Harry M. Flechtner is Professor of Law Emeritus at the University of Pittsburgh School of Law, where he is a six-time winner of the Law School’s Excellence-in-Teaching Award and a recipient of the Chancellor’s Teaching Award. Professor Flechtner serves as a National Correspondent for the United States at the United Nations Commission on International Trade Law. He has published extensively on international and domestic commercial law, with particular emphasis on international sales law. Before retirement, he spoke frequently on commercial law topics, and has been cited by the Solicitor General of the United States as “one of the leading academic authorities on the [United Nations Sales] Convention”. Professor Flechtner is a former Member of the CISG Advisory Council. In the Willem C. Vis Commercial Arbitration Moot circles, he is famous for composing and performing “The CISG Song” and “The Mootie Blues”.
Professor Harry Flechtner was interviewed by Ms. Hanna Shalbanava about his involvement in the moot court community and, in particular, about the Willem C. Vis Commercial Arbitration Moot (the “Moot”).
H. Shalbanava: When did you join the moot court community and why?
Professor Flechtner: I was the coach of the first University of Pittsburgh team that went to the Moot, which was the third Moot in 1996. That was a long time ago. If I remember correctly there were about thirty teams in that Moot – not too many. I did not coach the team for the next two years when some of my colleagues took over that role. The University of Pittsburgh has sent a team to the Moot every year since the third Moot. My colleague, Professor Ronald Brand, whose Center (the University of Pittsburgh’s Center for International Legal Education or CILE – ed. note) has always sponsored the University of Pittsburgh team in the Moot. Professor Brand coached the team for the 4th Moot. My colleague Professor Vivian Curran from the University of Pittsburgh coached the team for the 5th Moot. Then, beginning with the sixth Moot, Professor Brand and I co-coached teams, and we have done so every year since. This is how I got involved in all this.
H. Shalbanava: That is a long history! Something must have kept you in this community for such a long time. What are three main reasons that make you participate in the Moot?
First and foremost, the Moot is truly a remarkable educational experience.
Professor Flechtner: Even though it is only for a small number of students from each school, the opportunity to give them that kind of educational experience is amazing. Almost uniformly, every member of the Pittsburgh team has said it was the most important educational experience of their law school time. That is the main reason to get involved in this. Of course, it is also a heck of a lot of fun to do these things. It is very nice to get to Vienna every year and be involved in this. So that is a very nice and pleasant academic activity. Although a coach’s work is pretty hard too, it has always been a good and stimulating thing (as you well know, as a matter of fact). And third, I would say, a very, very important reason is that the Moot and the people involved in areas related to the Moot are really remarkably nice, fun, and smart. Starting with Eric Bergsten, who is an amazing-amazing man, through the current Directors, who are all just wonderful, kind, generous, extremely smart people, it has always been the people who have most attracted me. I became involved in the Moot primarily because of my interest in international sales law – I am not a procedural person. Everything I’ve learnt about the international procedure, I’ve learnt from the Moot myself.
And then there are the people who were involved with the CISG, going back to the time when the Convention was put together, going back to the 1980 Diplomatic Conference at which the text of the CISG was approved. I happened to be very lucky enough to do some work with Professor John Honnold, who had been the Secretary of UNCITRAL when the CISG was put together and then was the lead for the U.S. Delegation at the Diplomatic Conference at which it was approved. He and Professor Peter Schlechtriem – in fact, all that first generation of people involved in putting the Convention together – they were all just remarkably friendly and nice, people who did truly amazing things. So, that was attractive.
