Eighth Annual

WILLEM C. VIS

INTERNATIONAL COMMERCIAL ARBITRATION MOOT

Vienna, Austria

6-12 April 2001

THE RULES

Organized by:

Institute of International Commercial Law

Pace University School of Law

78 North Broadway

White Plains, NY 10603

USA

INTRODUCTION

I. The Willem C. Vis International Commercial Arbitration Moot

The Willem C. Vis International Commercial Arbitration Moot is an annual competition of teams representing law schools throughout the world (the "Arbitral Moot"). In the Seventh Annual Moot in 1999-2000 seventy-nine law school teams from 28 countries on 5 continents participated. More than 400 students were members of the teams. The Moot was judged by 200 lawyers and professors from around the world.

Goals. The Arbitral Moot is intended to stimulate the study of international commercial law, especially the legal texts prepared by UNCITRAL, and the use of international commercial arbitration to resolve international commercial disputes. The international nature of the Arbitral Moot is intended to lead participants to interpret the texts of international commercial law in the light of different legal systems and to develop an expertise in advocating a position before an arbitral panel composed of arbitrators from different legal systems. An active social program at the time of the oral hearings in Vienna is organized by the Moot Alumni Association with the aim of promoting friendships that can last long after the Moot itself is over.

The Willem C. Vis International Commercial Arbitration Moot is designed to be an educational program with many facets in the form of a competition. It is not intended to be a competition with incidental educational benefits.

II. Organization of the Willem C. Vis International Commercial Arbitration Moot

Organizer, Co-sponsors, Supporters. The Arbitral Moot is organized by the Institute of International Commercial Law at Pace University School of Law. It is co-sponsored by the American Arbitration Association, Chartered Institute of Arbitrators, International Court of Arbitration of the International Chamber of Commerce, International Arbitral Centre at the Austrian Federal Economic Chamber, London Court of International Arbitration, Faculty of Law of the University of Vienna and the United Nations Commission on International Trade Law (UNCITRAL). It also receives support from Oceana Publishing Inc., the Vienna Convention Bureau and the City of Vienna.

The Moot consists of the preparation of a memorandum for claimant, a memorandum for respondent and oral hearings.

Venue. The oral hearings will be held in Vienna, Austria, at the Faculty of Law (Juridicum) of the University of Vienna. The general rounds will take place on Saturday through Tuesday, 7 to 10 April 2001. The elimination rounds will take place on Wednesday and Thursday, 11 – 12 April 2001, culminating with the final round on Thursday, 12 April 2001.

The first events during the oral hearings are a welcoming party for student participants on Thursday evening, 5 April, and the official opening event with reception on Friday evening, 6 April 2001.

Language. The Arbitral Moot will be conducted in English.

RULES

I. Registration

Registration is accomplished by submission of the registration form and is confirmed by payment of the registration fee. Although registration will be accepted until 4 December 2000, the date the memorandum for claimant is due (see Deadlines and place for submission of memoranda, below), registration prior to distribution of the Problem on 6 October 2000 is desirable.

The registration fee is US $500. Each year an alternative registration fee in Euro will be established for the following year’s Moot based on the then current exchange rate. The Euro rate once established will remain constant throughout the Moot in question. The alternative registration fee for the Eighth Annual Willem C. Vis International Commercial Arbitration Moot is Euro 525.

The registration fee must be paid by 4 December 2000 in order to compete in the Moot, unless the Director of the Moot has specifically agreed to a later date. Payment of the registration fee of US$500 must be made by check payable to Pace University drawn on a US branch of a bank. Payment of the registration fee of Euro 525 must be made by transfer to Bank Austria, routing code 20151, account of “Eric Bergsten Vis Moot”, account number 790 080 014. The transfer must NOT be payable to Pace University or it will be refused by Bank Austria. The transfer must also indicate the name of your university as the transferor.

Checks in US dollars must be sent to Professor Eric E. Bergsten, Schimmelgasse 16/14, A-1030 Vienna, Austria: Tel & Fax +43 1 713-5408. The registration fee is paid only if Professor Bergsten has received the check or the payment has been credited to the above-mentioned account.

The registration fee includes an invitation to an opening reception for all team members, coaches and accompanying persons on Friday, 6 April 2001. It also includes an invitation to the awards banquet on Thursday, 12 April 2001, following the Final Round of hearings for team members who register in Vienna, to a maximum of four team members, and for an accompanying team coach. Additional team members and accompanying persons are also invited, but will be asked to pay for the actual cost of the meal.

