2009 Commonwealth Moot – Reflections from the Canadian Team

This year the University of Calgary Gale Cup Team had the honour of representing Canada at the 2009 Commonwealth Moot Competition in Hong Kong. The Commonwealth Moot Competition is held biennially in conjunction with the Commonwealth Law Conference. Each Commonwealth region is permitted to send one representative team to compete in the moot. This year, 11 countries (of the 13 designated regions) were represented at the competition: the United Kingdom, Australia, New Zealand, India, Hong Kong, Ghana, South Africa, Singapore, Mozambique, Canada, and Sri Lanka.

Within Canada, teams qualify for the Commonwealth Moot by winning the Gale Cup Moot held annually in Toronto. Two years ago, Osgoode Hall represented Canada in Kenya at the competition. This year, for the first time ever, the University of Calgary won the Gale Cup and had the fortuitous timing of winning in a year in which the Commonwealth Moot took place. Overall, we fared quite well in the competition as we placed 5th based on overall team scores. The South African team, from the University of Pretoria, won the competition.

Participating in the Commonwealth Moot was a tremendously rewarding experience. The value of meeting students and judges from around the world really cannot be overstated. Given the significance of this event for the students (and coaches) that have the privilege of participating, we would like to share some of our experiences in the hope that they will help prepare future teams for the competition.

The first point, of particular relevance to Canadian teams, is that the team structure for the Commonwealth Moot differs significantly from the Gale Cup. Gale Cup teams consist of four students, with two students arguing each side of the issue. Commonwealth Moot teams consist of three members: two students who will argue both sides of the issue and one alternate team member. Unfortunately, this presents a difficult decision for the Canadian team who must find an appropriate way to redefine their team. The means for making the decision will differ given individual team dynamics. In our situation, we were fortunate that our coaches elected to make the final decision for us, which relieved the students’ anxiety of having to reach a consensus.

Secondly, the Gale Cup moot is an exclusively criminal and constitutional law moot, while the only requirement for the Commonwealth Moot topic is that it pertains to an issue of importance within the Commonwealth. As such, the Commonwealth Moot could touch on any area of law. Further, the Commonwealth Moot is based on the common law and statutes of the United Kingdom. This means that the Canadian team must be ready for what will invariably be an abrupt change in focus. For example, this year’s Commonwealth Moot problem centered on government corruption. It consisted of a complex series of issues involving, amongst other things, the common law of bribery, the tort of misfeasance in public office, a minority shareholder claim and the doctrine of act of state. Because of the timing of this year’s Commonwealth Moot, our team had only 6 weeks to research, understand, and argue this entirely new area of law!

Third, Gale Cup participants will be accustomed to mooting a Canadian judicial decision, normally a recently decided Supreme Court case. Gale Cup mooters have the benefit of utilizing the trial and appellate decisions of the case at hand in coming to an understanding of the area of law and developing arguments. This year’s Commonwealth Moot problem was based on a completely fictitious set of facts and was based on several disparate areas of law. This type of moot problem presented different, but equally challenging, issues for forming our legal arguments: we had to present a clear and cogent argument that was legally and morally compelling, but we had to draw from often unrelated authorities and we even attempted to create our own cause of action. Our decision to take a creative approach and advocate for a change in the law was not an easy road to take. However, it was an excellent lesson in the difficulties and complexities associated with such an approach.

Further, the Commonwealth Moot, when compared to the Gale Cup, was less rule-focused. For example, in our first round of mooting there was some disagreement over the interpretation of the moot rules. This was unfortunate as it detracted from the substance of both team’s arguments. We hope future teams can learn from this and not make any assumptions about the moot rules. If there are any ambiguities teams should be sure to ask for clarifications well before oral arguments.

The most rewarding aspect of the competition was the experience of arguing before international judges. Our team appeared in front of two Australian Court of Appeal Justices, one former Justice of the Supreme Court of Papua New Guinea, and the Chief Justice of Ghana attended one of our rounds. Based on our experience there are a few things that future teams should keep in mind. First, because the judges are from around the world, they may be used to very different styles of oral advocacy. We were well-advised to use more formalities than are expected in the Canadian courtroom. Also, because the Commonwealth Moot is held in conjunction with the Commonwealth Law Conference, the moot judges are also conference participants. Understandably, given the concurrent and hectic schedule of conference events, the judges may not be as prepared as the Gale Cup moot judges. Therefore, teams should be prepared to appear before judges who have not thoroughly read their written arguments and who are not familiar with the authorities.

The Commonwealth Moot was a rewarding experience. We had the opportunity to struggle with a difficult area of the law, with which we were wholly unfamiliar. We had the opportunity to meet law students from around the world and to observe different styles of advocacy. On top of that, we experienced all of this in a different part of the world. To any future teams reading this post: congratulations and enjoy!


About Jocelyn Stacey

Jocelyn Stacey, LL.M. (Yale), LL.B. (Calgary), BSc. (Alta.), DCL Student McGill Faculty of Law. Jocelyn graduated from the University of Calgary Faculty of Law in 2009, and clerked for Justice Rothstein at the Supreme Court of Canada from 2009-2010. She is currently pursuing her interests in environmental and regulatory law in the Doctor of Civil Law program at McGill.
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