FDI Moot 2019 is about to begin – good luck to all teams!

The Foreign Direct Investment Moot 2019 is about to begin in Miami, USA! I hope that all teams will enjoy the competition, have much fun and perform well. I keep fingers crossed for the University of Warsaw team – I hope the pleadings we had before helped you prepare better for FDI hearings 🙂

FDI Moot – from arbitrator’s perspective

It has been almost a month since the FDI Moot 2017 finished and it took me a while to reflect on it. This year for the first time I had the pleasure to arbitrate some of the elimination rounds during the Global Oral Finals. Apart from stressing again how impressed I was with performance of the teams I judged, I would like to share a few observations from arbitrator’s perspective.

If you can sit in the panels during moots or pre-moots, I strongly recommend you jumped at the opportunity. In my case, it complemented my experience as a participant and as a coach very well. In many areas it confirmed that the advice given here is accurate, in others – added entirely new value.

Remember that each arbitrator is different, though. What I liked and disliked while judging teams might not necessarily overlap with others’ opinions. However, I have the feeling that many arbitrators share my impressions.

Here are 9 things I learnt as an arbitrator this year:

1. Scoring teams is not an easy job

First and foremost,  I have to stress that (contrary to what you might believe) – deciding how many points each team and advocate should receive is by no means easy.  You really do not have a lot of time to make up your mind and there are many factors you have to take into account. In every single one out of four rounds that I arbitrated both claimant and respondent were on a very similar level. All advocates had their strengths and weaknesses. As an arbitrator, you have to weight it against the moot’s criteria and you want to do justice not only to the teams from the particular round you are assessing, but also to the other mooties you have seen. Taking into account the fact that you usually have little time after the round ends to give points, scoring is a challenge – especially if you wish to reflect more on the teams’ performance and rely more on your analysis than your first impressions.

2. Speak slowly – for the sake of clarity

I keep repeating it time and again: right pace is crucial! While you plead, there is no need to rush. Your pleading has to be above all clear. It is difficult to achieve when you are shooting arguments at the tribunal like a machine gun. Bear in mind that moot court tribunals are composed of people from very different backgrounds who usually are not native English speakers, so accents and differences in the way we articulate our thoughts come into play. A calm pleading makes it possible for you to put emphasis on the most essential arguments, hide the stress that you most certainly feel and ensures that you never forget about the second most important thing, which is to…

3. Be adamant, since wavering destroys credibility

Whether you find yourself stuck under a barrage of questions, surprised by your opponent’s argument or forced to modify the structure of your pleading,  never let the panel know this is something you are uncomfortable with. Inside, you might be crumbling, but as long as the panel does not notice, they will believe you are self-confident and have prepared for everything. Do not surrender when someone criticizes your position or argues with you. An immediate retreat destroys your credibility. Put forward arguments that you can defend and swap them for alternatives only in case when arbitrators are not buying them.

4. Embrace questions to become conversational

To build up on the point on questions – do not run from them. Embrace them as an opportunity to score better points.  As a rather active arbitrator who enjoyed having an in-depth conversation about the case with the pleading teams, I always found it disappointing when someone tried to evade my questions. The best pleadings that I had where when I could freely discuss the most interesting aspects of the problem with both teams. In order for that to happen, you must not pretend you are answering, but go straight to the point.

5. Do not be petty, since it does not pay off

Be courteous, but firm with regard to your opponents. It is OK and even desirable to point out where they erred in their argument, since it boosts your position and demonstrates that you listened to them. However, picking on minor or purely procedural points just does not make a good impression. If your opposing counsels made some mistakes there, the tribunal will notice. If you attempt to improve your position by exaggerating, it might backfire.

6. Colour the facts of a moot case to be remembered

If you have a narrative and a bunch of elegant phrases that spark arbitrators’ imagination, you are in a very good position to make your pleading memorable and more likely to impress the tribunal. As an arbitrator I was always eager to reward counsels who were able to catch my attention by speaking about the case in vivid language. Do not get me wrong – it is not about baroque metaphors or surprising comparisons. What I found particularly effective were short, ‘catchy’ phrases. For example, it is far more interesting to hear that the other party ‘conveniently omitted’  an unfavorable fact from the case rather than that they simply ‘did not say’ something.

