[00:00:01] Speaker 00: Case number 15-7063 at L. BCB Holdings Limited at L, versus Government of Belize Appellate. [00:00:08] Speaker 00: Mr. Basil Morales for the appellate, Mr. Kibbleman for the appellate. [00:00:46] Speaker 01: This is another case that represents the problem that Belize is facing. [00:00:56] Speaker 01: We have companies that don't want to pay their taxes, and they're coming to the United States by slapping our arbitration clause on secret agreements with the government and then hoping that the courts here ignore all that and just confirm it under the New York Convention. [00:01:12] Speaker 01: In this case, you have the CCJ, the Caribbean Court of Justice. [00:01:16] Speaker 01: The CCJ was established after the year 2000 by 15 nations of the Caribbean to act as their Supreme Court. [00:01:25] Speaker 01: Before that, appeals from the Supreme Court of Belize or the Court of Appeals were taken to the Privy Council in the UK. [00:01:33] Speaker 01: The problem with that was that the Privy Council was always [00:01:37] Speaker 01: biased in favor of the British, which were the former colonists of all of these different countries in the Caribbean. [00:01:44] Speaker 01: So this country said enough of that. [00:01:46] Speaker 01: We're going to have our own Supreme Court that's going to make decisions for us. [00:01:50] Speaker 01: Now here, the CCJ has looked at the agreement. [00:01:54] Speaker 01: Let's just talk a second about the agreement. [00:01:56] Speaker 01: What's the agreement in this case? [00:01:59] Speaker 01: The former prime minister of Belize signs a confidential agreement [00:02:05] Speaker 01: with these companies who are controlled. [00:02:08] Speaker 03: Am I right that Belize didn't make any of those arguments, didn't make this argument at the arbitration agreement, didn't even show up at the arbitration agreement, right? [00:02:15] Speaker 01: Belize did. [00:02:16] Speaker 03: At the arbitration. [00:02:17] Speaker 01: Correct. [00:02:17] Speaker 01: They did not go. [00:02:18] Speaker 01: Why? [00:02:19] Speaker 01: Because the agreement was a no for us. [00:02:21] Speaker 03: If we're going to get into off-the-record stuff, tell me that. [00:02:24] Speaker 03: I'm sorry? [00:02:25] Speaker 03: If we're going to get into things that aren't in the record, why don't you tell me, why didn't they contest that argument there? [00:02:29] Speaker 03: Isn't that the place to make the argument? [00:02:31] Speaker 01: No, it's not the place because the New York Convention provides a public policy defense, so it can be made in connection with the New York Convention. [00:02:39] Speaker 01: Also, that was an unauthorized agreement. [00:02:42] Speaker 03: And wasn't there a later action in the United Kingdom to enforce the award, and wouldn't that have been a place to make the argument as well, but didn't make it there? [00:02:50] Speaker 03: You had two chances to make this argument. [00:02:53] Speaker 03: Now you're making it here on the third time. [00:02:57] Speaker 01: Belize could not have gone and participated in the arbitration, because this was an illegal agreement signed by the Prime Minister of Belize. [00:03:06] Speaker 03: You go to the arbitration and say, this is an illegal agreement. [00:03:09] Speaker 01: Well, no, because then you have given effect to the arbitration clause, and you have recognized that sort of tactics. [00:03:16] Speaker 01: Here you have the Prime Minister of Belize. [00:03:19] Speaker 01: that signs an agreement with a secrecy clause, that he's going to guarantee a company owned by his biggest campaign contributor, Lord Ashcroft. [00:03:31] Speaker 01: The deputy chairman of the conservative party in the UK, the government of police is guaranteeing him that he's going to make 50%. [00:03:38] Speaker 03: According to your convention, we're quite limited, aren't we, in terms of the defenses we can consider? [00:03:42] Speaker 01: Correct. [00:03:42] Speaker 03: There's seven defenses, right? [00:03:44] Speaker 03: And the only one that you cited, I think, is the public policy defense. [00:03:47] Speaker 01: Correct. [00:03:47] Speaker 01: Correct. [00:03:48] Speaker 01: And I think we fit squarely within the public policy defense. [00:03:52] Speaker 01: And why is that? [00:03:53] Speaker 01: Let me explain why. [00:03:54] Speaker 01: There are countervailing public policies of the United States that would be violating by giving effect to this award and giving effect to this agreement. [00:04:04] Speaker 01: One is the significant public policy against government corruption overseas. [00:04:09] Speaker 02: The Supreme Court... I guess I'm worried about containing that principle because a lot of contractual agreements are going to be alleged to be corrupt. [00:04:20] Speaker 02: And how are we supposed to know [00:04:22] Speaker 02: in deciding whether to enforce an arbitration award. [00:04:27] Speaker 02: How are we supposed to get into that? [00:04:29] Speaker 01: Well, the CCJ has held that it is corrupt, that it violates core constitutional separation of powers principles, that the prime minister didn't have that authority, that it violates [00:04:41] Speaker 01: core principles of democracy throughout the Caribbean. [00:04:44] Speaker 01: The language of the CCJ decision is extremely strong. [00:04:48] Speaker 01: So this is not just every case. [00:04:50] Speaker 01: You have a regional court saying, this is a corrupt agreement. [00:04:55] Speaker 01: We have the Supreme Court of the United States in Pimentel acknowledging the existence of a significant, quote, unquote, policy of combating international corruption. [00:05:06] Speaker 01: And so this would be a case where you would hold that the countervailing policy outweighs the policy in favor of arbitration. [00:05:15] Speaker 01: Otherwise, Judge Griffith, what you have is you open the door for corrupt politicians to slap an arbitration clause in the Caribbean, and you're sending it back to England. [00:05:29] Speaker 01: Back to the LCIA, where the stack is going to be against the Belizean interests. [00:05:36] Speaker 01: Other principles that are countervailing policies are, again, separate. [00:05:43] Speaker 03: Why do you say it would be against the Belizean interests to be before an arbitrator in London? [00:05:48] Speaker 01: Because it being administered by the London Court of International