Legally Flawless has started this drive to aware law students and young lawyers to achieve in the field of law through strategies from the achievers themselves.
In our thirteenth blog of the GYAN Series, we are going to learn everything about the art of mooting and how should one approach a moot court Competition to make his/her success.
The team of the Symbiosis Law School, Pune won the 2021 FDI Moot Court Competition. The winning team from the Symbiosis Law School, Pune included Manasi Desai, DevikaRadha, Shreya Mukherjee, Harsh Khanchandani and Jahanvi Sharma.
Team Legally Flawless congratulates the winners of 2021 Foreign Direct Investment International Arbitration Moot.
The 2021 FDI Moot Globals Finals video is attached at the end of this blog for your reference.
Table of Contents
How did you feel when you came to know that you are the winners of the prestigious Foreign Direct Investment International Arbitration Moot 2021, Global Rounds?
To be very honest. We are still not able to digest that we won the competition. We couldn’t believe it then and we still can’t believe it. There were a few rounds, where we really thought we wouldn’t make it but then we just ended up qualifying by a very tiny margin. So, it was very competitive.
Right from the regional to the global rounds, this moot was very competitive. There were a lot of good teams with great arguments. So, when we came to know that we won, it was a surreal feeling.
Being in my second year, I think this moot was a big gamble for me because FDI happens very late in the year, and participating in it means I won’t be able to do moot in my third year as well. And I think investing all your time and efforts for such a prolonged period of eight months definitely makes me happy that it did pay off well.
After we made it to the top 32 teams and then every time from 32 to 16, to eight to four. It just started feeling impossible. We thought that we would at least be in the top 32. After that all of us became numb.
Personally, I am very very happy about the outcome but it is only when other people start talking about it and congratulating on the win that you start to realize how big this was. Then you’re just like, “oh, yeah, I cannot believe we won it”. And it’s quite unbelievable even now. I don’t think it will ever like completely sink in.
How was the complete journey of this moot court competition?
I think every journey has its own ups and downs. We started working on the problem only in around April. It took us a very long time to actually get ourselves acquainted with the problem, it’s around 90 pages with all the clarifications that came along with it. We did not have a memo submission before the Regional rounds which happened in August but we still went ahead and started making our memo so that we can use it as the groundwork of our legal arguments.
Only when we started preparing the oral arguments for the Regional rounds did we properly realize how inexperienced we all were with international arbitration. We’ve all done moots, but we never actually did an arbitration moot before. We started to realize the difference between moot courts and arbitration moots. I think it took all of us a bit to actually acquaint ourselves with the nuances of how arbitration moots had to be differently dealt with.
Overall, I think the journey as a whole has been extremely exciting, to say the least. We met a lot of foreign teams, and it was a very different experience to meet different people from all around the world and hear how their perspectives to the problem and the legal arguments differ from us as an Indian team.
As all of us were new to arbitration we decided to spend an entire month trying to understand the nuances of the problem itself, because the problem was huge. We spent the entire April having multiple meetings where we would just discuss the problem itself. Thereafter, we started researching a little bit about the basics of investment arbitration, what is fair and equitable treatment, what are the procedural issues, the substantive issues, jurisdiction, amicus and everything. So, we divided the issues individually.
In any case, we couldn’t have made it by ourselves; we needed help from our seniors and other batchmates, who had a major role to play. We would like to thank our team Coach, Aayushi Singh, who has been there for us, every step of the way. If it hadn’t been for her, I don’t think we could have made it this far.
I think we have a lot of alumni to thank that way because a lot of them arranged pleadings (friendly matches) with foreign teams for us as well. But Aayushi Singh has been definitely the most influential person for us. Especially for the Global Rounds, she took most of our practice rounds and she was really our guiding light the entire time. The learning of investment arbitration itself has been a unique part of the journey.
The journey has been fun and it’s been a great experience. It was a little stressful but we did gain a lot of exposure to investment arbitration. We met a lot of teams and made many connections, although virtually. And of course, winning the moot was a cherry on the top.
