Thursday, April 11, 2019

Hooray Hungary (Jessup 2019)

And the champion of the Philip C. Jessup International Law Moot Court Competition is...

Eötvös Loránd University

Congratulations, Team Hungary!

For winning your very first Jessup, defeating perennial favourites Columbia University (Team USA), and inspiring underdogs worldwide with your miracle run...

143 teams, 1 champion

* * *

The world of mooting can roughly divided into two groups.

Native English speakers (NES) - those who grew up speaking and learning in English since childhood.

'English as secondary language' speakers (ESL) - those who grew up speaking and learning in their mother tongue, and only picked up English as a second or even third language.

Since law is inextricably linked to language, mastery over 'legal language' is essential to lawyering. For instance, Jessup mooters should be expected to understand the difference between 'jurisdiction' and 'territory'. Those who can't should rightfully be scorned, no matter which country they come from.

But where ESL mooters fall short is grasping the full spectrum of conversational English. And often times, that's where we lose out to our NES counterparts - not because of law, but language.

For as much as we binge on Netflix, we're not fully attuned to the typical American breakneck speed of speech, nor fully familiar with their colloquial expressions and loaded sentences. Our occasional difficulty to engage with judges has nothing to do with our lack of legal understanding, but linguistic limitations.

And yet, time and time again, I see judges getting visibly annoyed when mooters struggle to comprehend and cope with their questions - often times, in garbled and cryptic terms that only a true-blood NES expert can discern.

* * *

The facts and figures don't lie.

A quick look at history indicate that the Jessup is dominated by teams from NES countries - United States, Australia, Singapore and Canada.

Of course, there are some plausible reasons for their success, totally unrelated to linguistics. NES countries tend to be common law countries as well, hence more adept at courtroom advocacy. NES countries are also more developed, hence their educational infrastructure is more advanced.

That said, their early exposure to English definitely gives them a head start as well. Not just in learning the law (legal materials for international law are predominantly in English), but also in social skills.

And having being around in international moots long enough - and not just in Jessup - you can trust me when I say this: the gap between NES and ESL teams in terms of substance has narrowed in recent years, perhaps to the point of non-existence.

Also, ESL teams do not lack in passion and preparation.

Why then is the gap of results still so large?

If you apply Sherlock Holmes' logic in eliminating impossible causes with the empirical and anecdotal evidence at hand, the conclusion is that language - rightly or wrongly - still plays a primary factor in the determination of winners in Jessup or any international moot.

ESL Rocks!

* * *

Don't get me wrong. This is not a rant. It's merely an observation.

ESL mooters are disadvantaged by their cultural upbringing. When we face up against a NES teams in a moot, we're already a few points down before opening our mouths.

In fact, to stay on par with the NES teams, we have to put in more extra effort and hours to overcome our linguistic deficiencies. Simply put, both sides of the divide do not start on an equal playing field. With all other things like substance being equal, ESL mooters have to work harder to earn their win.

Some may think it's a problem that needs fixing, some may not. Some may even deny there's even a problem to begin with, as language is part of mooting as much as shooting hoops is part of basketball (pardon my insipid attempt at American colloquialism).

This is not a call for affirmative action. If there's anything that needs changing, it's our own human nature, not the rules of the game.

* * *

And yet, against all odds, Team Hungary defeated Team USA in the Finals.

True enough, in the Finals, the Hungarian agents struggled to understand some of the American judges' fiery questioning. Despite their superiority in legal argumentation, their delivery lacked the smoothness displayed by the US agents. It was the classic clash between substance versus style.

By a narrow 2-1 vote by the bench, substance ultimately prevailed. Justice was indeed served.

This year, Hungary has joined the illustrious ranks of ESL teams to win the Jessup. It's a rare and handful bunch. Together with Team Colombia, Team Russia and Team Argentina, they have shown the rest of the world that language is no barrier to success in mooting.

