Postcard from Vienna: The Vis Moot and the Triumph of Foreign and International LawBy Nicholas Pengelley, Published on May 19, 2011
Shrieks of joy, hugs, kisses, back slaps and great bursts of applause drowned each announcement by Professor Eric Bergsten last night in the vast auditorium of the Austria Center. There were tears, too, from those who did not make the cut for the "round of 64". As the lucky ones headed off back to the Juridicum (law school) at the University of Vienna, the others - the vast majority - loosened ties or changed out of high heels, departed the auditorium and trudged back to the U-bahn, realization setting in that six months of work: research, writing, practicing oral presentations; had finally come to an end; that for them the competition was over; that, finally, they could relax and enjoy all of the gaiety that Vienna's nightlife has to offer.
Six months work for over 1000 law students from 260 law schools from 64 countries, who participated in what has become the world's largest law school moot competition: the annual Willem C. Vis Moot in International Commercial Arbitration. The moot has grown so large that it has spawned progeny, in the form of a second competition held each year in Hong Kong and, such is its scale, it constantly outgrows the available venues in the Austrian capital; having spread from the Juridicum (the Law School of the University of Vienna) to encompass local law firm boardrooms and the largest concert halls for opening and closing functions. For six days each year in Vienna, law students from dozens of different countries; different legal traditions; and different cultures, compete in presenting the best arguments (in English) about the same set of facts; employing references to cases from a multitude of jurisdictions other than their own: to arbitrators from similarly diverse backgrounds.
For much of the last 10 years I have been privileged (along with my wife Pamela, a Toronto lawyer) to be an evaluator of written memoranda, arbitrator at oral arguments, and sometime team coach at the Vis Moot. The moot, which always takes place in the week leading up to Easter, is held in Vienna because of its associations with the Vienna Convention on Contracts for the International Sale of Goods ("CISG"). This is the law of the contract for all of the moot problems, which always involve a contractual sale of goods dispute between parties from two different countries. The weather is usually gorgeous at this time of year, and the city is ideally suited for the moot: a delight to walk in, with a public transport system second to none. Vienna can be expensive; it is definitely not for vegetarians or those on a diet, and oddly there seems to be no trace of an anti-smoking movement. That said there are plenty of cheap, interesting places to eat if one gets away from the main tourist attractions, and I have to confess that (very politically incorrect I know), I love the feeling of stepping back into the 50s in some back street bar blue with tobacco smoke and faux Soviet posters.
Back in 2002, when I first took a team to the moot from Queens University Law School, there were 120 participating schools. That number has grown exponentially and there is now hardly a corner of the world that is not represented. Four days ago I arbitrated teams from Brazil and Germany. Two days ago it was China and the Netherlands. Yesterday I met with members of a team who, despite the crisis that besets their country, had somehow managed the journey to Vienna from Tunisia. I write this having just arbitrated two teams in the elimination "round of 32" - from the University of Montevideo in Uruguay and Stetson University (USA). The standard of advocacy of both teams was extraordinary - and would certainly have been the envy of many an experienced appellate advocate. I and my fellow arbitrators were enraptured and could happily have carried on with the debate for much longer than time allowed. In the end we voted unanimously for Montevideo, a team that had entered the moot for the first time this year. When their win was announced to a hushed crowd on the top floor of the Juridicum, well all I can say is that there were more than a few teary eyes - including that of Montevideo law school's dean who had accompanied the team. If I am in danger of crossing the line into waxing rhapsodic it is because I am writing this in a cafe less than an hour after that decision. It is also perhaps some indication of what draws me back here year after year.
Involving as it does the field of international commercial arbitration, the Vis Moot is uniquely positioned to draw law student competitors (and lawyer and academic arbitrators) from all over the world; from common law and civil law systems; and from capitalist and other societies. Whatever the origin of student or arbitrator, they all live in a commercial world where business activity that crosses national boundaries is regulated by contract law and, increasingly, by international commercial conventions and rules designed to facilitate the resolution of disputes outside of national court systems; and which ensure that awards may be enforced without recourse to litigation. The paramount treaty in this field is the New York Convention on the Recognition and Enforcement of International Commercial Arbitral Awards 1958 ("the New York Convention").
The New York Convention has achieved widespread acceptance (being ratified by 144 countries at last count). It ensures that, subject to a very few exceptions, the award of an arbitral tribunal will be enforced by the courts of any contracting country. A large body of case law and scholarly commentary has grown up around the New York Convention. This jurisprudence, widely accessible thanks to the growth of the internet, means that any law student researching a Vis moot problem has a wealth of material to draw upon (and that students from law schools with scant print resources are on a much more equal footing with their wealthier cousins than would otherwise be the case).
