by Smaran Shetty
The Vis problem has been out for some time now and I am sure that teams have progressed well into the substantive issues concerning this years problem. In this post, I would like to offer some insights into how work must be divided amongst team members, and what skills would be required out of such roles.
Every Vis problem concerns two broad issues, namely questions relating to the legal propriety of the arbitral proceedings, i.e. essentially questions of jurisdiction and substantive questions relating to the breach of contract in question and resulting loss. Accordingly, any team, however big or however small will have to divide their work load along these lines. In this post I intended to outline the qualities need for each of these tasks, so as to enable teams to make the right choice, or review already decided team formations in light of my suggestions.
Jurisdictional questions every year relate to highly arguable legal issues concerning the Arbitral rules of a certain arbitral institution that is either newly formed, or whose rules have recently been revised. Keeping that in mind, those persons involved in jurisdictional research, drafting of the memo and eventual speaking at Vienna and Hong Kong, will be required to be competent with thorough and in-depth legal research. Considering little material is available on jurisdictional issues, team members who are doing jurisdiction related research, must learn how to read the fine print, cross reference sources and most importantly be patient in finding relevant material, as chances are it will take a substantial amount of time to be able to arrive at the final argument. Jurisdiction team members will also be required to properly understand both the basics as well as the nuances of International Commercial Arbitration and must also be prepared to do cross jurisdictional research concerning the practices of Arbitral Institutions around the world. Most importantly, jurisdiction team members must at all costs operate within the confines of the law they are dealing with and must base all arguments on recognized legal principles of some kind, arguments based on personal belief or intuition, have no relevancy to a jurisdiction team member. If you are currently a jurisdictional team member and doubt whether you have the requisite skills, I strongly urge you, to convene a team meeting to re-consider whether the appropriate roles have been assigned to team members.
On the other hand team members dealing with the substantial issues of the contract or the “merits”, will be required to posses a different set of skills to effectively execute their responsibilities. The merits of the dispute relate to certain provisions of the CISG every year, and in that sense involves the application of a static body of law, to dynamic and arguable facts of the present dispute. In terms of research, the effort involved relates to making sure all the authoritative and relevant authors/judicial decisions have been read, as opposed to finding the relevant material. Merits team members will hardly find any difficulty in research, but the task involved relates to the application of well settled legal propositions to fact situation that may or may not support the law in question. In that sense, a merits team member, unlike a jurisdictional member is not confined to merely the law. In fact merits team members are encouraged to look beyond the CISG into actual business practice and relevant data from the real world to buttress arguments based in principles of the CISG. The most convincing and compelling arguments from a merits team member, will often involve a healthy mix of law and logical assertions that fits well into the scheme of the problem (the nature of the business, character of dispute, position of parties, commodity in question). If any team member feels unsure of the ability to look beyond the law, then I suggest a reconsideration of team roles.
Another means of dividing up work amongst a team (mostly large teams) is to divide the work based on the sides of the dispute, implying that some members do jurisdictional research only from the perspective of the claimant and some do research for the merits only from the respondent’s side. I strongly advise against such an arrangement, and may lead to disastrous results in terms of team coordination. My principal objection to such an arrangement is that fact that this results in excessive compartmentalization, inhibiting a more balance perspective of the issues involved in the problem. The best way of making an argument is acknowledging its limitations and dealing with it effectively. However when you research only from one side, you fail to recognize the argument from the other side and accordingly start to believe in the false strength of a one sided argument.
I hope these observations help teams, and am happy to be told that I am completely wrong. I look forward to a healthy discussion in the comments section.
You may also want to read this earlier post on the same subject.
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