The Generic Memorandum for Respondent on Procedural Issues

Since my co-blogger and I are participating in an arbitration moot next weekend and are hard at work on the memorials at present, I would like to share something I learnt at the Willem C. Vis Moot on International Commercial Arbitration last year.

It is called "The Generic Memorandum for Respondent on Procedural Issues Waltz (Including argument headings)" and was written and performed by Prof. Harry Flechtner of the University of Pittsburgh School of Law, during the announcement of elimination round participants.

It sounds better than it reads, nevertheless, its an interesting take on objections to jurisdiction of an arbitral tribunal.

This is how it goes:

(Argument I: No offer to arbitrate)

Oh Mr. or Ms. Arbitrator, don’t hear this case against me,

‘Cause I swear I’ve never seen that arbitration clause before.

(Alternative argument IA: assuming arguendo an offer to arbitrate, non-consent)

Well, maybe I did – but I didn’t agree.

(Argument II: Non-compliance with formal requirements)

Plus the New York Convention – it ain’t satisfied:

That signature wasn’t authorised by me.

(Alternative argument IIA: invalid compliance with formal requirements)

Well maybe it was – but it happened in the

Middle of my episode (since cured) of insanity.

(Argument III: unenforceability of award)

Any award that you issue will not be enforced

So proceeding just does not make sense;

You see I’m urging your exclusion because you’re inept

And the panel has no Kompetenz on your incompetence.

(Argument IV: improper arbitrator)

Oh, Mr. or Ms. Arbitrator, this case you simply can’t hear:

Your qualifications, I'm afraid, have been called into doubt,

You think an interim measure is five litres of beer.

(Argument V: Claimant’s arguments are unpersuasive)

My opponents make arguments lengthy and grand,

With fine phrases their memo’s stuffed full.

It’s full of something – out of decorum I will simply observe

That their arguments are arbitra-bull!

(Argument VI: Final irrefutable argument)

So Mr. or Ms. Arbitrator, don’t hear this case against me,

One argument I’m certain will convince you of that:

I don’t have the cash to cover your fee!