In conversation with winners of FDI International Arbitration Moot, 2021 – Global Rounds

The team of SLS Pune represented by Devika Radha; Manasi Desai; Shreya Mukherjee; Jahanvi Sharma; Harsh Khanchandani bagged the winners award in the world rounds of FDI  International Arbitration Moot, 2021.  The team in this interview with Nipun Bhatia vividly discusses various aspects of their preparation and journey to the finals of the world rounds.

 

  1. Please introduce yourself to our readers. Why did you take up law as a career?

Devika: I am Devika Radha, a final year BBA LLB (Hons.) student at Symbiosis Law School, Pune, batch of 2017-2022. In school, I opted for an unlikely combination of science and legal studies (instead of math) and that led me to this path. It was more of choosing a subject to further explore than choosing a career, and I think that reflects in my interest in academia.

Manasi: I am Manasi Desai, currently in my final year of BA LLB (Hons.), batch of 2017-2022. The primary reason why I chose law was because I was never an outgoing person back in school and law was a means to challenge myself to step out of this comfort zone and strive for better.

Shreya: I am Shreya Mukherjee, currently in my final year of BA LLB (Hons.), batch of 2017-2022. In school, I gravitated towards social science subjects and public speaking. With the guidance of seniors who were already pursuing law I started considering a legal career. In college, I have come to enjoy the nature of the legal profession which requires one to critically think and formulate innovative solutions by better understanding the laws and legal system.

Jahanvi: I am Jahanvi Sharma, currently in the 4th year of the BA LLB (Hons.) program at Symbiosis Law School (SLS), Pune, 2018-2023 batch. The credit has to go to my father for his service in law enforcement, as it got me accustomed to legal concepts involving criminal law at a very young age. Terms like murder, grievous hurt, conspiracy were commonplace and piqued my interest in the field of law.

Harsh: I am Harsh Khanchandani from 3rd year of the BBA LLB (Hons.) course, batch of 2019-2024. I always liked the aspect of social justice associated with the profession which motivated me to take it as a career.

 

  1. Please acquaint our readers with the Foreign Direct Investment International Arbitration Moot.

Devika: The Foreign Direct Investment International Arbitration Moot primarily focuses on the international investor-State arbitration regime and was established through collaboration between Center for International Legal Studies, Suffolk University, Pepperdine Caruso School of Law, German Arbitration Institute and King’s College London. The moot spans over the course of four months and involves written and oral components. For teams from South Asia, Asia Pacific and Africa region, it is also necessary to qualify to the global oral rounds through the respective regional rounds. For instance, all Indian teams must participate in the South Asia Regionals held in August, where all semifinalists automatically qualify for the Globals.

Harsh: This year a total of 81 universities participated in global orals whereas approximately 150 universities participated in allied regional and national rounds. While the global venue rotates every year amidst premier dispute resolution centers, this year it was hosted by Korean Commercial Arbitration Board  (KCAB) International at Seoul. Next year it is going to be hosted by King’s College London. Unfortunately for us, the moot was conducted in a virtual format but hopefully this year’s teams get to go to London.

Manasi: FDI has characteristics similar to Vis, but one distinguishing factor between both is that Vis is more focused towards international commercial arbitration, whereas FDI is based on international investment arbitration. Instead, FDI can be said to closely resemble the Frankfurt Investment Arbitration Moot in terms of its subject-matter. FDI also involves several elements of public international law, but unlike Jessup, it introduces other business law concepts, for instance, this year’s problem involved an aviation sector investment dispute and the anti-competitive practices adopted by a large airline.

 

  1. What inspired you all to take up this prestigious moot and how did you qualify for it from your college?

Jahanvi: Seniors! Since my very first year in college, I looked up to seniors who did international moots. It was around this time, last year, when FDI moot came for allotment and I had reached out to a few seniors who did Vis in the past and they had motivated me to take up this moot. The Student Bar Association at SLS, Pune conducts Challenger every year which is an internal moot elimination competition for allotment of the international moots and after appearing for Challengers, I was able to bid for the FDI moot.

Harsh: I primarily chose FDI because I was very fond of private international law. FDI moot introduces aspects of international dispute resolution, public international law, business law, like foreign investment, corporate structures and procedures, licensing, environmental law, IP, damages making it a holistic experience. I qualified an internal moot elimination called Symbiosis Moot Elimination (SME) in which interested students participate, get ranked and accordingly bid for national moots.

