict: Conflict patterns and management
• Communication and negotiation skills
• Dispute Avoidance Procedures (DAPs), Dispute Review Boards (DRBs), Dispute Adjudication Boards (DABs) and dispute resolution advisers (DRAs)
• Alternative Dispute Resolution (ADR): Mediation (including mock mediation), senior executive appraisal/ mini trials, non-binding and binding expert determination, domestic and international arbitration and hybrid and multi-tiered processes
• Selecting the most appropriate form of DAP and/or ADR processes
• Process dynamics, options and strategic issues, including paths to ADR.

This subject focuses on skills and strategies that are key to negotiating, swaying and influencing counterparties in business negotiations and deal-making. In this subject, skills will be developed by constantly improving as business negotiators by asking the right questions, framing issues, gaining lessons learned, defining success metrics and negotiating with others with different skill-sets, perceptions and backgrounds. The subject will have a particular focus on negotiations in cross-border settings. The teacher is a leading expert in negotiation training, having taught and researched at prestigious institutions such as Berkeley, Stanford and Harvard, and trained executives at some of the world’s largest companies. He will draw on both real-world transactional and academic experience in leading the subject.

Principal topics and skills include the following:

• Understand why conflict arises between people and business organisations, within both a domestic and international context
• Assess and apply various strategic frameworks in diverse settings (business-to-business, private-public sector, etc)
• Define specific success metrics within diverse teams and groups before, during and after business negotiations and deal-making settings
• Apply and leverage the main conceptual frameworks related to transaction planning and conflict resolution within diverse environments - including distributive, integrative, and mixed motive negotiation styles (among others)
• Analyse and synthesise business negotiation theories, skill-sets and studies as current or future business negotiation professionals
• Recognise implicit and explicit biases and nudges that may hinder or help business negotiations, while developing strategies on how to bridge and create value from such gaps
• Develop, and learn how to continually develop, a value-added business negotiation toolbox and confidence as business negotiators and deal-makers
• Understand key contractual terms that may pivot business negotiators and negotiations
• Enhance effective communication skill-sets, both verbal and nonverbal, and develop an empathetic understanding of how and why counterparties may see things differently from you and your business unit
• Possess an overall understanding of the nature of disputes and conflict resolution, including ethical, cultural, economic, psychological and emotional factors.

Class actions have become an increasingly prominent feature of Australia’s litigation landscape. Some people think they enhance access to justice, offer an efficient way to deal with large numbers of claims and function as an effective regulatory tool, while others criticise them as improper ‘private’ regulation or as just another way for lawyers to become wealthy. Students will have the opportunity to critically evaluate these views. Law reform proposals will be considered, as will the development, present state and likely future directions of the law and practice of Australian class actions. While the focus will be on Australia, methods used in other countries to bring and manage group proceedings will be considered and compared. Students will have the opportunity to engage and debate with lecturers and guest lecturers with substantial academic, practice, judicial and international experience.

Principal topics include:

• The origins of modern class action regimes in Australia
• Comparisons of the federal and Victorian regimes with those in other Australian and overseas jurisdictions
• The main stages of class action litigation
• The roles of lawyers, judges, parties, litigation funders and regulators
• Specific issues, including choosing a forum, defining the class, the role of the lead plaintiff, entrepreneurial lawyering, identifying and notifying class members, settlement and court approval
• Comparing class actions with other procedures available for bringing and managing complex litigation
• Securities class actions and the regulatory role of the class action
• Funding and costs issues, including the role of commercial litigation funders.

This subject provides an outline of the UNCITRAL Model Law legislation and the LEADR & IAMA Rules and a detailed analysis of the procedures involved in the conduct of domestic commercial arbitration proceedings. It will provide lawyers involved in the conduct of such proceedings and practising arbitrators with an opportunity to develop a comprehensive understanding of all elements of the process. The subject includes consideration of the principles of procedural fairness, the law of evidence and their application to commercial arbitration proceedings. The subject will also include written exercises intended to develop skill in the process of decision-making and the writing of decisions and awards in arbitrations.

Principal topics include:

• An introduction to the UNCITRAL Model Law legislation
• A detailed analysis of procedural rules and their use in the course of proceedings
• Identification of issues, pleadings and issues statements
• Evidence, documents, statements of evidence and admissibility generally
• Expert evidence, identification of issues, adoption of rules and procedural control
• Procedural fairness and its application in practice
• Procedural efficiency and control of the process
• The process of analysis of evidence and reasoning
• Award writing.