The registration form includes space for two names and addresses. Results of the current Moot will be sent to the person listed at the top of the form. Invitations to participate in subsequent Moots will also be sent to that person. The Problem, clarifications, claimant’s memorandum to which a defendant’s memorandum must be prepared and information relevant to housing in Vienna and other organizational aspects of the Moot will be sent to the person listed at the bottom of the form. It is the responsibility of the designated person to distribute all relevant material to the team. The person listed at the bottom of the form must give an e-mail address to which communications can be sent.

Communications between the team and the Institute through anyone other than the designated person are at the risk of the team.

The registration of a team may be withdrawn at any time prior to the date for the submission of the claimant’s memorandum, i.e., 4 December 2000, and the registration fee will be refunded in full.

A team that submits its memorandum for claimant will be paired with two other teams for the exchange of memoranda, as described in Part IV below, and will be scheduled to meet those two teams in the first two oral arguments, as described in Part V below. Withdrawal after submission of the memorandum for claimant would affect the Moot for the two teams paired for the exchange of memoranda and the first two oral arguments. Therefore, teams that have submitted the memorandum for claimant are expected to participate in the entire Moot, including the oral arguments, and no refund of the registration fee will be made.

II. The Problem

Subject Matter. The Problem in the Eighth (2000-2001) Arbitral Moot involves a controversy arising out of a international sale of goods subject to the United Nations Convention on Contracts for the International Sale of Goods (CISG).

Dispute Settlement. The controversy is before an arbitral tribunal pursuant to International Chamber of Commerce (ICC) Rules of Arbitration. Pursuant to Article 14 of the said Arbitration Rules, the parties have agreed that the arbitration will be held in Vindobona, Danubia. Danubia has enacted the UNCITRAL Model Law on International Commercial Arbitration (Model Law). Danubia, Equatoriana and Mediterraneo, the three states involved, are party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention).

The Competition. By the time the Eighth Arbitral Moot begins, the claimant has filed its request for arbitration, the respondent has filed its statement of defense and the arbitral tribunal has been appointed. The Problem will consist of the statements of claim and defense with their exhibits, the Terms of Reference under Article 18 of the ICC Rules of Arbitration, plus any orders of the arbitral tribunal issued prior to the date on which the Problem is distributed. The Arbitral Moot involves writing memoranda and oral argument in support of the positions of the claimant and respondent.

Distribution. The Problem will be distributed by the Institute on Friday, 6 October 2000, by posting on the Institute’s Web site. The URL for the Moot is http://www.cisg.law.pace.edu/vis.html. The Problem will be sent by e-mail to any participating team that does not have access to the World Wide Web and by mail or courier service to any team that cannot receive it over the Internet.

Facts. The facts in the dispute that is the subject matter of the Moot are given in the Problem. No additional facts may be introduced into the Moot unless they are a logical and necessary extension of the given facts. By way of example, the subject matter of the dispute in the Fourth Moot was men’s suits. It was legitimate to assume that the suits were made of cloth. It was not legitimate to assume that they were, or should have been, made of pure wool. If a team intended to base an argument on the material out of which the suits were made, the team should have requested a clarification of the Problem. Statements of fact alleged by a team that are not a logical and necessary extension of the given facts are not true. Therefore, basing an argument on any such alleged facts will be considered to be in breach of the rules of the Moot and to be professionally unethical. Arbitrators will enforce this rule strictly in both the memorandum and oral arguments and will evaluate the team’s efforts accordingly.

Clarifications. Requests for clarification of the Problem may be sent to the Institute prior to 27 October 2000. Requests for clarification should be limited to matters that would appear to have legal significance in the context of the Problem. A request for clarification must include a short explanation of the expected significance of the clarification. Any request that does not contain such an explanation will be ignored.

Clarifications issued by the Institute in the form of a Procedural Order from the arbitral tribunal will be distributed to all teams by 3 November 2000, using the same methods of distribution as were used for the Problem. Teams are responsible for making sure that they have received the clarifications. Clarifications issued by the Institute become part of the Problem.

III. Teams

Composition. Each participating law school may enter one team. A team is composed of two or more students registered at the school for the study of law. Students may be registered either for the first degree in law or for an advanced degree and need not be from the country in which the law school is located. There is no maximum limit on the number of students who may be members of the team. No student who has been either admitted or licensed to practice law is eligible to participate. Teams may include former participants. However, students who have participated in an argument in an elimination round (Round of 16 or later) in a previous Moot may not participate in the oral arguments. Eligibility to participate in the Moot is determined as of 4 December 2000.