Shreya: I wanted to engage in projects relating to investment arbitration apart from taking up the investment arbitration elective in college. This prompted me to take up the FDI moot, which is one of the few international moots with the subject-matter of investment arbitration. Like Jahanvi, I qualified for this moot through Challengers.

 

  1. How was the experience of competing with the best universities from around the world and beating them to reach the finals of the world rounds?

Manasi: It honestly still feels surreal that we participated in such a prestigious event, let alone win the moot. With every qualifying round when the arbitrators declared the verdict that we had made it to the next rounds, the competition became more and more intense. The level of competition was so tough that it seemed almost impossible to even think about reaching finals. But my major learning outcome from this experience is that nothing is impossible if we endeavour to give our one hundred per cent.

Devika: From winning the South Asia Regionals to not progressing to the second round at a pre-moot and then finally winning the Globals, it was an exciting journey trying to match up to teams being coached by previous global champions. At the beginning of our preparation for the Globals, progressing to the round of Top 32 in itself seemed daunting for us. But as we did more practice rounds, we learnt how to read our Judges and respond to them more effectively, which I think was a key reason for us doing well in all of our rounds. In the end it all comes down to how responsive your speakers are, and how well they are able to manage their strong and weak points – both in research and in oratory.

Shreya: Being up against teams who presented excellent arguments was definitely challenging. However, the spirit of the competition helped me become a better mooter. With every round I learnt something from the opponent teams which helped me improve as we progressed through the regional and international rounds. Overall, it proved to be a great learning experience.

 

  1. What was the moot problem based on? How did you approach the problem, and did your strategies evolve with more preparation?

Jahanvi: This year’s moot proposition was based on a hypothetical investor-State dispute, wherein a State-owned investor from a foreign country decides to invest in the major airline of another country, and on account of several economic factors, the investment suffers and disputes arise. The key issues involved were that of jurisdiction, admissibility of amici submissions, the fair and equitable standard of treatment, and the issue of appropriate standard of compensation. Since the problem was about 90 pages long, it was difficult to get hold of all the facts at once, so we had decided to read the problem together in order to get a better understanding of the same; later on, we divided the research areas and worked on them individually.

Devika: As far as procedural issues are concerned, it is very important to be extremely thorough with your legal authorities along with the most relevant facts in the moot problem. For instance, the issue of jurisdiction in this edition of the moot concerned whether State ownership of the investor disqualifies it from initiating an investor-State claim. And the questions during our oral rounds often came down to minute details of percentage ownership and nature of control not only in the given facts, but also in the various decisions we were relying on.

Our strategy definitely evolved between the South Asia Regionals and the Globals, with a lot more emphasis being put on our manner of presentation for the latter. The strategy also differs according to the side. For instance, since the respondent argues first for procedural issues in arbitration moots, it is important to identify your strongest points and put them forth and make it clear that the claim absolutely should not be admitted. As a claimant however, you have to be more spontaneous and first rebut all arguments made by the respondent before adding any additional points. Thus, it is important to skim through your opponent’s memo for claimant procedural issues so you are not caught completely off guard.

Manasi: For the substantive issues, facts play a key role and no matter how many relevant judgments you find, your case will fall flat if you are not able to establish or deny your claims using facts. Therefore, for the substantive issues, my first and foremost suggestion would be to get a very good grip on facts and then proceed with research on legal aspects. Most importantly I realised that it takes a huge amount of time researching and experimenting with arguments through different interpretations of facts, hence it is very important to start early and remain consistent with your preparation for substantive issues.

 

  1. It is no secret that preparation of the memorial plays a very significant role for the success in any moot. Please walk us through how you prepared your memorial and what are the key factors that one should keep in mind while drafting memorials?

Harsh: 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. We started our memorial preparation quite early in the months of June-July which gave us advantage over other teams participating in the regionals. Best memorials from the previous year helped us understand the required drafting and citation style. As we understood the issues better, a major challenge was to keep our arguments crisp and short. We tackled the same by proofreading our drafts several times before finalising.