I remember the first time I met Professor Schlechtriem. I had arranged for a kind of dialogue involving some of the people who’d been involved early on with the CISG, Professor Honnold, Professor Schlechtriem, Professor Sono (the father of Professor Sono who is currently on the CISG Advisory Council), Professor Joseph Lookofsky and some others. I had to transcribe the conversations. It was published in the Journal of Law & Commerce at the University of Pittsburgh School of Law. I picked up Professor Schlechtriem at the airport, and that was the first time I met him. I was a young academic, and he was a great, great man, who was very friendly. I remember we got into the car, he turned to me, and he said: “Do people in the U.S. have as much trouble spelling your last name as they do my last name?” (laughs). We have consonant clusters that we share. And that was just typical of the way he would disarmingly make you feel comfortable in the presence of real greatness. Professor Honnold was the same way, he was just the sweetest, most wonderful, kindest man. So, I would say that the people – and they were really special people – who have been involved in the Moot, and the people who have been involved in the CISG – all the amazing people. Yes, that has been a big attraction.
H. Shalbanava: I concur with all the points that you have mentioned, and especially on the community. I have also met so many amazing people. That is why it is unfortunate that the Moot was held online for the last two years. You have participated in the Moot as a coach and an arbitrator. Let’s for this moment focus on your experience as a coach. What teams have you been coaching and supporting so far?
Professor Flechtner: In this regard, I have to mention again my amazing colleague at the University of Pittsburgh, Professor Ronald Brand, who founded our Center for International Legal Education, and is the Pittsburgh Law School’s key person for everything involving the Moot. He saw an opportunity very early on to use the Moot as a vehicle to expand the global community of legal professionals. Through some grants from the U.S. Department of Commerce and others, he began working with universities in areas with emerging global legal cultures to get them involved with the Moot. He began by working with universities in Eastern Europe who were starting to enter the global legal arena, and where students who had received an LL.M from the University of Pittsburgh were located. These included the University of Belgrade, the University of Kosovo, and, eventually, several other universities in Eastern Europe, including the University of Zagreb.
The idea was to work with people, who were likely to become the next group of academics in those areas. And that approach was the way to leverage the impact of what Professor Brand was doing. He and those universities (as well as the former University of Pittsburgh Mooties, whom he recruited to help) did an amazing job. That worked extremely well. Of course, the University of Belgrade has become an extraordinary power in the Moot, consistently producing outstanding performances thanks to the work of our LL.M graduate, Milena Djordjević. The other Eastern European universities with whom Professor Brand worked have also performed truly wonderfully, and taken with them the extraordinary educational experience that is the true point of the Moot.
Now, Professor Brand’s program focuses on the Middle East, and he has helped to establish a Middle East pre-moot that is very successful, a very big deal attracting a really large number of teams. He particularly goes to the Middle East every year twice to help train the teams over there. So, he has had this extraordinary impact. We call the teams he has worked with “the consortium”; I don’t know how many teams there are. But in fact, we have a pre-moot in Vienna, before the Moot begins, for teams from this consortium. It has been a truly remarkable thing that Professor Brand has accomplished. I have gone along for the ride, but he has been the driving force. I’ve been involved in arbitrating arguments and things like that, but he is the one who has organized and put the program together. I have come along a little bit helping him in his work. So, that particular program has put me in contact with a very large number of teams and a truly interesting and wonderful set of students.
H. Shalbanava: Did you also participate in a kind of full coaching when you took the team at the beginning of the Moot season and supervised until the end?
Professor Flechtner: Yes, very much so. In fact, Professor Brand and I both have been active co-coaches. I mean, the Pittsburgh team does a lot of practice arguments. Professor Brand and I start them off and put them through their paces quite early on, and so we have been heavily involved in the training of the team directly. We do not sit back and have others do it. Since I have retired, obviously, Professor Brand has had to engage more people to get involved. I still do online arguments with the team, obviously, and that has been particularly useful these last two years – but yes, we do direct training and a lot of it as a matter of fact. A coach’s job is both difficult and very time-consuming but if you are really committed to and care about students, there is no more effective or rewarding investment of time and energy than actively performing this role.