7. It is OK to disagree – if you have arguments to back it up

Do not be afraid to challenge a point made by an arbitrator if you have grounds for it. It is fine to ‘respectfully disagree’ with a member of the panel if you can substantiate it. As all people, arbitrators might be wrong about something and it is your job to make sure they learn the truth. If you give in, you leave room for doubts and miss an opportunity to make an impression that you are indeed a knowledgeable counsel.

8. While responding, be responsive

On many occasions I noticed that moot court teams are heavy reliant on the scenarios they wrote before the pleading. It is OK – you must be in control and your strongest arguments should be voiced. However, if you respond to the objections to jurisdictions or claims made on the merits of the case, you have to accept that it is the opposing party that chooses the field in which you will be playing . If you fail to respond to their arguments, you become irrelevant, which is far worse than being wrong. Do not count on the fact that arbitrators might not notice – they certainly will. Not all of them will bother to remind you that you should counter what the other party alleges, though. When I arbitrated I did it, but I considered it a failure on the part of the pleader if I had to force him or her to do the job.

I am not saying that you should refrain from bringing additional content. On the contrary! But if you wish to argue something entirely different from you opponent, do explain in the first place why this particular argument is brought: maybe it is because the other party applied an incorrect standard and you believe it is essential to correct it? Or maybe their arguments on merits hold, but there are circumstances that can actually exonerate the party you represent that they never addressed? Think about it.

9. Make sure that both pleaders are equally well-prepared

This is a piece of advice for coaches, rather than mooties, but since decisions who should plead in the final rounds are usually taken by the entire team, it is a good place to bring it up. From the teams I observed and the results I have seen it seems that teams that have only one excellent pleader are not necessarily in a good position to achieve outstanding results. The problem I see from time to time is that one person whose performance is perfect is able not only to eclipse the opponents, but also his or her co-counsel. It may backfire, since the teams’ scores are usually based on performance of both advocates. Arbitrators tend to compare all four speakers and figure out who was the best and to what extend – so I have seen teams losing matches in spite of the fact they had the best pleader. Put a lot of effort into preparing you pleaders so that there is no glaring difference between their performance. If they are roughly on the same level, you are in a far better position to succeed.

I do hope it will all help you perform better in the FDI Moot. And beyond!

Best wishes,

Marek

FDI Moot 2017 – full results are available!

Hello everyone,

it has been two weeks since the FDI Moot 2017 ended and its full results are already available on the FDI Moot’s website.

I would like to congratulate all the teams on their excellent performance – as an arbitrator and as a coach I had an opportunity to watch many excellent speakers!

In particular, I would like to  congratulate the students from the University of Warsaw team which I coached this year. Agata Kruczyk, Maja Pyrzyna, Krzysztof Wasiewicz, Mateusz Fraszka and MichaÅ‚ SzczepaÅ„ski were the 7th best team in the final oral rounds and Agata,  the team’s pleader, was the 4th best advocate of the whole competition. It was a pleasure to work with you guys – I do now that you have learnt a lot during the competiton.

Having seen the FDI Moot from a couple of new angles this year, especially while acting as an arbitrator, I have a lot of thoughts and remarks to share with future mooties. I am going to share them in a more structured form soon. Stay tuned!

Best wishes,

Marek

FDI Moot Global Oral Rounds are almost over

Hello everyone,

today the Global Oral Rounds of the FDI Moot are coming to an end. The final pleading and the award ceremony are taking place in a couple of hours. Before we learn who are the winners of the competition this year, I wish to congratulate all the participants on their excellent performance.

This year I head the pleasure to arbitrate in the elimination rounds and I have seen many talented counsels with advocacy and argumentation skills for sure rivaling those of experienced practitioners. Now the only thing left is to wait for the the awards ceremony. Fingers crossed for all the finalists!

Best wishes ,

Marek

FDI Moot is about to begin – and How to Win Moot Courts will arbitrate!

Hi everyone,

the Global Oral Rounds of the FDI Moot taking place at the Suffolk Law School in Boston are about to begin! First pleadings are scheduled to begin in less than an hour.