This year, the substantive issue in the moot problem concerned the sale of a large quantity of allegedly undersized squid to be used as bait in long line ocean fishing (there is, of course, some dispute about this but space precludes going into details). Procedural aspects of the arbitration concerned a challenge to the method of appointment of the presiding arbitrator pursuant to the Arbitration Rules of the Chamber of Milan (and thus the jurisdiction of the arbitral tribunal to hear the dispute), and an issue of whether the claimant had breached confidentiality by disclosing some of the facts giving rise to the dispute in a newspaper interview. In reviewing and evaluating written memoranda prepared by several different teams of law students (for both the Vienna and Hong Kong competitions), and now, hearing oral arguments, I have seen reference to cases and academic writings from, seemingly, half the countries of the world. Yesterday, listening to the team from Harvard argue (I was in the audience; my wife was a member of the arbitral panel), I heard them cite cases from the UK, France, Germany and Australia. Stereotypical characterizations of American lawyers as parochial, based on the likes of Justice Scalia and his oft-articulated dislike for references to foreign law by US jurists, vanish like snow on a warm day after a few minutes of such advocacy.
Yesterday the team from the University of Utrecht cited a Finnish author in the course of their argument. Purely by chance one of my two co-arbitrators was from Finland: Utrecht did well. But so did their rivals: from China's Xiamen University. Despite what the reader might think, language is no barrier in this competition. All argument must be in English and the standard of the non- native speakers often exceeds that of the natives. Coming here to Vienna regularly I have come increasingly to understand - and appreciate - that my own native tongue, English, is now very much the universal language of the law and commercial contracts. I also understand that, just because one grows up speaking it does not necessarily mean that one speaks it any better than a law student from Xiamen or Utrecht, or Montevideo Universities.
In terms of the legal research that goes into the preparation of written memoranda for the moot, and the oral argument made in Vienna, the fascinating, and to me, quite wonderful aspect (particularly as someone who has had a long career in law libraries) is its sheer universality. For five or six days everywhere one goes in Vienna - sitting in its historic cafes; at Schonbrunn Palace; in the American Bar; riding the U-bahn; one is likely to overhear snippets of conversation that cause one's ears to prick up: "But Article 39 of the CISG says..."; "Surely the High Court of Australia in the Esso case disagreed..."; "There's a German decision on that point which says completely the opposite ..."; "Yes, but the English position on confidentiality is recognized as extreme." As, in the days leading up the moot, law students are converging on Vienna from all points of the globe, one even encounters this in airports, like Heathrow and Frankfurt while waiting for transfer flights, where it is not unusual to spot someone buried behind the familiar covers of Redfern & Hunter on International Commercial Arbitration, or Schlechtriem's Commentary on the CISG - the two most cited texts in the Vis Moot.
Most argument in the moot revolves around the interpretation of the New York Convention, the UNCITRAL Model Law on International Commercial Arbitration and the Vienna Convention on Contracts for the International Sale of Goods. Because so many countries have adhered to these Conventions or, in the case of the Model Law, incorporated it in their domestic legislation, a large body of interpretive case law and academic commentary has come into being that is relevant to any lawyer dealing with a problem to which one of these instruments applies. Any law student researching the problems for the Vis Moot must, perforce, have reference to these cases and must necessarily follow the trail wherever it may lead them - and it will always lead to case law and commentary from foreign jurisdictions, and in languages other than their mother tongues. While the temptation is to focus on the familiar: the jurisprudence of one's own jurisdiction, and those with similar underpinnings; those who fall prey to such temptation suffer: their memoranda are not recommended for prizes and they will not progress into the elimination rounds in the oral moot competition. This is because those who judge the memoranda, and arbitrate at the oral rounds always come from different countries and legal traditions from those on whom they sit in judgment. Parochial inclinations find no favour with such arbiters. A common lawyer citing cases from jurisdictions confined to the UK, Australia and Canada will be dealt short shift by a civil lawyer from Italy.
From the first days in October when the problem is released law students are researching cases and arbitral decisions from all over. If those decisions are not in a language that is familiar to them - then they learn how to find translations, or abstracts. They learn that not knowing a language is no excuse. They learn that, while an American, or British or Australian court might have come down on one side of a particular debate; that a decision of the French Cour de Cassation must be regarded with equal weight, and, if that decision is oppositional, then a way must be found to counter it. One of the best moments that sometimes comes in one of the oral rounds is when a student from one side cites a case in support of a particular point, and a student from the other side, having of course researched the point in advance and being prepared, is able to announce, "Ah yes, but there is a more recent decision from the Swedish Supreme Court which clearly distinguishes that point." The ideal, which comes now and then is when a to and fro debate is stimulated within the moot with students competing to trump each other with authorities. When that happens it is hard not to get up and cheer.
We leave Vienna tomorrow morning, our fingers crossed for two teams who are currently in the final four: the University of Ottawa, because of course we're rooting for Canada; but also the University of Montevideo. It's their first time in the Moot and they have done magnificently - already further than any team from Latin America in the eighteen years of the competition.
Editor's note: The 2011 Willem C. Vis Moot was won by the University of Ottawa. Second place went to the University of Montevideo.