Eric E. Bergsten
Last year the Yearbook published a report on the Moot written by the members of the team from the University of Zagreb in the Fifth Moot in 1997-98. The first part of the report was from the perspective of the team members; the second part was from the perspective of the coaches. I have been asked to write my report from the perspective of the organizer.
Moot courts are a familiar feature of common law court/litigation-oriented legal education. This is as true of Australia or India as it is of the United Kingdom or the United States. They are slowly becoming a more familiar feature of legal education on the continent of Europe. The first to take hold was probably the Jessup Competition in public international law, with its worldwide participation. There have followed the Teldars Competition, also in public international law, the Rene Cassin Competition on the European Convention of Human Rights and the European Union Competition.
It was in the light of these moots, and in particular the Jessup, that the suggestion was made at the UNCITRAL Congress in 1992 that knowledge about the United Nations Convention on Contracts for the International Sale of Goods (CISG), international commercial law and arbitration in general, the work of UNCITRAL and of other organizations working for the international unification of private law might be stimulated by a moot conducted in the form of an arbitration. The idea of organizing such a moot was taken up by the Institute of International [page 167] Commercial Law at Pace University in White Plains, New York, where Willem C. Vis and I, both former Secretaries of UNCITRAL, were teaching.
The most significant decision we made in planning for the First Moot was to hold the oral portion of the competition in Vienna. We had decided that an international Moot should have the appearance of internationality. That meant in particular that a moot organized by an American university should be held outside the United States. Vienna, as the home of the UNCITRAL Secretariat, promised to be an appropriate location. Just as important, or perhaps even more so, was the logistical support that we could obtain. DDr. Werner Melis, Chairman of the International Arbitral Centre in Vienna, gave us his full support, including providing the rooms in which the arguments might take place. Frau Lucia Seidl, recently retired as administrative assistant at the UNCITRAL Secretariat, was available to help with the necessary administrative tasks. As time has passed and the Moot has expanded other institutions in Vienna, including the Law Faculty of the University of Vienna, the Convention Bureau and the City of Vienna itself, have all given their support to the event.
With the logistics in place the First Moot was launched in October 1993 with distribution of the problem to eleven law schools in nine countries. Memoranda supporting the positions of claimant and respondent were exchanged and the teams came together in March 1994 to engage in three days of oral argument. At the close of the final argument, DDr. Melis said that he believed that the Moot had been an even greater success than the organizers had expected, and that the International Arbitral Centre would be happy to support the Moot the following year, which it did.
As I write these lines the Seventh Moot is in progress. In most respects the Moot this year follows the same pattern as was developed for the First Moot. The Problem was distributed the first Friday in October, but now it is distributed by posting on the Moot web site "http://www.cisg.law.pace.edu/vis.html". Each team prepares a memorandum for claimant and, upon receipt of a memorandum of one of the other teams, a memorandum for respondent. The oral arguments are held in Vienna the week prior to Easter, this year 14-20 April 2000.
There are obvious developments, some of which have resulted from growth. The number of [page 168] participating law schools has increased steadily from the original 11, to 22, then 38, 48, 58, 70 and, it appears, this year to 80. The number of countries represented has also increased from the original nine to 28. Five of the six inhabited continents are represented. The Moot outgrew the space that the International Arbitral Centre could make available for the oral arguments, and since 1997 they have been held at the Law Faculty (Juridicum) of the University of Vienna. At the First Moot each team argued twice, once for claimant and once for respondent. At the end of the two days of argument, the two teams with the highest scores in those two arguments met in a final argument. Beginning with the Second Moot each participating team has argued four times, twice for claimant and twice for respondent. At the Second Moot the top four teams met in a semi-final round, with the winners meeting in a final argument. By the time of the Fourth Moot the number of teams that participated in the elimination rounds was increased to eight, and this year it has been increased to sixteen.