Hip hip hooray!
* * *

Ultimately, as much as we are a 'disadvantaged' lot, ESL mooters should accept the cold hard truth that life simply isn't fair, and that we should take responsibility for the life choices that we make.

But perhaps - just perhaps - we could be given some margin of error for not speaking Americano as smoothly as natural-born speakers.

After all, Jessup is the Olympics of mooting. Jessup unites the cultures and nations of the world under one umbrella.

And that spirit of unity should be the love of the law, and not language.

Monday, April 1, 2019

Malaysia Blown Away (3rd AIAC-ICC Pre-Moot 2019)

Dato' Mary Lim (Court of Appeal Judge) sums up the recent Malaysian Vis Pre-Moot 2019 best: "Malaysian lawyers, beware!"

Such was her frank qualitative assessment of the Final Round fought fiercely between two teams from India in which she co-arbitrated.

And had she known what transpired during the rounds prior to the climax, she would've reached to a similar quantitative conclusion - with perhaps even more caustic, critical words.

The facts and figures don't lie:
  • 90+ teams from 30+ countries participated in the Pre-Moot
  • Out of 37 Malaysian teams, only 5 teams finished in the Top 32 of the Preliminary Rounds
  • No Malaysian team entered the Top 16 (11 teams from India, 1 team each from Romania, Brazil, Saudi Arabia, Hong Kong, the Netherlands)

Utter decimation. Epic failure. Crushing defeat.

Malaysia Boleh?

More like Malaysia Blown Away...


* * *

I was an arbitrator for 6 Preliminary Rounds.

So I had ample opportunity to witness the foreign teams in action - India, Cambodia, Kyrgyzstan, New Zealand, Japan and Hong Kong.

And they were truly impressive. In fact, I actually scored most of them higher than their Malaysian opponents.

Their law was solid. Their arguments were sharper.

The only aspect where Malaysian mooters were on par with - or at times, slightly edged over - the foreign teams was in style. We had bombast. We kept calm and composed. We were full of flair.

Otherwise, all things considered, we were inferior to the top foreign teams.

The typical survival rate of Malaysians in international moots

* * *

Looking deeper, such underwhelming results is understandable.

Malaysian teams have historically not been active participants of the Vis Moot, whether at Vienna or Hong Kong. The stronger teams lean towards Jessup, LAWASIA or IHL.

Most of the foreign teams in the Pre-Moot are actually warming up before they go to Vienna or Hong Kong. In contrast, majority of the Malaysian teams consist of novices trying out the Pre-Moot simply for experience.

Still, being blown away on our home soil is quite a blow to our national pride.

And whilst the Indian teams are truly a level above all others, we were also struggling against our other Asian neighbours. It could well be that other countries are catching up fast, whilst our we have rested on our laurels and stagnated - if not even regressed.

Whatever the reason, let this decimation be a wake-up call to Malaysian mooters.

Does Malaysia even have an end-game?

* * *

There's immense potential in the Malaysian mooters of whom I witnessed. And they truly have the drive to improve their skills, compete with the best in the world, and truly kick ass.

Sadly, most of them lack the proper training, guidance and direction.

It is rather ironic - if not prescient - that barely a week ago in my last post, I had urged Malaysian judges, lawyers and lecturers to change our old habits.

Or to put it bluntly: we need to focus more on substance over style in mooting and legal practice.

The facts and figures don't lie.

No Malaysian team in the Top 16 of the Malaysian Vis Pre-Moot 2019.

Malaysia got blown away.

Malaysian lawyers, beware!

Thursday, March 21, 2019

5 Habits That Never Change In Malaysian Moots

It has been 15 years since I was first introduced to mooting. True, mooting has been one of my favourite and most memorable activity in law school. But I would never had guessed it would continue to play a part in my life until today.

Look, I'm really not a moot geek or fanatic. After graduation, I was fully focused on litigation. It's only recently that I've been drawn back into mooting again. Unlike some others, mooting is not a lifelong obsession.