I believe that the overall journey has just been amazing. This moot really helped each one of us explore an area of law that was completely new. Personally, I have three takeaways from the moot that is consistency, teamwork, and self-improvement. From the first day of the moot, the team was consistently improving not only on our arguments but on our speaking skills as well. This moot not only gave me an opportunity to learn about international investment arbitration as an area of law but I now see it as a career path.
The journey was a big 10 months long. Throughout this journey, we had to focus on our internships, papers, etc. so it was a bit difficult to manage. The three of the speakers were actually moving towards their final years, So I think, it was more difficult for them because they had to manage their internships, academics and look for PPOs and stuff. So in the midst of all of this, we still managed to win the moot and not only the regionals, but also the globals. Also, the memo-making process required a lot of editing till the very last day. The speakers had to think on their feet because the questions came from an array of fields of law.
Did you start preparing before the problem was released?
It doesn’t matter whether you do any pre-reading before the problem is released because it’s highly subjective. You can’t predict what the problem is going to be based on. I personally feel that it was only the duration of the competition that I actually got acquainted with, international investment law, I even did a diploma on this which helped me further increase my knowledge. I also took it up as an elective subject in my final year of law school. So that was something which helped me clarify my concepts and helped me with my research.
As far as arbitration moots are concerned, I think a lot of differences were actually in the way that you present your arguments and your style. I remember the difference between my other moots and FDI has been that I have been so much more aggressive when I speak in moot court competitions, but I really have to tone that down. It took me a while to tone it down when I was practicing for the Regional rounds. For us a lot of guidance was actually from the various FDI moot videos that are available on YouTube, they really help you grasp these differences.
How did you find this year’s moot proposition and what sort of issues were involved?
As Devika mentioned, the moot proposition was 90 pages so it was a little hard to get a grip of initially. However, eventually, after regularly going through the moot problem with my team mates and discussing it with various people we did get a pretty good grip over the problem and the issues. By the time the global round actually started, we were very familiarised with the facts and the proposition
I think the case committee of FDI has done an amazing job in actually bringing up issues that are presently relevant in investment arbitration law. I dealt with the first two procedural issues. and the first issue was regarding the standing of state-owned enterprises and investment arbitration. So if the investor is a state owned enterprise, can they represent themselves as an investor or would you qualify them as state thereby excluding them from investor-State arbitrations? I think this particular issue has a lot of relevance right now because there are a lot of state owned enterprises that invest in other countries, especially from China as part of the One Belt One Road initiative.
The second issue that I dealt with was regarding the admissibility of amicus submissions, which again, has been widely discussed in the recent past due to the increasing need of transparency in international investment arbitration.
Not just for procedural issues, even for substantive issues they introduced a very new concept, which was the notion of creating fair and equitable treatment standard violation because generally if we look at international investment law, we will come across a lot of expropriation matters or fair and equitable standard violations. But creeping fair and equitable treatment standard violations are very rare. Hence I believe the Case Committee wanted to incorporate this notion into this year’s problem where they incorporated a number of discrete actions and required the participants to argue upon the lines of creeping FET.
The last issue was concerning damages where they probably wanted us to use the Most Favoured Nation treatment principle. However, again, when it comes to the application of MFN it is quite debatable whether MFN can be applied to dispute resolution procedures or whether it can be used to import substantive obligations. The main issue was concerning whether compensation falls within the ambit of treatment under MFN.
Are international moots more challenging than the national ones?
According to me, both national and international moots are challenging in their own ways. The quality of arguments is important, in both national and international moots. But I saw that a greater emphasis was placed on our presentation and our speaking pace. So I think it did make it a little challenging for me to try and get used to a different pace and a different style of pleading.
I think the national moots especially have a lot of emphasis on the quality of the legal arguments, but as far as international moots are concerned, especially arbitration moots, I think the emphasis is both on the advocacy as well as the legal argument. For example, one major change that we had to face when we went from South Asia regional, where we were facing only Indian teams, was that the Indian teams had quite a lot of legal arguments to make, whereas in the Global rounds, the legal arguments were good, but they only had a few. The major point of the difference we noticed was that foreign teams emphasize a lot on the way they present the arguments and the way they elaborate on it, rather than the number of legal arguments that they have. And I think it’s very difficult for Indian teams to actually shift into that mentality, especially when you go to from the Regional rounds to the Global rounds. But it can be done through sufficient practice before the Global rounds and organizing friendly matches with foreign teams helps you experiment with your argument structure.