Administration, that the forum is in London, that arbitration will be subject to British law, et cetera. [00:05:59] Speaker 01: Let's think about it if that's something that would have happened in the United States. [00:06:04] Speaker 01: Let's say the head of the EPA entered into – or the IRS entered into some sort of agreement. [00:06:10] Speaker 01: Would the United States want that to be adjudicated in London or in the United States? [00:06:16] Speaker 01: We certainly would want to judge the actions of our own government officials in the United States. [00:06:22] Speaker 01: And that's why there is a public policy defense in the New York Convention. [00:06:28] Speaker 01: Let me turn to statute of limitations. [00:06:32] Speaker 01: That judges, that district court's decision is internally inconsistent. [00:06:37] Speaker 01: Because she says on the one hand, only the defenses on Article 5 are available. [00:06:42] Speaker 02: On the corruption point, one more thing. [00:06:44] Speaker 02: Yes. [00:06:44] Speaker 02: Are there any other cases that are recognized? [00:06:47] Speaker 02: that as a basis for setting aside an arbitration order? [00:06:50] Speaker 01: No, there's always a case of first depression. [00:06:52] Speaker 01: This is a case of first depression. [00:06:54] Speaker 01: Although I will say that the State Department, if you look on their website, and we cite it in our papers, they recognize that there was corruption in the administration of Prime Minister Moussa. [00:07:06] Speaker 01: So turning to statute of limitations, here the basis of the statute of limitations tall in finding [00:07:14] Speaker 01: is the law, the criminal law, related to injunctions overseas. [00:07:19] Speaker 01: That cannot possibly be the basis because there was no injunction entered against these defendants. [00:07:26] Speaker 01: So that decision was in error. [00:07:28] Speaker 01: Second, there was no chilling effect, because as you know, Judge, they went to the UK, and they enforced the award in the UK. [00:07:37] Speaker 01: They weren't chilled in the UK. [00:07:40] Speaker 01: They could have enforced the award in the US. [00:07:43] Speaker 01: And finally, tolling doesn't apply if you follow the reasoning of the district court, because there's not a word about tolling in the convention. [00:07:53] Speaker 01: So we've got to make a decision. [00:07:54] Speaker 01: Are we stuck with the language of the convention or not? [00:07:57] Speaker 01: If we're limited to the language of the convention, the convention says you've got to file your action in three years. [00:08:03] Speaker 01: It says nothing about tolling. [00:08:05] Speaker 01: So we cannot import into that convention tolling. [00:08:08] Speaker 01: We also cannot import into that convention tolling because section 207, the three years, is a jurisdictional statute. [00:08:18] Speaker 01: Why? [00:08:20] Speaker 01: Remember. [00:08:22] Speaker 01: Belize has sovereign immunity under the FSIA. [00:08:25] Speaker 03: How about equitable estoppel? [00:08:28] Speaker 03: I mean, what Belize did here was bring about a statute that, whether it had an actual chilling effect or not, would certainly, the purpose of it was to slow things down, to get them not to bring suit. [00:08:41] Speaker 03: And now you're relying on the fact that they did precisely what that statute intended. [00:08:46] Speaker 03: to say the statute of limitations runs against them. [00:08:48] Speaker 03: That's not an equitable tolling argument. [00:08:50] Speaker 03: It's an equitable, stoppable argument. [00:08:51] Speaker 03: Isn't Belize a stopped? [00:08:53] Speaker 01: No, we have that same law in the US. [00:08:55] Speaker 01: If this court enters an injection against my client and we violate it, you can hold it civilly liable. [00:09:01] Speaker 01: You can also hold it in criminal contempt. [00:09:05] Speaker 01: Belize just followed the same, enacted the same sort of statute. [00:09:08] Speaker 03: And what was the point of that statute? [00:09:09] Speaker 03: It was to get them not to bring suit, right? [00:09:13] Speaker 03: Not to get it. [00:09:14] Speaker 03: But now you're claiming the benefit of that. [00:09:16] Speaker 01: No, it was not directed at them. [00:09:19] Speaker 01: It was a general statute that said that if you violate a court injunction in Belize, you can be subjected to civil or criminal damages. [00:09:28] Speaker 01: But there was no court injunction against them. [00:09:32] Speaker 01: And so it didn't apply. [00:09:33] Speaker 01: And that's the last issue I want to point out, is res judicata. [00:09:38] Speaker 01: Here we have the same parties. [00:09:40] Speaker 03: Maybe there was an injunction directed at them, but they were subject to the statute, right? [00:09:46] Speaker 01: If we had sought an injunction against them, we didn't. [00:09:51] Speaker 01: And it didn't stop them. [00:09:53] Speaker 01: They didn't respect that statute in the UK. [00:09:57] Speaker 01: If it didn't stop them in the UK, it didn't stop them in the US. [00:10:01] Speaker 01: With respect to Res Judicata, you have the same parties, the same agreement, the same award, the same course of action before the CCJ, New York Convention. [00:10:12] Speaker 01: And you have the same public policy, and that's the last point I want to make. [00:10:16] Speaker 01: They argue that in – the CCJ was the public policy of – at least here we're talking about the public policy of the U.S. [00:10:24] Speaker 01: That's incorrect. [00:10:25] Speaker 01: If you read that decision, the CCJ said that separation of powers, that a prime minister cannot override a legislative enacted for parliament. [00:10:36] Speaker 01: That's a core constitutional principle of all democracies around the world. [00:10:41] Speaker 01: So we're talking about the same parallel constitutional principles that we also hold here in this country. [00:10:47] Speaker 03: We normally don't call those corruption, though, right? [00:10:50] Speaker 03: When there's a separation of powers issue, we normally don't use the phrase corruption involved, right? [00:10:57] Speaker 03: I mean, we have these disputes over the extent of the president's power and the extent of Congress's power. [00:11:02] Speaker 03: Yeah, but the president has had a big one yesterday in front of the Supreme Court. [00:11:05] Speaker 03: I don't remember