The list of team members must be submitted to the Institute by e-mail as a separate computer file at the time the memorandum for claimant is submitted. Certificates of participation for participating team members will be prepared from the lists submitted to the Institute. Therefore, names should be in the form in which they should appear on the certificates. Any changes in the composition of the team must be specifically communicated to Professor Bergsten.

Participation. All members of the team may participate in preparation of the memoranda for claimant and respondent.

In each of the oral hearings two members of the team will present the argument. Other members of the team may not aid them during the argument in any way. Different members of the team may participate in the different hearings. Therefore, between two and eight members may participate in the oral hearings. However, to be eligible for the Martin Domke Award for best individual oralist, a participant must have argued at least once for the claimant and once for the respondent. The average score per argument will be calculated and the award will be determined on that basis.

IV. Written Memoranda

Memoranda. Each team must submit a memorandum in support of the claimant's position by 4 December 2000. Each claimant’s memorandum will be sent to one of the other teams to arrive by 15 December 2000. Each team will prepare a memorandum in support of the respondent's position in response to the memorandum in support of the claimant's position that was sent to it. The Institute will determine to which team a memorandum in support of the claimant's position will be sent.

The memorandum for respondent must be responsive to the arguments made in the memorandum for claimant. Nevertheless, the memorandum for claimant to which a memorandum for respondent is to be prepared may not have made all of the arguments that the team preparing the memorandum for respondent believes should have been made. The team preparing the memorandum for respondent may deal with those issues. Such additional arguments (arguments in response to arguments not made by your opponent) would not normally be made in a real arbitration. However, they may be appropriate in the Arbitral Moot. If such arguments are made, they must be identified in an appropriate manner so that the jury judging the memoranda and the arbitrators hearing the oral arguments will be able to consider them separately.

Form, length and other elements of style. Citations should preferably be placed in the body of the text. In any case, they should not be placed in endnotes. Citations to authorities should be in a form that is intelligible to all who will read the memorandum. That includes the members of the other teams, the arbitrators in the oral hearings and the members of the jury who will judge the written phase of the Arbitral Moot. Most of the readers of the memorandum will be from other countries. Account should be taken that the style of citation of judicial decisions or articles in legal journals that is common in one country may not be intelligible to participants in the Moot from other countries. Similarly, care should be taken in the use of legal doctrines and terminology (including Latin maxims) common in some legal systems that are not found in the CISG, Model Law, New York Convention or ICC Arbitration Rules and that may not be known to teams or arbitrators from other legal systems.

Memoranda may be no longer than thirty (30) 8½ x 11 inch or A4 typed pages, including any statement of facts, argument or discussion, and footnotes. Cover pages, tables of contents, indices, lists of authorities or other material that does not consist of facts, argument or discussion may be in addition.

No type style smaller than 10 point may be used. The use of 12 point proportional type is encouraged. Reproduction of all copies must be full sized and clear.

Memoranda may be reproduced on both sides of the paper.

Memoranda must be bound or stapled securely so that the binding or stapling will hold throughout the Moot. Memoranda that are held together by rubber bands, light weight staples, paper clips or other insecure means are not properly submitted and will not be considered for award.

The name of the team and whether the memorandum is for the claimant or for the respondent must appear prominently on the outside cover page so that it can easily be read without opening the memorandum.

Memorandum Revision. A memorandum may not be revised once it has been submitted to the Institute, including for missing pages, for typographical or grammatical errors or for problems caused by faulty computer software. Revised or additional pages submitted to the Institute will be ignored. Sufficient time should be left prior to submission to verify the text to be submitted.

Scoring of Memoranda. A jury selected by the Institute will score the memoranda on the basis of the quality of the analysis, persuasiveness of argument, thoroughness of research and the clarity of the writing. The jury will take into account whether arguments are based on facts not found in the Problem or clarifications and that are not logical and necessary extensions of the given facts. When judging the memorandum for respondent, account will be taken whether it is responsive to the arguments raised by the claimant.

The memoranda for claimant and for respondent will each be judged in two rounds. In the first round the members of the jury will each receive three or four memoranda. They will be asked to rank them in order of merit. If there is a sufficient number of jury members available, each memorandum will be submitted to three different jury members. On the basis of the results from the first round of judging, fifteen memoranda will be selected for submission to a separate jury of five members for determination of the winners of the awards for best memorandum in each category.