Firstly, I believe that the drafting style in our memorials was quite different from national moots. International Arbitration Moots as compared to national moots have a stark difference in the presentation of arguments and their structuring. Secondly, the major difference is also about the commitment of time you give to an international moot. National Moots usually last for 2-3 months whereas international moots on the other hand require 6-10 months of dedicated time. So I think balancing out your personal commitments and then working out throughout the moot consistently is a major challenge.
I won’t say that international moots are more difficult than national moots, but then I believe the sheer amount of time we have to dedicate to international moots makes it very challenging because you will be working on an international moot throughout the year and it’s a very big commitment. Even for us, by the end of FDI, we were so done dealing with the Case Record that we just wanted to get it over with. Throughout the duration of the competition, we read it so many times that it almost got ingrained in our memories. I feel in international moots, they also look at the speed because throughout South Asia Regionals towards the Globals we were constantly reminded to reduce our speeds and gauge whether the Tribunal was following us. This is because the Arbitrators might come from different parts of the world and they may not always have English as their first language. Plus, the difference in accent was also a factor.
In international moots, substance is given importance at the same time presentation and form matters a lot. So we have to remind each other to not click our tongues while answering as that’s like the most nuanced thing. While we were having practice pleadings, we were advised from the legal arguments to even taking out tongues or touching our hair, and we’re constantly keeping it in check that we’re not doing it. Personally, I had learned that even if I have to go for an interview or something like that, I would make sure that I don’t fidget or I don’t touch my hair or use a lot of catchphrases or something like that. So I think that experience will help us not just in this moot, but in life.
How did you form this winning team?
I think everyone brings something different to the table. And as a winning team, it’s very important to be aware of each other’s strengths and weaknesses and learn to work around those strengths and weaknesses. Also, I am grateful for my teammates who have been very understanding and supportive throughout the process.
Yeah definitely!The fact is that people always look at the bigger picture, and do not take constructive criticism. So, I think what really matters the most is what amount of preferences you may have, but in the end, you all are going there as a team, and maybe representing India. Looking at the bigger picture is what I think kept us motivated. Focus on this one Goal.
I think the chemistry part; I remember there were rounds in which our teams were at par with the other team and it was really difficult for the judges to decide. However, we ended up winning that round. The judges also mentioned in the feedback that because these people were able to complement each other in terms of the pleadings. So I think that matters a lot. No one person can drive the whole thing.
Also, just because we are the winning team doesn’t mean we haven’t had our share of fights or differences. But what is more important is that we found a way to work around them. We found a way to deal with eacḥh other despite the differences or arguments that we may have had because as Jahanvi mentioned, we saw the bigger picture.
I think you’re right. One of the factors that always kept us as a team motivated was the fact that SLS Pune has never before qualified to the Global rounds of FDI, in fact we’ve actually never done well in the South Asia Regional either. So I think going into the regional, we were all like, “Okay, we need to make it to the Global rounds for the first time because we are a college that does absolutely well in mooting but we have not had a single global round participation in this particular moot.” So I think that was definitely a factor that kept us motivated.
One of the good things that we did after taking Aayushi’s advice was to actually go to Pune and be physically together for the global rounds. I think all of us were there for around two to three weeks. We spent a lot of time with each other, getting to know each other and that is definitely a huge factor that keeps you motivated. Although me, Manasi and Shreya are batch mates, we had not actually spent so much time together. And I think that two-three weeks is definitely was a very good reminder of why we have to keep our differences aside and work together to win.
If you look at our video or from the Global rounds, I think an amazing thing that happened to us was that we were together and when I and Manasi or I and Shreya sit together and plead, you can actually see the chemistry between us, we complimented each other very well in terms of style of speaking. So I think that is something that worked out really well for us in deciding that we should actually be together for the Global rounds and not just give it from our own homes like we did for South Asia Regionals.
I understand that each one of us had different working styles and we had different types of commitments. At times, understanding that and balancing these conflicts makes it a winning team. I’m happy that it eventually worked out for all of us.
