2015 FDI Moot Feedback

2015 FDI Moot Feedback

Below are comments from arbitrators and teams relating to the 2015 FDI Moot Global Rounds. Some have been slightly edited for clarity. Names have been replaced with “XXX”, “YYY” or “ZZZ”. Manuela (M) and Chris Campbell (CTC) have offered remarks/reactions to some comments in the margin.

From Arbitrators

The teams were terrific and there were a lot of staff and assistants stationed at various places to make navigating the KCL maze easier. That was really terrific.

You might have had copies of the instructions [CTC1]for arbitrators in every room. I know that some of my co-arbitrators did not follow the instructions (re time warnings[CTC2]etc). It didn't matter too much because the teams were quite diligent in monitoring themselves, but I don't think that all of the chairs did the same thing.

I would also place limits on how much the arguers can divide up the argument[CTC3]. I had one session where they had, I believe, six different issues, so that one person had four minutes to present an issue and the other had 2 minutes counter-argument. I don't think this serves them well and it is tremendously complicated to try to monitor as the chair[CTC4].

Everything seemed to run on schedule.

Perhaps it might be better to have a designated order of speakers[CTC5] rather than have the parties agree.

The organization was smooth and effortless and everyone was enormously cooperative and collegial.

The scheduling worked very well and the size/ratios of the moot - number of teams, arbitrators was perfect as it allowed us to get to know each other and what we do.

The evaluation forms for arbitrators should be completed by the students shortly after the argument[M6], and should be turned in to the Directors at the end of each argument. I am not sure how many students will complete the evaluations once they return home, thus a grade type of an evaluation- similar to the one arbitrators complete - should be required to be completed by all students. A subsequent more general feedback form is also a good idea but the key is to get students to grade each argument shortly after it happens.

It might be helpful to have a suggested time for adjudicators and for a reminder on rules and things before every round[CTC7].

In the context of the problem and the argument. An arbitrator's forum should perhaps be scheduled before the start of the competition - maybe between 8:30 to 9:00 am. so that arbitrators have a chance to be briefed on an informal basis of what is expected of them.

The grading system is understood generally but some arbitrators had no idea of how to grade[CTC8].

We all get the reading materials but a brief overview should be helpful to some who do not have much experience with past competitions.

On the bench memo. It appeared clear to me that some arbitrators were not very familiar with all the details of the problem and the issues. The bench memo was pretty good this year but I think a series of questions should be developed (and included after each section) for those arbitrators who do not perhaps have a lot of time to develop the questions. If the bench memo has 10-20 core questions[CTC9], then each arbitrator can simply ask questions that cover all the material. The way the moot works now, the arbitrators need to think of the questions, which is ok for most of us, but some arbitrators do not have that ability due to time constraints.

From Teams

On Arbitrators

Generally, truly great arbitrators. Many were remarkably informed about facts and record, and attentive to the arguments. The top 5 listed above were all fantastic, but it would be a pleasure to see any of those listed above in another hearing.

Unfortunately, one arbitrator, Ms. XXX, stood out as seeming unfamiliar with the problem and the law. Her questions seemed misinformed/confused, and it seemed to disrupt both teams and the hearing.

The level of the arbitrators was one of the highlights of this moot.It was very difficult for me to rank the arbitrators we had in our pleadings.I believed the level of the arbitrators was either very good or excellent.It was very easy to realize that the arbitrators had a thorough knowledge of investment arbitration.

All of the arbitrators we argued before were well versed with the facts, asked great pointed questions, and were fair with the timing if longer questions were advanced by the tribunal.

In our first panel (composed of Mr. YYY, Mr. ZZZ and Mr. XXX) our second speaker was not granted the right of surrebuttal and we did not receive feedback. Moreover, extra-time was granted to the other team but we did not receive a time-extension. Even though we did not ask for more time, at other panels tribunals have expressly declared that the same amount of minutes granted to the team which exceeded its time would be available to the opposing speaker addressing the same issue.We stood as Respondent and our first speaker on jurisdiction did not exceed his time since the advocates were warned by the Tribunal that time extensions would not be tolerated. After that, the speaker for Claimant exceeded her time. That imposed a heavy burden on Respondent since the counsel speaking on jurisdiction did not manage to address all his arguments during 9 minutes but had to face additional arguments presented by opposing counsel for Claimant (who was granted a time-extension of more than 2 minutes) only in his rebuttal (1 minute).[CTC10]

Mr YYY and Mr ZZZ were rather rude in questioning [CTC11]the advocates and show a lack of understanding of and unwillingness to understand the case and submissions from counsel. Mr XXX, Mr YYY and Mr ZZZ were rather arbitrary [M12]in scoring[CTC13].