Manasi: A major mistake I committed during the early stages of our memorial drafting was that I would tend to make very generic statements about the applicable law and the prevailing judicial precedents. But it was only later with the help and guidance of our coach, Aayushi Singh, that I realised that this is not the best way to approach drafting of arbitration briefs. One must only state the relevant law which is applicable to the case at hand and try to keep the arguments as brief and precise as possible. Moreover, arbitration briefs place heavy reliance on facts as compared to law and therefore, one must always keep this in mind while preparing for international arbitration moots.

Shreya: The moot required the memorial submission after the South Asia Regional rounds and prior to the international rounds. Having gone through the South Asia Regional rounds, we had a better understanding of the facts and arguments which helped us in the initial stages of drafting the memorial. We also reached out to seniors and peers for help. Constant revision and incorporating changes that were suggested to us definitely helped us draft a winning memorial. So, it would not have been possible without the support we received from our college moot court association and mentors, especially from Aayushi Singh. Lastly, while drafting memorials it is important to have clarity in how arguments are to be presented and to do so in a succinct but well-reasoned manner.

 

  1. Not many people are familiar with the concept of “exhaustion of a search”. What are your views on it?

Manasi: I have faced this with almost each one of my moots. There always comes a point when the search results do not yield any new findings and you are stuck trying to resolve one aspect of your argument. In my experience, the best way to tackle this is a little bit of time and patience. Sometimes I would just take a breather from my moot preparation and go for long walks or engage in some physical activity and all of a sudden it would strike me that there is a completely new perspective to approach the argument. So, in my opinion it is just a matter of trial and error.

Harsh: On the procedural aspect, I think the respondent side was very weak. After a point, it became difficult to find the exact thing we were looking for. There was nothing on the domain that related to the subject-matter of the search. 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.

Devika: There is definitely a point in time where you stop finding anything that substantially strengthens your arguments. Although this can be nerve-wracking, in hindsight it really should have just been a reminder that we have worked on each of the issues for over four months. But once you have your opponent’s memo in your hand, there are certainly new angles to every issue that come up and the research really goes on till the last minute.

As a speaker, I found it much more important to focus on all the arguments and authorities we already had, and to improve my framing of arguments where research falls short. Although this might be a luxury for some teams, I definitely had an extremely capable researcher to pass on the research to when I was exhausted.

 

  1. What are your tips for students who want to pursue international moots in future?

Shreya: For every moot, irrespective of whether it is national or international, it is important to be thorough with the proposition. Once you have a clear understanding, one needs to formulate structured and well-researched arguments. Practising the arguments prior to oral rounds is also important. An added tip for international rounds would be to watch past year videos of international moot rounds and to try and inculcate the pace and manner of speaking followed, since a lot of emphasis is placed on that.

Jahanvi: When it comes to international moots, both substance and form matter, the substance has to be well researched, structured, and timed, whereas acing the form requires practice, a lot of practice with different Judges, who could give you constructive feedback for you  to work on. Native English speakers tend to rush during pleadings; however, the same is not appreciated much when it comes to international moots as the point you want to make gets lost in translation. One tip from my end would be to practise speaking slowly so that the substance does not get compromised because of the form.

Harsh: One major challenge for international moots is the commitment of time. 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. Thus, it becomes important to maintain a cordial relationship with all your teammates and understand their opinions during the moot. Lastly, being good with the law, and devoting considerable time to the case record will definitely help to understand and tackle issues in the moot problem.

Devika: If possible, get an able coach for the team who knows the subject area well. I highly doubt we would have made it so far if it were not for Aayushi Singh and her guidance on everything from memo drafting to oral rounds practice to suggestions on team bonding. Aayushi is an alumnus of SLS Pune, she has done her masters in international dispute settlement from the National University of Singapore and MIDS Geneva.

As you prepare for the Globals, it is also important to get as many practice rounds (more accurately, friendly matches) as possible with international teams. With virtual mooting being a thing now, it is easier to approach international teams through LinkedIn/Instagram, so make use of that.

 

  1. What are your future plans?

Devika: Focusing on publications and onto an LLM hopefully.

Manasi: This moot has definitely inspired me to look at international dispute resolution as a plausible career option and I hope to be able to pursue this after gaining the requisite knowledge and industry experience.

Shreya: After graduating from law school, I hope to practise in the field of commercial law.

Jahanvi: I wish to practise in the field of international arbitration in the near future.

Harsh: In the long run, I envision myself becoming a dispute resolution lawyer after I pursue an LLM.

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