Constitutional Law in Practice focuses principally, but not solely, on the litigation of constitutional matters in the High Court of Australia. In recent years, the High Court has been very active in the constitutional arena, and it is important to understand not only the substance of the issues the Court has dealt with but also how constitutional cases come before the High Court (and other courts), the process by which they are heard and decided and the relief that can be granted. In addition, constitutional law arises in practice in non-litigious settings, in particular in the provision of advice to government (both from government lawyers and from independent practitioners). This subject aims to critically evaluate the practice of constitutional law and to build key skills, such as written and oral advocacy. To that end, the assessment takes the form of preparation and presentation of both the written and oral aspects of an application for special leave to appeal to the High Court. The subject will also involve presentations from leading constitutional law academics and from practitioners who appear regularly in the High Court.

Principal topics will include:

• Initiating a constitutional case
• Bases of jurisdiction
• Remedies
• Applications for special leave
• Written submissions
• Oral argument
• Use of comparative and international materials
• Interpretation and overruling
• Interventions and amicus curiae
• Consequences of invalidity
• The case studies will be based on recent major constitutional litigation before the High Court. Issues to which attention will be paid in relation to each case study include:
  − The basis of the decision to litigate
  − Any impediments to litigation
  − The jurisdiction of the High Court, including the need for special leave
  − Standing
  − Justiciability
  − The choice of remedy or remedies
  − Forensic strategy
  − Methodology of the High Court, as revealed by decision
  − Reflection on the nature of judicial review.

This subject provides a broad overview of the range of dispute resolution options available to parties in relation to construction disputes, as well as detailed insights into the practical aspects and policy drivers of these options. It provides an opportunity to understand how to efficiently conduct construction dispute procedures in various Australian courts, arbitration (both domestic and international) and expert determination. It also engages with key industry debates about the rational reform of dispute processes in Australia and internationally. The lecturers bring extensive dispute resolution expertise to the subject and have been involved in many of Australia’s most significant construction-related disputes.

Principal topics include:

• Practice and procedure in the Supreme Courts of New South Wales and Victoria and the Federal Court of Australia, considering differences and assessing where best practice lies
• Evidence for construction cases—how to identify what is necessary for the principal claims that arise in construction cases (eg variations, delay, prolongation and latent conditions claims)
• Special issues relating to expert evidence and practical issues arising from the rules of evidence
• Pleading claims
• Problems with discovery and how they may be solved (this involves a review of the policy considerations that underlie the recent changes to the Federal Court Rules and the Victorian Supreme Court Rules, as well as practice in international arbitration)
• Managing the trial or hearing so that it is as efficient as possible
• The appeal process that is available
• The domestic arbitration legislative framework: how it can be used to improve the efficiency of dispute resolution
• Issues of proof in complex disputes, focusing on delay and disruption claims.

This subject aims to teach Australian criminal procedure in depth. Successful students will understand the Australian criminal process, from investigation through charge, pre-trial, plea, appeal and ancillary phases. Students will be familiar with the key legislation and with the major cases applicable. The subject is directly relevant to criminal practice Australia-wide, and has additional relevance to practice in public law.

The subject also engages with the laws and policies which shape criminal procedure as applied in court.

• First, recent Victorian legislation impacts directly: students will study the application and effect of the Criminal Procedure Act 2008 and the Jury Directions Act 2013.
• Secondly, recent High Court authority impacts directly: students will consider the effect of Lee v The Queen [2014] HCA 20 and X7 [2013] 248 CLR 92, the ‘public law’ quality of criminal procedure, and the development of the ‘principle of legality’.
• Thirdly, international human rights norms impact: students will consider international materials (the ICCPR, selected ICTY and ICC decisions and materials, and selected cases from national courts outside Australia) and understand how these notions can apply in practice in Australia.

Principal topics include:

• Fundamental concepts: the criminal process, the principle of legality, the relevance of human rights to the process, the notion of a fair trial
• Investigation: jurisdiction, warrants and coercive orders.
• Charge and Indictment
• Pre-trial management: media, bail, victim and witnesses, asset freezing
• Disclosure of the case and the evidence
• The trial process
• Sentencing hearings
• Appeals, review and clemency.

Civil litigation is experiencing unprecedented levels of reform. Legislative changes, court decisions, changes to court rules and economic pressures are changing the way litigation is practised across the common law world. The proper roles of parties, lawyers, judges and courts are under scrutiny and discussion. The focus of this subject is current and significant issues in civil litigation, with an emphasis on new and emerging developments.

Andrew Higgins is an Associate Professor in Civil Procedure at the Faculty of Law, University of Oxford, and a Fellow in Law at Mansfield College. He is also a practising barrister specialising in mass tort litigation and General Editor of Civil Justice Quarterly.

Bernie Quinn is a Queens Counsel at the Victorian Bar who practices in a wide range of areas including commercial law, public law and product liability law. He speaks Bahasa Indonesian and was an Associate to Justice Michael Kirby. The subject will include guest lecturers drawn from the judiciary and the profession.

