What shall we do with the drunken sailor?
This was the title of the case study of the 9th Frankfurt Investment Arbitration Moot Court. As it turned out the “sailor” in question was in fact the captain and owner of a trading bark, Captain Gustav Isak Dahlberg, a Russian national of Finnish origin. He was not in fact drunk but did assault one of his crew men in the United States in 1896 and was subsequently thrown in jail. After trying and failing to obtain diplomatic protection from Russia, Captain Dahlberg, desperate for recourse, instructed his attorney to submit a claim under the dispute settlement clause in the fictional Atlantic Charter Treaty, a multilateral agreement concerning investment and commerce.
Given how important a thorough knowledge of the facts is in moot competitions, we spent the first part of our research time getting to know the people mentioned in the case study, 26 in total, their historical context and their involvement in the matter. In a second step we then started our substantive research on the nine issues provided for in the case study, which included matters such as the definition of investment, the admissibility of moral damages claims, the provisional application of the treaty as well as the challenge of the arbitrator T.M.C. Asser, a renowned and influential Dutch Jurist at the beginning 19th century. We then decided to write a memorandum on each issue from both sides and complemented this with research into case law on the basis of the Investor State Law Guide Database (short: ISLG).
We then handed in these memos at the turn of the year and received invaluable feedback from our coaches.
After the winter exams, we began to reduce the information we had gathered during research to the essential arguments. It was particularly important to find a way to structure our arguments in such a way as to guarantee maximum impact in oral pleadings. This was not an easy process, as it was necessary to discard many lines of argument for the sake of brevity and clarity. This sparked a number of discussions, but we also learned a lot about each other and about us as a team. The experience not only ensured the quality of the arguments and the depth of our understanding but also strengthened our team spirit. We are especially grateful that we were able to do that work in the scenic environment of the Grisons.
After our retreat, it was time to start practicing our pleadings, first with our coaches but then also per skype with WilmerHale in London. These sessions were crucial in refining our pleading styles and clarifying which arguments were most convincing and which were interesting but too long to be explained in less than a minute. Timing is an important issue in moot competitions as the teams are expected to efficiently manage their time while also being asked questions by the tribunal: Time management is key. Although this sounds stressful, we came to appreciate these questions as they were an opportunity to truly show the depth of our understanding of the law and our knowledge of the facts.
In mid-February we went to our first pre-moot at the ICC in Paris. We pleaded against teams from Bucerius Law School and University of Ljubljana.
We advanced to the final, where we pleaded against Bucerius for a second time. Although we did not win, the experience was very valuable in preparing us for Frankfurt. In particular, we were grateful to learn that we were relatively well-prepared as there were a few teams who found it difficult to answer some of the more technical questions posed by the tribunal.
After Paris, the focus was on going off-book, that is, we focused on our advocacy skills in particular the ability of speaking freely and going off script. We tested these skills at a pre-moot at the Geneva offices of Lalive. We agreed to fill in for another team, thereby adding an additional opportunity to plead. In the first round we pleaded against the China University of Political Science and Law, Beijing as well as Goethe University, Frankfurt. In the second round we competed against the team of the National Law School of India University, Bangalore.
Teams participating in this pre-moot were not graded and there was no final, but we received very positive feedback in all three rounds. In the week before Frankfurt we then had the opportunity to plead at the Zurich offices of Lenz & Staehelin, where we received more valuable pointers in how to further refine our performance as a group and individually.
Soon the day of our departure to Frankfurt came. We arrived on Monday and learned that evening that we would be pleading against teams of the International Hellenic University of Thessaloniki, the St. Petersburg Branch National Research University as well as George Washington University. In the first round our high expectations made us nervous, leading to a somewhat rough start in the competition. After sitting together and re-evaluating our approach, we quickly recovered our confidence and had a great round against St. Petersburg and against GWU on the next day. We won all three rounds and advanced into the round of sixteen. In the round of sixteen we competed against Lomonosov Moscow State University. Among other things this round illustrated the importance of tactical considerations with regard to how we presented ourselves to the tribunal.
In the next round, we competed against Singapore National University in the quarter final. The pace of that round was intense. Where before we were allowed to plead our cases with occasional interruption, the focus was now almost entirely on our ability to answer the increasingly intricate questions regarding the law and the details of the case while also not losing the thread of our pleading. We gave it our best shot but did not succeed against Singapore, who went on the place second in the final of the competition.
Our «professional» take-away from the pre-moots and the final competition was that we were well prepared which allowed us to place among the best teams of the competition. Future participants might also focus on refining their advocacy early and on pleading as often as possible under questioning to get used to the pacing of high-level pleadings.
The winning team, Bucerius Law School, had participated in the Vis Moot in the same configuration and the difference to other teams was apparent. Our «personal» take-away was to learn how to reduce an argument to its essential elements, a skill that will be useful in many different contexts in our professional lives. The competition also illustrated the importance of teamwork. Working together for such a long time and under such intense pressure, we really grew into an integrated team in which team members were able to support each other in substantive issues as well as personally.
We would like to wholeheartedly thank our sponsors, Pestalozzi, WilmerHale, Law School HSG as well as HSG Alumni for making it possible for us the compete in Paris, Geneva and Frankfurt. We would like to specifically thank Daniel Costelloe, Marleen Krüger and Eleanor Daley of WilmerHale and Stefan Bürge and Janine Häsler of Lenz & Staehelin for their invaluable feedback on our pleadings. Lastly, we would like to express our tremendous appreciation for the time and effort our coaches, Prof. Dr. Anne van Aaken, Lukas Rusch and Gentiana Imeri, spent in preparing us for Frankfurt.
Another thing we learned due to our participation in the moot competition is the importance of a strong finish. In this text we have shown four things:
1) The FIAMC is an ideal forum to gain practical knowledge about international investment law, arbitration and advocacy.
2) The FIAMC was a real challenge and allowed us to grow both professionally and personally.
3) We had a great time.
4) We are truly thankful to have been granted this opportunity.
Your Mooties 2015/ 2016 – Eva Altmann, Lorenzo Baldassarre, Nadine Bosshard, Sarah Rauber