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Spoken interaction in an academic legal context: The
discourse of the arbitration moot
Christoph A. Hafner
Department of E...
Overview
• Background to the study
• Findings
– Generic elements
– Questions and answers
• Conclusions
Background to the study
The focal practice: Mooting
• Mock trials in the academy
– A simulated fact situation/dispute
• Students work in teams
• R...
The Vis moot competitions
• The ‘Willem C. Vis International
Commercial Arbitration Moot’
• The ‘Vis East’
Participants
Summary of observations
Phase Date Details
1. Writing for claimant and
respondent
October to December
December to January
...
Phase 2 data sources
• Observations of 10 simulated moots
– Video and audio records
– Student performance and teacher feed...
Analysis
• Thematic coding of field notes
– Identify recommended strategies
• How to cite authorities
• How to answer ques...
Research questions
• How can the spoken discourse of the
arbitration moot be described?
– What discursive strategies are r...
Findings
Generic elements
Macro and micro
Generic structure: macro
1. Introductions
2. Procedural arguments
a) Respondent
b) Claimant
c) Rebuttals and surrebuttals
...
Generic structure: micro
• Arguments are further structured:
– Case theory and ‘road map’
– Arguments on specific issues
•...
Questions
“An arbitration, if it is a good one, will become an
intelligent discussion” (G, Coach, field notes)
“[Acting th...
Questions and answers
Questions as teaching tools
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
...
Requesting authorities (1)
<H> [Yes.] Do you have any, do you have any authority for that? To
say that changing, a choice ...
Requesting authorities (2)
<R> So which Exhibit you are telling me?
(PH 1)
<N> Mr Mr Arbitrator, er we we agree the the la...
Questioning authorities
<G> Ar= Are you telling us that we are somehow bound by this
obscure New Zealand case? I I don’t e...
Co-constructing arguments
Using questions to put the case directly
<R> So Claimant, essentially the Respondent is saying
because of appeal and revie...
Using questions to test an argument
<R> But assuming my my translation is correct that, Dutch
version says or related to m...
Conceding
Exploring an argument without
conceding
<R> But assuming my my translation is correct that,
Dutch version says or related ...
Conceding hypothetically and
advancing another argument
[Discussing the difference between words ‘shall’ and ‘is’ used in ...
Conceding briefly and advancing
another argument
<H> But isn't there a problem Counsel because your
appeal and review mech...
Conceding unnecessarily
[Discussing whether two disputes based on the same agreement
could be heard together, at the same ...
Stance and signposting
<J> Mr President we argue that, the ch= the change in the choice of
law clause, amounts to a substantial difference, and i...
Conclusions
Hybridity
• Arbitration discourse, i.e. the discourse
and values of arbitration
• Professional legal discourse, i.e. the
d...
Future directions
• Interplay between formulaic expression of
arguments/language use and creative
interaction
Arguments
Ge...
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CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 1 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 2 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 3 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 4 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 5 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 6 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 7 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 8 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 9 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 10 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 11 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 12 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 13 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 14 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 15 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 16 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 17 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 18 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 19 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 20 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 21 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 22 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 23 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 24 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 25 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 26 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 27 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 28 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 29 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 30 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 31 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 32 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 33 CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot Slide 34
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CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot

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.

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CRILL 2016: Spoken interaction in an academic legal context: The discourse of the arbitration moot

  1. 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. 2. Overview • Background to the study • Findings – Generic elements – Questions and answers • Conclusions
  3. 3. Background to the study
  4. 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. 5. The Vis moot competitions • The ‘Willem C. Vis International Commercial Arbitration Moot’ • The ‘Vis East’
  6. 6. Participants
  7. 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. 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. 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. 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?
  11. 11. Findings
  12. 12. Generic elements Macro and micro
  13. 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. 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. 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)
  16. 16. Questions and answers
  17. 17. Questions as teaching tools
  18. 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. 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. 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. 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)
  22. 22. Co-constructing arguments
  23. 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. 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)
  25. 25. Conceding
  26. 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. 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. 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. 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)
  30. 30. Stance and signposting
  31. 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)
  32. 32. Conclusions
  33. 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. 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

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.

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