The form in which the Problem has been drafted has also changed over the years. True to the origins of the Moot, the Problem always involves a dispute in a contract of sale subject to CISG, with the dispute to be settled by arbitration. Several other types of commercial dispute have been considered and discarded, both because of the lack of tie to UNCITRAL and because an international sale of goods can raise interesting legal questions, but ones that the students can master. That is not necessarily true of a construction contract or other types of disputes frequently found in international commercial arbitrations. The first two years the problem was set forth as a story. This was an effective way to raise the sales law issues, but it was less effective as a means of demonstrating the use of arbitration. Since the Third Moot the Problem has consisted essentially of the statements of claim and defense with exhibits and the tribunal has requested memoranda in regard to the legal issues that arise out of the facts set forth. This style of drafting the problem has led the students to become much more aware of the need to thoroughly understand the facts than did the story-telling style of Problem.
One consequence of the less coherent presentation of the facts in statements of claim and defense as compared to the story was that in the Third Moot some teams asked for clarifications of certain aspects of those facts. At first I was crushed; I had not written the Problem clearly enough. Then I realized that this was an opportunity to encourage the students to read the facts with an inquiring mind. The rules now provide a period during which requests for clarification can be made in regard to matters that the lawyers or their clients would know but that did not come out in the pleadings. The responses, in the form of a Procedural Ruling from the President of the Tribunal, are then distributed to all teams and become a part of the Problem. To illustrate what this can mean, in the Problem for the Seventh Moot the failed contract of sale was FOB. The buyer, claimant in the dispute, purchased replacement goods FOB from a different country at a [page 169] higher price. Buyer’s statement of claim made no mention of any difference in shipping costs in its request for damages. Several teams noted this point and asked questions designed to determine how any such difference might affect the damages. The response indicates that the shipping costs for the replacement goods were less than from the original contract port. No wonder that the claimant did not mention them!
Even though presentation of the Problem in the form of statements of claim and defense with exhibits better illustrates the nature of the arbitration, some arbitrators continued to feel that the Moot was not as realistic as it might be and that issues of arbitration law and practice were underrepresented as issues for the students. In order to meet those concerns, the Problem this year includes some of the more important correspondence that would come from the Registrar of the LCIA, the arbitral institution whose rules are being used this year. In particular, the respondent has written the Registrar to say that there is no arbitral agreement between it and the claimant. Following the text of a letter furnished me by Mr. Adrian Winstanley, the Registrar of the LCIA, the Problem contains a letter from him to the lawyer for the respondent pointing out that it is not up to the Secretariat to make such a decision once the claimant has submitted what purports to be the text of an appropriate arbitration clause, but that the issue could be raised before the Tribunal, and the respondent then does so in his pleadings. In addition, one of the important issues in the Problem is what the Tribunal should do under article 20.4 of the LCIA Rules with a witness statement offered by the claimant when the respondent has requested that the witness be produced at a hearing for questioning and the claimant says that it is not possible for the claimant to do so (the witness’s employment has in the meantime been involuntarily terminated).
There are other aspects of arbitration law and practice that have not yet found a place at the Moot. The Moot, being in the nature of a competition between the students, emphasizes the advocacy aspect of arbitration. Pre-hearing conferences by the teams are not possible, but at least the idea of such a conference is introduced by the final document in the Problem, the report of the President of the Tribunal summarizing the results of a pre-hearing conference. The Moot also does not easily accommodate a procedure for settlement of the [page 170] dispute or for mediation. Perhaps in the future some means will be developed to incorporate one or the other into the program.
The Moot has remained true to its educational purposes. Of course the Moot is a competition between the student teams, and that aspect is necessary as a motivation for them. However, every effort has been made not to let the competition dominate the event, as it so easily could. One of the most important benefits the students can take away from the Moot is the opportunity to share experiences with students from other countries, other legal systems and other forms of legal education. Coffee and places to sit and talk are available at all times, and they are used. Most importantly, student participants in prior Moots have organized a Moot Alumni Association. The MAA serves as a focal point for continuing contact after the Moot is over. It also has established an ambitious program of professional activities in the field of international commercial law. It is what the MAA does at the Moot itself that I personally appreciate the most. They organize a welcoming party the evening before the first official event of the Moot takes place, and a going away party the night before the finals. During the Moot they are located in the administrative area where they are in constant contact with the current student participants. Every evening there are informal gatherings of one form or another. By the end of the Moot the students have made many friendships, many of which in this day of e-mail continue long after they leave Vienna. There is every reason to believe that some of those friendships will continue throughout their professional careers.
