Vindobona Junction - Industry Research: Myth or necessary evil ?

by Smaran Shetty

Most people who are in a position to give out advice for merits speakers at the Vis moot, readily concede that some level of research must be undertaken to understand the realities of the industry of the good in question, be it squid, pipes, cars or wine. They advocate that such research, grounds legal arguments in commercial realities of the industry and therefore is far more reasoned and mature. In this post I examine this long standing (and almost universally accepted proposition) to discuss what is the true place of commercial knowledge in the moot.

Industry based research is an arduous and almost always a frustrating experience, as materials are not readily available. Additionally, materially that is actually available online is either not authoritative (credible enough to be used for arbitral proceedings and cite in a memorandum) or is far too technical to be comprehended by an average law student. But the effort in some senses is worthwhile, when material is eventually found that shapes the nature of the argument being made either for the memorandum, or while speaking.

If participants do decide to undertake industry specific research for the purpose of the moot, then I would advise caution and insist that the research is limited to certain predetermined questions. Teams must be careful not to spend weeks on trying to find obscure information, that may eventually have no bearing on the memorandum. Having said that, points of research that teams may focus on are: What is the nature of flow of capital in the trade ? What are the specific laws that impact the conduct of your client, by virtue of being part of the industry ? What are the acceptable norms or standard practices in the industry ? What is the nature the production line in the industry, i.e how many actors are involved ? What are the technical implications (if any) of the product ? All these questions help to limit the scope of research, yet focussing on the most relevant aspects of the commercial knowledge that may have a bearing on a legal argument.

Having said that, I must warn against excessive dependence on commercial knowledge in terms of facts and technical jargon. For instance last year when I was a participant, while arguing in the round of 32, the opposing team referred extensively to FAO Official Reports and Internationally recognized health regulations concerning the freezing and handling of squid. The information presented before the bench did not scare me, as I had come across all the information during my research and had used the same material, in a watered down manner in previous rounds. However the judges gave the verdict to our team. Later on, I approached the opposing merits speaker and asked him the reason for the judges decision (as I believed that the opposing team should have won). In response he told me that the judges did not appreciate the excessive dependence on external material, that undermined the confines of the moot problem. The judges although impressed with the thoroughness of research, were still convinced by innovative logic that was developed within the confines of the facts.

The lesson to take away from this, is that industry research has an important place in the moot, but often that importance is overstated and may not always have the desired results. Teams who decide to venture outside of the problem, should do so with caution and more importantly for a clearly defined purpose.