H. Shalbanava: As a coach, how would you suggest approaching the selection of students into the team?
Professor Flechtner: That is really an interesting process. I’ll give you our perspective that tends to be a little different from others’. First of all, in the U.S., moot court activities – and there are many competitions available here – have generally been considered “extracurricular.” That is, a student gets little credit from them towards graduation – not very much at all. Of course, the Moot is an enormous amount of work, much more than most of the courses that our students would be taking. For a long time at the University of Pittsburgh, we just had try-outs for the Moot and any student could make the attempt. Candidates for the team wrote a short memo, two-or three-pages, followed by a brief oral argument, and Professor Brand and I would decide on the team based on that.
The difficulty for our students is that the Moot is so much work and they get so little credit for it – one credit. One credit (!).
A typical law course in the U.S. is three or even four credits, and that is for just one course out of four or five that students take at a time. The Moot is twice as much work as most of those other courses. So, we have moved to a different kind of system.
- Professor Brand teaches a course on International Arbitration;
- students take that course, and they get course credit for it;
- and then we select the team from the students in the course who are interested in being part of the Moot.
You must be a member of the course in order to be able to try out for the team. So, in that fashion, the students get more credit, which they certainly deserve, for doing the Moot. The final decision on the make-up of the team is based in part on the written work and participation in Professor Brand’s course. But then we also still have a set of try-outs where candidates for the team give us an oral argument, and we pick students in this fashion.
H. Shalbanava: That is indeed an unusual approach to the selection of the students.
Professor Flechtner: Something else that matters. We do something that is quite different than most teams, I think. We almost always have four Mooties on the team, and we don’t have them switch sides at the Moot. If you do substance for claimant or procedure for a claimant, you stay on the same side. We think it actually enhances the educational experience. I have been in a lot of arguments where a student who argues both sides starts off the arguments on the wrong side. I’ve seen that happen many times (laughs). But also, our approach spreads the experience to more students, all four students get at least two arguments, and we think that is the best way to share the extraordinary experience of the Moot. We also think it works better for the team. Yes, you know, our students don’t qualify for oralist awards, and some of the students who are arguing will not be necessarily the first or the second-best oralist based on general skill, but they work as a team much better when every team member knows he or she will actually perform as a part of the team at oral arguments too. It is important for the team to keep in mind that everybody is going to argue in Vienna, everybody is going to have at least two arguments in Vienna and get a full Moot experience.
H. Shalbanava: That answers one of my questions that I prepared for you today. So, to sum up, each member of your team prepares for a specific role either on the side of claimant or respondent and works with either merits or procedure. You don’t prepare “universal” speakers. Is that correct?
Professor Flechtner: Well, that is true in terms of training for the oral arguments phase. They do work together without particular roles in the writing phase of the Moot. They divide things up in ways they think best and work on the memo in that fashion. Sometimes they will end up arguing in Vienna on a different topic, a different set of issues than they worked on when they were writing. So, they get a kind of broader experience in that fashion. The drawbacks of the way we do it – if someone becomes ill or something like that, someone who has not been specializing in those arguments has to fill in. For that reason, we have them do at least a couple of arguments during the training phase on the other side of the case. So that we can fill in on an emergency basis if necessary.
H. Shalbanava: During the writing phase, how do you advise structuring the work in the team?
Professor Flechtner: Of course, it is the students’ memo. Frankly, Professor Brand is really very good at this. What we tend to look at, we tend to really focus on the argument headings, because that tells you the structure of the memo. As coaches, we don’t get into the nitty-gritty of the arguments, but focusing on the argument headings and organization keeps you at the right level for the students to have the experience you want them to have, which is:
“Oh, I can think of the argument now when I think about it in this way that others have not thought of it”.
So, looking at the argument headings and using that as a kind of proxy for the whole structure of the memo – that is the way we coach.
H. Shalbanava: Do you know from the beginning what students will be working on substance and what on the procedure? Or do they work all together on all the issues at the same time?