Nevertheless, now that my work in University of Malaya (UM) centres around mooting, I'm beginning to appreciate mooting at a deeper level. Mooting is a reflection of legal practice. And through mooting, I'm able to understand the psychology of legal minds - lawyers, judges, and lecturers.

One thing that never ceases to amaze me is how little the state of Malaysian moots has changed over 15 years. On one hand, it's nice to know that good 'ol traditions are still being kept alive. But on the other hand, it may be a sign that we're stuck in the past whilst other jurisdictions around the world has overtaken us...

Lord Kok of Ipoh (coming soon to a moot court near you)

* * *

1. Introductions

Last year, right after a solid performance by Team UM in the final round of an international moot competition, an eminent retired Malaysian judge came up to the team to congratulate us. Then the ex-judge frowned, and gently rebuked our team, the Claimant, for not introducing the Respondent's counsel. (Anyway, we won.)

Now, we are well aware that such is the convention in Malaysian courts. But the competition was an arbitration moot, and none of the arbitrators found fault with us and other teams for not doing so. In fact, I remembered another of our team in another moot once being rebuked by a practitioner hailing from a civil law jurisdiction for introducing the other side - the rationale being that it's not right to deprive them of the chance to properly introduce themselves...

2. Summary of facts

It's customary in Malaysia for the first counsel of to give a summary of facts of the case, or at least, ask the judge if they wish to hear such a summary. If you skip this step, you may risk incurring a stinging rebuke from the judge during feedback.

Once again, it's a Malaysian thing. Foreign teams rarely do this, and foreign judges rarely ask for it. In fact, I once witnessed a judge even snapped back at a mooter: "It's your case, counsel. Run it however you want."

3. Formalities

Malaysian mooters tend to adopt the same boring set of vocabulary:

"I beg your indulgence"
"Much obliged"
"We humbly submit"

It's not their fault, though. If they say words like "apologies", "thank you" and "we say", they'll be cut down for disrespecting court decorum. In fact, there was a retired judge which went on lengthy tirade against a mooter for addressing him as "My Lord" instead of "Yang Arif" as he preferred.

Yes, Malaysians really care a lot about titles...

4. Posture

If a layman only entered the moot court towards end to listen the judges' feedback after counsel's submission, he could easily mistake a moot to a military boot camp:

"You should stand straight, and not lean to one side"
"You wave your hands too much"
"You smile too much"

Foreign judges never comment on such trivial, superficial things. In fact, top international mooters have this cool, confident habit of sipping water (without even asking for permission) whilst they pause to take questions from the judges.

I'm pretty sure a Malaysian judge would've given them an auto-loss...

5. Voice

Lastly, Malaysians are easily impressed by good voice projection. Loud is good. You have a naturally soft voice? Too bad, you start at a disadvantage.

In stark contrast, foreign judges are less concerned about voice control. Neither are they pedantic on pronunciation. So long as your words are audible and comprehensible, that's good enough. What matters more is the law, not language. Speaking with an American accent won't earn you bonus marks.

The golden age of Malaysian legal practice - Eusoffe Chin (Chief Justice) & VK Lingam (Chief Justice Special Counsel)

* * *

By now, you can trace the pattern. Malaysian legal practitioners tend to be more critical on style, rather than substance.

That's not necessarily a bad thing, of course. Communication skills are essential to the art of advocacy. Our adversarial trial system requires a certain degree of showmanship and grandstanding. Our courtroom is still heavily steeped in ceremony.

But we can't disregard the inescapable fact that litigation practice worldwide is ever evolving. Plain language is gaining ground. The shackles of archaic decorum is loosening. Wigs and gowns are consigned as relics of the past. Lawyers are not expected to grovel before the judge like a subservient subject pleading mercy before a lord of a castle.

Hence, whilst some traditions are still worthy of keeping, there are some which evidently aren't. Soul-searching is called for. There are many outdated habits of Malaysian legal practice that needs changing.

And such change can - and should - start at the moot courts.