Principal topics include:

• Significant procedural reforms in Australia and overseas
• Law reform proposals
• The role of the judge, including case management trends
• Principles of apprehended bias
• ‘Overarching’ obligations of participants in the civil justice system
• Summary and interim relief
• Discovery
• Client legal privilege
• Expert evidence
• Procedural issues in conflict of laws
• Procedural issues in collective redress
• Costs and funding rules
• Appeal processes
• Enforcement
• Alternative dispute resolution
• Online dispute resolution and its impact on civil procedure.

Discrimination and sexual harassment in the workplace represent an overwhelming majority of total complaints made to anti-discrimination authorities. Equality and discrimination at work remain pressing concerns for employees, managers and, more broadly, for society. Achieving equality is elusive and, indeed, the very meaning of equality is highly contested.

This subject explores the legal meanings of equality, with a focus on the frameworks through which Australian parliaments have sought to address inequality, discrimination and harassment. It examines federal and state laws that deal with discrimination, including the four federal laws, the Equal Opportunity Act 2010 (Vic) and the adverse action provisions in the Fair Work Act 2009 (Cth). Consideration is given to discrimination based on race, sex, disability, and pregnancy and family responsibilities. The lecturers in this subject combine many years of academic scholarship in this area, engagement in law reform debates and practical client-focused legal advice

This subject provides an examination of the development and current scope of Australian equality and discrimination law, as relevant in employment and work relationships. It will focus on federal and Victorian jurisdictions.

Principal topics include:

• A study of the framework and key features of federal and state legislative provisions dealing with equality and discrimination in the employment context, including theEqual Opportunity Act 2010 (Vic), the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) and theAge Discrimination Act 2004 (Cth)
• An examination of the general protection provisions in the Fair Work Act 2009 (Cth), including redress for certain types of adverse action
• Debates regarding the meaning of equality, discrimination and other contested concepts such as choice, especially as choice relates to carer responsibilities
• The Charter of Human Rights and Responsibilities Act 2006 (Vic), and its potential impact in the interpretation of the Victorian Equal Opportunity Act
• Conciliation, dispute resolution and remedies
• Alternative regulatory regimes, including the National Employment Standards, equal remuneration provisions under the Fair Work Act, contract law and occupational health and safety issues such as bullying
• Current processes of legislative revision at federal and state level
• The potential for future developments in the field.

Expert evidence continues to play a major role in civil litigation and criminal prosecution, as well as in administrative regulation. Moreover, the field of expertise in law has become the site of numerous contemporary controversies over judicial standards for admissibility of expertise, how to evaluate the reliability of expert testimony and the ethics of experts and attorneys who present expert testimony. This subject is primarily a detailed examination of the law and policy of the regulation of expert evidence in Australia, as well as comparative reform movements of likely significance to Australia in the future, notably developments in the United States. The materials for the subject, most of which are from court files of actual cases, will emphasise the practical uses of expert evidence inside and outside the courtroom.

Principal topics include:

• The legal framework for regulating expert evidence
• Debate and controversies about expertise
• The admissibility of expert testimony
• Restrictions on the conduct of experts
• Use of expert evidence inside and outside courtrooms.

The above topics will be illuminated through the study of specific instances of expert evidence, conduct and regulation that have prompted change and reform or controversy in Australia or other countries, especially the United States.

The applicability and relevance of human rights to armed conflict has become one of the most debated issues surrounding the use of violence internationally and domestically. Traditionally, human rights law and the law of armed conflict were seen to be complementary but also largely incompatible. Yet both have been converging with the laws of war being increasingly ‘humanised’ and human rights increasingly ‘militarised.’ What is involved in this cross-fertilisation? Might it have unintended consequences? For example, some human rights activists have supported war ‘in the name of human rights,’ while many human rights NGOs have considered issues relating to the laws of war to be outside their remit. Does this mean human rights support war? When it comes to the regulation of armed conflict, the laws of war are widely held to be the applicable ‘lex specialis’ in armed conflict, as opposed to human rights. What does it mean for the laws of war to displace human rights as the regime of choice to regulate certain types of violence? Is it a triumph of humanitarianism or of violence?

Principal topics include:

• To what extent have human rights featured in justifications of resorting to violence within and across boundaries? What is the relevance of notions such as ‘the responsibility to protect,’ ‘human security,’ ‘the human right to security’ or ‘protection of civilians’ in building a new global regime of violence?
• What is an armed conflict? How does it displace the normal applicability of human rights provisions? How does the changing nature of armed conflicts justify changes in normative emphasis?
• What is the existing jurisprudence on the applicability of human rights to armed conflict, with particular emphasis on relevant case law of the European and Inter-American Courts of Human Rights?
• How and when do human rights apply extra-territorially? The subject will look at issues arising from military attack, occupation, detention, handover of prisoners, rendition, etc.
• How might human rights help address differently issues of (i) gendered violence, (ii) new weapons such as drones, or (iii) targeted assassinations?
• Should non-state actors be recognised as a greater power to engage in violence and if so in exchange for what?
• Which actors are legitimised by the laws of war or human rights and how do modes of intervention in armed conflict differ?
• How might the emphasis on human rights change the focus of accountability?
• Do international organisations engaging in violence have human rights obligations? What military deployments fall short of belligerency?