Professor Flechtner: No and no (laughs). We don’t know what students are going to end up on the merits and procedure when we start. That does not occur until after the memos are completed. On the other hand, they all don’t work on everything. We let the students – with advice from us – divide it up based on who they want to work with and what they are interested in. Usually two work on the procedure, two work on substance, although it may not be the same two who argue those issues in Vienna. The students decide who they want to work with, how they want to divide up the work among themselves and we let them more or less (with some supervision from us) take that on their own at the beginning and all the way through the writing phase. Remember that U.S. law students have completed their basic university degrees and are training as legal professionals for their chosen careers. They need to be able to work with others effectively in situations like this at this point in their general training.
H. Shalbanava: That is interesting. When I participated, we used to define these issues from the beginning. So, basically, who worked on substance during memo writing would also address merits in orals, because during the writing phase you research a lot, and then it helps to prepare the foundation for oral rounds and for answering questions during arguments.
Professor Flechtner: Yes, that is right. As a practical matter, if you have been working on substance in the writing phases, chances are you will want to do substance in the oral argument phase. Most often team members end up working on the same part of the problem in the writing and oral argument phases. But not always. This last year, one of our team members who worked on the procedure during the writing phase ended up doing substance in Vienna. We, coaches, try to consult with the students; we know that it is pretty intense to work together with your partner in the Moot, and we want them to be able to get along, so we kind of try to get a lot of input from the students themselves, and only if they can’t work it out, we do step in and say: “Ok, this is how we are going to do it”. For us, giving the students a chance to work out their roles is part of the educational experience the Moot provides. In the real world, lawyers must learn to work with a wide variety of other personalities and approaches. Does that sometimes present challenges for our team’s competitiveness at the Moot? Probably. But the educational purposes of the Moot are paramount. The competition is a vital tool to achieve those educational purposes, but it is a tool – not the end itself.
H. Shalbanava: When do you usually start to form the team? Or when does the course of Professor Brand take place?
Professor Flechtner: The course is always a fall semester course, so it begins at the very end of August. Of course, at that point, the Problem is not yet out. The first part of Professor Brand’s class focuses on a general introduction to international arbitration and the CISG. Then, when the Problem comes out, there is a discussion within the class about what issues and arguments are raised by the problem. In fact, the entire class is listed as co-authors of the Claimant’s memo because they really all worked together on this. We list something like twenty or twenty-five people on the Claimant’s memo. So, when the Problem comes out, there is a process of trying to identify issues, divide up the issues and then break things down into smaller groups of sub-issues: this is a sub-issue on the substantive side, this is a sub-issue on the procedure. Two or three class members will work together on that even though we don’t yet know which students will argue in Vienna are yet. The final team is not selected until some time in October after the Problem is out – generally in later October.
H. Shalbanava: Do you do any master classes specifically designed for the Moot? Maybe on the drafting of memoranda or something like that.
Professor Flechtner: That is part of the class that Professor Brand runs; it includes coverage of things like that, e.g., how you draft a memorandum for arbitration. After the Problem comes out, the whole class works on different smaller memos. That is what they are supposed to be doing – learning how to do things like that. I usually come to Professor Brand’s class for a week or two and do a session or two on the CISG for the class. That allows Professor Brand to travel to the Middle East (laughs) so that he can work with the teams in the Middle East, It’s really a lot of moving parts.
H. Shalbanava: Do you resort to any motivational tricks to cheer up the team when you feel that maybe they are burning out in the process?
Professor Flechtner: There are a couple of motivations. Professor Brand is a wonderful motivator. He is very supportive of students, but he also has high expectations and they know it. This motivates them. I try to support Professor Brand in that, and also – after a disappointment – remind team members of what they have achieved. But there is only one team in the entire Moot that ends up on a non-disappointing note. It takes some time (and patience by coaches) to get past that.
