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

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