anyone using the phrase corruption. [00:11:08] Speaker 01: Yeah, but President Obama's not giving tax breaks to companies owned by his biggest contributors. [00:11:14] Speaker 01: That's the difference. [00:11:16] Speaker 05: All right, thank you. [00:11:18] Speaker 05: Council for Appellee. [00:11:30] Speaker 04: Good morning, Your Honors. [00:11:31] Speaker 04: Lewis Kimmel representing the Appellees here, BCB Holdings and Belize Bank. [00:11:37] Speaker 04: If I may, I'd like to address the two issues, as I understand them, that have been presented. [00:11:42] Speaker 04: The tolling issue, I'd like to do that first, if I may, and then go to the public policy issue thereafter, if that's convenient. [00:11:49] Speaker 05: You agree you went to England, right? [00:11:51] Speaker 04: I'm sorry, Your Honor? [00:11:51] Speaker 05: You agree you went to England, right, after this statute was in effect? [00:11:56] Speaker 04: Yes, Your Honor, and I can explain exactly why, but... No, the point is you went. [00:12:01] Speaker 04: Yes, and well we did go and in fact we needed to go in order to protect ourselves. [00:12:07] Speaker 05: I understand you want to take whatever legal action you can, but why the statute of limitations? [00:12:18] Speaker 05: What about that? [00:12:20] Speaker 04: The proceeding in England is a proceeding based on the New York Convention that is without notice to the other party. [00:12:29] Speaker 04: On the day we filed our papers, the court issued an order and a judgment. [00:12:33] Speaker 04: Now, under UK law, that order and judgment are not enforceable for six months, so that service can then be made on the opposing party, and it has the opportunity to come in and challenge the order and the judgment. [00:12:47] Speaker 04: So we took a step, as this court recognized in the commission's case, there are alternative ways to, in fact, enforce an award through the New York Convention or, in fact, through securing a judgment. [00:12:59] Speaker 04: And in order to protect ourselves, because our award had not been enforced in Belize at that time by the Court of Appeal, and because the time was running to get a judgment in the UK, we took that step. [00:13:12] Speaker 04: And the reason that we were not chilled in doing that is because in one day, [00:13:16] Speaker 04: without notice to the government, we could obtain the order in judgment that we were entitled to under the New York Convention, and they never went into the UK court to challenge the award or the order of judgment. [00:13:31] Speaker 02: Was the chill different in doing that than in doing this? [00:13:34] Speaker 04: Your Honor, the difference is this, and we had experience at that point in time. [00:13:39] Speaker 04: Remember, we went into London in February of 2013. [00:13:44] Speaker 04: As Your Honor will recall, we were before this Court in the fall of 2011, as I recall, because BSDL, which the government has alleged from the beginning, is related to Lord Ashcroft, was the assignee of an LCIA award that it received in 2009. [00:14:06] Speaker 04: We commenced proceedings in the District Court to enforce that award under the New York Convention. [00:14:11] Speaker 04: And as the Court may recall, [00:14:14] Speaker 04: Six months into that case, the government enacted the criminal statute. [00:14:19] Speaker 04: It was our position from the day we filed that proceeding that the Belize court did not have jurisdiction over BSDL because service had not been made on our client. [00:14:29] Speaker 04: However, once the criminal statute was enacted at the end of March 2010, [00:14:36] Speaker 04: We were in the position where the government had filed a motion to dismiss and an opposition to our confirmation papers. [00:14:43] Speaker 04: Exactly the same papers that were filed in this case were filed in the BSDL case. [00:14:49] Speaker 04: And we needed to respond to their papers. [00:14:52] Speaker 04: to respond to their papers, we needed the cooperation and the input from Belize counsel. [00:14:57] Speaker 04: We sought that input from counsel. [00:15:00] Speaker 04: And in our papers we've submitted to this court, Belize counsel has testified, and it's uncontroverted, that he refused to provide support for us and would not provide an affidavit that we needed because he was in jeopardy of violating the Belize criminal statute if he provided us with papers that we would then file. [00:15:21] Speaker 02: But how does that affect? [00:15:22] Speaker 02: I'm still trying to figure out how that affects why you couldn't file in this case. [00:15:27] Speaker 04: Well, the reason we couldn't file in this case was after Belize Council was unable to assist us, we made a motion in the district court, Your Honor may recall, we made a motion to suspend the scheduling order and for a status conference because my firm at the time concluded [00:15:44] Speaker 04: that because of the breadth of the criminal statute, the fact that it applied to those who, quote, aid and abet, and it included providing counsel and assistance directly or indirectly, and that it had what we call group liability, that if a group were found liable, every partner would be found liable as well, unless the partner could prove that he or she was not aware of what had gone on. [00:16:12] Speaker 05: It's the reverse. [00:16:12] Speaker 05: But going to England, how does that [00:16:15] Speaker 05: avoid potential liability? [00:16:17] Speaker 04: Well, the reason was that the proceeding in this court is a proceeding on notice that is in the nature of a motion practice. [00:16:25] Speaker 05: We knew from the BSDL case that we would- So you went to England and gave no notice to the government of Belize, right? [00:16:31] Speaker 04: As the UK statute provides. [00:16:33] Speaker 05: I understand. [00:16:34] Speaker 05: But I'm just saying, you didn't think the statute prevented you from doing that. [00:16:40] Speaker 05: That's aiding, isn't it, arguably? [00:16:42] Speaker 04: Well, the government had not sought an injunction against us. [00:16:45] Speaker 05: Precisely. [00:16:46] Speaker 04: Correct. [00:16:47] Speaker 04: But we knew from the proceeding here, which is a different kind of proceeding. [00:16:52] Speaker 04: It's a proceeding A on notice that requires the filing of papers. [00:16:57] Speaker 05: You agree, do you not, that the Belize statute reached