But the Moot is generally such a great experience that it really is not long before the great and fun stuff about the Moot comes to the fore, and the disappointment of being eliminated becomes (properly) a subsidiary consideration
Also, for our team, we have worked out a really nice schedule, particularly where the Moot is held in person in Vienna. We take off for Europe a week before the Moot starts. We go to Belgrade first. Belgrade has an amazing pre-moot. After that, we have an informal and very small pre-moot, with just a couple of teams, at the University of Zagreb. We have worked with the wonderful Zagreb people on a number of different projects and, of course, Zagreb has always had a really good team. Loyola University Chicago with Prof. Margaret Moses is another one of the teams that come to Zagreb with us. We then go on to Vienna. As I mentioned, there is this pre-moot for the consortium teams that happens in Vienna. We have things worked out very nicely with that. And then there is some anticipation by the team for my performance at the Opening Ceremonies for the Moot on Friday evening.
I tell you what, it is amazing, of course, being able to perform in the Vienna Konzerthaus. It is just unbelievable for someone like me – an amateur musician of modest talents. They even give me use of a dressing room backstage – a room that I know has been used by truly great musicians. The dressing room has a small Bösendorfer grand piano for warm-up purposes. Bösendorfers may be the most expensive production pianos in the world, I think. They are amazing, and it turns out that Professor Brand is a very fine pianist indeed. So, we take the team back to my dressing room, and he plays a couple of songs on the Bösendorfer grand piano that is in the dressing room, of all places. The team gets to see the backstage of the Vienna Konzerthaus a little bit and then the team is kind of waiting for me to show up on stage, I guess (smiles). It is a very, very nice schedule. Professor Brand gives a performance just for our team back there in the dressing room on the Bösendorfer grand piano, and then I have this performance out on stage, in front of everyone else, which is, of course, amazing. And the people who do sound for the Vienna Konzerthaus do my sound at the Opening Ceremonies. I have never sounded better than in the Vienna Konzerthaus (laughs). That is an amazing experience.
H. Shalbanava: That was really interesting. I think there is no Mootie that does not enjoy your songs or does not look forward to them during the Official Opening. I guess, before everyone comes to Vienna, they are included in the Introductory Course to the Moot (laughs).
Professor Flechtner: Well, our team has not heard the performance before the Opening Ceremonies. Here is the way it works: I have two songs I do every year, the same ones – “The CISG Song” and “The Mootie Blues” – but then I write at least one new song based on that year’s Problem. When the Problem comes out in October, I read it rather differently from other people because I am looking for the jokes and stuff for my song. I usually get the song written by mid-November, and then I start practicing that thing. I probably practice it two hundred times before I go to the Vienna Konzerthaus. It is fun for me to do that, but it is a lot of work too.
H. Shalbanava: Absolutely! Do you remember when did you write your first song about the Moot?
Professor Flechtner: That is a really interesting thing. When I was younger I was involved with music, and then I kind of let it go for a while. Then I came back to it after I joined the Law faculty at the University of Pittsburgh. I ended up doing a song about contract law for one of my classes at the University of Pittsburgh. I always performed it on the last day of class every year. Perhaps that put the idea into my mind, but I wrote “The CISG Song” just for my own amusement. Then Professor Brand and I organized a conference on the CISG, and I decided I wanted to perform the song for the speakers’ dinner at the conference. The dinner was at a very nice place where we had a private room. I recruited one of my musical buddies named Dan Kambic – a really, really talented guy, and we performed “The CISG Song” together at the speakers’ dinner. Well, one of the people who spoke at the conference was Eric Bergsten. He came up to me afterward and said: “You should do that at the Opening Ceremonies”. So, it was his idea, really. I said: “Sure, why not” (laughs).
My daughter was doing a semester abroad in Italy that year. So, when I was in Vienna for the Moot, she came to visit me. She was backstage with me in the dressing room for that very first time when I was going to perform. By then I had also written “The Mootie Blues” (also just for my own amusement) but I had not played it for anybody before. So, while I was waiting to go on, I played “The Mootie Blues” for my daughter. She is not a lawyer, but she said: “You are going to do that song too, right?” I said: “Oh, God, no. Eric invited me to do “The CISG Song” and that was it, I can’t do that.”
