This is a presentation given at the Law, Language and Communication conference organized by the Centre for Research in Language and Law (Naples 2) and held in Caserta in May 2016.
CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot
1. Spoken interaction in an academic legal context: The
discourse of the arbitration moot
Christoph A. Hafner
Department of English, City University of Hong Kong
CRILL 2016, May 26-28
2. Overview
• Background to the study
• Findings
– Generic elements
– Questions and answers
• Conclusions
4. The focal practice: Mooting
• Mock trials in the academy
– A simulated fact situation/dispute
• Students work in teams
• Role play advocates for parties
– Develop persuasive legal arguments
• Written arguments: Legal memorandum
• Spoken arguments: Oral hearing
5. The Vis moot competitions
• The ‘Willem C. Vis International
Commercial Arbitration Moot’
• The ‘Vis East’
7. Summary of observations
Phase Date Details
1. Writing for claimant and
respondent
October to December
December to January
12 team meetings
2 ‘out-of-class’ meetings
2. Advocacy training February to March 15 team meetings including
13 simulated moots (10
recorded)
3. Competition April 1 to 4 4 competition moots
8. Phase 2 data sources
• Observations of 10 simulated moots
– Video and audio records
– Student performance and teacher feedback
– Field notes
• Narrowed to 3 simulated moots
– PH 1: Approx 2 hours 24 mins
– PH 7: Approx 1 hour 10 mins
– PH 10: Approx 1 hour 9 mins
9. Analysis
• Thematic coding of field notes
– Identify recommended strategies
• How to cite authorities
• How to answer questions
• Qualitative analysis of simulated moots
– Analyze practice hearings (#1, #7, #10)
– Identify actual discursive strategies
10. Research questions
• How can the spoken discourse of the
arbitration moot be described?
– What discursive strategies are recommended?
– What discursive strategies are actually
observed?
13. Generic structure: macro
1. Introductions
2. Procedural arguments
a) Respondent
b) Claimant
c) Rebuttals and surrebuttals
3. Substantive arguments
a) Claimant
b) Respondent
c) Rebuttals and surrebuttals
14. Generic structure: micro
• Arguments are further structured:
– Case theory and ‘road map’
– Arguments on specific issues
• Argument/claim
• Reasons/warrant, i.e. facts, law, policy
• Backing, i.e. moot problem or legal texts
– Conclusion
Questioningbyarbitrators
15. Questions
“An arbitration, if it is a good one, will become an
intelligent discussion” (G, Coach, field notes)
“[Acting the part as you respond to questions] is
part of the mental game that you are playing with
the arbitrator” (R, Coach, field notes)
“Whenever a question is asked, even a
challenging question, you should try to use it as an
opportunity” (G, Coach, field notes)
18. Training
<G> Er er I think R and I from time to time will be asking
some stupid questions […] and that is for purposes of
ensuring that you are able to handle even dumb questions
whether it be dumb questions in Hong Kong and in er in
Vienna.
(Before practice hearing 1)
19. Requesting authorities (1)
<H> [Yes.] Do you have any, do you have any authority for that? To
say that changing, a choice of law clause is substantial difference.
(PH 10)
<R> I’m sorry Counsel I missed that you said something United Nation
Commission Model Law?
<N> Yes.
<R> Is it the name?
<N> The it’s it's called UNCITRAL Model Law on International Arbitration.
<R> Just International Arbitration?
<N> Nineteen eighty-five. International Commercial Arbitration nineteen
eighty-five, with amendments as adopted in two thousand and six.
<R> Thank you.
(PH 1)
20. Requesting authorities (2)
<R> So which Exhibit you are telling me?
(PH 1)
<N> Mr Mr Arbitrator, er we we agree the the lawyers that were
involved were not arbitration specialist, however [they were
litigation]
<R> [Where did you,] where did you get this fact?
(PH 1)
<R> Where does it say that the place of arbitration in Danubia?
<N> It states so on the Framework and Sales Agreement.
<R> Where we can find that?