action, potentially, reached action taken in London? [00:17:09] Speaker 04: It could, yes, Your Honor. [00:17:11] Speaker 05: But you nevertheless went ahead and did it. [00:17:14] Speaker 04: Yes, Your Honor. [00:17:15] Speaker 04: And in fact, we tried. [00:17:16] Speaker 03: Because you thought you could sneak it by them so they wouldn't know? [00:17:18] Speaker 03: Is that the idea? [00:17:19] Speaker 04: No, no, because we served them with the papers. [00:17:21] Speaker 05: No, you just told us. [00:17:22] Speaker 05: You went to England without notice to them, got this the same day that you filed, and the only thing that kept you from moving further was under English law, you had to wait six months. [00:17:34] Speaker 04: Well, we received the full enforcement. [00:17:37] Speaker 04: We served the papers, and there's enough to speak about that, on the government. [00:17:42] Speaker 04: The government never appeared to contest the enforcement of the award because it has no defenses. [00:17:48] Speaker 05: That's after you got the order from England. [00:17:52] Speaker 04: Correct. [00:17:53] Speaker 05: All right, let's be clear about that. [00:17:55] Speaker 05: It was no notice. [00:17:56] Speaker 05: to the government of Belize when you went to England. [00:17:58] Speaker 04: Because the procedure in the UK is without notice. [00:18:01] Speaker 04: That's how they do it in the UK. [00:18:02] Speaker 05: I understand that, Council, and you took advantage of that. [00:18:05] Speaker 05: I understand. [00:18:07] Speaker 05: But the Belizean statute potentially applied to your going to England, didn't it? [00:18:16] Speaker 04: If the government sought an injunction, yes, it would, but they didn't. [00:18:22] Speaker 02: Why does that matter? [00:18:23] Speaker 02: The point is that you felt that statute could have applied, as you said to Judge Rogers, you nonetheless went. [00:18:29] Speaker 04: Correct. [00:18:30] Speaker 02: The statute could have applied here. [00:18:33] Speaker 02: And you say it chilled you from going. [00:18:35] Speaker 02: Correct. [00:18:36] Speaker 02: And so that's the issue. [00:18:38] Speaker 04: The difference is this, because we had a case that actually was before this court that showed us exactly what the government would do if we filed another proceeding in the US. [00:18:49] Speaker 02: And the timing of that was after you had gone to England? [00:18:52] Speaker 04: No, the timing of the case in this court was before we had gone to the UK. [00:18:58] Speaker 02: Right, but so that warning about what could happen you had at the time you went to the UK and yet you still went. [00:19:07] Speaker 02: Am I missing something there? [00:19:09] Speaker 02: In other words, it didn't chill you from going to the UK. [00:19:11] Speaker 02: That's the bottom line. [00:19:12] Speaker 04: Well, it didn't. [00:19:14] Speaker 04: No, it didn't, because the procedure was different than the procedure here. [00:19:18] Speaker 04: We knew under the procedure here exactly what the government would do, because we had multiple cases in which they did the very same thing. [00:19:26] Speaker 05: So what do you think they would have done? [00:19:27] Speaker 05: It would have done? [00:19:29] Speaker 04: They would have sought an ex-party injunction, as they did in every other case, and they always received it. [00:19:34] Speaker 04: And our Belize counsel would, again, be unwilling to provide a witness statement on Belize law, which we needed in my firm. [00:19:43] Speaker 05: Well, you're assuming that the district courts here all act the same, all right? [00:19:52] Speaker 05: An injunction was issued by one district court. [00:19:54] Speaker 05: It doesn't necessarily mean another district court is going to issue an injunction. [00:19:58] Speaker 04: Well, every judge in Belize that was asked by the government to provide [00:20:03] Speaker 04: an ex-party injunction. [00:20:05] Speaker 05: No, I just asked you, counsel. [00:20:06] Speaker 04: Yes. [00:20:07] Speaker 05: If you had come here, what would have happened? [00:20:11] Speaker 05: And you said, well, the government of Belize would have sought an injunction. [00:20:15] Speaker 04: From the Belize courts, as they had in every other case. [00:20:18] Speaker 04: From the Belize courts. [00:20:19] Speaker 04: Yes, from the Belize courts. [00:20:20] Speaker 05: That's right. [00:20:20] Speaker 05: And then what would have happened? [00:20:24] Speaker 04: Then our Belize counsel would again, as they had in the SDL, and it's in the record, would have refused to assist us. [00:20:30] Speaker 05: But what did they have to do when you say assist you? [00:20:34] Speaker 04: What does assist you mean? [00:20:36] Speaker 04: The government's papers in the record in the court below, as in BSDL, had witness statements from government experts on Belize law. [00:20:45] Speaker 04: And they testified about the Belize law that they claimed was relevant to the underlying contract. [00:20:52] Speaker 05: So you wanted discovery? [00:20:54] Speaker 04: No, Your Honor. [00:20:55] Speaker 04: We wanted to be able to respond to what they said. [00:20:58] Speaker 05: I don't understand that where you're suggesting the government council had a duty to assist you. [00:21:06] Speaker 04: No, Your Honor, I'm sorry. [00:21:08] Speaker 04: What I'm saying is that the government's papers in opposition to our enforcement proceeding in every single case we filed in this court. [00:21:16] Speaker 04: In which court? [00:21:17] Speaker 04: In the district court in DC. [00:21:18] Speaker 05: In the United States District Court. [00:21:20] Speaker 04: Correct. [00:21:21] Speaker 04: has included witness statements from lawyers in Belize as to Belize law, and as to arguments they've made as to why Belize law forecloses the enforcement of the LCIO award at issue in each case. [00:21:35] Speaker 05: So you already had that from these other cases? [00:21:38] Speaker 04: Their witness statements, yes. [00:21:40] Speaker 04: And I needed to be able to respond on behalf of my clients. [00:21:43] Speaker 05: So you knew what the government was going to say because you had discovered, quote unquote, these statements about [00:21:51] Speaker 05: its interpretation of Belizean law, right? [00:21:54] Speaker 04: Well, they had they filed different statements in each case, and I needed to be able to respond to