But when I went out and played “The CISG Song”, people seemed to enjoy it. Eric was the only other person on the stage, that enormous stage in the Grosser Saal of the Konzerthaus. He was sitting there and I walked over to him, looked at him, and said: “Do you trust me?” He looked at me, and there was definite nervousness in his eyes, but he said: “Well, okay”. So, I went out and I did “The Mootie Blues” as a second song. That went over well. And it was not planned at that time. Next year, I played “The CISG Song” and “The Mootie Blues” and a lot of people came up to me afterward and said: “Nice job, I enjoyed it, but I thought, perhaps, you would have something new for us this year”. So, the year after that, the third year, was the first one when I wrote an additional song about the Problem, and that became a tradition – the three songs: “The Mootie Blues”, “The CISG Song” and the song about that year’s Problem. That is how it all developed. Five years ago, I started having people coming on stage with me. Among the first ones, it was so great, was Professor Ingeborg Schwenzer. It was amazing. She was terrific, she was just terrific. That continued, I had more people come on until we had to do things online. Then, I could not have people come on with me. So, I am really looking to having an in-person moot again.
H. Shalbanava: I remember two performances with other people: with Professor Schwenzer and with the students. I believe there were three girls with you on the stage. It was nice.
Professor Flechtner: So, it was Janet Checkley, Arnela Maglic, and Nika Rassadina, whom we called “The Arbitratones”. They were truly extraordinary. And the year before was the twenty-fifth anniversary of the Moot, and I had four other law professors come on stage with me – Professor Margaret Moses, Professor Petra Butler, Professor Zlatan Meskic, and (of course) Professor Brand; we called them “The Quadranscentennial Chorale” (“quadricentennial” means twenty-five years). That was really a lot of fun and we had a chance to sing Happy Birthday to the Moot as the ending to the performance.
H. Shalbanava: This creative input is something that, I guess, everyone enjoys and looks forward to every year.
Professor Flechtner: I do, very much. And you know that there will be a supportive audience. That is how I can get away with it. No matter what I sound like, the audience is going to be interested and supportive. It is very fun and very good for me.
H. Shalbanava: I would like to move to your role as an arbitrator in the Moot. What is your approach to evaluating students during oral rounds? What is important for you?
Professor Flechtner: First of all, I should mention that for the most part, I don’t arbitrate in Vienna. I do a lot of pre-moots, I do a lot of things leading up to it, I did do the final round in Vienna several years ago. I arbitrated early on in Vienna when I first started going to the Moot. But for quite some time now I have thought, for various reasons, that it is not a good idea for me to arbitrate in Vienna. On the other hand, as I said, I do a lot of pre-moots, give a lot of feedback, and sometimes write evaluations. So, I can address your question, despite the fact that I don’t arbitrate in Vienna anymore.
When I arbitrate, I always look for someone (this is probably a part of my American background) who deals with questions very well. Someone who is not frightened by the questions even though sometimes they are hard. I try not to do this but sometimes they are delivered almost in a hostile manner, so handling it can be tough to do. That is interesting because you know that the prepared arguments people have are always or almost always well worked out. If you want to distinguish among how people really react give them something new or give them something from an angle that they have not had before. That seems to be the best evaluation point for this. Although you are also looking for and do want to hear their prepared arguments because you want to judge just how good it is. But then you do not want, at least the way I handle it, you don’t want to go too long without having some interruptions.
On the other hand, I like to allow the person to answer the question and see how they go back to their arguments, that is another aspect of this. So, those are the things that I look for in particular. Of course, you are also looking for a clear organizational structure, but then the first thing I try to do is to get the speaker off their organizational structure by asking them questions (laughs). Another thing – and this is one of the things that has not been easy to do on the online format – you look at how they behave as a team. It is always particularly interesting to ask someone a question that is relevant to what they are talking about but really brings their teammate’s argument into play. How well do they know that side of the case? They don’t really work on that, because they tend to focus on their own part. You want an answer, if you get a question like that which implicates your teammate’s argument, you don’t want to just hear that that other person will handle it. A good oralist should be able to give a brief but responsive answer, and then say: “My teammate will elaborate on that.” Something like that but you don’t want to just slough it off to your partner. I think judges and arbitrators would like to know that you are not just familiar with one part of the case: that you have been listening to all the arguments, and that you know the other part of the case too.
