Improvise. Adapt. Overcome – The Virtual Vis Experience 202023 April 2020
As a coach of the 2019/20 Humboldt University Vis Moot team, I was confronted with many challenges that we all share during these times of crisis. How do we carry on business as usual? Can we carry on business as usual? How do we keep up our good spirits? Is it a feasible option to move dispute resolution online? I believe that this season’s Vis experience serves as an example of how an organisation and a global community can react during these times, and what lessons can be learnt.
What we usually expect
The Willem C. Vis International Commercial Arbitration Moot Court (“Vis” for short) has previously been the subject of discussion in this Journal, notably in Tun de Jong’s article “Moot Courts – The Art of Persuasion”. The student competition is one the largest in the world, with over 300 universities sending a team which will spend half a year tackling a case in international sales law and arbitration.
After preparing two memoranda over the winter, the teams travel to the oral hearings in Hong Kong and Vienna just before Easter. There, they take on the roles of party counsel and compete against each other in a system akin to the football world cup, with general rounds followed by knock-out elimination rounds. Prizes are awarded for outstanding memoranda and individual speakers, as well for Academic Excellence and Party Condition (known as the Joseph Schwartz award).
A year ago, when I started my coaching journey, we were in the team selection process. During the interviews, we told the candidates the story of what expected them: They would be getting themselves knee deep into two fields that are fascinating yet entirely irrelevant to the German State Exam curriculum: international commercial arbitration and the 1980 UN Convention on the International Sale of Goods, aka CISG). After a rather arduous process of writing two memoranda over the winter, the experience would then culminate in fantastic travels to the oral rounds in both Vienna (Vis) and Hong Kong (Vis East) just before Easter 2020.
We treated this as a fact which we took for granted: of course we would be going to Hong Kong in Vienna, as we had all these years before! It is the 27th anniversary of the Vis Moot and the 22nd time that Humboldt University is participating, and during all these years, the event has seen a constant upward trajectory in terms of participating teams and arbitrators. Now, we are suddenly confronted with whether this seemingly infinite growth is sustainable.
But this time, nothing was as expected
The political realities of the world caught up with us this year. Already in the summer, news of political unrest and protests reached us from Hong Kong. As a consequence, many teams decided to drop out of the Vis East then. This even included the University of Amsterdam, who had won the competition the previous year. We decided to proceed, submitting our Memorandum for Claimant in early December, followed by the Memorandum for Respondent. One week before the submission deadline in January, the news reached us that the oral hearings in Hong Kong would not take place due to the spread of Covid-19.
The team members of course mourned the loss of their much-anticipated springtime trip to Hong Kong, but kept attending pre-moots in preparation for the competition in Vienna that was still set to take place. In early March, we even invited 21 teams from 12 countries to our own Berlin Premoot. Halfway through the weekend, the news hit that the Vis in Vienna also had to be cancelled.
Only a few days later, Humboldt University was shut down entirely and social distancing measures implemented throughout Europe. In hindsight, I am all the more glad that we were able to organise the Berlin Premoot, creating a space in which we could practice together and enjoy each other’s company one last time.
“Improvise, adapt, overcome”
This was our new reality. All pleading sessions would be held online instead. We felt we had little else left to do but to make the most of it. A US Marines motto came to mind: improvise, adapt, overcome! This could be our chance to dip our toes in the waters of ODR, Online Dispute Resolution. During this adventure, our observations were twofold:
Firstly, as always for the Vis, practitioners from around the world sat as arbitrators. From many of them we heard that this was their first online hearing and that they thoroughly enjoyed it. And secondly, on our part, the team got to acquire an entirely new skillset. They liaised with teams around the world via various social media to make an online practice hearing schedule. They managed these via a handful of different online conferencing tools. They had to present in front of a camera instead of a real life tribunal. All these I am sure will be useful skills during their future careers. But, our brief encounter with ODR aside, is how the pleadings are conducted really all that the Vis experience is about?
What about the social element?
I remember the Vis opening ceremony of when I was a participant myself. There, the organisers aptly described the Vis as being “not a competition with an educational element, but an educational event with a competitive element.” This focus on an educational aspect includes also an important element of social networking with all the arbitration lawyers from around the world that gather in Vienna. It includes an element of humanness which largely gets lost in online pleadings.
While of course a main takeaway for the teams each year lies in the skills they gain in memoranda writing and oral advocacy, the experience is also measured by the number of business cards exchanged in the moot bars in HK and Vienna over glasses of wine. This year, we had to keep all our unused business cards to ourselves. And I still have some of last year’s drinks vouchers I had hoped to trade in at the infamous Vienna moot bar, “Aux Gazelles”, where everyone meets for a drink or good night cap after the pleadings are done.
