Saturday, October 16, 2010

Vindobona Junction - What is the perfect battle formation for a vis moot?

The Vis problem has been out for a while and it is time most universities decided who their team members are and most teams decided who is doing what. This post seeks to give some suggestions as to the strategic considerations to be kept in mind while deciding who is doing what in a Vis team.

Does Size Matter?

When I participated in the 16th Vis, my team had two speakers, one researcher, one Junior researcher and one non-accompanying coach. Though the number is technically five, the junior researcher and the coach are not core members of the team as per my university practice, making the number effectively three. The junior researcher is a first year student attached to the team for training and the coach (strategist) is a senior student who has done well at the moot and is expected to act as a guide to the team. We came across European teams with up to 16 members and 4 accompanying coaches (most of whom were senior professors who were cited as authorities in our memorials). While the sheer number of members on these teams could be intimidating at times, what I found out through the course of the moot is that Goliaths are not invincible. We proceeded to the Round of 16 beating several teams which by far outnumbered us. More notably, a team which consisted merely of two speakers (ILS Pune) became runners up in the 16th Vis. Similarly, a team from my university (for which I was a non-accompanying coach) reached the Round 8 in the 17th Vis with just the two speakers and one junior researcher present in Vienna.
So, when it comes to a Vis team, size related insecurities are unfounded. A small team has the advantage that each speaker will have an idea of the entire case (not just what she is supposed to argue) and can see the larger picture in which her arguments are situated. This is important especially when it comes to answering unexpected questions from arbitrators. Moreover, a smaller team may have the advantage of better coordination. It is true that a larger team has more number of hands researching. However, spread over the number of months that Vis allows, this advantage could be easily offset by efficient time management of a small team.

Who should do what?

It can often be difficult to decide who should do what in a Vis team, especially when it comes to division of the team between procedural issues and merits. I have even seen teams (not my team) tossing coins to decide this. A lot of speakers intend to think that the role of a merits speaker is more glamorous than that of the procedural speaker. There is also the (mis)conception that one does not stand a chance to get an individual speaker award as a procedural speaker. Two speakers of my university have secured Honourable Mentions. One was a procedural speaker and the other was a merits speaker. So I think the glorification of the position of a merits speaker and tossing coins for the same is baseless. The two positions require completely different, though overlapping skill sets. It will be best for any team if these skills, and not toss of coins, is adopted as the basis for division of labour. 

A procedural speaker's arguments are based more on law than facts. Often (like in this year's problem) there is hardly any direct or easily available interpretation of the relevant procedural rules which makes painstaking legal research and skillful interpretation of the relevant provisions extremely important. For the merits speaker on the other hand, the law and its interpretation is easily available. The basic principles of contract law under the CISG are well settled. So, the merits speaker's work will boil down to making arguments out of the given set of facts. Therefore, the perfect division of labour will be for a person more comfortable with legal arguments and with good legal research skills to be an arbitration speaker and someone with a knack for facts to be a merits speaker. Also, the merits speaker has to have a sound commercial sense. While the ability to persuade is necessary for both the speakers, it is more so for the merits speaker as she will have to convince the tribunal not only of the legal validity of her arguments, but in most cases, also of their commercial viability.

And finally, if there is a debater on the team, in most cases it will be prudent that she be the merits speaker as merits speaking at most times boils down to debating, but with a different set of rules.


  1. Nice one. What you say about Vis merit speaking being dependent on manner is quite true.

  2. why 'she' for merits speaker?


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