Conflicts with intercultural dimensions are ubiquitous in today’s legal practice. Lawyers need cultural fluency to navigate and manage diverse values and expectation, communication norms, and worldviews. Cultural fluency is the ability to communicate and problem-solve across a wide range of differences. As the roles of lawyers change and a growing accent is placed on effective negotiation, the importance of cultural fluency only increases. Experiential education will be used to explore processes, capacities, and creative tools for addressing intercultural conflict. This subject will apply theory, research and practical skills to a variety of practice contexts, integrating insights from neuroscience research.

Drawing on current interdisciplinary literature and case examples from scholarly and personal sources, students will:

• Explore intrapersonal, interpersonal and intergroup dynamics of intercultural disputes
• Learn about processes to address deep-rooted intercultural conflict
• Examine and critique cultural dimensions of conventional dispute resolution processes including in-person and online mediation
• Analyse implicit meanings and cultural values of a continuum of dispute resolution processes as applied in a variety of sectors and settings, including private and public sector organisations and communities
• Identify ways that chaos, complexity and neuroscientific theories inform conflict analysis and implications for dispute process design
• Experience and apply imaginative and creative tools for transforming cultural disputes
• Experiment with somatic, arts-based methodologies including applications and limitations in intercultural dispute intervention
• Apply cultural fluency in a range of case types and practice settings through small-group discussion and practice outside the classroom.

Successful completion of the course will expand participants’ abilities for culturally- fluent analysis, intervention and follow-up as third parties, participants or advocates in negotiation and dispute resolution processes. Participants will learn valuable skills of integrative thinking and creativity through experiential exercises and the final paper.

International commercial arbitration is the most important method globally for resolving cross-border commercial disputes. The focus of this subject is on the basic principles of international commercial arbitration law and is taught from the perspective of both the practitioner advising clients and the scholar interested in advanced research. There will be a particular focus on the desirability of arbitration compared with other dispute resolution methods, the relationships between the courts and arbitrators, drafting techniques and developments in Australia and other countries.

Principal topics include:

• The nature of international arbitration
• Applicable law in international arbitration
• The Australian procedural regime and an introduction to the UNCITRAL Model Law
• Enforcing international arbitration agreements
• Appointment and qualifications of arbitrators
• Misconduct of arbitrators
• Privacy and confidentiality
• Enforcement and challenge of awards.

With the explosion in international commercial transactions in the past decades there has also come a significant increase in cross-border disputes before Australian and other national courts. The aim of this subject is to examine the key principles governing cross-border litigation in Australia, focusing on the questions of jurisdiction, applicable law and the recognition of foreign judgments. The subject is designed for both practitioners and scholars and will be taught by Professor Richard Garnett, a leading expert on conflict of laws in Australia who regularly advises on cross-border disputes, and Dr Albert Dinelli of the Victorian Bar, who completed his Oxford doctorate in the field.

This subject will examine, from an advanced and specialist point of view, litigation of cross-border disputes in a commercial setting. It will consider the key doctrinal principles in the area as well as problems commonly encountered in commercial practice.

Principal topics include:

• Whether a Victorian/Australian court has jurisdiction to consider a matter
• Whether a Victorian/Australian court will decline jurisdiction in a matter by staying its proceedings or whether it may restrain proceedings in a foreign court
• Which law should govern the substantive issues (in the areas of tort, contract and equitable obligations)
• The effect of foreign judgments and orders in Victoria/Australia.

International dispute resolution has increased dramatically in recent years, with the emergence of complex mechanisms for resolving disputes between states and between states and other actors, including international organisations, corporations, and persons. Older mechanisms, such as the International Court of Justice (ICJ) continue to play an important role in resolving key disputes. Through analysis of classic case law and doctrine, as well as recent cases, the student will acquire advanced knowledge of non-adjudicatory procedures (eg mediation), arbitration and judicial settlement in international law. Moreover, this course will explore specialised rules for resolving injury by States to foreign nationals, including foreign investors. The lecturer for this course has appeared before international courts and tribunals on behalf of numerous governments and private actors, has served as the United States agent to the Iran-US Claims Tribunal, and is presently a professor of international law and member of the United Nations International Law Commission.

Principal topics include:

• The international obligation to settle disputes
• Non-adjudicatory procedures, such as negotiation, mediation, and conciliation
• International arbitration, including establishing the arbitral body, typical procedural rules, and salient problems
• The International Court of Justice, including its formation, contentious/advisory jurisdiction, and ancillary issues
• Other international courts and tribunals
• Remedying injury to aliens and foreign investors, including key substantive standards (national treatment, most-favoured-nation treatment) and procedural rules (continuous nationality, exhaustion of local remedies)
• Contemporary cases of significance in this field.