The surprise for me has been the extent to which the Moot has become a recognized professional event. It is co-sponsored and financially supported by several of the major arbitral institutions: the American Arbitration Association, Chartered Institute of Arbitrators, International Chamber of Commerce, London Court of International Arbitration, International Arbitral Centre in Vienna as well as by UNCITRAL. The list is not closed to additional interested organizations. Several law firms in Vienna hold receptions for the arbitrators. Co-sponsorship by the arbitral institutions and the receptions are both important to the Moot, in significant part because they are a recognition of its professional as well as its academic character. One result is that many outstanding lawyers in the field of arbitration contribute their time and money to come to Vienna to hear the students argue and, in many cases, take on the extra burden of reading and evaluating the memoranda. The enthusiasm of the students and the effort that they have put into preparing for the Moot make the entire event an enjoyable [page 171] experience for the lawyers. In return, the presence of the senior lawyers assures that the Moot will remain rooted in practical experience.
Not all of the arbitrators at the Moot are practicing lawyers, of course. From the time of the Second Moot accompanying professors and team coaches have been invited to participate as arbitrators. At first this was an act of necessity in order to have sufficient persons available to hear the arguments. It quickly became evident to me that there were important collateral effects. The first is simply that the professors and coaches became more engaged in the Moot than they might otherwise have been. A second effect arises out of the fact that some of the professors had had little prior experience outside their own legal system. Sitting on a panel with two other arbitrators from other countries, hearing students from yet other countries presenting legal arguments based upon a common text, is itself an experience in comparative law. I sometimes think that the most important contribution the Moot has made to legal education has been the effect it has had on some of the professors.
There has been an important third source for arbitrators, young assistants and lawyers, some of whom now come from the ranks of former student participants. For them the Moot has served as an early professional step into the field of arbitration. It is not otherwise easy for a young person to serve as a colleague with senior lawyers and arbitrators. In the Moot they are able to do so. The Moot is as much a training ground for them in the skills of an arbitrator as it is for the students in the skills of written and oral advocacy. It is also, as at any professional conference, a place for making contacts, but in a context where it is possible to show their abilities. That is not otherwise always easy to do when you are young.
What remains to be said about the Willem C. Vis International Commercial Arbitration Moot from my point of view is very personal. I have been a law professor in the United States both before and after my period of service with UNCITRAL. In some respects my experience is rare. The Moot has given me an opportunity in retirement to make use of both. The fact that it has been seen to be a quality event in which increasing numbers of law schools and lawyers participate is a matter of enormous personal satisfaction. I can think of no better way to spend the foreseeable future than to work to make it an even better event.[page 172]
1. Willem C. Vis International Commercial Arbitration Moot 1998: The Reports of the Zagreb Team, Croat.Arbit.Yearb. Vol.5 (1998), 235.
2. In addition to the documents relevant to the current Moot, the web site contains the problems for all previous Moots as well as the list of participating law schools and the winners in each of the categories. Since the Fifth Moot the best three memoranda for claimant and for respondent are also posted on the web site.
3. Each year the governing law includes the CISG, UNCITRAL Model Law on International Commercial Arbitration and the New York Convention. The arbitration rules rotate among the sponsoring arbitral organizations. Occasionally other legal texts are cited, such as the UNIDROIT Principles of International Contracts, INCOTERMS, Uniform Customs and Practice for Documentary Credits, and the IBA Rules of Evidence.
4. The Moot Alumni maintain a web site at "www.maa.net".