Handbook on International Moot Court Competitions

Preparation & Research Methodology

This Handbook is intended to serve as a starting point in the preparation for International Moot Court Competitions. In doing so, it explains what international mooting is, the research methodology involved and the most useful resources available for its preparation. It also provides for the approach one needs to adopt in both oral and written requirements of an international competition which significantly differ from national mooting. The objective behind providing this Handbook is the institutionalisation of standard mooting practices. To this end, it documents the most commonly agreed to and widely followed methods of mooting.
It needs to be emphasised that this Handbook is not exhaustive on the areas it touches upon. It is presumed and expected that the reader would go well beyond this Handbook in the course of his/her preparation.
The following words of Oscar Wilde express this quite succinctly
"Education is an admirable thing, but it is well to remember from time to time that that which is worth knowing cannot be taught."

Contents 1. Areas of Law involved 2. Difference between International Law & Municipal Law 3. Difference between International Law Dispute Resolution and Municipal Law Adjudication 4. Steps involved in International Law Moot research 5. Sources of International Law 6. Research resources for various sources of International Law 7. General resources of International Law 8. Preparation of Memorials 9. Preparations of Oral Submissions 10. General Information

1. What are the areas of law involved in International Moot Courts?
International moots are based on either of the two areas: i. International Law
Broadly defined, it is the body of legal rules, norms, and standards that apply between sovereign states and other entities that are legally recognized as international actors such as United Nations, WTO etc. ii. International Commercial Arbitration
It is the process of resolving business disputes between or among transnational parties through the use of one or more arbitrators rather than through the courts. It primarily involves contract law, international carriage of goods along with commentaries of the United Nations Commission on International Trade Law. There are predominantly two types of Arbitration: * Institutional Arbitration: The statement of claim is submitted to a particular Organization (eg. International Chamber of Commerce etc.) having a predefined set of rules of procedure, and; * Ad Hoc Arbitration: Here the parties are free to decide their own procedure for resolving the dispute.

2. In what ways is International Law (IL) different from Municipal Law (ML)?
There are two fundamental differences between the two which lead to many others. These are: * Field of Operation: ML governs a society of individuals with a common law making body, uniformly applicable and binding laws, common judiciary and law enforcement agency. IL governs the functioning of an international society comprised of independent and sovereign states, WITHOUT a governance system akin to a state. * Entities/Subjects: The primary subjects (players) in IL are states whereas individuals are the primary subjects in municipal law.
The most important fact to be borne in mind is the difference in the interests of the subjects of IL and municipal Law. States have economic and security interests which are sought to be protected through treaties, conventions and agreements. These instruments are essentially contracts whose formation heavily depends on international politics and diplomacy. On the other hand, an individual’s concerns are significantly narrower and mostly common with other individuals in a society. A government seeks to protect these interests through laws enacted by a democratic and parliamentary process wherein politics has a lesser role to play.
These differences in the formation of IL and ML lead to differences in interpretation, adjudication and enforcement.

3. In what ways is International Law dispute resolution (and mooting) different from Municipal Law adjudication (mooting)?
The differences between IL and ML significantly impact their respective dispute resolution too, most notably in the following respects: * Parties Involved
An IL dispute is a State v. State dispute which lends it a different character from an individual v. individual or individual v. government dispute. * Interests at Stake
The interests at stake in an international dispute are different and generally much more significant than they are in a national dispute. States are related to each other at different levels: political, cultural, economic and military. For instance, two states having a border dispute may also enjoy strong economic ties. Hence this border dispute cannot be approached in a way so as to negatively impact their trade relations and consequently their economies to an extent. Therefore the basic approach is not to win the case but to arrive at an amicable solution IN ACCORDANCE with the principles of international law.
Further, there are incomparably fewer states than individuals on earth. Hence the outcome a municipal case is not as significant as that of an international case. This influences the nature and content of oral and written submissions as explained below. * Facts leading to the dispute (Problem/Compromis)
An IL dispute is based on a Compromis which is a statement of facts mutually agreed to between the parties whereas a national dispute is based on facts decided by the judge as true. A Compromis is defined as “a formal document, executed in common by nations submitting a dispute to arbitration, that defines the matter at issue, the rules of procedure and the powers of the arbitral tribunal, and the principles for determining the award.” [Origin: 1590–1600]
Unlike a national moot, the facts stated in a Compromis cannot be tempered with to suit one’s submissions. The Compromis commands mutual respect of the parties as it is a mutually agreed and signed document. * Written Submissions
States are sovereign entities and are consequently not submissive in their arguments unlike an individual is in a court of law. Remember, they are respectful to the Court and the judges, not submissive. Hence phrases such as “it is humbly submitted”, “it is humbly averred”, “it is asseverated”, “it is respectfully submitted” and the like are not used in the memorial. At best, one can state “it is submitted” at the beginning of the principal submission but not at the start of every paragraph or sentence.

