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Danov, M --- "Teaching international commercial arbitration at postgraduate level – techniques for enhancing students' learning" [2011] LegEdDig 35; (2011) 19(3) Legal Education Digest 12


Teaching international commercial arbitration at postgraduate level – techniques for enhancing students’ learning

M Danov

Law Teacher, Vol. 45 No. 1, 2011, pp 101-113

The international commercial arbitration modules that are increasingly taught at postgraduate level at British universities seem to be quite popular among students who have not obtained their first law degrees in the UK. Whilst the seminars, which require a great deal of independent study, may be a valid mode for teaching postgraduate students who have graduated in the UK, the same may not be true for teaching postgraduate students who have obtained their first degrees abroad.

It is well established that teaching methods are among the factors which shape students’ learning. In other words, if students’ learning is to be enhanced, then the teaching techniques should be carefully selected. While the seminars, which require a great deal of independent study, may well be a valid mode for teaching postgraduate students who have graduated in England, the same may not be true for teaching postgraduate students who have obtained their first degrees abroad. The question is: What teaching method (or mix of teaching methods) is to be used to teach international commercial arbitration at postgraduate level? In order to provide an adequate answer to this question, due consideration must be given to the diversity of the student body and the different ‘learning styles’ that need to be accommodated by the chosen teaching technique.

The project involved the use of a number of teaching techniques by the author for a trial period (i.e. an academic year). More specifically, during the course of the year, the students have been taught through the following methods: ‘lecture-textbook’ method; case study method; Socratic method; problem method; and research method. At the end of the course, the students were asked to fill in a questionnaire that was meant to find out answers to a number of questions which were to do with: the students’ educational background (ie. their first degrees); their learning techniques and strategies; students’ preferred teaching methods; students’ preferred assessment techniques. In other words, the questionnaire was meant to explore the students’ feelings and attitude to the teaching techniques that were used. The questions were worded to be as open as possible.

The participants’ consent was sought – all questionnaires were anonymous and the respondents were free not to complete them. The collected data were analysed using SPSS statistical software. The participants’ responses were carefully considered before deciding which teaching methods should be used to teach international commercial arbitration at postgraduate level. In view of the completed questionnaires, there are several issues that need to be considered in this article.

In order to adopt a teaching method that is meant to promote a ‘deep’ approach to learning, postgraduate students’ behaviour, thinking and personal preferences, which may be influenced by their past learning experience, need to be understood. In this context, it should be pointed out that the students’ responses clearly indicate that there is a diverse postgraduate student cohort, who may well have different learning styles that need to be accommodated.

The first challenge is to do with the fact that a great majority (more than 90 per cent) of LLM students at Brunel University are not native speakers of English.

Secondly, the large number of postgraduate students who have not completed their first degrees in England might suggest that there could be postgraduate students with different cultural backgrounds. The cultural background of some students may make their adaption to the style of teaching at Masters’ level difficult unless they are properly guided.

Thirdly, the majority of the LLM students who filled in the questionnaires come from civil law jurisdictions (ie. countries with a Germano-Roman legal heritage) where the academics usually play a greater role than national judges in systematisation and development of laws. As a result, the students who obtained their law degrees from such jurisdictions may find it difficult to read and analyse common law cases. Therefore, it should not be expected that the law graduates from civil law countries would be able to analyse common law cases without some guidance being given to them. There would be even stronger arguments for providing such guidance if some of the arbitration module attendees had no law degree before entering the course which is a possibility at postgraduate level. The issue is what methods need to be adopted in order to teach such a diverse student body effectively. Before answering this question, a brief review of the methods by which our students have been taught during the course of their prior studies will be made.

The teaching methods that students had experienced may suggest that they have different learning styles that need to be taken into account, if a deep approach to learning is to be encouraged.

The lecture/textbook method appears to be still widely practised in some of the civil law countries. In these countries, the students’ instruction would normally be done by lectures and students would be aided by textbooks that are intended to incorporate the legal principles. As a result, some postgraduate students in English universities might not have prior experience of making critical analyses of the law and may not have been accustomed to discussion-based approaches to teaching.

Although the lecture/textbook method, by itself, would not suggest that the students necessarily had a surface approach to learning, teaching through such a method could have encouraged that surface approach to learning in the students. Indeed, a major drawback of this method is that the students may assume that the author of the textbook and/or the lecturer have fully researched and examined the subject, so that they have found for them what is the law and how it should be applied. Another disadvantage of using the lecture/textbook method is that students do not interact much with the teacher during the class. This clearly suggests that the adoption of the lecture/textbook method as a sole method of instruction may not promote a deep approach to learning at postgraduate level.

The main argument for adopting the case law method was that ‘the students learn better when they participate in the teaching process through problem-solving than when they are passive recipients of the teacher’s solutions’. The method involves student examination of judicial decisions through the use of the Socratic method for the purposes of class discussions. The students were not lectured, but were asked to read the reported cases and to derive the relevant legal principles. The case method for teaching in law was introduced at Oxford in the 1880s, where it was favoured by Sir Frederick Pollack. An obvious advantage of this method is that it may be used to develop students’ ability to think like lawyers. The case law method may also be well received by the students as it gives them an opportunity to discuss and learn law by using real cases and engaging with arguments put forward by legal practitioners. Thus, it can certainly be used to promote a ‘deep approach’ to learning in law. It may also be a tool that may be used to acquaint postgraduate students from civil law countries with the ‘common law’ type of legal thinking and analysis.

