MODE OF COMPETITION
MEMORIALS AND COUNTER MEMORIALS
Memorials (and counter-memorials) will compete on the basis of a “Swiss tournament” according to the quality of analysis of the issues involved, persuasiveness of the arguments, logic and reasoning, writing, knowledge of the facts, use of authorities and extent of the research.
ORALS TEAMS
In the preliminary rounds, teams will compete in eight[1] groups (of four to seven teams each) seeded according to memorial scores. Each team will compete in four preliminary matches, twice as Applicant/Claimant and twice as Respondent. In any four-team groups, in the fourth match, the first and second seeds and the third and fourth seeds will face each other again but in reversed roles from their previous encounters. A team wins a match if the aggregate of the raw scores that the arbitrators have given its advocates together with its weighted (25%, i.e. max 75 points) memorial or counter-memorial (as the case may be) score is higher than the other team’s.
In the elimination rounds (round of 16, quarter-final, semi-final, final and 3rd place match), the memorial/counter-memorial scores will not be factored in and matches are won on a majority of arbitrators. The 1st from one group will face the 2nd from another group in the round of 16. Among the teams in each elimination match, the team whose alias is first in the alphabet will be Claimant in the round of 16 and semi-final and Respondent in the quarter final and final.
ORALS INDIVIDUALS
We will normalize scores awarded by each arbitrator according to their mean deviation in order to reduce the impact of any “easy” or “hard” graders over the course of the competition.
HIGHEST RANKING TEAM
Each team’s memorial and counter-memorial scores will be used to allocate between 150 and 300 points to each, and will be added to its aggregate adjusted individual oral scores for Rounds 1-4.
GUIDELINES TO ORAL ADVOCACY ROUNDS
I. WHO'S WHO IN AN FDI MOOT HEARING
An oral match pits one team representing the Applicant/Claimant (investor) against another representing the Respondent (the host State). Each team consists of two oral advocates who will share the allotted time (40 minutes per team).
Each arbitrator will serve on a three-member arbitral panel. The “President” or “Chairperson” sits in the middle. The President should: (1) signal when the oral advocates may begin or end their arguments; (2) along with the co-arbitrators question the advocates; (3) answer procedural questions or requests (e.g. extra time – max 1 minute); and (4) generally maintain order in the proceedings.
The parties’ representatives are seated in front of the panel, left and right. The arbitrators and advocates may refer to “my Co-Counsel” or “the Agent for the Respondent”, etc. Arbitrators are addressed as “Mister/Madame Arbitrator” or by their titles and surnames. The President may be referred to as “Mister/Madam President”.
Before each match, each arbitrator should collect a blank score sheet from the Secretariat, and then in the hearing room confirm the correct spelling of each advocate’s name.
At this time, each team should present three printed copies of its memorial or counter-memorial (depending on its role in the match) to the arbitrators. At the end of the hearing, each team should collect them for subsequent matches. The Arbitrators will not retain these materials and should not make any notes on them. Arbitrators should remember that in the oral proceedings teams are not strictly bound by their prior written submissions.
Each team has 40 minutes to present its case, allocating at least 15 and at most 25 minutes to each of its two advocates and reserving time for any rebuttal (or surrebuttal). Failure to adhere to these should be penalized (time-management).
Teams should try to agree on an Order of Argument before the hearing. An agreed order (and allocation of time) or if there is no agreement, each team’s proposal should be submitted to the Tribunal (clear and use the sample below on p. 5). There will be no argument on proposals, and the President may accept either proposal or impose his or her own compromise (teams will then have one minute reflection to allocate their advocates times).
Hearings should be structured as flexibly as the teams may agree (or failing that) as the President directs, so long as basic procedural fairness is respected.
If a Party waives rebuttal (by informing the panel when the time for rebuttal arises), then the other Party will NOT have a corresponding opportunity for surrebuttal.
After the arbitrators have invited counsel and the audience to be seated, the arbitrators should introduce themselves. The President will then start the match. The President will monitor time.