them on behalf of my client. [00:22:00] Speaker 04: And that's what we tried to do in the SDL. [00:22:03] Speaker 04: It's in the record here. [00:22:05] Speaker 04: It's actually on a [00:22:07] Speaker 04: 7 a 78 paragraphs 45 46 police counsel refused because he was chilled by the criminal statute. [00:22:15] Speaker 04: He had sought the advice of independent counsel and he could not cooperate. [00:22:19] Speaker 02: So if you filed here, you couldn't proceed in the fact because police counsel couldn't help you. [00:22:27] Speaker 04: Correct. [00:22:27] Speaker 04: And in addition to that, as in the s D. L. I did not file at all. [00:22:31] Speaker 04: Yes, and in addition, my firm was unable to proceed because we concluded that if we filed opposition papers to the papers that the government filed, we might well be in violation of the criminal statute. [00:22:45] Speaker 05: But you already said you risked that going to London. [00:22:50] Speaker 04: Well, we knew there was a risk in London, yes, but there was no injunction, and nothing happened. [00:22:57] Speaker 03: Is the argument that you got away with it and going to London, but later calculations were maybe you weren't going to get away with it because you had to get the notice and they were aware of what you were doing? [00:23:08] Speaker 04: I don't think so, Your Honor. [00:23:10] Speaker 04: I think the point really is that the chill, the effect of the campaign that the government undertook, [00:23:16] Speaker 04: It was different in the U.S. [00:23:21] Speaker 04: than it was in the UK, and there could be reasons for that. [00:23:23] Speaker 04: It could be, and I believe this is true, that there are assets in the United States that the government wanted to protect, and therefore to defend aggressively here was far more important than to defend it all in London. [00:23:36] Speaker 05: Well, counsel offered another theory as to why they set up the CCJ. [00:23:40] Speaker 05: So they didn't want people running off to London. [00:23:42] Speaker 04: Well, but there was one thing council left out, and that is there are 15 members of the CCJ, but only four countries have signed up to the compulsory appellate jurisdiction of that court. [00:23:53] Speaker 05: Maybe so, but 15 agreed to the organization establishment of the CCJ. [00:23:59] Speaker 05: Correct. [00:24:00] Speaker 05: Council's reasons as to why they did that. [00:24:03] Speaker 05: I'm just trying to understand why you can take this calculated risk as to going to London, but you were unwilling to take it in this country because you thought that Council for Belize would not be able to cooperate [00:24:23] Speaker 05: And so your case could not go forward. [00:24:26] Speaker 05: That's your explanation. [00:24:27] Speaker 05: But we don't know that, do we? [00:24:29] Speaker 04: Well, Your Honor, but we do know it from the BSDL case and from this court's mandamus decision. [00:24:35] Speaker 04: We know that we had to file. [00:24:38] Speaker 04: My firm wasn't able to file papers in opposition to their motion to stay. [00:24:42] Speaker 05: So even though there was no injunction, I just need to understand what your firm's position is. [00:24:50] Speaker 05: As to all your other clients, all you can do is go off and get a midnight order in London. [00:24:58] Speaker 04: No, Your Honor, we didn't. [00:25:01] Speaker 04: I didn't. [00:25:01] Speaker 04: Our firm didn't do the enforcement in the UK, because we're not UK counsel, obviously. [00:25:08] Speaker 04: But what happened in the SDL, in the district court, in this district. [00:25:12] Speaker 05: Your client. [00:25:12] Speaker 04: Yes, our client sought that, yes. [00:25:15] Speaker 05: That's OK. [00:25:16] Speaker 04: Yes. [00:25:17] Speaker 04: But we knew from an experience of an enforcement proceeding in this very district exactly what the government was going to do. [00:25:26] Speaker 04: And in that case, we as counsel and our expert in Belize as counsel could not assist our client. [00:25:33] Speaker 05: Interestingly, counsel, I'm not suggesting that what you are suggesting here is not correct. [00:25:42] Speaker 05: But none of this is in the district court opinion. [00:25:45] Speaker 05: The district court just says tolling applies and doesn't tell us why. [00:25:51] Speaker 04: With all due respect, Your Honor, we made two arguments to the district court, both tolling, equitable tolling, and equitable stop. [00:25:59] Speaker 04: And the record, which is before this court and which the district court refers to, goes through the entire campaign that the government of Belize waged against Lord Ashcroft and every single company he was affiliated with. [00:26:14] Speaker 04: Right. [00:26:15] Speaker 05: No, she recite, the district court recites that history. [00:26:19] Speaker 05: And, but all of this that you're telling us now, I didn't see that anywhere in the district court opinion. [00:26:28] Speaker 05: I mean, she says there was this statute that was passed. [00:26:34] Speaker 04: And the underlying testimony in the record from the counsel who could not assist when the criminal statute was enforced explains the exact campaign that took place in Belize and how it impacted company after company and individuals, all of whom were in some way related to Lord Ashcroft. [00:26:58] Speaker 04: And that campaign, we believe, represents actions taken by the government [00:27:04] Speaker 04: which either constitute an estoppel because they're seeking to take advantage of those actions in this court and say that the statute of limitations should, in fact, apply to us when they took steps which were calculated to ensure that we did not file. [00:27:20] Speaker 04: The whole purpose of the campaign and the purpose of the criminal statute was to prevent companies like our clients and others from filing claims outside of Belize in neutral fora [00:27:34] Speaker 04: either under arbitration clauses or under treaties providing for arbitration, or as in this case, to take an international arbitration award covered by the New York Convention and enforce it in any jurisdiction in the world that the New York Convention provides for enforcement. [00:27:53] Speaker 04: And the purpose of the criminal statute was to deter parties from doing exactly that. [00:28:00] Speaker 05: So but your client was not deterred. [00:28:04] Speaker 05: I want to be