Note to non-lawyers: this Guide Entry talks almost, but not entirely, about some rather dry jurisprudence. The drinks will be served later on...
The 'Willem C. Vis International Commercial Arbitration Moot' is a fairly long subject to deal with in one go. It will therefore be broken down into smaller, more manageable sections.
Willem C Vis
'Willem' is a Dutch given name, equivalent to the English William and the German Wilhelm. Most notably attached to Willem I of Orange (1533-1584), a Dutch leader and statesman. The 'C' stands for Cornelius and 'Vis'is the Latin word for strength and power. It's also the Dutch word for fish.
Willem Cornelis Vis (1924-1993) was born in Utrecht, Netherlands. After working as the Deputy Secretary-General of the International Institute for the Unification of Private Law (UNIDROIT) for three years, he moved to the United Nations Secretariat in New York, where he became Senior Legal Officer. Later he went on to become Chief of the International Trade Law Branch of the United Nations Office of Legal Affairs, and Secretary of the United Nations Commission on International Trade Law (UNCITRAL). Further to this, he helped create the UNCITRAL Arbitration Rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG. Finally, he joined the Faculty of Law of the Pace Law School in New York state..
The following terms are defined in this context for clarification:
International - Meaning 'between/among tribes' or, slightly modernised, 'between/among nations'.
Commercial - Relating to trade.
Arbitration - In modern legal systems, arbitration is seen as a legal decision on a dispute outside of the ordinary courts. The Arbitrator or the Arbitral Tribunal renders an award which can then be enforced by using national enforcement procedures, that is to say that an award by an Arbitral Tribunal is as good as a court decision. Where one would need to commence a proceeding before a court, arbitration requires the parties to the dispute to sign an agreement and submit it to an arbitral proceeding. The arbitral tribunal hands down a binding decision, as opposed to mediation where the parties have to find a solution themselves.
The idea of arbitration is in fact not a new one. It could be argued that since arbitration does not need a fixed legal system, it constituted the first way of solving a dispute by involving a third party. One of the oldest decisions in commercial arbitration to have been handed down other the centuries dates back to the year 1229.
Moot - A moot point, problem or discussion is one of little or no practical value, but merely academic. A moot competition needs a problem, rules, teams and someone prepared to listen to the teams arguing. Moots are fairly common with the timetables of law students in Australia, UK and USA. In the last couple of years they became increasingly popular in non-common law countries as well.
International Commercial Arbitration
From the above we can infer that International Commercial Arbitration is an out of national court dispute settlement on a subject matter concerned with international trade. This way of solving disputes became more and more popular in the business world for a number of reasons, discussed below.
National courts are notoriously overworked. While a number of countries are looking into their litigation processes to find the bottlenecks, national laws are slow to change. Generally speaking, arbitration proceedings are considerably faster than national courts. This is in part owed to the fact that the tribunal is established when the dispute is submitted to arbitration. Furthermore, in an arbitral proceeding there is no chance to appeal to a higher instance. The parties are therefore stuck with the award.
Control and Flexibility
Since an arbitration needs an agreement by the parties, it can be tailored to the needs of the parties. They can basically decide about everything relating to the arbitration eg, the place, language, number of arbitrators, rules of the proceeding, the law to be applied. This is especially sensible in an international contract. The parties can, for example, agree that the tribunal is to consist of persons who have expert knowledge in the field of the trade and the relevant trade usages. This would save a lot of trouble later, since the parties will not have to deal with a judge who is mostly concerned with family law matters and is perhaps a little ignorant in regard to oil rig sales.
Most importantly with international trade is the fact that arbitral awards are relatively easy to enforce around the world. Enforcement means that the winning party uses a country's powers to force the losing party to hand over whatever was granted in the judgement. An example would be seizing certain assets.
To enforce any decision, the interested party has to contact the courts in the country in which it seeks to enforce the judgement. With a tribunal's or a court's ruling this requires a process of recognition. National laws usually provide for a general procedure which might, at times, be lengthy and the result not always certain. Therefore it helps to have a contract or convention concerning enforcement between the country where the case was heard and the country where the ruling is to be enforced.
For arbitral awards there exists the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards which is usually referred to as the New York Convention. This convention has already been signed by over 120 countries and ensures prompt enforcement. This means that enforcement of an award from one of these countries only requires waving it before a court of another signatory country. No such convention exists for rulings of a national court; there are a vast number of bi- and multilateral agreements between countries.
Willem C Vis International Commercial Arbitration Moot
The Willem C Vis International Commercial Arbitration Moot is a competition for law students, named after Mr Vis, which simulates an arbitral proceeding in the field of international trade law.
The Vis Moot is organised each year by the Pace University School of Law. It is co-sponsored by the American Arbitration Association, the International Arbitral Centre, Vienna , the London Court of International Arbitration (LCIA), the Chartered Institute of Arbitrators, the International Chamber of Commerce and the University of Vienna Faculty of Law, which also hosts the Oral Rounds.
This list indicates the academic standing of this moot competition - it can safely be called the Olympic Games of International Trade Law. This is also supported by the growing number of participating teams. In the 8th Moot (2000/2001) over 540 students in 94 teams from 31 countries competed. For the teams, the trip to Vienna is usually sponsored by the University or outside sources. The degree and make-up of sponsorship varies around the globe, of course. Commonly, costs of the trip itself and at least part of the accommodation, which vary wildly, are not borne by the students themselves. While the team of the University of Vienna only has to pay the registration fee of US$ 500, the Australian teams which come over with eleven students and test-moot in Paris and Berlin before going to Vienna spend a little more than that.