If anything inappropriate happens during the match, the President should eliminate the disturbance without interrupting the flow of the match; any arbitrator may note such misconduct on his or her score sheet and deduct points from the offending advocate(s). Oral-match misconduct is uncommon, but includes counsel communicating with anyone other than co-counsel, the Tribunal or opposing counsel, leaving counsel table (or the podium) during the match, or any disruptive conduct at counsel table (1 point penalty per occurrence) Serious misconduct would be undermining the Order of Argument, for example, by (significantly) exceeding the time indicated for any particular issue or (persisting in) addressing issues outside the agreed sequence (3 point penalty per occurrence).
If spectators entering, leaving or moving disturbs the match, the President should admonish the audience to have respect for the advocates.
At the end of the last argument, the arbitrators will offer feedback (maximum 5 minutes), Arbitrators must not give the teams substantive tips.
After asking the Counsel and audience to leave the room (arbitrators please return memorials to the teams), arbitrators will deliberate (maximum five minutes). Then each arbitrator should enter his/her scores on the score sheet and deliver it to the Competition Secretariat.
III. THE ROLE OF THE ARBITRATOR – HELPFUL HINTS
The best panels balance ensuring that participants complete their entire presentation and engaging them in a lively a dialogue. Arbitrators should ask questions of a sufficient difficulty and in a sufficient quantity to prevent the competitors from merely reading a rehearsed speech. Participants expect to be tested on the material. Arbitrators should refrain from taking up too much time with long questions or comments of their own.
Arbitrators must not decide this case on the merits! Instead they must score the performances of the advocates. An arbitrator should evaluate the strength of each advocate's overall presentation, the validity of the participants' arguments, the persuasiveness of their presentation, their poise and advocacy skills, and the thoroughness of their preparation. The score sheet outlines the criteria for this.
Advocates are NOT bound by their team’s written submissions in this competition. Since written memorials were submitted, subsequent research (and subsequent oral rounds) may lead advocates to revise the substance, style and structure of their arguments.
The advocates will assume that the arbitrators are generally familiar with the facts of the case, and will likely not ask the Tribunal if it wishes to hear a recitation all the facts. They may focus only on those facts that are directly pertinent to their legal arguments.
A. DURING THE MATCH:
Arbitrators should:
• Utilize concise questions that call for a “yes” or “no” answer. Such questions test an oral advocate's ability to answer directly and clarify the competitor’s position on an issue.
• Feel free to ask “basic” questions, including the nature and sources of international investment law. Such questions ensure that the advocate understands international law and is not merely reciting memorized details.
• Avoid asking rhetorical questions or making lengthy statements that use up the time of the participants (a question that takes more than 30 seconds to ask might already be too long).
• Avoid lengthy debates with the advocates. Feel free to press for a direct answer, but avoid monopolizing the advocate's time.
• Question each advocate equally. Evaluating the match is easier when all advocates have been equally tested by the panel.
• Only question an advocate about a teammate's argument if it contradicts a position taken by the former. Each advocate should be generally familiar with the team's entire argument, but is not expected to have a detailed grasp of a co-counsel's argument. You should, however, explore inconsistencies between the two.
• Respect the time limits on oral argument. The President may generally grant an advocate extra time (typically not more than one minute) solely for answering a specific question or briefly concluding the presentation.
• Many competitors are not native English speakers; if you determine that an advocate is not a native speaker, be especially careful when asking long or complicated questions; do not mark such a competitor down just for having an accent or making semantic or grammatical errors.
• Remember that teams come from different countries with a wide variety of legal resources. Some teams are at a disadvantage in this respect. The FDI Moot issues are intended to be answerable by reference to generally available materials and a careful reading of the facts.
Advocates should observe all provisions of the Rules especially those of Rule 7 and should NOT:
• communicate with anyone when at the counsel’s table except co-counsel, the Tribunal and opposing counsel; or
• engage in any behavior that distracts from the hearing.
B. AFTER THE MATCH - COMMENTS TO THE TEAMS:
Before the advocates and spectators leave the room, arbitrators may give brief feedback to the advocates. Arbitrators should:
• not announce the winner of a match or the scores of advocates;
• not give substantive comments to the competitors or suggest alternative arguments to the teams as this may give an unfair advantage. Arbitrators may comment on an advocate’s poise, the structure of his/her argument, and other general tips on oral advocacy.
• not ask the advocates which institution or which country they represent. Oral arguments are anonymous. At the end of the FDI Moot, identities will be revealed.