The overall experience was good and the arbitrators were pretty reasonable. I would like to make aspecial reference to Mr.XXX, Mr. YYY and Mr.ZZZ as they asked very insightful questions as a bench and were patient and fair towards the team.Mr.XXX was also a very good arbitrator and in my opinion had knowledge about the intricacies about the European law and the problem, which was missing in some of the arbitrators.

Despite such a pleasant experience there was a certain arbitrator whose adjudication and criteria for marking I found unreasonable, the bench comprising Mr.YYY, Mr. ZZZ. Being strict with time was reasonable, but Mr. XXX was particularly outraged when due to paucity of time I failed to address one of his questions: Firstly, because there were just 2 minutes of my time left and I had a lot to speak. Secondly, because I was asked to compare a case cited by the opponent team with a case cited by me and I had already done that in the course of my speech for the main case on which the opposing team was relying. When I apologised for not being able to address that question since I had already compared the main case cited by my opponent with my case and also there was paucity of time[CTC14], I was told that it really cost me a lot of points. I understand that responsiveness to question is a crucial factor for a speaker however, an arbitrator has to be reasonable when it comes to time constraint and reasonability of question as a Speaker cannot be expected to compare every case law cited by the other party and be marked down[CTC15] for not doing the same.

For the first moot the arbitrators were fine although it was apparent that one in particular had not read the problem thoroughly[CTC16]. Thus there was a lack of engagement on their part.This was Mr. XXX.

The second moot was far worse. It seemed as if the arbitrators were not listening to the submissions, this was to the extent that one of the arbitrators was cleaning her nails during my submissions (Ms YYY).There was overall a despondency[M17]from the arbitrators in this moot. In this particular moot this was Ms YYY, Mr ZZZ and Mr. XXX.This was during the afternoon on the second day so I can understand there being some tiredness and exhaustion however it is rather disheartening to be given the impression that the judges had made up their minds before I had even started speaking.

As in all moots, some questions were much longer than needed to be. We saw one from Mr. YYY that a participant timed at over 1:40. Otherwise, his questions were actually quite clever.

We had really good arbitrators. However, sometimes they asked too many questions or these questions were too long.[M18][CTC19].

The only constructive observation we have to offer is that arbitrator Mr ZZZ spoke rather fast which made it tricky to correctly understand (and therefore answer) his questions.

The arbitrators that were assigned to our rounds were of qualified ones. However, [in one hearing] all three arbitrators did not practice or have a background of investment arbitration. It would be great if there is at least one arbitrator who knows about investment arbitration so that the assessment will not solely be based on style[CTC20].

Our team has encountered a set of arbitrators that ask intense and critical questions, which we truly appreciate. However, the tone of questioning sometimes becomes too adversarial that the arbitrators are already seemingly arguing with the validity and the merits of the case, which we deem quite inappropriate[CTC21]. Although overall, we are completely honoured to have spoken before such competent and brilliant arbitrators.

All arbitrators seemed to be well-prepared, knowledgeable about the topic, and inspiring for future practitioners like us.

We don't have to make any personalized comment. However, our feeling sometimes was that arbitrators were not so familiar with the facts of the case.

Aside fromtwo arbitrators we faced who were quite impartial, the rest [M22]were very discriminatory in their demeanour and their mode of asking questions.[CTC23]

As a general remark, the majority of the arbitrators before which our team pleaded were extremely professional, both in terms of their training and attitude.However, unfortunately, there have also been two exceptions. Especially one of the arbitrators left us with a really bad impression. Mr. YYY did not bother to meet the standard of conduct required of an international arbitrator in its interactions with counsel. He kept asking the same question for at least 10 minutes after the time of our team member that was pleading before him has elapsed. He was very insisting (in a biased manner) and we could see that, despite our team member trying to be as calm and composed as possible, the impression he left was that he did not like [M24]the person of the counsel. He did not like the counsel personally. He was acting as an angry professor examining his student,rather than an international arbitrator on a level-playing field with the counsel. Were that a real arbitration, we believe no counsel/party would ever recommend Mr. YYY for any future appointments. This is simply not how an arbitral tribunal treats counsel - not even in real life, where conflicts might occur every now and then.The second exception, Mr. ZZZ, seemed to be a little biased against our team when he found out our nationality (he asked our counsel where they came from - i.e. the country, not the specific university[CTC25]).In any event, even with these two unfortunate occurrences, our team was really, really impressed by many of the arbitrators we appeared before!