A particularly bitter taste remained for me as a coach knowing that my team members, after their pleadings, cannot just get to know the opposing team over a glass of wine at Aux Gazelles, but instead close their laptops and sit in silence in their own bedrooms or at their kitchen table.
Optimism in times of crisis
But this leads me to my key question: While all the bad news unfolded, how did the teams keep up their good spirits? This is a concern many of us currently share – how do we go on with our businesses in times of uncertainty, times which may pose challenges to our individual mental health, optimism and motivation? What is the glue that holds it all together? I heard from some coaches that their teams struggled, that they either lost their passion or dropped out of the competition altogether.
In all honesty, I find it hard to blame them for such a reaction to the never-ending influx of disappointing news. But my team, on the other hand, recalibrated and put all their energy into organising as many online pleading sessions as possible. They pleaded against as many as nine different teams over the course of three days, something that would have been almost impossible to organise offline.
When pitching and drafting this article, I was asked why I believed my team had managed to stay positive and committed. What exactly set them apart from the other teams who dropped out? I think that it was because they took responsibility over their work, their task, their team. They assumed ownership.
From the start, we had endeavoured to create a work atmosphere devoid of strict hierarchies in which we set and enforce rules such as mandatory all-nighters in the weeks leading up to the submissions (a tradition not uncommon among teams). Rather, we let the team members decide for themselves how to best structure their work, where to go for pre-moots. We gave recommendations, but eventually let them decide for themselves. This way, I believe, the team was in a position in which they were responsible for their actions, they saw the fruits of their labour along the way, and they wanted to see it through until the very end.
And their perseverance and determination were crowned by success as they advanced to the Top 16 in Hong Kong, the Top 64 in Vienna, and received Honourable Mentions for two individual oralists and a memorandum.
Observations from a very different Vis season
This time of prescribed self-isolation brought with it an opportunity to take a few steps back and reflect on the background against which the Vis was originally set. It is an event which holds at its core values of globalism and connectedness. The CISG as the legal substance of the competition is an instrument born in the 1980s out of a necessity for a uniform sales law in a time during which the world began to move even closer together at an exponential speed. International arbitration as the procedural framework of the Vis shares a similar history and purpose.
27 years down the line, in 2020, how do we view these concepts and realities? Globalisation, international trade, free travel, the wealth of the industry we work in. Are we still conscious of the reasons why the Vis was founded, or do we take the existence of all these mechanisms for granted?
With regard to free travel, of course the sustainability question comes to mind. While we as a team planned the travels to pre-moots around Europe, we had already attempted to swap our flights for trains, and started to question the necessity and sustainability of an event like the Vis. Hundreds of teams, arbitrators and alumni annually travel across the world to discuss again and again an entirely fabricated case – this year about water turbines and witness experts. Put in our new Covid-19 terminology, the Vis now is a perfect example of an “avoidable” and thus forbidden mass gathering. In the end, this sustainability decision was made for us.
Combining creative alternatives with real life experience
In terms of the Vis, I believe I speak for most of us when I say that I am impressed with how the organisers successfully managed moving the competition online, and we all witnessed some excellent virtual pleadings from teams around the world. But all things considered, the Virtual Vis format cannot replace the experience of the real competition as it cannot truly reflect the educational and social spirit of the event.
From the small insight we gained into ODR, it does seem as though holding hearings online is generally possible. The fact that the entire competition with its thousands of sessions was moved online within just a few weeks serves as proof that the tools do exist. Some of the practitioners who saw their first online pleadings while sitting as arbitrators may now be more aware of this and perhaps the event can be a little nudge for the legal profession. And what is more, in times of growing environmental awareness, we may ask ourselves twice in the future whether it is necessary and ecologically sustainable to travel to a meeting or to fly to a pre-moot on the other side of the world.
On the other hand, a certain element of the real life experience cannot be simulated. Aux Gazelles cannot exist online. And therefore this year, nobody got to receive the Joseph Schwartz Award for Academic Excellence and Party Condition. The current restrictions remind us of the important roles that the social and human elements play behind the things we do, and why these things were established in the first place, namely as a space for us to connect – through more than just video calls. We can adapt and improvise in many regards, but some hurdles cannot be overcome.
The lesson I have learned from my team is that we can make it through these times by taking responsibility and ownership of our work. We can use this opportunity to reflect on the things we used to take for granted. And while carrying on business as usual may not be possible in some regards, we can instead rise to the challenge of exploring creative alternatives for the interim period.
About the author
About Wagner Arbitration
The law firm WAGNER Arbitration has its offices in Berlin and specializes in dispute resolution with a focus on arbitration. In addition, the firm offers comprehensive counseling services related to domestic and international business disputes and transactions.