<N> On Claimant’s Exhibit Number two, page ten of the facts.
<R> Okay.
(PH 1)
21. Questioning authorities
<G> Ar= Are you telling us that we are somehow bound by this
obscure New Zealand case? I I don’t even know where New Zealand is.
(PH 1)
<G> [But] but parol evidence rule isn't isn’t that an obscure eh er
concept that eh that common lawyers have developed? Eh er, I am, I
am a civil lawyer you know you can hear it er, I speak the way a
German speaks in. I am a civil lawyer I have no clue what parol
evidence is, why why why what does it mean? Why should I be
bound by it?
(PH 1)
23. Using questions to put the case directly
<R> So Claimant, essentially the Respondent is saying
because of appeal and review mechanism, this
Arbitration Agreement is not valid, and therefore
there’s no arbitration agreement. What do you have
to say on that?
(PH 1)
24. Using questions to test an argument
<R> But assuming my my translation is correct that, Dutch
version says or related to matters, actually not er sorry
is is related to transactions, not matters then would
that affect your argument?
(PH 10)
26. Exploring an argument without
conceding
<R> But assuming my my translation is correct that,
Dutch version says or related to matters, actually not
er sorry is is related to transactions, not matters then
would that affect your argument?
<B> If it was related to erm let's assume, er without
conceding that it was related to the the contract the
two contracts are also very different, because they
relate to different types of technology.
(PH 10)
27. Conceding hypothetically and
advancing another argument
[Discussing the difference between words ‘shall’ and ‘is’ used in two
successive drafts of standard terms]
<R> But when we see the word shall, it become it gives us a meaning
of mandatory nature. But when you say is, it's not that mandatory.
So it means now it's more loosened up, is it not?
<J> Mr Arbitrator if that is the case, that it that is loosened up whether
the law of Mediterraneo should apply, then here we also see the
ambi= ambiguity, and we also rely on contra proferentem rule,
to interpret this clause, er and, and therefore, the fact of section
twenty-two, should be interpreted against I C T, which means that
the national law of Mediterraneo, should apply.
(PH 10)
28. Conceding briefly and advancing
another argument
<H> But isn't there a problem Counsel because your
appeal and review mechanism says that you appeal
based on fact and law, and Article thirty-four only
gives you legal grounds, not factual grounds. So isn’t
there an inconsistency?
<N> Indeed Mr President however, the parties who
agreed to this were laymen. And the key words were
obviously wrong, which refers to looking at the award
from the face of it.
(PH 10)
29. Conceding unnecessarily
[Discussing whether two disputes based on the same agreement
could be heard together, at the same time. N has to make the
case that they cannot]
<R> And you want us to see both of these claims at the same
time?
<N> Er, Mr President, we want them to be considered separate
because although it would be cost efficient and it would
save time er and even the Respondent has received
instructions in terms of cost saving and so on, the
matters are so different and so disconnected that we argue
that they must be [separate arbitration]
(PH 1)
31. <J> Mr President we argue that, the ch= the change in the choice of
law clause, amounts to a substantial difference, and it also [relates
to]
<H> [Yes.] Do you have any, do you have any authority for that? To say
that changing, a choice of law clause is substantial difference.
<J> Mr President we do not have er this authority. However we, it is
our position that if we apply the national law of Mediterraneo, it
allows us to make full compensation, in case of any er defects in
the so= er er proton treatment facility.
<H> Mm. Ok.
<J> Moving on to the third issue, the Claimant argues that
assuming that the standard terms are incorporated, the law of
Mediterraneo does not exclude the C I S G.
(PH 10)
33. Hybridity
• Arbitration discourse, i.e. the discourse
and values of arbitration
• Professional legal discourse, i.e. the
discourse and values of law as a
profession and discipline
• Academic legal discourse, i.e. pedagogic
discourse
34. Future directions
• Interplay between formulaic expression of
arguments/language use and creative
interaction
Arguments
Generic,
formulaic and
rehearsed
Responses
Flexible,
adaptive but
on point