Mr. XXX sat in the president's chair even though he specifically declared he would not like to chair the proceedings. He commented upon this issue by saying ““I will just sit in this chair, but I will not chair the proceedings”“. Effectively, the proceedings lacked a presiding arbitrator. Furthermore, he had big problems with using English and resorted to French during [CTC26]the match.Ms YYY did not know the case.Mr. ZZZ did not know the case.Ms XXX did not know the case. Furthermore, she did not understand the difference between restitution and specific performance under international law and specific performance as a contractual remedy in common law countries[CTC27].

The best arbitrators that we faced in terms of the attentiveness, involvement in the facts of the case and in the overall procedure were Mr ZZZ and Ms XXX. Really appreciate their work done and special gratitude to Mr ZZZ. The best match was with him asking truly useful questions.

Mr YYY was rude before and after the competition[M28]. I understand he might have wanted to act like a difficult judge during the competition, but he did not have to be rude before and after. I do not understand why he even participated if he obviously did not want to be there.

I think the arbitrators were mostly very attentive and asked good questions.They were not too harsh and refrained from asking too many questions.

On Organisation

Generally, great competition! The quality of arbitrators was the highlight and greatly exceeded other moots.

…, we liked the group rounds.A common problem is judges using different ideas of what a “good” score[M29] is. Using groups avoided that and put the team's success largely in its own hands. This was especially true with the memo-based seeding.

… Announcing elimination matchups: it's more exciting than everyone checking the website.[CTC30]…Clarifying scoring: this could help teams understand what seems to be a pretty complicated system (e.g., what equation results in the long decimals?)[CTC31]. I think clarifying before the competition would be ideal

Again, great competition! In many respects, the best I've been to.

Generally speaking, the organization was very good as well.Any information regarding the moot was available in the webpage, the organization provided research materials through the OUP website, the oral rounds were very well organized.

…eliminate the excel annexes[CTC32] in the problem.Since they had no page number, it was very difficult to lead the arbitrators to certain pages of the problem in the oral hearings.

…modifythe procedure [M33]which determines the teams that advance to the Round of 16.Under the current rules, the teams who advance to the round of 16 are the ones with the most victories within their group.The points given to the teams in the hearings themselves are not taken into account.This entails that teams with higher scores are left out of the round of 16, even though they had a better performance than teams who won more matches but had a lower score.Presumably, the better the score of a team, the better their performance.[CTC34]This allows teams with lower performances to access the round of 16, reducing the overall level of the final hearings.I believe that this rule should be reviewed, and determine teams that advance to the round of 16 based on the teams score.The amount of victories should not be taken into account.

Our last match was held at a room in King's College in which the available seats [M35]for one of the teams did not have back support. This was a minor incident, and did not affect the pleading at all, however, due to the busy schedule of pleadings, speakers would appreciate if they did not have to face yet another hurdle such as over-uncomfortable seats especially when such hurdle is not faced equally by both teams.[CTC36]

The administration of the moot does not provide sufficient guarantee [M37]that the scores are entered properly[CTC38].

Also, many arbitrators do not have a copy [M39]of the facts and fact sheets[CTC40].

The organisation was outstanding. Promptness of replies by the administration and their helpful attitude just blew my mind. It was great being part of such a well organised moot.

Competition on the whole was well organised and everyone was very helpful.The only slight issue was that some of the events seemed to start late[CTC41], but this was not so bad as to be majorly destructive.

We were disappointed that there were 6 teams in our group and we did not face [M42]the 1st place of this group[CTC43]. As a result, we had 3 wins out of 4 games but this was not enough for the advanced.Probably, it is better to make 1/16 or preliminary national rounds as in other competitions since the only opportunity to participate in 1/8 is to win all 4 games[CTC44].

In the first two rounds, we received a very quick feedback from the arbitrators – a less-than-1-minute-feedback[CTC45]. Especially because those were the first rounds, we were expecting a more analytical feedback[CTC46], with suggestions to improve the pleadings to the second day of competition.

…, we were expecting more questions from the arbitrators during the pleadings. Perhaps this is a FDI Moot’s peculiarity, but except for one round, arbitrators made less than five questions in the entire round. In our view, facing more questions throughout the pleading would make the rounds more dynamic and challenging[CTC47].

Coffee and snacks being made available on the premises would be appreciated since counsel could then make the most of breaks [M48]between rounds.