How was the experience of online mooting? And, how was the experience of working remotely for the regional rounds?
There are three different phases where we understood the challenges and advantages of actually having the moot online. I remember the South Asia regionals where we were actually giving our oral rounds, and even before that the practice rounds, from our own homes and I found it very comfortable to do an online moot because I was giving the moot from my own study table, and I am in my comfort zone. I don’t need to worry about anything outside because my parents are home. So, I really love the fact that we did an online moot.
Now, coming to the second stage, which was the memo submission, which we had a month after the Regionals. That was very hard to do online because I remember we sometimes sat in meetings for around 13-14 hours editing our memos which would have definitely been easier to do if it we were actually together. So, I think going to the Globals and making the decision of being together in Pune was definitely something that worked out well. It would have been really wonderful to actually meet a lot of people if the moot happened physically because there were many amazing practitioners. That’s definitely the one thing that sucked about the online format of the moot.
But on the positive side, what happens in FDI and a lot of other moots is that in Europe, they have a lot of Pre-Moots that happen right before the oral round, which is obviously very beneficial because you’re meeting teams who speak in a different way, who have different ideas about legal arguments. So, the disadvantage for Indian teams is that we don’t have an India pre-moot for FDI. So having a pre-moot online would definitely was a great thing for us which and if it was offline, there was no way we could have done a pre-moot or actually met so many teams for practice matches. So, I think that is a very big advantage, especially as far as Indian teams are concerned because the cost is definitely a factor that the Indian teams consider while participating in international arbitration moots.
I personally preferred offline moots more than the online setup, because I remember, during the Globals, although the moot was happening online but since all of us were together it was so much easier to coordinate. I remember Devika, Harsh and Jahanvi, would sit for the procedural issues and then Shreya and I would coordinate on the substantive issues. We could ask each other and discuss on the spot. Whereas, during the South Asia Regionals it was just me and it was hard to coordinate if I needed some quick additional research to be done. This is one aspect that I felt is better about offline moots. Also, especially considering that if it was offline we could have gone to Seoul, South Korea.
I think communication and group brainstorming is what we might have missed. On the other hand, it was much more cost-effective for us as the whole process was online. We also got an opportunity to participate in various practice sessions with teams from around the globe and pre-moot that was held virtually. So, I think that definitely adds on as a benefit for online mooting.
Yes, it definitely made the moot more accessible. And I think next year also they’re going to stick to a hybrid version for teams who would not have otherwise been able to participate. So, I think that’s a great benefit.
What was the role of mentors throughout this whole journey? And What was that advicethat made it a winning team?
Huge. I think the role of mentors is really huge as far as the international moots are concerned. We didn’t have a lot of guidance from previous participants of FDI. Like I said, that SLS Pune had not done quite well in FDI before. So, finding the right mentor was definitely a big part of actually winning the South Asia region as well as the global rounds. Our coach for the moot was Ayushi Singh, she’s a 2018 graduate from SLS and now she’s working at Jindal. And finding her was such a random thing because it was Manasi, who was actually doing some research with regard to her LLM applications, and she came across Ayushi. So we contacted her and asked if she could sit with us once because we really had not much of a clue how to prepare for FDI.
And because it happened so unexpectedly, I think we really didn’t contemplate that the bond for us as a team with her would be so instrumental in this journey. From the first meeting itself, she’s been part of the team. Not only with the law, but she helped with bonding as a team, and I remember she had individual meetings with all the speakers to actually help us identify our unique strengths and weaknesses and turn them into something that could work well when both of us speak and how to mellow out our differences as speakers.
Not only did Ayushi motivate us to believe in ourselves individually but at times she even scolded us when it was required. I remember when I was going as a Claimant in one of the rounds and for me personally the Claimant’s side was strong, “Don’t be overconfident”.
I would say that we were literally lost before Aayushi started helping us. When she agreed to help us out, we finally found our path and we were on the right track before South Asia Regionals and finally towards Globals. Besides, Aayushi I would also like to thank a lot of our other batchmates, seniors, alumni and other practitioners, whom we had approached and especially during Globals we had a lot of friendly practice matches with teams from other colleges. So, Aayushi actually did have a very huge role to play when it comes to us and our victory at the Globals. However, besides Aayushi, there were so many other people whom we approached, if I start naming all of them individually the list is endless.