International investment law regulates the entry and operation of foreign investment and is one of the fastest-growing fields of public international law. This subject begins by tracing the historical, political and economic causes for the protection of foreign investment across custom, bilateral and regional investment treaties. It then focuses on the unique system of dispute resolution in this field, which gives private (foreign) actors the right to pursue claims for damages against states. This subject explores a series of case studies to evaluate the impact of investment law across a range of core values, including public health, environmental regulation and the protection of human rights.

Principal topics include:

• Nature, evolution and context of international investment law
• Overview of bilateral investment treaties (BITs), the North American Free Trade Agreement (NAFTA), the Energy Charter Treaty and parts of the World Trade Organization (WTO)
• Scope of protection: definition of ‘investor’ and ‘investment‘
• Relative obligations of non-discrimination: most-favored-nation (MFN) and national treatment
• Obligation to accord foreign investors ‘fair and equitable treatment‘
• Expropriation and the quantification of compensation
• Contract claims versus treaty claims: the ‘umbrella’ clause
• Arbitration under the International Centre for Settlement of Investment Disputes (ICSID) Convention.

Intellectual property (IP) – how effectively it is protected and how it is balanced with other policy domains such as public health – occupies a central, if contested, place in international trade relations. From the mid 1980s, a growing perception that inadequate or unbalanced IP protection was undercutting the economic interests of major economies made disputation about IP inevitable. The resulting tensions were a critical factor behind the inclusion of IP standards in the World Trade Organization (WTO) system of multilateral trade law, in the form of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). Rather than resolving disputes over IP protection through bilateral wrangling and unilateral pressure, the rule of law would be applied in a predictable, transparent and equitable way through the multilateral dispute settlement mechanism maintained by the WTO, building on the major conventions separately administered by the World Intellectual Property Organization (WIPO).

Yet recent years have seen a sharp rise in the conclusion of bilateral and regional trade and investment agreements that establish alternative or complementary sets of standards on IP and mechanisms to resolve IP disputes. The result is an intricate array of overlapping substantive standards and parallel forums for dispute settlement. This subject enables the student to navigate this complex legal landscape and to deal with its consequences from the point of view of dispute settlement practice, from the perspective of legal principle and public policy impact, and in terms of international governance and the management of trade and political relations. The lecturer offers insights from extensive experience as a senior official in both the WTO and WIPO, as an Australian official engaged in litigation and negotiation, and as a legal and policy analyst.

Principal topics include:

• A practical anatomy of international intellectual property conventions, standards and institutions: from the creation of the major multilateral systems within WIPO and the WTO, to the current trend towards bilateral and regional deals
• The political economy of international intellectual property: the economic, political and technological factors driving disputation over IP and the creation of competing dispute settlement mechanisms
• The core principles of international IP law: IP principles and the idea of 'balance', the preservation of 'space’ for domestic law and policy, and the integration of trade law and public policy principles into international IP law
• The distinctive features of international IP dispute settlement: cause of action, sources of law, remedies and challenges for treaty interpretation
• Dispute settlement practice and emerging TRIPS jurisprudence under the WTO: a survey of TRIPS disputes and the use of TRIPS in cross retaliation, and a close analysis of landmark disputes
• The evolving architecture of bilateral and regional trade and investment agreements covering IP: the practical implications for treaty interpretation, for the initiation, management and settlement of IP disputes in multiple fora, and for domestic law and policy
• Compliance and monitoring of compliance: the institutional mechanisms, and the sources of information for practitioners and government officials, for legal and policy analysts and for scholars.

In this subject, students will act as lawyers advising an international investor in a hypothetical investment project in a developing Asian jurisdiction (based on real life experience of the subject coordinator). Students must identify the legal risks and potential disputes in this developing environment and advise ways to mitigate such risks and avoid or resolve disputes. Students will study relevant laws, draft contractual documents, analyse legal issues, give advice, negotiate with the local government, project finance lenders and other parties and bring the deal to closure.  Students are also involved in a dispute scenario arising out of the transaction.  After the subject, students are expected to have an overview of the key risks and potential disputes in investment deals in developing Asian systems and ways to mitigate such risks through negotiation and documentation. Students can also research more deeply into particular legal issues such as expropriation, change in law, currency conversion or performance by state-owned companies and dispute resolution. Throughout the subject, students will study different areas of law such as investment, administrative, conflict of laws and international dispute resolution.

Principal topics include:

• General overview of risks and potential disputes for investors
• Risks of expropriation
• Risks of illegality
• Performance by state-owned enterprises
• Currency conversion
• Permits and regulatory approvals
• Choice of law, dispute resolution and the arbitration process
• Negotiating with local counterparties and international project finance lenders
• Resolving disputes and closing the deal.

