ELSA Spain Moot Court Competition IX (ESMCC IX)

Commercial arbitration emerged as the preferred mechanism for resolving cross-border business disputes in the twentieth century, as parties sought a neutral, flexible, and enforceable alternative to national courts. Its modern architecture rests on the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, ratified by over 170 states, and on the 1985 UNCITRAL Model Law on International Commercial Arbitration (revised in 2006), which has shaped national arbitration statutes from Spain to Singapore. Institutional rules issued by the ICC (Paris), LCIA (London), SIAC (Singapore), HKIAC (Hong Kong) and the Madrid-based CIAM-CIAR have further professionalised the field. The core dispute today concerns the balance between party autonomy and state oversight. Recurring controversies include the scope of arbitrability (especially in competition, consumer and corruption matters), the standards for setting aside or refusing enforcement under Article V of the New York Convention, the treatment of public policy ('orden público'), third-party funding, transparency, and the legitimacy of investor-state arbitration following the EU's Achmea (2018) and Komstroy (2021) rulings, which restricted intra-EU investment arbitration. Spanish courts, particularly the Tribunal Constitucional in decisions such as STC 46/2020 and STC 17/2021, have recently narrowed the public-policy ground for annulment, realigning Spain with pro-arbitration jurisdictions. Moot problems in this area typically test the interplay between the lex arbitri, the chosen institutional rules, and applicable substantive law (often the CISG or UNIDROIT Principles), as well as questions of jurisdiction, due process, and enforcement of awards across borders.

Modern contract law sits at the intersection of national civil codes, harmonised European instruments, and transnational soft-law texts. In civil-law systems such as Spain's, the Código Civil of 1889 (notably articles 1101 and 1124 on liability and resolution) remains foundational, complemented by the Ley de Defensa de los Consumidores y Usuarios. At the European level, CJEU case law on unfair terms (Directive 93/13/EEC), the Sale of Goods Directive (2019/771) and the Digital Content Directive (2019/770) have reshaped contractual remedies. Internationally, the 1980 UN Convention on Contracts for the International Sale of Goods (CISG), the UNIDROIT Principles of International Commercial Contracts (most recently updated in 2016) and the Principles of European Contract Law provide widely used reference frameworks. The central debates concern the measure and limits of damages: expectation versus reliance interest, foreseeability (the rule in Hadley v. Baxendale and its civilian analogues), mitigation, the recoverability of non-pecuniary and consequential losses, penalty and liquidated-damages clauses, and the impact of hardship and force majeure — issues sharpened by the COVID-19 pandemic, supply-chain disruption, and sanctions-driven contract frustration. Courts and tribunals also grapple with the interaction between contractual remedies and pre-contractual liability (culpa in contrahendo), good faith, and the duty to renegotiate under the rebus sic stantibus doctrine recognised by the Spanish Tribunal Supremo in STS 333/2014 and subsequent rulings. Moot problems in this field typically require characterising the breach, identifying the applicable law (often the CISG supplemented by UNIDROIT or domestic law), and quantifying damages while assessing defences such as force majeure, hardship, and the claimant's duty to mitigate.

Maritime law is one of the oldest branches of transnational legal practice, rooted in medieval codes such as the Rôles d'Oléron and the Consolat de Mar of Barcelona, and progressively unified through twentieth-century conventions. The contemporary framework rests on the 1982 UN Convention on the Law of the Sea (UNCLOS), which governs maritime zones, navigation rights and dispute settlement, together with IMO instruments such as SOLAS, MARPOL and the STCW Convention. Private maritime law is shaped by the Hague-Visby, Hamburg and Rotterdam Rules on carriage of goods by sea, the 1976 LLMC on limitation of liability, the 1989 Salvage Convention, and the CLC/IOPC regime on oil-pollution damage. Spain's Ley 14/2014 de Navegación Marítima consolidated these regimes into domestic law. Current disputes cluster around several axes: liability for cargo damage and the allocation of risk between carriers, shippers and charterers under competing carriage regimes; the limitation of shipowners' liability and its interaction with environmental claims; salvage and general average in the era of mega-ships, illustrated by the Ever Given grounding in the Suez Canal (2021); pollution liability following incidents such as the Prestige (2002) off Galicia and the X-Press Pearl (2021); the legal status of autonomous vessels and the decarbonisation of shipping under the IMO's 2023 GHG Strategy; and contested maritime boundaries and freedom of navigation in the South China Sea, the Eastern Mediterranean and the Arctic. Moot problems in this area typically combine charterparty or bill-of-lading disputes with questions of applicable convention, jurisdiction and arbitration clauses, limitation of liability, and the interface between private contractual claims and public international obligations on safety and pollution.