FDI Moot: the new normal?

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By Lucas de Medeiros Diniz

Lawyer at Rodrigo Mendes Advogados, Master of Laws by the University of São Paulo

The moots have recently become very popular among law students of different parts of the world and have been allowing them to have experiences very similar to what they will face in their day-to-day activities once they become lawyers. One of these simulations that has been growing exponentially and spreading throughout the world is the Foreign Direct Investment International Arbitration Moot (the “FDI Moot” or the “Competition”).

The FDI Moot is an international competition created in mid-2006 that discusses fictional cases related to investment arbitration which promotes the study of international investment law by students from all over the world. The Competition starts with a written round, wherein the teams are supposed to present memorials, followed by the oral rounds, in which the students, acting as lawyers, present their statements in front of an arbitral tribunal, defending the rights of the parties as if they were in an actual arbitration hearing.

Last year, the 2020 FDI Moot Case (“2020 FDI Case”), of which I had the honor to co-author with Tim Rauschning, Nikita Kondrashov and Dimitry Mednikov, involved a coal power generation plant that was to be phased-out quite sometime before its designed operational life. The phase-out was implemented in Respondent’s territory by a Decree in order to comply with a Directive adopted by a Regional Economic Integration Organization of which Respondent was a Member State. In the Case, Claimant was a financial institution that had allegedly acquired the rights related to the investment from the original investor through the execution of an assignment agreement. The 2020 FDI Case also dealt with the issue of challenge of arbitrators, since one of the arbitrators in the case had, inter alia, previously expressed his views regarding environmental disputes and had been previously appointed as arbitrator in cases arising from the same circumstances, although involving different parties.

As it has already been mentioned in a previous post of the New Gen Blog (link), due to the outbreak of the pandemic, the 2020 FDI Moot was held virtually, by means of the Zoom platform, between 6-9 November 2020. Inasmuch as holding the Competition virtually brought new and unexpected challenges, the organizers of the Competition took such an opportunity to reinvent themselves and came up with new features that offered the students an even closer experience to the reality of an arbitral procedure.

For instance, for the first time in the history of the FDI Moot, teams who have classified to the quarterfinals and semifinals were granted the opportunity to appoint their own arbitrator from a previously established list of 30 potential arbitrators. Thus, just like in real practice, the students were urged to make a background research on the profile of the potential arbitrators so that they could appoint the best-suited arbitrator for their case, as either Claimant or Respondent.

This year’s virtual format of the Competition also allowed a significant increase in the number of students participating of the oral rounds, which gathered participants from a wide range of countries. Including the regional rounds, 142 (one hundred and forty-two) teams, composed of more than 500 (five hundred) students, as well as 220 (two hundred and twenty) arbitrators, participated in the 2020 edition of FDI Moot.

Besides, the 2020 FDI Moot, along with the organization Arbitrator Intelligence (link), offered the students the opportunity to evaluate the arbitrators who participated in their panels and allowed the teams to provide feedback on the performance of the arbitral tribunals (link).

Although Brazil does not have a meaningful agenda in the field of investment arbitration, which is demonstrated by the fact that the country has never ratified any of its executed bilateral investment treaties, for the first time in the history of the Competition, a Brazilian team brought home the First Place Trophy, awarded by Skadden, Arps, Slate, Meagher & Flom LLP. After facing the Paris Bar School, before an Arbitral Tribunal constituted by Mr. Wendy Miles, QC (Chairwoman), Mr. Charis Tan and Mr. Nikita Kondrashov, the School of Law of the University of São Paulo was declared the winner of the Competition (link). The Jagiellonian University (Kraków) was ranked third place after winning an exciting round against the Universitas Airlangga (Surabaya). The full competition report has already been published with detailed information about all the participating teams and is available on the FDI Moot website (link).

The 2021 Case, which has already been published (link), deals with an aviation sector investment (acquired in a privatization program) that falters due to circumstances that the investor attributes to the economically distressed host State. The 2021 Case raises questions of the investor’s standing, the admissibility of amicus curiae brief, the use of a Most Favored Nation provision, the nature of the Fair and Equitable Treatment claims, and of appropriate standards of compensation. The Global oral Rounds shall happen in Seoul, South Korea, between 31st October and 3rd November 2021. Don’t miss out!

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