Having worked with Ayushi, I realized, how important mentors are. A lot of teams put in efforts of course, but the difference is that a mentor teaches you how to channel your efforts in the right direction so that you actually get the result you want and this becomes very important in a moot where the competition is so fierce and a lot of times the scores between two teams are very close.
From being a coach to a mentor to a therapist, name it all and Ayushi was there for the team regardless of her jobs. The fact that she was so involved in this moot, motivated us to put in more effort as we did not want to disappoint her. We also made a lot of memories with her.
I believe that the role of our mentor has really been instrumental in winning this moot. From day one, she has constantly helped and supported the team with everything. From giving us motivation, helping us with our arguments, taking practice pleadings every day and going through our written briefs and memorials. She has dedicated a lot of time and energy throughout the whole process. Her hard work and passion for International Arbitration never failed to amaze us. For me, she has truly been a role model.
During the preparation did you come across a phase when you were stuck at a particular issue?
Ohh my God! Denial of Justice. Yes!
So, in the substantive issues, one of my contentions was concerning the denial of justice under the FET standard. One major aspect about oral argumentation is that it is quite subjective especially when it comes to merits in an international arbitration. It depends on how you use the facts to your advantage. For the denial of justice argument, there weren’t many facts to support my claims. Hence, very often I used to get stuck on the question which was thrown at me as I was not able to adequately address the same using facts. In this circumstance, it was just trial and error as I tried out different ways to go about this argument until something which sounded more convincing worked out in my favour.
On the procedural aspect, I think the respondent side was very weak. Challenging jurisdiction from the procedural side has always been difficult. The only thing I would like to say is just be consistent with your research. This really helps to tackle issues that require in-depth reading and understanding. Also, take necessary breaks whenever you encounter a problem in a particular issue.
One thing that worked to our advantage is that we had the regional round and the premoot . This gave us a lot of practice and it allowed us to try different arguments. One suggestion for teams that probably cannot give premoots is that they should definitely give a lot of practice pleadings to prepare.
We would like to know your comment on the mooting culture in Symbiosis Law School?
I think Symbiosis has a great mooting culture. We have close to, four internal elimination moots, one of which is specifically for first years, and one is ADR related internal moot elimination. There are two different sets of mooting eliminations, which the FDI team had taken part in, for instance, Jahanvi, Devika and Shreya had taken part in Challenger Moot Elimination, and Harsh and I had given the Symbiosis Internal Moot Elimination (SME), which is much more competitive as compared to challenger, because in SME there were close to 360 participants. In Challenger, there were somewhere close to 30-35 participants, but the only difference between the two is that challenger Moot is mostly focused towards international moots and hence the quality and experience of its participants is supreme, whereas SME is focused more towards State and national Moots. Now why people from SME were chosen to participate in FDI, which is an international moot, is a long story and I shall not get into the procedural nuances of mooting in our college.
Just looking at the quality and competitiveness of the internal moot eliminations in our college itself offers a great perspective as to the type of mooting culture Symbiosis possesses. I feel it is because of this itself that we were able to reach this extent in FDI. I’m sure you must have heard that Symbiosis has performed exceptionally well in national as well as international moots this year. At Stetson, we were Runners Up at the World Rounds, in Oxford Price Media Moot, we won the Regional Rounds and even in the international rounds we were Semi-Finalist, then in Herbert Smith we were Semi-Finalist and at Vis Hong Kong we qualified to Top 32, in JessupIndia-friendly rounds, We got the Best Speaker and the Second-Best Speaker Award. So, you see, our latest victory at the FDI Moot is a testament to what sort of mooting culture Symbiosis possesses.
Symbiosis offers a lot of opportunities. There are a lot of competitions one can participate in. The university motivates us to do a lot with regard to competitions. The college also supports us in terms of reimbursement of expenses related to competition. We also have a lot of mentors who help junior teams. In fact there is a list of mentors for each moot that the Student Bar Association maintains with regard to approaching them for the specific competitions. So, that way, the way college supports mooting is amazing.