This subject seeks to understand how judges arrive at judgments and thus the complex question of adjudication. By examining key elements of the vast literature that has analysed the process of adjudication, the course attempts to develop the conceptual tools by which each student can approach the reading of judgments of courts. The subject then intensively discusses a number of important cases from various jurisdictions – the United Kingdom, the United States, Australia, South Africa and Canada. By applying the insights learned from the earlier conceptual discussion, the course examines the judicial mind that has given rise to the judgments so studied. In this way, the subject talks to practitioners who litigate and can reflect on the means of help shaping the judgment they so seek, as well as to those lawyers who wish to develop a comprehensive understanding of both the theory and practice of adjudication.

Principal topics include:

• A critical reading of key texts – Hart, Raz, Fuller, Dworkin, Habermas, Derrida and Kennedy
• Language, linguistic theory and the law
• Reading judgments (Australian and comparative) – both in the area of constitutional/human rights law and private law
• The impact of political emergency upon the judicial function/adjudication.

With a primary focus on experiential learning and interactive discussion, this subject will provide a practical guide to the use of mediation in resolving disputes and to the legal environment in which mediation takes place. The objectives of this subject are to identify where mediation sits among available dispute resolution processes; its distinguishing characteristics and advantages; the applicable legal environment; to learn to apply mediation principles and techniques in the resolution of disputes; and to explore topical issues in mediation, including different regimes applicable to the admissibility of evidence of communications within mediation.

The lecturers are lawyers who have led and been at the cutting-edge of developing mediation and other ADR techniques. They are nationally accredited mediators and also have substantial experience in teaching and training in this field.

Principal topics include:

• Identifying the characteristics of different dispute resolution methods
• The roles of facilitative and evaluative techniques in mediation
• Practising mediation techniques in mediation scenarios
• The legislative environment in which mediation takes place
• Case law and guidelines for lawyers applicable to mediation.

Mediation has become the likely forum for the resolution of most disputes – whether convened voluntarily, by contract, statute or court order – but its inherent confidentially makes it hard for outsiders to understand fully.

This subject will cover the majority of the material required for Accreditation under the National Mediator Accreditation Scheme (NMAS), but also recognise that mediation needs to be understood by all involved, not just future mediators.  In light of this, it will examine the roles of solicitors and barristers, other advisers and experts, and the parties themselves. It will do this through teaching by Andrew Moffat, who regularly mediates commercial disputes in Melbourne and Sydney, supplemented by guest lecturers who fill these roles in mediations.

It also recognises that mediation is – and must maintain – a uniquely flexible process capable of very different approaches based on the context of the dispute. Guest lecturers who are expert practitioners in other dispute contexts will share their insights.

Students will develop a sophisticated understanding of current mediation theory and practice, and learn to put this learning into practice as mediators and mediation participants, through extensive involvement in simulations. Finally, students will learn about the mediation industry and the business and career elements of developing a mediation practice.

Successful completion of this subject, and a complete attendance record to all sessions, is expected to be credited for 60 per cent of National Mediator Accreditation Scheme training, under the auspices of the Resolution Institute, which will offer students the opportunity to study the remaining 40 per cent required for NMAS accreditation.

Principal topics include:

• Mediation within the broader context of dispute resolution
• Moving from positions to interests
• Standard NMAS mediation model
• Key concepts – voluntariness and empowerment
• Triggers for mediation – optimising timing where possible
• Mediator skills and when and how to intervene
• Changing dynamics in joint sessions
• Mandatory mediation as public policy
• Typical participants and their roles
• Alternatives and options in private sessions
• NMAS Approval and Practice Standards
• Setting the scene – the opening statement
• Mediation challenges – complexity and ethical issues
• Optimising mediation in cross-cultural disputes
• Mediation as a career.

2017 marked the 25th anniversary of the landmark Australian medical law decision Rogers v Whitaker. Medical litigation remains an exceptionally vibrant and challenging field, underpinned by the rapid pace of scientific and social developments that generate new issues for the law. Many of the more challenging issues are at the core of policy – birth, reproduction and death. The legal issues are fundamental, covering the existence of duties, what should be considered negligent, the challenges of legal causation and the appropriate compensation regime – all against a background of insurance affordability, the ongoing health and safety improvement mechanisms, the reporting and disclosure agenda and the Australian National Disability Insurance Scheme. This subject examines the framework of medical litigation, current challenges and issues on the horizon.

The subject presenter Bill Madden is a lawyer specialising in medical litigation, the co-author of two health law texts and a regular writer and presenter on medical law topics.

