The FDI International Arbitration Moot 2020 is an annual international moot court competition. The case and hearings offer a unique forum for academics and practitioners from around the world to discuss developments – and assess emerging talents.
The moot spans approximately 8 months every year and is conducted in two phases with the goal of inculcating in students, academicians, and practitioners a practical understanding of investor/state arbitration issues.
This year saw the FDI Moot being held virtually (thanks to the pandemic). Not just this, but the FDI Moot had another new thing to offer: they offered their quarter and semi-finalists the chance to appoint their own arbitrators from a pool of 30 practitioners.
The team from WBNUJS (West Bengal National University of Juridical Sciences) comprising of Aakanksha Jadhav, Abhay Bhandari, Suyash Sharma, Vaishnavi Singh, and Shrijaya Singh, emerged as Octa Finalist at the Global Rounds of the moot, which had more than 75 teams participating. Additionally, Aakanksha Jadhav from the Class of 2023 was one of the Top 30 speakers of the tournament.
The Lawctopus team interviewed the team from NUJS to see what they had to share about their experience and if they had any words of advice for people going for future editions of the moot.
Can you tell us a little about the moot problem and the issues involved?
Answer: The moot problem was extremely interesting and comprised of contemporary issues revolving around climate change measures. The problem was based on a financial institution that could not realise back the loan that it had granted to a coal power plant. This was due to the plant’s early closure owing to a new coal phase-out law that was passed by the host state.
One of the jurisdictional issues was regarding the transfer of the investment and associated treaty claims. With increasing corporate re-structuring and transfers, this is a contentious issue in investment arbitration today. Working on this issue helped us explore novel arguments and understand the competing interests in this area of law. The same could be said about the other procedural issue which was a challenge to an arbitrator, which was based primarily on an ‘issue-conflict.’
As for the merits, the issue of attribution of conduct to an international organization was probably the most complex issue in the problem. Attribution of conduct of a member state to an international organization has seldom been discussed in investment arbitration, and was an interesting issue to explore and unfold. The second merits issue was regarding the Fair and Equitable Treatment Standard which host states are required to accord to investors.
Did the pandemic hamper the preparation? How did you manage to coordinate the preparation from people being in different locations?
Answer: It sure did! We were supposed to start working on the problem in a full-fledged fashion in March. However, owing to the pandemic, our college was closed down and we all hurriedly flew back home, to different corners of the country. It is much harder to handle the pressure that mooting entails at home. The college environment is better suited for this, where you can be physically present with your team and have friends and seniors to support you. The entire experience changes when the team is not physically together. However, since we had accepted that the situation would remain the same for a while, we adapted to it. At the outset itself, we shared google docs with each other so that we could review our progress and keep up accountability.
How was the experience participating in a virtual moot court? What were the things which worked against you, and in your favor?
Aakanksha: In a virtual competition it is important that your set-up and body language are suitable. Further, you need to be clearer while you’re speaking because there may be some internet issues that cause delays. Something that I was personally worried about is the increased focus on facial expressions due to the online format. The other thing that I was constantly worried about my internet connection, especially
before the South Asia rounds.
There is nothing that I would say that worked in our favor solely due to the virtual mode in particular. However, I do appreciate that the virtual format really helps teams cut down on travel costs and makes it more accessible. This was perhaps one of the reasons for the tremendous participation in the FDI Moot this year.
Abhay: In addition to the connectivity issues that had to be sorted out, the manner of arguing in a virtual setting was different than how one would prepare for an actual round. Reading the bench during the course of your arguments, and gauging whether your arguments are convincing to the arbitrators is relatively tougher when you’re not physically arguing in front of the bench. Regarding the connectivity issues, the arbitrators and the organizers were thankfully very cooperative and understanding.
One positive point about the virtual experience was that we got the opportunity to participate in multiple pre-moots, which would not have been possible in normal circumstances. This enabled us to have practice rounds with other teams, get feedback from arbitrators, and prepare better for the final Global Rounds.
Can you please tell us how did you go about researching, drafting the memo, and arguing? Any advice you would like to share for the benefit of our researchers?
Abhay: With respect to researching, we must understand that the hundred seemingly unimportant things that one reads before finding the right argument all contribute to the conceptual clarity of the issue; which is incredibly important and reflects in both drafting the memo, and arguing. Particularly about the presentation of the arguments, it is very important to remember that while knowing the correct law is important; it is equally important to sound reasonable and convincing. Ultimately, the judges, although extremely knowledgeable, haven’t been engaged with the problem for more than half a year like the participants have. Because of this, sounding logical and reasonable gains all the more importance.
Aakanksha: In the initial phase of working on a problem in a niche area, it is important to understand that area of law and its priorities. This is appreciated in the oral pleadings and reflects very strongly when you answer questions, especially if they are policy-based questions.
The moot spans for a period of approximately eight months. How did you ensure to work systematically over such a long period? How did your preparations change after the South Asian rounds?
Answer: When you end up working on something for more than eight months, it becomes a part of your schedule and gets engrained in your day-to-day life. This is precisely what happened with us as well. There are bound to be different phases in such a lengthy period, and it’s important to just keep going.
The preparation before the South Asia rounds was mainly focused on getting the law right. As this was settled before the South Asia rounds, the preparation before the Global Rounds was more about refining our manner of speaking, gestures, way of answering questions, and our advocacy skills in general.
Moots often give you a lifetime of memories. There’s a certain thrill while doing anything with so much preparation and competition (especially when the outcome is favorable). Any particular instances which stick out in your minds?
Answer: The pandemic took away some of the most things that are characteristic of mooting – brainstorming together with the team while working late nights, and traveling! However, the area of law itself was so interesting that despite these things not being there, we enjoyed challenging ourselves like this. Thus, the only instances that come to our mind are those rounds where the arbitrators appreciated our arguments and answers. It is thrilling to know that accomplished professionals working in the field appreciate what we’ve worked on for months!
Having spent months preparing on a particular subject area, a lot of people take a liking to the area of law involved. What do you feel about mooting as a way of exploring an area of law? Do any of you plan to pursue International Arbitration further?
Aakanksha: Yes, I absolutely loved working on this subject area, and look forward to exploring it further.
Abhay: Definitely! One of the best parts about mooting is that you end up learning about an area of law in great depth and that tends to cultivate an interest in that field.
International Arbitration is a fascinating area of law that I’m excited to learn more about.
Is there anything you wish you had known before going for this moot so that people can benefit from your hindsight?
Aakanksha: None of us had mooted before and we were expecting our lives to be completely taken over by the moot. That’s exactly what happened. However, the one thing I wish we knew before is that sometimes the presentation is equally, if not more important, than the substance.
Abhay: Before going for the FDI moot, it is important to be aware that this is a moot that spans over a period longer than most moots; and therefore is a longer commitment. While this may differ from person to person, it is a factor that one must consider before going for this moot.
What would be your takeaways from the entire experience?
Answer: The entire experience was enriching and fulfilling. While favorable results are something to work towards, mooting, in general, provides a lot of scope for self-improvement and self-reflection. Critically thinking and unfolding the problem is long and tiring, but a fun process!
Although we were not expecting the entire experience to be virtual, the complex, contemporary, and interesting moot problem made up for it. We learned to be dedicated towards a project and consistently work towards it.
Lawctopus has also launched a course on Mooting where students get trained on the fundamental aspects of mooting and also get to participate in an Online Moot. You could check it out here.