clear, I'm not talking about the law firms here. [00:28:07] Speaker 05: We're talking about the parties. [00:28:10] Speaker 04: Our client was deterred from going into the United States, but was not deterred from seeking relief in a high court in London, correct? [00:28:21] Speaker 03: And obviously, that troubles, at least me, the distinction between the two. [00:28:26] Speaker 04: Well, I understand that, Your Honor. [00:28:30] Speaker 03: And so then your fallback position is equitable to stop, right? [00:28:33] Speaker 04: Yes, Your Honor. [00:28:34] Speaker 04: But even beyond that, there's an explanation for why the calculation was right. [00:28:41] Speaker 04: Remember, this agreement has an international arbitration clause. [00:28:46] Speaker 05: But let me say, Counsel, using the word right in this context, [00:28:50] Speaker 05: is a little bit, what, questionable? [00:28:56] Speaker 05: I mean, your client was dealing with this allegedly corrupt prime minister that the State Department has acknowledged the government was corrupt. [00:29:06] Speaker 05: He's benefiting from arguably an unlawful act by a prime minister who gave him all these tax breaks. [00:29:15] Speaker 05: So the notion that somebody is right in this case [00:29:20] Speaker 05: It's just troubling. [00:29:22] Speaker 04: Well, Your Honor, with all due respect, I know my colleague has raised the public policy of corruption. [00:29:30] Speaker 04: But what I can tell you is, and I've looked through the record very carefully, there's no evidence in this record of corruption. [00:29:37] Speaker 04: There's no evidence. [00:29:39] Speaker 05: Did the Prime Minister have authority to give your client a tax abatement? [00:29:45] Speaker 04: Your Honor, I can tell you that a tribunal of three arbitrators in London? [00:29:49] Speaker 05: In London? [00:29:51] Speaker 04: Yes. [00:29:51] Speaker 05: All right, I'm talking about in Belize. [00:29:53] Speaker 05: That's the whole point here, counsel. [00:29:54] Speaker 04: No, Your Honor, that's not the point. [00:29:56] Speaker 04: I know that's what the government wants the point to be. [00:29:58] Speaker 05: No, no, it is the point. [00:29:59] Speaker 05: All right, you have this court that says your client owes these taxes. [00:30:04] Speaker 05: And we're not getting into that. [00:30:06] Speaker 05: The only question I had was, was it error to apply equitable toll? [00:30:12] Speaker 05: Since your client was not deterred [00:30:14] Speaker 05: from going to England, all right? [00:30:19] Speaker 04: It was not error. [00:30:20] Speaker 04: And just to be clear, the arbitration we're talking about that the parties agreed to in a contract. [00:30:28] Speaker 04: And the award is in the record. [00:30:30] Speaker 04: The award considers whether the agreement is legal, whether the prime minister had authority. [00:30:35] Speaker 04: It considers every conceivable issue that you can imagine, and it concludes that the agreement was legal. [00:30:41] Speaker 05: It was issued the same day you filed your papers. [00:30:44] Speaker 05: That's what you told me. [00:30:45] Speaker 04: No, no, no, no. [00:30:46] Speaker 04: I'm sorry, Your Honor. [00:30:47] Speaker 04: I'm talking about the arbitration award. [00:30:49] Speaker 04: The arbitration award was rendered and issued in August of 2009. [00:30:53] Speaker 05: Who rendered that? [00:30:57] Speaker 04: three arbitrators in London. [00:31:00] Speaker 05: That's my point. [00:31:01] Speaker 05: All right. [00:31:01] Speaker 04: No, but Your Honor, that's what's in the party's contract under the New York Convention. [00:31:05] Speaker 04: That's what they agreed to. [00:31:07] Speaker 04: And if the government ever had a problem with the arbitration clause, they could have challenged it. [00:31:13] Speaker 04: But they never did. [00:31:14] Speaker 04: Not in the arbitration, because as you know, they never showed up. [00:31:19] Speaker 04: Not in the district court where we sought to enforce the award. [00:31:22] Speaker 04: They didn't challenge the arbitration clause. [00:31:24] Speaker 05: So they had to figure out a way to appear but not appear. [00:31:29] Speaker 05: before the arbitration panel. [00:31:33] Speaker 04: They could have appeared subject to a claim of lack of jurisdiction, but they didn't. [00:31:38] Speaker 04: They just ignored it. [00:31:42] Speaker 02: You can show up and claim that it's not arbitrable. [00:31:45] Speaker 04: Absolutely, Your Honor, and it's done all the time. [00:31:47] Speaker 02: Yes. [00:31:49] Speaker 03: And in fact, tribunals... That's most of the experiences, at least that I've had, with arbitrations, whether it is arbitrable in the first instance. [00:31:57] Speaker 04: And as the court knows, that issue can be raised either with a court, or it can be raised with a tribunal, or it can be raised both, depending on the sequence. [00:32:05] Speaker 04: So, Your Honor, all these issues about, these claims about the contract's illegal, there was no authority, all of that was vetted by the tribunal. [00:32:14] Speaker 04: That's the place where it was supposed to be decided, and it was decided. [00:32:18] Speaker 05: Okay, so you say there's no merit to the statute of limitations argument because you were entitled to equitable tolling. [00:32:25] Speaker 04: Yes, Your Honor. [00:32:26] Speaker 05: Because of this campaign? [00:32:28] Speaker 04: Yes, Your Honor. [00:32:29] Speaker 04: This campaign, which was based upon the government getting ex-party TROs at the drop of a hat and always getting them from a Belizean judge and never not getting it, coupled with a statute. [00:32:44] Speaker 04: And Your Honors, you know what the statute says? [00:32:46] Speaker 05: So your client goes to London or has attorneys in London file and get this midnight [00:32:55] Speaker 05: judgment. [00:32:58] Speaker 05: And now where are we? [00:33:02] Speaker 04: Well, where we are is there is a judgment in the UK as the New York Convention provides for, because you can enforce awards in any jurisdiction. [00:33:12] Speaker 04: And London is a particularly appropriate one to enforce, because it was the seat of the arbitration. [00:33:17] Speaker 04: It's the court of primary jurisdiction. [00:33:20] Speaker 04: And Judge Griffith, what I was trying to tell you before is I think Belize would never go into London or into England because