* Oral Submissions * Forms of Address: * Agent: The principal counsel for a state is called an “Agent of State” * Your Excellency (plural Excellencies): A judge of the international court of justice or any other court constituted by the United Nations. Please note that judges of non-UN courts are addressed differently, such as The Honourable Judge, Your Honour etc. * Role of an Agent: An Agent’s role is to assist the judge by submitting arguments on behalf of the state it is representing. Hence the Agent use phrases mostly in the second person such as “the State of X believes, submits, requests etc”, when making submissions. * Nature of the Moot: A Formal Discussion NOT Argumentation: This is one of the fundamental aspect of international law dispute resolution often ignored by Indian participants. The role of an Agent is make submissions to the court which will help the court in arriving at a mutually agreeable and equitable outcome. An Agent of State doesn’t FIGHT a case; a lawyer in a domestic court fights a case to win it, irrespective of its impact on relations between the parties. Hence the entire style of speaking changes. In response to the judges’ questions, an Agent explains his state’s position, the position of law and facts in its opinion and discusses it with the judge. He/she is neither required to nor supposed to ARGUE with the judge at any time during the proceedings. * Responding to questions: You need to remember at all times that a judge asks you certain questions to know the correct position of law, facts etc. He doesn’t question YOU. Hence you should not take things personally and become aggressive, go over the top to prove a point. Allow the judge to complete his question, think and respond with cool and composed head. * Approach and demeanour: As in the written submissions, the Agents are only respectful to the court not submissive. States exist beyond the dispute at hand hence the Agent needs to be mindful of his language and demeanour and ensure respect to his counterpart from the other state at all times. * Pace of Speaking: Indians are by nature fast and argumentative speakers. This can prove disastrous in international moots. Judges from foreign countries especially those from non-English jurisdictions take time to get used to the Indian accent. Hence you need to speak at a significantly lower pace to allow the judge to fully comprehend you.

4. What are the steps involved in international law moot research?
The entire process can be divided into the following three stages which in turn determine the steps involved in each.
Stage I. Understanding the Basics of International law: * The nature and theory of international law * Sources of International law * Subjects of International law * Formation of International law * Difference between International Law and Municipal Law * Role of International politics and diplomacy in international law
Sources:
* Janis, An Introduction to International Law * Starke, Introduction to International Law * DJ Harris, Case and Materials on International Law

Stage II: Understanding the Compromis * Identifying the broad areas of law involved (such as Human Rights Law, Humanitarian Law, International Environmental Law, Space Law etc.) * Understanding the basics of the areas involved
Sources:
* Brownlie, Principles of Public International Law * Cassese, International Law * Shaw, International Law * Oppenheim, International Law

Stage III: Issue Specific research
With a good background of “what is international law and how it works” coupled with the nature of the dispute in hand, the research proceeds to the issues involved in the resolution of the dispute. International law issues are mostly breakable into sub-issues which further helps in streamlining the research. Sub-issues become clearer with the progress in research.
This stage constitutes 70-75% of the moot preparation and calls for the following: * Identification of facts critical to the dispute * Understanding the law in a manner applicable to the facts of the case * Analogising with case(s)/real life situation(s) factually and/or legally similar to the present one * Distinguishing apparently similar case(s) with the one in hand
This will require you to resort to the sources of international law which are discussed below.

5. What are the sources of international law?
Broadly, the following are recognised as sources of international law: * Treaties, conventions and similar instruments: Bilateral and Multilateral Agreements between the states * Customary International Law: State practice and opinio juris * General Principles of law recognized by civilised nations: Fundamental principles of municipal laws such as equity, estoppel etc. * Judicial Decisions: Decisions of the International Court of Justice and other international tribunals * Writings of most highly qualified publicists: Some of these include, Ian Brownlie, Oppenheim, Lauterpacht, Akhurst, Malcom Shaw etc.

6. What are the research resources for various sources of international law? A. Treaties * Treaties deposited with the UN Secretary General: http://untreaty.un.org/English/treaty.asp * ISIL Handbook United Nations Treaty Series * West Law or Lexisnexis * General Google Search

B. Customary International Law * Text Books and Commentaries * Year Book of Various States (such as the British Yearbook of International Law) * Digest of United States Practice in International Law * Yearbook of International Organizations * International Law Reports * Legislations of Foreign Countries * Decisions of Domestic Courts * General Assembly Resolutions * Official Records of Countries on formal Issues such as press releases, diplomatic exchange etc.

C. Judicial Decisions * West Law, Lexisnexis and Goggle etc. * Websites of the concerned court, such as: * International court of Justice: http://www.icj-cij.org/homepage/index.php?lang=en * European Court of Human Rights: http://www.echr.coe.int/ECHR/EN/Header/Case-aw/HUDOC/HUDOC+database/ * Inter-American Court of Human Rights: http://www.oas.org/oaspage/humanrights.htm * International Criminal Court: http://www.icc-cpi.int/home.html&l=en

D. Writings of Jurists
Text Books and law journals available in the library as well as research databases such as Westlaw, Lexisnexis etc. At times its better to first Google a topic for articles, take the citation and get the full text from Westlaw or Lexisnexis. This is because google search tends to be more exhaustive and efficiency.