• remind the advocates that there are many different opinions regarding oral presentation styles. Avoid categorical statements regarding argument style.
• not opine on the merits of the case or the balance of the problem or that one side is “correct”, as it may give the advocates the false impression that you favored the advocates arguing the more meritorious side. The point of the FDI Moot is not to determine which side of the argument is more meritorious.
• not confess a lack of expertise on any particular issue of the problem.
Please keep comments brief (in total for all three arbitrators under 5 minutes). The FDI Moot’s tight timetable means we will need the room soon
C. AFTER THE MATCH - DELIBERATIONS:
After the competitors and audience have left the room, arbitrators deliberate. Some prefer to discuss the match with the other arbitrators, while others do not wish to be “influenced”. Either approach is acceptable. Arbitrators should not deliberate more than 5 minutes and remember:
• Reasonable arbitrators disagree. Don't worry if you score the match differently than the other arbitrators. “Split panels” are as common in moots as in practice.
• You alone are responsible for your score. While discussions among arbitrators may be useful, do not feel pressured to adjust your scores to conform to those of the others.
Each arbitrator must enter the individual scores in an Arbitrator Score Sheet for each match; These are available from the Secretariat before each match and should be returned there as soon as possible after the match. Arbitrators are encouraged to use a Score Work Sheet (Word or Excel) as a reference for all preliminary rounds. Most of the competitors are objectively very good, but some arbitrators find it useful in their first match to score the median advocate(s) in the 35-40 range, the best in the 40-45 range and the worst in the 30-35, which leaves room above, below and between these scores for better or worse advocates in subsequent matches. This practice works well in differentiating the advocates’ performances and with our normalization process.
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ORDER OF ARGUMENT/TIME KEEPING – SAMPLE
Teams should complete an Order of Argument form (clear the table below for this) before each match indicating to the Tribunal the agreed order of argument. If the two teams cannot agree on an order, the President of the Tribunal will decide the order and give teams one minute reflection to allocate times among their advocates.
Total advocacy time may not exceed 40 minutes per team (including rebuttal surrebuttal) or 25 minutes for any one advocate.
A team’s advocates may alternate more than once (see e.g. President’s decision below), but consider carefully how this affects the flow of argument and time-keeping. Each advocate must speak at least 15 minutes total.
Teams may reserve either (i) one consolidated rebuttal/surrebuttal period at the end on all issues with the opportunity for both of its advocates to speak (see Claimant proposal below); or (ii) issue-by-issue rebuttal/surrebuttal periods with only one advocate per team in each (see Respondent’s proposal below). Other variations of rebuttal/surrebuttal are not permitted. In either case, each team is limited to a maximum total of 5 minutes on rebuttal/surrebuttal
The Tribunal will only monitor the 40-minute (per team) and 25-minute (per advocate) and 5-minute (rebuttal/surrebuttal) maxima mentioned above. As a matter of courtesy or sign-posting their arguments, advocates may indicate how much time they intend to spend on each argument Any other time-allocation/keeping are the sole responsibility of each team/advocate (time-management and organization).
In the sample below, Claimant (simple) and Respondent (complex) each proposed an order, but could not agree, so the President determined an order reflecting some aspects of each proposal (3rd column). The President then merely noted the actual speaking times for each advocate (e.g. using a multi-timer app) and made sure they did not exceed the 40/25/5 minute limits.
Claimant Proposal / Respondent Proposal / Agreed/President’s DecisionEvensen / Tarazi / KRIEGLER, Martin
R : Jurisdiction
R : FET/Defences
R : Remedies
C1: Jurisdiction
C2: FET/Defences
C1: Remedies
Rebuttal
5’
Surrebuttal
5’ / Jurisd.: C/R1
Rebuttal/Surrebuttal 1’
FET: C/R2
Rebuttal/Surrebuttal 1’
Ess. Sec.: C/R1
Rebuttal/Surrebuttal 1’
Damages: C/R2
Rebuttal/Surrebuttal
Spec Perf: C/R1
Rebuttal/Surrebuttal 1’ / Jurisdiction: R/C
FET: C/R
Necessity: R/C
Damages: R/C
Spec Perf.: C/R
Rebut-Surrebut: C/R 5’
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