Submission of Memoranda. Each team is to submit in total twenty-five (25) copies of the memorandum for claimant and the memorandum for respondent. The memoranda must also be submitted as an attachment to an e-mail message at the time the hard copies are sent. The memorandum must be submitted as a single computer file so that the memorandum could be printed complete with cover page. In addition, at the same time the memorandum for claimant is sent, a separate file must be sent by e-mail with the names of the members of the team.

Deadlines and Place for Submission of Memoranda. The submission of twenty-five (25) copies of the memorandum for claimant and for respondent as well as the computer files should be sent to:

Professor Eric E. Bergsten
International Commercial Arbitration Moot
Schimmelgasse 16/14
A-1030 Vienna, Austria

Tel. & fax +43 1 713-5408

E-mail: eric.bergsten@chello.at or ebergsten@law.pace.edu.

All deadlines are measured by the date the paper copies of the memorandum are due in Vienna. The dates on which memoranda are due in Vienna are as follows:

Memorandum for claimant 5 copies, 4 December 2000

20 copies, 5 January 2001

Memorandum for respondent 5 copies 12 February 2001

20 copies, 19 February 2001

If the memorandum for claimant is received in Vienna after 8 December 2000, or the memorandum for respondent is received after 16 February 2001, it will not be considered for award in that category. The memorandum for claimant must be received by 8 December 2000, in order for the team to continue to participate in the Moot. Delays in delivery of the memorandum to Vienna by the post or courier service are at the risk of the team. It should be pointed out that packages of memoranda arriving from outside the European Union that weigh 2 kilograms or more must be accompanied by a customs declaration or they will be delayed in customs and customs duty may be charged.

Special arrangements for submission of the memorandum for claimant will be made for those teams from the Southern Hemisphere that have examinations in the period immediately prior to the date on which the memorandum for claimant is due. No other extensions of the due date or special arrangements will be made.

If the sending post office or courier service requires that the package containing the memoranda be given a value for customs purposes, that valuation should be its commercial value, i.e., US$10 or less, and not the cost of preparing the memoranda. A declared valuation of 250 Austrian schillings or more subjects the package to customs duties in Austria, for which the sending team will be held responsible.

The designated contact person for each team will be sent the memorandum for claimant of another team, to which a memorandum for respondent must be prepared, in time for the memorandum for claimant to be received between 11 and 15 December 2000. If the contact person will not be available at the address given during that period, a substitute person or address must be notified to the Institute prior to 1 December 2000.

By 23 February 2001, the designated contact person will be sent the memorandum for respondent prepared in reply to its memorandum for claimant as well as the memoranda of the other teams against which it will argue in its third and fourth oral hearings.

V. Oral Hearings

Venue. The oral hearings will be held at the Faculty of Law (Juridicum) of the University of Vienna, Schottenbastei 10-16, A-1010 Vienna, Austria.

General Rounds. Each team will argue four times in the general rounds, twice as claimant and twice as respondent. In its first two oral hearings, each team will argue once as claimant and once as respondent. The respondent will be the team that prepared the memorandum for respondent in opposition to the memorandum for claimant that was sent to it. In its third and fourth oral hearings the teams will argue against teams with which they were not paired for the purpose of preparing written memoranda.

The general rounds will be scheduled so that, in principle, each team will argue once per day, Saturday through Tuesday. If there should be an odd number of participating teams, or occasionally for other reasons, it may be necessary for a team to argue twice on the same day.

Duration of Oral Presentation. The oral presentation of each team is, in principle, thirty (30) minutes. The team should allocate equitably the time available to the two individual advocates. However, the arbitral tribunal may exceed the time limits stated so long as neither team is allowed more than forty-five (45) minutes to present its argument, including the time necessary to answer the questions of the tribunal. It will be the responsibility of the tribunal to ensure that the teams are treated fairly.

Arguments. Claimants and respondents in their first hearing should expect to rely on the arguments given in their written memoranda or to be prepared to justify why that position has been abandoned. In subsequent hearings arbitrators may be less demanding on this score as it is expected that teams will improve their arguments during the Moot.

Questions by Arbitrators. The arbitrators are requested to act during the oral hearings as much as possible the way they would in a real arbitration. There are significant differences in style dependent both on individual personalities and on perceptions of the role of an arbitrator (or judge) in oral argument. Some arbitrators, or arbitral tribunals, may interrupt a presentation with persistent or even aggressive questioning. Other arbitrators, or arbitral tribunals, may listen to an entire argument without asking any questions. Therefore, teams should be prepared for both styles of oral presentation.