Principal topics include:

• History and incidence of medical litigation
• The impact of recent legal and court-based reforms including mediation
• The medical indemnity marketplace and government intervention
• Duty, breach of duty and statutory defences/special protections
• Consent, informed consent and treatment errors—the legal differences
• Causation and loss of chance
• The importance and changing framework of expert evidence
• Privacy and confidentiality issues
• National regulation, conduct and crime
• Mandatory reporting impacts
• Coroners’ investigations and hearings.

This highly interactive subject will give students practice-relevant skills for negotiation and dispute resolution. Negotiating effectively involves being able to change the conversation, shifting from adversarial to collaborative approaches. The best negotiators are also skilled at structuring processes and listening beneath what is said. This program will introduce a proven framework for creating value and resolving disputes, informed by recent research and extensive practice. Using experiential approaches, case studies and simulations, participants will deepen their abilities to represent clients and negotiate across a range of practice contexts. Participants will have multiple opportunities to refine their negotiation and dispute management skills, and will leave with a series of practical tools for dealing with difficult negotiation behaviours and hard bargaining tactics in diverse settings. This subject will be useful for those working on a wide range of complex issues in a range of contexts including commercial, environmental, public policy and human rights.

Drawing on current interdisciplinary literature and case examples from practice, students will:

• Learn a proven framework for dispute analysis and negotiation to address a range of disputes
• Understand the dynamics of intractable disputes and a range of tools to address them
• Heighten their awareness of personal strengths and weaknesses as a negotiator
• Gain problem-solving techniques to enhance possible solutions in complex negotiations
• Acquire skills for choosing the right process to craft durable outcomes
• Heighten their abilities to work across diverse contexts
• Practice and refine negotiation and dispute management skills toward more successful outcomes

Successful completion of the subject will expand participants’ abilities for complex issue analysis, intervention and follow-up as negotiators, representatives and facilitators in negotiation and dispute resolution processes. Students will learn valuable skills of integrative thinking and creativity through experiential exercises and their final papers.

Irrespective of their speciality, lawyers must negotiate. Litigators resolve far more disputes through negotiation than by trial. Business lawyers in every domain negotiate on behalf of their clients. Public interest lawyers, in-house counsel, government lawyers, criminal lawyers, tort lawyers and commercial litigators all share the need to be effective negotiators. However few lawyers have any systematic understanding of why negotiations often fail or have suboptimal results, the dilemmas inherent in negotiations, or the characteristics of effective negotiators.

By combining theory and practice, this subject should improve students’ understanding of negotiation and effectiveness as negotiators. This subject should improve their ability to prepare for a negotiation, to engage others in joint problem-solving, and to select appropriate strategies when negotiations don’t go well. Above all, this subject will equip students to continue refining their skills as they gain more experience.

Florrie Darwin has taught negotiation skills to students, as well as a broad range of professionals, around the world.

Principal topics include:

• Introduction to negotiation principles
• Basic framework for preparing, conducting and reviewing a negotiation
• Giving and receiving feedback
• Creating value in negotiations
• The challenge of distribution
• Effective listening
• Managing interpersonal differences
• Negotiating via email
• Effective responses to difficult negotiation tactics
• Dealing with structural complexity in negotiation/multi-party negotiations.

Lawyers need to persuade many different audiences, including their clients, their opponents, their employers and employees, juries, the courts and others. This subject will help lawyers to persuade more effectively, through a mixture of theoretical and practical approaches. Students will read widely about advocacy, persuasion and influence, including from empirical studies and research from disciplines other than law (such as psychology). Students will also develop their practical skills in both written and oral persuasion, led by a very experienced teaching team: Noah Messing from the Yale Law School (and author of The Art of Advocacy), Justice Elizabeth Hollingworth from the Supreme Court of Victoria and experienced commercial barrister and teacher David O’Callaghan QC.

Principal topics include:

• Leading theories of persuasion, in the law and generally
• Empirical research into the persuasion of judges, other lawyers and lay people in a legal context (including juries and clients)
• Empirical research into other instances of persuasion
• Cognitive biases and how the law does—and should—react to them
• The balance between ethics and persuasiveness
• Developing a generalised theory of persuasiveness and how various actors reach various decisions
• Different ways to practically apply those theoretical approaches.

Proof in litigation is primarily designed as a subject for lawyers looking to improve their skills in analysing evidence as part of the process of preparing for adversarial litigation. The subject is taught in a hands-on workshop format and the final day is spent in the Moot Court, putting the preparation into practice.

This subject presents a systematic method for analysing and organising the factual information in a brief or file as part of a lawyer‘s preparation for trial. The method will be taught through its application to a hypothetical case file. While the focus is on trial preparation, application of the method to a matter is beneficial, whether or not the matter ultimately proceeds to trial.

Principal topics include:

• Introduction
• Preliminaries
• Chronologies
• Investigation
• Developing a case theory
• Proving the theory
• Arguing from and about evidence, including: witnesses and other sources of evidence, relevance and the drawing of inferences, negative and missing evidence, probative value and the standard of proof
• Analysing for admissibility
• Pulling it all together for trial.