7. What are the General Resources of International Law?
NLUD Library * Text Books in the International Law section * Cases reported in the International Law Reports * Cases and Articles on Research Databases such as LexisNexis and Westlaw
Online Sources * Research Portals * Electronic System for International Law: http://www.eisil.org/ * American Society of International Law Guide to Electronic Resources for International Law : http://www.asil.org/resource/home.htm
Others
* Library of the Indian Society of International Law

8. What are the steps involved in the preparation of Memorials?
The hallmarks of a well drafted, legally sound and convincing memorial are: * Usage of well constructed, punctuated and grammatically accurate sentences is desirable * Use of simple legal language (not simplistic) * Submission in the nature of a legal story * Closely knit narrative of facts and law without questionable assumptions * Assumptions should be based on established positions of law and/or facts
Method
* Having the first draft of the memorial 4-5 days in advance * At least 2-3 rounds of proof reading of the various drafts by team mates and 2-3 rounds of review by experienced mooters * One final review of the citations to ensure their compliance with the ‘prescribed’ mode of citations
(The Rules of a competition prescribe the mode of citation to be followed in that competition) * Review of to ensure compliance with other rules pertaining to formatting, world limit, indenting and other such applicable rules * Drafting and preparing as per the criteria laid down in the score-sheet of the Memorial Evaluation (annexed herewith).
Resources
Base Templates * Best Memorials of the 2010 Philip C. Jessup International Law Moot Court Competition:
Home Page: http://www.ilsa.org/jessup/
2008 Best Memorials available at: * Applicant: http://www.ilsa.org/jessup/jessup10/applicant.pdf * Respondent: http://www.ilsa.org/jessup/jessup10/respondent.pdf

* Best Memorials of the 2010 Willem C. VIS International Commercial Arbitration Moot: Home page: http://www.cisg.law.pace.edu/cisg/moot/mootlist.html#16 * 2010 Best Claimant Memorandum available at: http://www.cisg.law.pace.edu/cisg/moot/awards17.html * 2010 Best Respondent Memorandum available at: http://www.cisg.law.pace.edu/cisg/moot/respondent17-1.pdf

9. What are the steps involved in preparations of Oral Submissions? This section should be read in conjunction with Section 3 on differences between international law mooting and municipal law mooting. To make proper submission before a court, one needs to understand the following * Role of an “Agent of the State” * Rules of Conduct And Procedure of the forum (for ICJ see “How the Court Works” at http://www.icj-cij.org/court/index.php?p1=1&p2=6 and its Rules Of Procedure at http://www.icj-cij.org/documents/index.php?p1=4&p2=3&p3=0 Article 60, paragraph 1, of the Rules of Practice of the ICJ provides: “The oral statements made on behalf of each party shall be as succinct as possible within the limits of what is requisite for the adequate presentation of that party’s contentions at the hearing. Accordingly, they shall be directed to the issues that still divide the parties, and shall not go over the whole ground covered by the pleadings, or merely repeat the facts and arguments these contain.” * Complete command over the facts with an analysis of material and immaterial facts * Knowledge of directly applicable, inapplicable as well as general law on the subject * Respect for the opponent Agent and regard for its concerns in the case Method In order to achieve the above listed objectives, the following is required: * Minimum of twenty five to thirty practice rounds with team mates and experienced mooters * Each practice round should have new questions anticipated on the basis of the preceding rounds. These practice rounds are not meant to memorise submissions, or adopt a particular ‘style’ of speaking. * The focus of these rounds is to be able to ‘think on your feet’ and to connect the research with apparently unrelated the questions answer questions. * Minimum of three to four video recordings of submissions in order to analyse body language, demeanour and other aspects of one’s delivery * Prepare bearing in mind the criteria laid down in the Score-sheet of the Oral Rounds (annexed herewith) Resources * 2010 White & Case Jessup Final Round (available at: http://www.ilsa.org/) * Stetson International videos at: * Part One : http://in.youtube.com/watch?v=ELR4cLy56Ww * Part Two: http://in.youtube.com/watch?v=3JAVky0rPdQ&feature=related * Part Three: http://in.youtube.com/watch?v=cAvard82qqM * Part Four http://in.youtube.com/watch?v=UZJYlSTQMKo&feature=related * Functioning, rules, jurisdiction and general information on the International Court of Justice: http://www.icj-cij.org/homepage/index.php?p1=0

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[ 1 ]. Only heads of states and top diplomats of the UN are addressed as Your Excellency. Article 19 of the ICJ Statute in provides for diplomatic protection to the member of the court when the court is conducting its business. This diplomatic protection extends to addressing the judges of ICJ as Your Excellency.
[ 2 ]. Article 38(1)(a) of the Statute of the International Court of Justice