At the beginning of October the problem is published on Pace University's Moot web site. The problem consists of a complete case file, containing all the bits one would find in a real case, such as the request for arbitration, exhibits from both sides, administrative papers by the tribunal, etc - around 40 pages altogether.
Each team then prepares a memorandum for the Claimant, making use of all the facts in the material that support the Claimant's position. This is the point where the students touch upon new territory, since university teaches them to be objective and always see both sides of a case.
The law that applies to the case has to be the same for all participating teams, otherwise one could neither compare the memoranda, nor have the teams argue against another. Thus the law has to be international. The material law - the law that is to be applied to figure out whether the Claimant is right or wrong - is always the CISG. And here the Moot links back to Willem C Vis.
The procedural law - the rules which govern how the tribunal is to do its business - changes from year to year. While in 1999/2000 the LCIA Rules were used, the Arbitration Rules of the International Chamber of Commerce were applicable this year. Part of the procedural problem is traditionally the jurisdiction of the Tribunal: the question of whether an agreement to arbitrate was reached between the parties. If there was no such agreement, the Tribunal would not be competent to hear the dispute.
After submitting the memorandum for the Claimant at the beginning of December, these are then shuffled and re-distributed. This means that each team receives a memorandum supporting the Claimant's position from some other team. Now the paper for the Respondent has to be drawn up in answer to that, and at the same time one's own memo is taken apart at some distant corner of the globe. After the Respondent's memo is submitted, the oral preparations begin as each team has to defend its position in a hearing.
The orals take place the week before Easter; by now the teams have been working on the case for half a year. Each team has to complete four sessions against other teams - twice as Claimant, twice as Respondent. The tribunals are made up of judges, solicitors, barristers, arbitrators, coaches and professors. Here one actually gets to meet the people who write all the big fat books about the CISG and arbitration. These rounds are held at the Juridicum, the building of the Faculty of law in Vienna. The final is held at the impressive Festsaal of the Rathaus, where the awards banquet is also held.
An award is given to each of the best memoranda supporting the position of Claimant and Respondent. Another award goes to the best individual advocate in the general rounds, and the most prestigious award goes to the team that prevails in the oral argument. The awards are purely idealistic - just fame, no fortune.
Well, that sounds awfully dry doesn't it? It is true that this Moot is only for the ones who consider law fun at times. But if one does not, one shouldn't study law anyway. All the work put into the preparation is paid back during that week in Vienna. This starts with an informal welcoming party which is organised by the Moot Alumni Association (MAA), which was founded by members of the University of Cologne, Germany and Deakin University, Melbourne, Australia.
After paying a small fee to get in, all drinks are free. The atmosphere is relaxed and friendly. Everyone is a xenophile, all speak at least English and all are here for the same purpose. The party provides ample opportunity to seek out the teams one will meet in the orals and get to know the rest, too. The fact that the combinations of faces, names, nationalities and universities are getting mixed up after talking to more than 50 people doesn't bother anybody.
The mornings or afternoons not occupied by mooting are usually taken up exploring the city of Vienna. With its extensive and fascinating history, Vienna offers literally thousands of sights, museums and famous cafés found throughout the city. As no cultural programme is set for the Moot, the Teams are free to visit the sights they want.
The partying goes on every night of the Moot and most consider it bad form not to turn up severely lacking sleep at the oral sessions, unless you yourself have to argue. Additional fame goes to the ones who party all night and still argue the next day. The sense of the Moot is arguably to meet law students from around the world, establish friendships and generally have a good time, which is clearly deserved after six months of preparation. This cannot be achieved by sitting in the hotel room for a week. The participants will remember who won last year's final. They might remember who came second, but they will not remember who came third. They will remember the ones who were in the pub every night. If one comes back to the next moot, other 'repeat offenders' will only recognise you if they saw you at the Ma Pitom on a number of nights.
The Ma Pitom traditionally is the pub for the Moot. It is situated in the Bermudadreieck, the Bermuda triangle, as the Viennese call their pub and party district. The naming is fairly obvious: lots of liquid and people getting lost. The Ma Pitom (apparently Hebrew for 'Anyway') is a long and fairly narrow tube with a curved ceiling. The noise level generated by some hundred students is ear-shattering and forces people to scream a normal conversation, which in turn does not help to make things quieter. Service breaks down as soon as the place is too packed to get through, but getting to the bar is not a problem for an eager law student.
Nevertheless everybody's having a great time meeting even more people from different cultures, learning to say Cheers! in different tongues and picking up some foreign drinking songs. Some people even have rather serious talks about politics and current affairs to find out the views of someone from a different country. The only ones really and absolutely hating it are the staff. They have to stand all the noise and the bad air while taking orders in German and English spoken with the widest variety of dialects.
As the legend goes, the first 'Mooties' did not meet in the Ma Pitom every night. They met in some other pub. They had a great time and then two or three went up to the maitre d' maison and offered him a deal: they would stay all night and not visit other pubs and the maitre d' would close this place to the public and only cater for the Moot. The guy looked around and said no. So all the 100 people left for the Ma Pitom and the maitre d' had a perfectly quiet evening, broken only by his sobbing.
Finally there's the Farewell Party, also organised by the MAA. Here the public display of affection and exchange of addresses reaches a high. This is followed on the next day by the final round of the orals and the award banquet.
The mood is somewhat damped by the sudden realisation that it's time to say goodbye, but some of the students who came to Vienna from overseas do now have a number of places to stay during their following trip through Europe. And maybe the next team from their university will test-moot against a European team on the way to Vienna. And some will meet in Vienna the next year and say 'Didn't we meet at the Ma Pitom last year?'.
And then the realisation will dawn that one did the right things during the Vis Moot last year.