I wake up bright and early. Get dolled up, ready to play, and sing and look the part. Trying to convince the voices in my head that I have read possibly all the common law jurisprudence that there is on “extending arbitration clauses on third parties” I have the most absolutely delicious breakfast. Roti Prata, a popular South Indian dish. It`s like a rice paper-thin, spider-web thin pancake served with dahl –the one I like –or fish curry- yikes. Full of energy thanks to my friend’s mum who feeds me like a queen, my friend’s dad kindly drives my to Bukit Timah, were the National University of Singapore is located.
I much enjoy the eloquent conversation of this poised, well-educated and charming banker. While driving, he tells me curious details: ERP (Everyday Road Pricing) -most commonly referred as Everyday Robbing Practice – is the toll system in Singapore, payable at booths on the expressways or (more disturbingly) automatically deducted via wireless electronic charge. ERP is supposed to discourage the use of private transport in favour of the subway, since traffic jams are not compatible with the kind of city that Lee Kuan Yew envisions, namely, an efficient, business-friendly city. Wasting time stuck in a road would be an unpardonable crime. However, sometimes, so much control, does have an uncanny resemblance to 1984. On the other hand, though, I am a strong defendant of slightly authoritarian leaders, because the human race is too inclined to idleness. People tend to need direction and guidance and encouragement to do better. People need rules and need to learn to obey. Provided, of course, that these are conducive of excellence and well-being, and not just a bunch of quickly cooked-up impediments to perpetuate the position of those in power not for their merits, but for their “surnames”.
I descend from the car, trotting along with the highest heels I have worn in years because feeling tall gives me a sense of empowerment, which today I am most certainly sure I will desperately need. Before entering the Arbitrator’s room to be briefed about the rules of the Mootcourt, I explore around the different pavilions of the university. You can almost smell that this institution is not skimpy with its students. Both the Lee Kuan Yew and the Li Ka Shing departments are clean and spacious. The library is not set in a basement and has heaps of bright natural light that seem to encourage you to devour books like Matilda Wormwood or Don Quixote. Anyone can use the computers without having to enter idiotic passwords, printers print on your command, photocopiers photocopy without getting clogged or endlessly begging for more paper and IT people actually know about IT. Everything works. Everything is on time. Even I am on time.
Briefing room. I find my tag name on the table. I am addressed as Meredith, Maria or Miss Sendros; and you can see people squinting as they struggle to decipher the name of this young girl that contains a “t”, and “x” and a “double l”. The other arbitrators distribute business cards, written in English on the cover, and on Chinese on the reverse –do not ask me if it is the classical or the simplified version, since I am too ignorant to notice the difference. Once again, I am the odd one out: In class, I tend to feel awfully old in comparison to my peers. Here, I feel awfully young. Apparently, I cannot win the age battle.
Kate Lewins –the Australian moot court coordinator- distributes the score sheets – where you allocate points to “legal command” but also to “poise and attire” of the students. On the board, there is a grid that tells me that I will not be presiding the tribunal –thanks be to God- and that I’ve been paired with two Indian arbitrators from the Gurbani partnership.
Room 5. I walk decidedly to my seat, fill in the form with the names of the students, pour myself a glass of water and restrain myself from sighting. I am shaky like a piece of pudding that has fallen from the table to the floor and one of the guests of the party has just stepped over it, and feels like an orphan. I start playing with the pen, trying to calm myself down, and then, zas!, the soft and slow voice of Dr. Montañà seems to whisper in my ear that this is not a very professional “thing” to do. I put the pen down, thanking my teacher without him knowing, and finally, my mind is able to concentrate on the Indian girl who is struggling with the “over the ship rail rule” that does not apply to liquefied gas – a rule that establishes that the risk is on the buyer once the goods have passed the ship’s rail. However, how do you establish this with a liquid that goes through a pipe that needs many valves, and whose unloading requires the assistance of the Port Authorities, the consignee, and the carrier? I am sure that the people from Lukoil in the Barcelona Port now the answer: the ship’s flange.
Just for quick reference, the facts of the case at hand, broadly and extremely colloquially summarized, were as follows: We had this shipment of LNG, evidenced through a magical transport document called Bill of Lading. There were various shipments. For each shipment, you had a different BL. These BL’s (supposedly) incorporated, through general wording, an arbitration clause. However, this arbitration clause was never printed in the actual documents. In the case, the companies that entered into the contract for transport of the liquefied natural gas had a history of prior dealings. One day, catastrophe ensues. One of the members of the crew introduces a flammable device while unloading of the cargo is taking place causing a fire because there is a leak in the pipe of gas. The ship ends up wrecked. Now we are faced with questions such as:
Does the Arbitral Tribunal have jurisdiction to hear the case if the parties did not sign an express agreement to arbitrate, they did not contract on standard terms and the only incorporated clause there is, is incorporated through general wording?
Did the carrier breach its responsabilities for proper care and discharge of the cargo under article II of the Hague Visby rules and therefore the consignee was unable to render possible its obligations? Or did they have a combined duty to discharge it since it was a gas cargo that requires specific pipe to be unloaded?
Having said this, now it was the turn of the second team. So far, I have not asked one single question, and I wonder if I am stupid , a coward or both. And then, like an epiphany, I see clearly that I should ask the Australian boy, who is going on and on and on without end about the Hague Visby rules, how does he come to the conclusion that this Bill of Lading is in fact governed by the Hague Visby Rules! He is thrown of the rail, does not produce a coherent answer, and I feel profoundly sad –for him- and profoundly happy- for me- at the same time. He does not mention the Paramount Clause, and cannot explain that that when the port of shipment has no enactment of the „Hague Rules‟, „the corresponding legislation of the country of destination shall apply.‟
Since shipment occurred in international waters where there is no legislation giving compulsory effect to the Hague Rules, the law of the stated place of destination must be considered. Given that the HV Rules have been given „the force of law‟ in the stated place of destination, the HV rules apply. I confess it took me a lot of time to get this conclusion.
Time’s up. We send the mooters outside of the room. The two Indian gentlemen treat me with the outmost respect, as an equal, and we give the participants the score they “deserve”. Having been an ex-mooter myself, I will discover, being now part of the panel, that in these “contests” luck, or destiny plays a bigger role that you would imagine. The first moot I heard, the participants were anything but mediocre, yet they were princely rewarded with 34 points (out of 40) by the Indians. On another round, a ruthless, phlegmatic, thin like a spaghetti Chinese arbitrator, gave the guys from the UK- much more coherent, who knew their case law and did not go off on a tangent- a mere 25 points. This is only to illustrate, that winning and school marks, may not be as objective as we naïve students are made to belive.
I am exhausted. The rosy, idyllic idea that teachers have an easy ride when they correct exams is complete erased from my head, and I realise that it takes a lot of courage to stand up in front of an audience where you can be shot down with questions. They could always discover that you are less educated than they are. My first day has come and gone like a flash. It has been an enlightening course of business demeanour, of shipping law, of English language, and above all, a cure of humbleness.
Meritxell Burcet Sendrós. Llavors, alumna de 4rt de vacances. Ara alunma de 5è d’intercanvi a la Bucerius Law School (Hamburg, Alemanya)