throughout all of these cases, it's tried to ignore the fact. [00:33:32] Speaker 04: that the only jurisdiction with primary jurisdiction over the arbitration awards are the courts in the UK. [00:33:39] Speaker 04: And it does not want to be in those courts because then it will have to acknowledge that those are the courts, the only courts in the world that can set aside an award if there are any bases to do so. [00:33:51] Speaker 04: In contrast, so we have a judgment from the UK enforcing this award. [00:33:56] Speaker 04: We wanted to get a judgment from the United States enforcing the award, as the New York Convention provides for it. [00:34:03] Speaker 04: But in light of the BSDL case, we were chilled because we knew what would happen from the BSDL case if we filed. [00:34:14] Speaker 05: So tolling was correct, was properly applied, is your position. [00:34:19] Speaker 04: Yes, Your Honor. [00:34:20] Speaker 05: And secondly, [00:34:22] Speaker 05: Essentially, there is no public policy to overcome what the government of Belize is claiming is an agreement that is corrupt at its core. [00:34:38] Speaker 04: That's what counsel says, but that's not what the CCJ court said in its opinion, nor is it what counsel said in the district court. [00:34:47] Speaker 04: The argument in the district court was that [00:34:51] Speaker 04: The issue under the New York Convention for this court is, is enforcing the Foreign Arbitration Award rendered in London a violation of U.S. [00:35:05] Speaker 04: public policy under Article 5 2B of the New York Convention? [00:35:11] Speaker 04: Now, as this court knows, the cases in this circuit and every circuit say that exception is very, very narrow. [00:35:18] Speaker 04: It deals only with the most fundamental policies of our society. [00:35:24] Speaker 04: It is often invoked. [00:35:27] Speaker 04: It is rarely ever used. [00:35:29] Speaker 04: I don't know of a single case. [00:35:30] Speaker 05: I was going to ask you, give me an example. [00:35:32] Speaker 04: Well, I have one, but there's no case. [00:35:34] Speaker 05: Genocide. [00:35:35] Speaker 04: I'm sorry? [00:35:36] Speaker 05: Genocide. [00:35:37] Speaker 04: Well, Your Honor, actually what I was thinking of, Your Honor, is I thought in the United States that if there were an arbitration where it could be said that the First Amendment [00:35:47] Speaker 04: was violated, or another constitutional amendment, maybe with respect to religion, something that goes to the essential values of our society. [00:35:57] Speaker 04: And I know of no such case. [00:35:59] Speaker 04: And I know of no award that's been set aside in the US, not enforced in the US, on public policy grounds. [00:36:04] Speaker 04: But it has to be of that magnitude. [00:36:06] Speaker 05: Right. [00:36:06] Speaker 05: None whatsoever, to your knowledge. [00:36:08] Speaker 04: To my knowledge, none whatsoever. [00:36:10] Speaker 04: And I've seen it raised in every case. [00:36:11] Speaker 04: And in the second BSDL case, which this court just decided and which Rehearing and Bank was denied on, the same argument was made under public policy and rejected by this court properly. [00:36:24] Speaker 05: So not only are the defenses and the Article III provisions to be narrowly construed, the scope of our review is very narrow as well. [00:36:35] Speaker 04: It absolutely is, Your Honor. [00:36:37] Speaker 04: And I believe that had this report not concluded that equitable tolling was a proper, we argued both equitable estoppel and tolling. [00:36:45] Speaker 04: And I think this may be one of those unusual cases where the extraordinary circumstances are all the making of the other side. [00:36:55] Speaker 04: And in such a situation, whether one calls it tolling or whether one calls it estoppel, the fundamental point is the same. [00:37:02] Speaker 04: They achieved [00:37:04] Speaker 04: through their criminal statute and their policies, what they wanted, we were unable to, we felt unable to file. [00:37:14] Speaker 04: And we did everything humanly possible. [00:37:16] Speaker 04: We challenged the criminal statute. [00:37:17] Speaker 04: We appealed every decision against us. [00:37:20] Speaker 04: We ultimately convinced, we together with others, ultimately convinced the Caribbean Court of Justice that the key provisions of the criminal statute are unconstitutional. [00:37:30] Speaker 04: The mandatory fine and imprisonment term, the reversal of the presumption of innocence. [00:37:38] Speaker 04: And it's after we achieved that, and we had to litigate three separate cases all the way to the CCJ to try to undo the government's policies. [00:37:52] Speaker 04: And when we were able to finally get the last step accomplished, which was the criminal statute, we then filed in the district court, as we had in BSDL. [00:38:02] Speaker 04: But now, I was able to get police counsel to file a witness statement, which is in the record here. [00:38:09] Speaker 04: And my firm was able to litigate the case, because we were not in fear of the criminal statute. [00:38:15] Speaker 04: And so we believe that the district court was right. [00:38:19] Speaker 04: Whether it's equitable tolling or equitable estoppel, [00:38:22] Speaker 04: This filing is timely. [00:38:24] Speaker 05: Well, Council, I appreciate your bearing with me here. [00:38:28] Speaker 05: Were there any other points you wanted to make? [00:38:33] Speaker 04: No, Your Honor, the courts indulge me a great deal in terms of time, so I'm quite grateful. [00:38:41] Speaker 04: I think we've covered everything else in our papers. [00:38:44] Speaker 05: All right, thank you. [00:38:46] Speaker 05: Council or appellant? [00:38:54] Speaker 01: My esteemed colleague is raising a lot of smoke. [00:38:59] Speaker 01: This case has nothing to do with the SDL. [00:39:02] Speaker 01: He cannot invoke an injunction entered against a different company as a basis in this case. [00:39:09] Speaker 01: Here, there was no injunction against BCB Holdings or Belize Bank. [00:39:14] Speaker 01: Here, they decided those companies to go to the UK and file. [00:39:20] Speaker 01: I don't care if it took them one second to file that paper. [00:39:23] Speaker 01: If you're going to violate the law, you can violate it by filing. [00:39:26] Speaker 03: If there had been an adjunction, how would it have worked? [00:39:29] Speaker 03: Let's