However, the case law method has its drawbacks and has been subject to severe criticism. Llewellyn argues that it would not be possible for the students to develop principles: ‘unless such principles are clear and articulated (at need) to the instructor before the case-class begins, the class becomes not teaching, but hit or miss experiment’. In view of the foregoing, it is an open question whether the case law method should be used in its original format (ie. coupled with a Socratic-style analysis). Indeed, the fact that a very small part of our respondents (less than 10 per cent) had been taught through the use of the Socratic method shows that the classical case law method would be a rather new experience for a great majority of postgraduate students and probably should not be adopted on its own.

The students’ responses also suggest that about 20 per cent of them have been taught through the problem method. The problem method aims to make ‘students learn law by using it in working out concrete legal problems’. The students would do well if: all the major issues and most of the minor issues are spotted; the application of the legal rules is accurate and comprehensive; the application of the legal rules is insightful (ie. the candidate has demonstrated that s/he can both distinguish cases on their facts and argue by analogy). While the problem method has advantages, it should be used very carefully at postgraduate level, where some of the international students might need some time before being asked to solve legal problems, engaging with common law cases and arguments (contra-arguments) put forward by legal practitioners.

The foregoing analysis leaves no doubt that a large majority of postgraduate students in law had been taught by a variety of teaching techniques before starting their LLM study in England. This leads us to the following questions: What are the participants’ preferred teaching methods? How do they learn?

The collected data clearly demonstrate that a great majority of our respondents learn best by combining different strategies such as reading from a variety of sources, discussing ideas with tutors and peers, completing assignments, answering problem-style questions. Indeed, only four out of 21 respondents learn best by reading mainly textbooks. Therefore, this may be seen as conclusive evidence that postgraduate students have commitment to understand the material and a deep approach to learning could be promoted, if appropriate teaching methods and assessment tasks had been adopted.

In view of the foregoing, it can be concluded that the diverse student body attending the international commercial arbitration modules offered at postgraduate level across England would be best taught by a mixture of teaching methods. More specifically, the fact that the majority of postgraduate law students in England might have a civil law background and might be often accustomed to the textbook/lecture method seems to suggest that at least at the beginning the teaching sessions should open with a mini-lecture that introduces the students to the main legal issues. In this context, the textbook/lecture method is to be employed which will enable the tutors to make a short literature review for the students, introducing the competing schools of thought and different solutions adopted in the major jurisdictions. This technique may be used to implement research-tutored teaching that may be used to encourage students to engage with the relevant academic literature.

The second part of the class should be devoted to class discussions, in which the students would be asked to apply the law that had been introduced to them during the course of the first part of the class. This part will be very important as some of our respondents appear to learn best by participating in (or listening to) the seminar discussions. For the purposes of the class discussions, the case law method and the problem method could be employed. It seems to me that, at the beginning, the case method would better serve the needs of postgraduate students as a large majority of them would need to develop their skills to analyse common law cases. In this context, the students should be gradually involved in the class discussions. It would be better if the students are approached with easier questions at first. Then the tutor may help them to find out the reasoning of the court judgment, so that students may be asked to consider whether the case followed others that the class was introduced to. After the first four classes the students may be asked to discuss a problem-style question which would invite the students to identify several legal issues that had been discussed over the course of the previous seminars. For these purposes the students will be asked to advise a (fictitious) client on the application of law to a given set of facts. Thus, a problem method will be used in this context.

The participants’ answers clearly confirm that they have benefited from the use of the visual aids. This should be kept as a supportive tool for teaching at postgraduate level. Indeed, a careful use of PowerPoint may encourage the students to discuss more actively the relevant issues and keep them focused on the legal issues in question. Thus, the selected teaching methods and the use of visual aids may well promote the problem-based learning at postgraduate level.

The adoption of a mixture of teaching methods may also be used to promote the personalised learning that considers the ‘individual [student’s] interests, needs and abilities and finding out the best learning style for each [student]’. Furthermore, the adoption of a mixture of teaching methods would also enable postgraduate students to make use of the research method and do follow-up work that is suited to their individual learning styles.

The research clearly shows that if we want to promote a ‘deep approach’ to learning, then we need to adopt a mix of teaching methods that considers the individual interests, needs and abilities of each individual student. A mix of teaching methods that considers a variety of learning styles and needs would also be appropriate if some of the postgraduate students attending an international commercial arbitration module had no law degree before entering the course. If the right mix is adopted, in order to address the needs of the diverse student cohort, then postgraduate students’ learning will be certainly enhanced. This deduction can certainly be strengthened by the overall students’ performance at the exam that takes place at the end of the course.

The students’ responses and the lecturer’s experience during the course of the academic year in question clearly show that while the seminars, which involve active class discussions, may be a valid mode for teaching students who have obtained their first degrees in England, the same may not be true for teaching postgraduate students who have obtained their first degrees abroad. It appears that a better outcome would be reached if the class discussions were preceded by a mini-lecture that promotes research-tutored teaching and presents a short literature review for the students. Such a mini-lecture, when followed by seminar discussions, employing the case and/or problem method, would encourage the students to learn by participating in (or listening to) the discussions. Further, such an approach would encourage the students to better their understanding of the issues discussed by doing follow-up reading and will certainly promote a ‘deep’ approach to learning.


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