At Symbiosis, the seniors are always helpful. Even our colleagues were very helpful. People belonging to Devika and Manasi’s batch were quite helpful because they had done Vis Moot in the previous years. So, they helped in organizing, practice matches and taking up pleadings.
What would be your advice for the upcoming participants of the FDI Arbitration Moot Court Competition?
My advice would be that firstly, nothing is impossible. Just because our college hadn’t performed well at FDI before, does not mean that it can’t do so right now. Secondly, when you take up a moot, be ready to give it your 100% and it is only if you give it your 100% commitment that you can expect something positive to come out of it.
Specifically for FDI what I really want to tell Indian participants is that know the law very well. Investment Law is something that’s not taught in college. So, you really need to know the basics well before you actually make your own legal arguments that are specific niche issues involved in the particular moot problem. So, I think learning the basics is very important for FDI because it is a very niche area. And it’d be always helpful to have a mentor who actually studied investment law which is abundantly clear from the way Ayushi was able to guide us. But don’t think that not having a coach is so detrimental that you never do good without a coach. I think even the NLS team that won the FDI in 2017 did not have a coach. But the knowledge in law is specifically very important for FDI.
And as far as your teams are concerned, it’s really important that you have the ability to actually talk to your teammates if you’re facing problems when you’re doing the moot. You need to support each other. I remember there was one practice round before which I was so stressed that I needed to cry. So I just go into my room and I cried for 10 minutes and come back out and the team’s just “Let’s do this”. It’s really good if you have a team that supports you.
The most important thing, however, is that one needs to realize that each person in the team has their own process and you need to appreciate that individuality. Harsh has helped me a lot with regard to my procedural issues but the problem is when I go in and see the procedure issues, and the way I deal with each question that an arbitrator asks is different from how Harsh would have answered it. And the way Manasi or Shreya deal with each question is also very different. Not not only in terms of answering questions I think the way we prepared our speeches even for the regional rounds was so different for me, Mansi and Shreya. I simply had a flowchart of my arguments were going into the regional rounds and I remember reworking that flowchart before every round for oral rounds as well. Whereas, Mansi had a set speech and a compendium (which I never had throughout the rounds). So, I think one important thing to always keep in your mind as a team is that each person has their own process. There can’t be one general process for any person that applies equally to everybody. Appreciate that individuality and don’t try to impose on each other about how to go about the process.
I think before approaching the moot, considerable time should be devoted to reading the proposition and being extremely thorough with the facts. An advice that really helped us start off was probably to make a good fact and bad fact table from both sides. So, you have a holistic understanding of the moot problem. I would also strongly recommend watching videos of Moot Finals and try to inculcate the style and the pace of speaking
Adding on to what has been said, being good with the law, and devoting considerable time to the case record will definitely help to understand and tackling issues in the moot problem. The whole process of mooting is very holistic. It teaches you many key lessons and skills that you might not learn from other activities that you do in law school like pressure, time, and team building. This is a great opportunity to explore an area of law that you might not be aware of but you might become interested in.
Firstly, time management and team bonding is really important. We went there as a team looking at the bigger picture. So that has a lot to do with being open to constructive criticism as well. Trying to understand the perspective of your teammates, at times you are just looking at things from one perspective but allowing other people to barge in and advise you and being open to that also at times helps you out.
Also, one thing which is a bit personal to me is working on your mental health at the same time because moots are stressful that also when it’s 10 months long and you have to manage your internships, your internals, your exams, also. I remember when the pressure was so much that I called Devika and she just talked to me and it actually helped in our team bonding. Also, Devika used to go out for walks to calm herself down. Being observant is really important not only in terms of just making your arguments but also looking at what the arbitrator or the judges wants. Most of the times what I observed as an observer during the rounds is the feedback or the way that the judges actually mark you has a lot to do with how they present themselves. So if a judge is speaking in a slow pace, and he’s not really rushing with what he’s trying to ask, he would like the speakers to maintain the same pace as the judges. So that would you know, psychologically, make them sound more likable as compared to the other speakers who are reading.