I am happy to inform that this year I will have the pleasure to arbitrate during the elimination rounds!

Fingers crossed for all the teams taking part in the FDI Moot this year. I am looking forward to meeting all the participants and hearing their arguments.

Best wishes,

Marek

Moot Court Advocacy Series – Season III: ‘Teamwork, Episode IV: ‘Coach’

Behind every successful team there is a dedicated coach who helped it achieve its full potential. Moot courts are surprisingly similar to traditional sports. More often than not you can notice a significant, positive difference in performance of teams that had a dedicated and experienced coach or coaches to help them. If you are lucky enough to study at a university which makes sure its moot court teams are coached, you should definitely appreciate it! I am sure that if it was not for the coaches who spent a lot of their time helping me and my teams prepare and develop, we would never be successful.

However, it does not mean things are always rosy when you work with a coach. Having someone who monitors your progress, directs your efforts and gives constant feedback is helpful, but can lead to all sorts of conflicts. How can you make sure that your relationship with the coach is productive, not destructive? I hope these four hints will suffice!

  1. Show respect towards each other

It goes without saying that mutual respect should be the backbone of every cooperation. It is even more important in case of projects like moot courts, which are usually an additional activity for everyone, undertaken for the academic challenge, self-development and fun. In the vast majority of cases coaches are neither paid by the university or any other body, nor rewarded in any other tangible way – they simply volunteer to help teams and enjoy their success. As always in case of pro-bono work, being grateful for everybody’s work and respectful helps enormously.

At the same time, as a team member you also deserve respect from your coach. When you feel there is a problem with the way your coach works with the team you should definitely raise it: firstly internally, then before the body which supervises your preparations (usually the university).

  1. Trust each other

Trust in each other’s good intentions, work and motivations is as important as respect. Similarly, it is a two-edged sword. On one hand, as a team member, you should trust your coaches and their advice. When you have doubts, ask for more information. When something they suggest does not persuade you, try to clarify what is wrong and put forward your own proposals to discuss together with the rest of the team. Your coaches have experience and moot court know-how, but probably will never be able to learn the case and all its intricacies as well as you have to for the purpose of the competition, what may cause misunderstandings. On the other hand, make sure that the coaches and the rest of the team can trust you. Do not default on your moot court obligations, make sure what you claim has grounds and is more than just your opinion. Make sure others can rely on you whether it is a piece of research or a call to a sponsor.

  1. Engage in honest communication

To make sure respect and trust are maintained throughout several month a moot court usually takes, you need open and honest communication. Giving each other feedback, flagging problems, delays or disputes as they arise and reaching solutions that are a step forward is impossible if you cannot share your thoughts, ideas and concerns freely.

There are circumstances which can make it hard. Sometimes you find yourself in a team where people have already known each other before or are far more experienced in mooting than you are and that makes you afraid of asking questions or opposing their ideas that you believe are bad. Sometimes you are coached by someone very senior or a professor from the university whose classes you attend and you simply cannot treat that person as a colleague. Sometimes the cultural context is a factor, because in your country or at your university things simply tend to be very formal and you, as a student, might not feel in the position to question something. Sometimes there is just one person out there that has not read the parts of this post regarding respect and trust, and makes things complicated for you or the whole team… Despite all these and other obstacles that might appear, I encourage you to create opportunities for open dialogue about the moot court case, the way your team is working and the choices you make together. It simply help enormously and no one should punish you for trying.

  1. Remember that you would never be able to make it on your own

Mot courts are most often a group exercise. Taking part in them alone is usually not allowed by the rules. Even if it was, it would be futile to try. That is why you should always remember that what matters most is the success of the whole team. If you bear this principle in mind you will be always a part of the solution – and not a part the problem.

I hope that now the cooperation with your coach will be smooth and successful!

Best wishes,

Marek

FDI Moot 2017 Problem has been published!

Hello everyone,

this is just a short post to let you know that the case for the 2017 edition of the Foreign Direct Investment Moot is out! This is one of the best and most exciting competitions in the world, so you should totally have a look at it 🙂 You can access the problem here. In my opinion, they have produced quite an interesting piece, so congratulations to the case committee!

Cheers,

Marek