say the Belizean government, let's say they did file in the district court here, and the Belizean government wanted to enjoin that. [00:39:38] Speaker 03: What would have happened? [00:39:39] Speaker 03: What would the process be in Belize? [00:39:41] Speaker 01: So they need to believe the Belize government would need to bring an action against them in Belize and they would have an opportunity to respond. [00:39:47] Speaker 03: Okay. [00:39:48] Speaker 01: But here's the point. [00:39:49] Speaker 01: They were not chilled because they would have been guilty. [00:39:53] Speaker 01: They would not. [00:39:54] Speaker 01: I'm sorry. [00:39:55] Speaker 02: And they have been lost. [00:39:59] Speaker 01: But let me make these two points to respond to your question. [00:40:02] Speaker 01: Number one, there was no injunction. [00:40:04] Speaker 01: They had not violated any law. [00:40:06] Speaker 01: The government cannot prosecute you because- Well, because they didn't file here. [00:40:10] Speaker 01: No, but the government cannot prosecute you because they think you're going to kill someone. [00:40:14] Speaker 01: There was no injunction. [00:40:15] Speaker 01: There was nothing pending, nothing to chill on. [00:40:18] Speaker 02: And evidence of that- Because there was a law, correct me if I'm wrong, there was a law that if they filed, they reasonably thought, so they say, [00:40:27] Speaker 02: then there would be action brought against them. [00:40:30] Speaker 02: No. [00:40:32] Speaker 01: The law permits according at least to issue an injunction. [00:40:36] Speaker 01: If you then violate that injunction, then you violate the law. [00:40:40] Speaker 03: So here's the sequence. [00:40:41] Speaker 03: They file in the district court here. [00:40:44] Speaker 03: Then what happens? [00:40:45] Speaker 03: And then Belize decides they want to invoke that statute. [00:40:49] Speaker 03: What happens then? [00:40:50] Speaker 01: Then they would have to go get an injunction, and that would freeze. [00:40:53] Speaker 03: The Belizean government would go to the court in Belize. [00:40:55] Speaker 01: In Belize, get an injunction. [00:40:56] Speaker 03: And then after that, they couldn't do anything. [00:40:58] Speaker 01: Then they cannot do anything. [00:40:59] Speaker 01: But what has happened? [00:41:01] Speaker 01: They have stopped the running of the statute in the US, because they filed. [00:41:07] Speaker 01: They didn't do that, so they didn't stop the running of the statue. [00:41:11] Speaker 01: There was nothing to prevent them to come here, like they went to the NJ and stopped the running of the statue. [00:41:17] Speaker 03: So the government, please, gets the injunction because they have filed here. [00:41:22] Speaker 03: Correct. [00:41:23] Speaker 03: And then, are they then criminally liable for what they've done? [00:41:26] Speaker 03: No, if they continue... Because to file here, they spoke to counsel in Belize, he filed an affidavit, they file here, then the injunction comes. [00:41:37] Speaker 03: Is that lawyer in Belize who helped them criminally liable for what he has done? [00:41:42] Speaker 01: Absolutely no, because the criminal laws are not retroactive. [00:41:47] Speaker 01: The injunction would cover [00:41:49] Speaker 01: They can file here because there was no existing injunction. [00:41:53] Speaker 03: So you're saying it just stops. [00:41:54] Speaker 03: They just can't do anything more after that. [00:41:57] Speaker 03: But there's no criminal liability for what they've already done. [00:41:59] Speaker 01: Absolutely not. [00:42:00] Speaker 01: And they have stopped the running of the statute in the United States, which is what they could have done. [00:42:05] Speaker 01: And that's what they did in Belize. [00:42:07] Speaker 01: Exactly. [00:42:08] Speaker 01: They went there and they were not shield from doing so. [00:42:12] Speaker 01: Let me just make two quick points. [00:42:14] Speaker 02: I don't think the statute's crystal clear that you had to wait for an injunction. [00:42:19] Speaker 02: you being Belize to go after someone who filed an action in contravention of that statute? [00:42:27] Speaker 01: The statute says you can't violate an injunction of the Supreme Court of Belize. [00:42:31] Speaker 01: That's a crime. [00:42:32] Speaker 01: So obviously you gotta have an injunction. [00:42:35] Speaker 01: You can't violate something that doesn't exist. [00:42:38] Speaker 01: If there's no injunction against this company, you can't violate the law. [00:42:41] Speaker 02: Had the Supreme Court of Belize ordered [00:42:44] Speaker 02: What have the Supreme Court of Police done? [00:42:46] Speaker 01: Nothing with respect to that statute, with respect to these companies. [00:42:50] Speaker 02: But with respect to other companies, what have the Supreme Court of Police done? [00:42:54] Speaker 01: With respect to one company, not others, PSDL, the government police obtained an injunction against PSDL. [00:43:02] Speaker 01: They filed a case here. [00:43:04] Speaker 01: We obtained an injunction, and then this case was stopped. [00:43:09] Speaker 01: Then the court of appeals reversed the stay. [00:43:12] Speaker 01: No one was prosecuted. [00:43:13] Speaker 01: Nothing happened. [00:43:14] Speaker 01: Remember, in BSDL, in this case, after they filed in the UK, the government of police takes no action. [00:43:24] Speaker 01: We don't prosecute them. [00:43:25] Speaker 01: We don't try to get an injunction. [00:43:27] Speaker 01: We do nothing. [00:43:29] Speaker 01: But even if we had done that, it would have stopped the statute of limitations here. [00:43:34] Speaker 01: And then this case would be staked. [00:43:37] Speaker 01: Now, the only other point I want to make is about arbitrability. [00:43:44] Speaker 01: This is not an issue of arbitrability, whether the subject matter of the claim is subject to arbitration. [00:43:53] Speaker 01: The dispute was that the prime minister didn't have authority to sign the arbitration clause in the first place. [00:44:01] Speaker 01: So you have to decide. [00:44:03] Speaker 01: Who do you defer to? [00:44:05] Speaker 01: Do you defer to the arbitrators or do you defer to the CCJ? [00:44:10] Speaker 01: The CCJ is more neutral and the New York Convention allows you to defer to the CCJ under the public policy defense. [00:44:20] Speaker 05: Thank you.