The resolution of sports disputes has become more formalised and complex over the past two decades, especially with the emergence of international bodies such as the Court of Arbitration for Sport. The importance of understanding the legal principles, processes and skills of sports dispute resolution has never been greater. The lecturers bring to this subject an impressive knowledge and experience in the theoretical and practical aspects of sports dispute resolution at national and international levels.

Principal topics include:

• The legal principles (substantive and procedural) that comprise the ‘ius ludorum’ (law of games)
• Types of sport resolution procedures (domestic and international)
• Techniques for effective advocacy and decision-making in sports dispute resolution.

This specialist subject taught by leading members of the Victorian Bar specialising in tax, teaches all of the legal principles associated with tax litigation. It addresses the system of tax appeals, administrative and judicial review of decisions made by the Commissioner, evidence-gathering and the preparation of objections, tax appeal statements, affidavits, expert reports and legal submissions in a tax case. It explains how tax cases are tried and how they are dealt with at appellate level. It also covers the rulings system, the imposition and review of penalties and the Commissioner‘s rights of recovery. The focus of the subject is on the practical, and not theoretical, application of these principles.

Principal topics include:

• Introduction and the appeals process under Part IVC of the Taxation Administration Act 1953 (Cth)
• Challenging an assessment, objections, objections decisions and appeal
• The audit process and the Commissioner‘s information-gathering powers
• Interlocutory steps for getting a case ready for trial, including the Federal Court Taxation Practice Note No.1
• Written advocacy—the different needs at various stages of the appeals process
• The hearing
• Use of expert witnesses
• Appeals to Federal, Full Federal and High Courts
• The rulings process
• Judicial review of decisions made by the Commissioner
• Recovery of tax.

A properly functioning legal system can be seen as a defining characteristic of modern society. The adversary system can be seen as a defining characteristic of a common law legal system. But as times change, both the common law and the adversary system of trial have changed and will continue to change. What then are the bases of these systems? What corollaries follow from adopting a particular mode of trial? What are the challenges with which the Australian legal system must now deal in resolving disputes? How might those challenges be dealt with and are there implications for what we define as the adversary system and, more generally, the rule of law in a properly functioning legal system?

Principal topics include:

• Development of the common law
• The 20th century adversary system
• The adversary system today and its implications
• Statutes and the common law
• Lessons from other systems
• Complexity – issues, evidence, experts and costs
• Curial method – the law, facts and findings
• Economic and commercial implications – class actions, alternative dispute resolution, arbitration and access to justice
• Legislative and executive power
• Implications for the rule of law and the practitioner.

Increasingly and at all levels of the judicial hierarchy, written submissions are expected of, and are becoming an important tool for, advocates. Written advocacy also plays a role in a range of other legal documents, such as advices, affidavits and statements of facts. This subject aims to critically evaluate the use of written advocacy (principally in litigation) and to develop advanced skills in the preparation of legal documents. There will be a particular focus on written submissions, including written submissions at first instance and on appeal, and including both the factual and legal aspects of submission writing. This subject will focus on effective written advocacy by examining techniques used in Australia and, by way of comparison, techniques used in appellate courts in the United States and the United Kingdom. The subject will involve guest speakers from the judiciary and the Victorian Bar to provide practical perspectives on written advocacy.

Principal topics will include:

• Written advocacy:
  • History and role of written submissions in Australian courts
  • Comparison with oral advocacy
  • Comparison between Australia and the United States and the United Kingdom
  • Submissions at first instance and at appellate level
  • High Court submissions
• The writing, organisation and structure of well-written submissions, with a focus on the various aspects of the submissions, including:
  • Themes
  • Issues
  • Structure
  • Facts
  • Legal Argument
  • Style.

The World Trade Organization (WTO) is at the centre of ongoing debates concerning both fragmentation of public international law and persistent inequities between developed and developing countries. It also provides one of the most active systems in the world for resolving international disputes, with jurisdiction over some of the largest and most significant matters arising today. This subject offers a sophisticated understanding of the WTO and its dispute settlement system, including a detailed analysis of the fundamental principles and jurisprudence of WTO law. The instructors are both leading scholars in WTO law and former Legal Officers with the Appellate Body Secretariat of the WTO.

Principal topics include:

• History and objectives of the WTO
• WTO dispute settlement
• Core disciplines under the General Agreement on Tariffs and Trade 1994 (GATT 1994):
  • Tariff bindings
  • Non-discrimination (most-favoured nation (MFN) and national treatment)
  • Prohibition on quantitative restrictions
• Exceptions to WTO commitments, eg environment, health, public morals, culture, free trade agreements, and special and differential treatment for developing countries
• The regulation of trade in services under the General Agreement on Trade in Services (GATS)
• Current challenges facing the WTO and the Doha Development Round of negotiations.