Remember when I said that I'd gotten involved the Vis Moot Court team at Bucerius? Well this week was one of the competitions - in Hong Kong.
Truth be told, probably a big reason why I got involved in the first place was that there might be the chance to go to Hong Kong. It's amazing how much work I'm willing to take on to satisfy my dromomania… Because to be honest, the original appeal wasn't the subject matter. The Vis Moot Court competition is a mock international commercial arbitration proceeding. What did I care about that? It's not like the word "commercial" gets my blood pumping. But "international" does, so I thought I'd go along for the ride.
It is really great that Bucerius is so open to the international students. We had our own self-contained program, but we were regularly invited to join the regular German students in all their activities. One of them was the moot court course, and parallel to that the chance to join the team. The problem, though, is that because our program was separate the schedule didn't dovetail very well with the German students' schedule. So when it came time to writing the memo, I didn't really contribute as much as I felt I really should have been able to. I did do a little and I suppose the final brief has a few of my fingerprints on it somewhere, but ultimately the German students did most of it because we just couldn't get the schedules to overlap enough so that I could effectively help.
I was a little disappointed. Not so much because I didn't get to do the work (because on the upside it meant I didn't HAVE to do the work) but because I felt like a free-rider who really hadn't earned her keep. So as I was getting ready to leave Germany I went by the office of the instructor organizing the team and apologized for not having done more, and figured with that we would part ways. But he was having none of it, and made it clear that if I wanted to (there was no obligation) I was welcome to join them when they argued in Hong Kong or Vienna.
So I went home and thought about it. And then January happened with its mind-boggling workload and then he and I lost touch for a while and I thought maybe that would be that. But then about a month or so ago everything started falling back into place, and I ended up booking a ticket.
Unfortunately the best fare I could find for an itinerary that didn't have me missing too much school didn't quite sync up with the competition schedule. I ended up getting there two days too early, and then had to leave today (the competition runs through Sunday). But still, it was absolutely worth it. Never mind the travel opportunity, it's been a phenomenally educational experience. I've realized, it's not the "commerciality" that makes it all interesting. In fact this competition has really nothing to do with the transactional lawyering and deal brokering activities whose tedium I fear. Rather, it's all about dispute resolution. Process. Advocacy. Internationality. All the things I really do find interesting. And even though I was only there for a few days, I was able to learn a ton about all of them through what I was able to observe.
For one, the whole exercise has made me more familiar with instruments for regulating private international law. Things like UNCITRAL and UNIDROIT and INCOTERMS and, of course, the CISG (UN Convention for the International Sale of Goods) make a lot more sense to me today than they did a year ago.
Secondly it was interesting to get a feel for how these kinds of proceedings actually work, should I ever find myself appearing in one. To an American law student "moot court" usually means appellate advocacy, and to be sure there are many skills applicable in both forums. Still, there are a few fundamental differences. One is that the arbitrators, unlike judges, themselves derive their authority to resolve the dispute from the consent of the parties. They either agreed to arbitration from the outset when they drafted their original contract, or they didn't object when one party brought an arbitration action against them. Another difference is that there is a bit less formality to the process: everyone sits throughout, there's no bailiff, and the actual process of the proceeding has more flexibility and fewer rules governing it. And, perhaps most significantly, the arbitration proceeding bears more hallmarks of a lower-court trial than an appellate one in that it is less about resolving an issue of law and more about resolving an issue of fact. Now there is law involved: the CISG, for instance, sets forth rules for whom is entitled to what. But what's subject to argument is how the instant facts conform to those rules, not for the tribunal to decide how the CISG should be interpreted.
The other fascinating thing in watching the arbitrations (I ultimately watched three rounds of them) was comparing how the culture of the law students participating affected how they performed. Some of the differences were subtle manifestations in body language. For instance, the Americans, primarily used to appearing before appellate panels, tended to be very stiff as we are taught to be in those circumstances. The Indian students meanwhile tended to make sharp finger gesticulations in ways that seem culturally familiar to them. But ultimately, of everyone that I watched (two German teams, two Australian teams, an American team and an Indian one), the Australians universally seemed most comfortable at the table, relaxed in their body language but forceful in their oral presentation.
The other main difference in culture affected how the law students attacked and presented the problem. The German students, as civil law students, are very comfortable with statutory language. They are used to parsing it (to a vastly greater degree than American law students ever have to), and they have much more faith in it. In other words, to a German student a rule is a rule; there's not much room around the edges to interpret it. Whereas for a common law student (those from places where the legal system was inherited from Britain) we're used to there being lots of fuzziness around those rules and so we tend to argue more holistically about how to clarify that fuzziness. The effect is that a German student is more likely to present an argument in stricter IRAC form: here's the rule, and here's how the facts support it. Whereas a common law lawyer may take a more global approach to it. Which is not to say that they avoid the rules - they certainly govern how the facts should be considered. But it was interesting to note how the American students brought up in their argument terms like, "burdens of proof," "duties of care," and "reasonable reliance," as these are the concepts that we so often use to tackle a legal problem. It is much less intuitive to a German student to approach it from this angle (although to Bucerius's credit their arguments did incorporate some more typically common law techniques, like raising at the outset a broader question of fairness and asking the tribunal to consider all subsequent points through that lens).
Even though I didn't participate in the arguments myself, I tried to make myself useful in other ways, offering critiques of the team's practice arguments and scooping out some of the other sessions to get a sense for other techniques and what the arbitrators were like. And if nothing else I did help the team learn how to correctly pronounce "Syracuse," the name of one of our competitors…
But coming away from the event I'm really aware of how much I like oral advocacy, in whatever form it comes in. If I wasn't before this semester, as a result of both moot courts I now realize that this is something I'd really like to do a lot more of.