So, that is always an interesting part of the arguments. I think, there is also a real divide between substance and style. By the time you get to Vienna, people have been working hard on both their substance and their style. I am more of a substance guy than a style guy. I really like to hear arguments that seem to me to be coherent and put together well. If there are some “ums” and it is not the smoothest presentation, that counts quite a bit less for me than coherent, well-researched, and well-worked-out substance. Of course, you see great teams, like the teams that are in the finals, that have it both, and that is very impressive, that is very hard to do.
H. Shalbanava: Did it happen that you gave a student the highest grade? What should the student do to get the highest grade from you? What is the secret?
Professor Flechtner: Well, I think everything I was talking about before. That is, being relevantly responsive to questions. The questions should be real questions. They should be questions that you would ask as an arbitrator because you are troubled by something or have not figured out how to get past a particular point, and you want to get an answer that is honest and helpful. That is the thing that, I think, would be the single most important point. If someone is really good at being effectively responsive to arbitrators’ questions, they are going to get a very good score from me. The other stuff you kind of assume – you assume they are going to have a well-organized road map, that they are going to give you the road map, that they are going to be good at time-management (to the extent that you let them manage the time), things like that.
I think some of the least helpful feedback is “Don’t be nervous”.
No one tries to be nervous out there. It is not something that is within your control or you already would have been controlling it. What you can do, of course, is to practice enough – nervousness tends to get better with practice, but that is about all you can do. Maybe work on some tricks like making sure that your pace is correct. I am not very good at pacing myself (laughs) – as you can tell I am a fast-talker. But if you know a way to calm yourself down, use it.
H. Shalbanava: You have already mentioned that you arbitrated in the finals in 2016; that was 23rd Moot. How was this experience for you? What were the challenges of evaluating teams in the finals and how do you decide who would eventually win the Moot? Obviously, both teams in the finals are extremely successful and strong, so what does count in the finals?
Professor Flechtner: Well, I think what counts in the finals for me is what I have talked about before. You are going to have teams that have great style and great substance too. That elevates the level quite a bit.
I will tell you that there were two particularly interesting moments in judging finals for me. First of all, one of the issues was something I have written quite a bit about – the recovery of the attorney’s fee. I had thoughts about that. It was most interesting for me because I really wanted to prepare questions on both sides of that issue because there are certainly two sides to it. That was fun. The other interesting thing was the Chair of the Committee – Gary Born (smiles). If there ever was a super-star at the Moot, it is Gary Born. I remember, when the argument was over, we walked down into the crowd, and immediately, a line of about fifty students formed for Gary Born to sign his book for them – they all had copies. It was quite remarkable to watch him do that (smiles). So, it was very much fun: we had a great Panel, including a wonderful woman from the arbitration institution that year. It was an amazing experience to be up there on stage. I mean, we have all sat in the audience for the finals thinking: “No, I don’t agree. I think, it should have gone the other way” or something like that. But to be up there and to try to focus on what is important, knowing that both these teams are extraordinarily deserving and also are exhausted because it is such an exhausting process to get all the way to the finals. That is a different animal altogether, as a matter of fact. It was a lot of fun to do it. It was some pressure, and most of all it was interesting.
H. Shalbanava: I guess, adrenaline rush helps students to survive the final rounds (smiles).
Professor Flechtner: You know, one of the nice things was that a year or two before I arbitrated in the finals with Gary Born, a song I wrote included a joke about him. When we met, he said he had heard about that – which I thought was very cool (laughs).
H. Shalbanava: That is funny! Moving to my second last question, what would you advise students who are only contemplating their participation in the Moot?