Order of presentation. Normally the claimant will argue first. The arbitrators will announce prior to each argument whether the claimant will be given an opportunity to present rebuttal arguments, thereby, permitting the claimant to argue last, or whether there will be no rebuttal, in which case the defendant will argue last. Whether or not rebuttal will be allowed can be expected to change from one argument to the next. The arbitral tribunal may also decide to allow both sides to argue on an issue before arguments are made on a second issue.

Scoring. Each arbitrator will score each of the orators on a scale of 25 to 50. The scores of the two orators will be added to constitute the team score for that argument. Therefore, each team could score a maximum of 100 points per arbitrator per argument, or a theoretical maximum of 1200 points for the four arguments. Arbitrators will score the oral arguments without knowledge of the results of earlier arguments. Some arbitrators will have participated in evaluating the memoranda of teams whose oral arguments they later hear. Although they will be aware of their own evaluation of the memoranda, they will be without knowledge of the evaluations given by other arbitrators.

First Elimination Round. After the general rounds, the scores of each team for its oral presentation in the four arguments will be totaled. The sixteen teams that have obtained the highest composite scores will meet Wednesday morning, 11 April 2001. They will be paired so that the first and sixteenth, second and fifteenth, etc. will argue against one another. Ranking of the teams will not be divulged until completion of the Final Round.

Second Elimination Round (Quarter-Final Round). The winners of the first elimination round will meet in the Quarter-final Round Wednesday afternoon, 11 April 2001.

Semi-Final Round. The four winners of the Quarter-final Round will meet in the Semi-final Round Thursday morning, 12 April 2001.

Final Round. The two winners of the Semi-final Round will meet in the final round Thursday afternoon, 12 April 2001.

Determination as to which team is claimant and which is respondent. If the two teams in any of the elimination rounds, including the final round, argued against one another in the general rounds, they will argue for the opposite party in the elimination round. If they did not argue against one another in the general rounds, in the first elimination round the determination as to which team will be claimant and which will be respondent will be determined by lot. In the Quarter-Final and following Rounds, when one of the two teams in the preceding round was claimant and the other was respondent, they will argue for the opposite party for which they argued in that preceding round. If both teams argued for the claimant or both argued for the respondent in the preceding round, the decision as to which team will be claimant and which will be respondent will be determined by lot.

Winning Team. The winning team of the oral phase of the Arbitral Moot is the team that wins the final round.

VI. Assistance

Written Memoranda. Although the students should do all the research and writing of the memoranda themselves - without assistance from anyone who is not a student member of the team - faculty advisors, coaches and others may help identify the issues, comment on the persuasiveness of the arguments the students have made in drafts and, when necessary, suggest other arguments the students might consider employing. However, the final product must be that of the students - not their advisors.

Oral Hearings. There is no restriction on the amount of coaching that a team may receive in preparation for the oral hearings. It is expected and encouraged that teams will have practice arguments, whether against other members of the team or against other teams that will participate in the Moot.

In each oral hearing two members of the team will present the argument. No communication with other members of the team who may be present at the hearing is permitted.

One purpose of the Arbitral Moot is to develop the art of advocacy in international commercial arbitration proceedings. Observance of the performance of other participants is one way to develop that art. Therefore, attendance of team members at the arguments of other teams is permitted, except that no team, or friends or relatives of members of a team, is permitted to attend arguments of other teams against which it is scheduled to argue at a later time in the general rounds. Violation of this rule will disqualify a team from participation in the elimination rounds.

VII. Awards

Pieter Sanders Award for Best Written Memorandum for Claimant.

Werner Melis Award for Best Written Memorandum for Respondent.

Martin Domke Award for Best Individual Oralist. This award for the general rounds will be won by the individual advocate with the highest composite score during these rounds. To be eligible for this award a participant must have argued at least once for the claimant and once for the respondent.

Frédéric Eisemann Award for Best Team Orals. This award will be made to the winning team in the final round of the oral hearings.

VIII. Interpretation of the Rules

Requests. For interpretation of these rules, requests may be addressed to the Institute. All interpretations, as well as any waivers, consents, or other decisions are at the discretion of the Institute in its administration of the Arbitral Moot.

IX. Mailing Address

All communications in regard to the Moot should be sent to:

Professor Eric E. Bergsten
International Commercial Arbitration Moot
Schimmelgasse 16/14
A-1030 Vienna
Austria

Tel: (43-1) 713-5408

Fax: (43-1) 713-5408

E-mail: eric.bergsten@chello.at or ebergsten@law.pace.edu