Imagine this scenario and tell me, who has the right of way. One pilot is climbing in a light thermal and drifting closer to the terrain. The second pilot is above the first pilot and scratching in broken lift close to the terrain. The drift of the thermaling pilot is in line with a parcel of broken lift that the second pilot is using to maintain altitude.
Both pilots have made eye contact and are aware of each other.
Who has the right of way?
Note: This scenario was inspired by a recent mid-air collision but it does not reflect what actually happened.