Professor Flechtner: You have to approach it realistically. As I mentioned, and I think this is true not only for our team but virtually every team that is involved in the Moot: it is an educational experience beyond almost anything else you are likely to have when you are studying law. It is a way of learning by doing, with a whole lot of additional benefits: the community, the fun, the pressure, the learning how to speak under intense pressure – all of that is amazing. But it requires an amazing commitment. So, you have to really decide to commit. If you are in the Moot, you are not going to have much time for a lot else while the Moot is going on. That is the way you will get the most out of the Moot, but it is a calculation. It is a big commitment and you better be ready for the commitment. And I think that is the key question to ask yourself before you get involved.
H. Shalbanava: Thank you. It is certainly true. I had an occasion when I almost pushed a student to participate in the Moot but only because I knew she wanted it and was absolutely ready for it, only was afraid. If I am not mistaken, she even participated in the oral round against the University of Pittsburgh that year (smiles). After the Moot, she had no regrets, she managed it very well and, I think, she also enjoyed this experience. But, of course, there should be an understanding of what you are committing to because you need to work for at least five-six months in a row, and it is indeed hard work. Sometimes, you need to combine the participation with the main studies and it may be stressful.
Professor Flechtner: I am sure the student you urged to participate not only had a good experience but also learned a huge amount. You have to read the student and her or his personality. There are some people whom you know could do well but need a little push in order to be able to do this. There are other people whom you believe know themselves and they tell you, “I just don’t have the time, I don’t have the interest, and so, I should not do this”. It would be wrong to push someone like that into the Moot, even if you also believe they would do very well.
H. Shalbanava: Yes, absolutely. We are approaching my last question, which is not about the Moot anymore. Would you like to share some information about your current projects? What you are currently working on? It will be interesting to know.
Professor Flechtner: The new edition of what is now the “Honnold/Flechtner Commentary” on the CISG (“Uniform Law for International Sales under the 1980 United Nations Convention”), the fifth edition, is almost done. I am waiting to get the galleys – that is, the laid-out book – and to go through it with final edits. That is what I have to do. It is way overdue. I’ve been trying to retire and move to a different state, so it has been difficult to finish the Commentary. But it is now almost done and should be out this summer, as a matter of fact. When that is out – that has been, as my family can attest, a long project – I do not plan to take up any other big projects for a little bit (maybe ever). I had my 70th birthday about a month ago, so, I am ready to enjoy retirement and play music (smiles).
H. Shalbanava: As they say after retirement new life starts.
Professor Flechtner: That is interesting. Retirement is never complete. I just had to do a report on a promotion question recently. And you know, people do ask you to do things. I have learned how to say “no”, but you do not always want to say “no” to things, even after retirement. Many people have so generously given their time to help me during my career, and I want to pay that back a bit. People do say: “When retirement is right, it is six Saturdays in a row followed by a Sunday.” That would be nice as well.
H. Shalbanava: I am certainly happy that you did not say “no” to this interview (smiles). That was very, very nice. And maybe indeed the very last question. Are you still going to come to Vienna when the Moot is offline?
Professor Flechtner: Yes, I certainly plan to. I have my daughter, the one who was in the dressing room backstage before my first musical performance at the Opening Ceremonies. She married a wonderful German man and lives in Munich with our three grandsons. Because of the pandemic, we have not been able to see them in almost two years. Seeing them is usually a part of my wife Joan’s and my trip for the Moot. So, it is really nice for me when we come for the Moot, and we get to spend some time with them. Also, my daughter and family always come to Vienna while I am there for the moot – my daughter, my son-in-law, and our three grandsons come to Vienna, and stay in the same hotel while I am there. So, yeah, there are many, many reasons I will be back at the Moot if it can be done in person.
H. Shalbanava: That is already something to look forward to. That is very good news. And since I do not have any more questions, I would like to thank you very much for your time and wish you a very nice time with your family and with your son. I am very happy to know that you finally can see each other again after the pandemic.
Professor Flechtner: The separation has been the hardest part.
This has been a good, fun interview. Thank you! I enjoyed it!
*The photo is taken from Professor’s private archive