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Case number 15-7070, Nanko Shipping, USA, parent company of Nanko Shipping, Guinea, et al.

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Appellant vs. Alpoa, Inc.

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and Alpoa World Illumina, LLC.

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Mr. Temple for the appellants, Mr. Beersitt for the appellees.

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Go ahead.

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Good morning.

[00:01:30] Speaker 04:
No.

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Have you take a drink of water?

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May I please thank you?

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Good morning.

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Good morning.

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May I please call it?

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My name is Donald Temple, and I represent Nyko Shipping Guinea, an entity which is comprised, which is a subsidiary of Nyko Shipping USA, which is owned by an African-American of dual citizenship, Guinean and American citizenship based here in Washington, DC.

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At the outset, the appellant concedes the first claim of his complaint, the third-party beneficiary claim, and proceeds accordingly on grounds that the lower court erred in dismissing the three remaining claims, which include 42 U.S.C.

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1981, tortures interference, and of course, while it's not a cause of action, the civil conspiracy claim on the District of Columbia, which involves the tortures interference claim.

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The standard of review for purposes of the rule 12 claim, that's before the court is de novo, standard of review on the rule 19, indispensable party claim, is abuse of discretion.

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I'm sorry, I missed the first part of your sentence.

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Who's conceding?

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The third party beneficiary breach contract, count one, claim is conceded.

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By you?

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Yes.

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All right, thank you.

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Appellant seeks to have this case reversed and remanded with instructions.

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And given the complexity of the facts, I'll try to suspend with them except to say a couple of things.

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One is very important to understand that this case occurs, the discrimination occurs while it involves a mining case in Guinea, West Africa.

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In Article 9 that's in this record, it was anticipated that the American and Guinean interests at some point would form a corporation

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of American interest to help develop this mining contract.

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Guinea became an independent country sometime in the 1960s, and this mining contract involved the exploitation of bauxite.

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Consistent with the Article IX of this contract, it was anticipated that Guinea would control 50% of the shipping rights, that which is rooted and stated in Article IX and what would be paragraph IX of Article IX.

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I would also state and state in fact that that is not disputed in this record.

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In fact, there was a resolution.

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The mining contract resulted in what was called a board which consisted of Halco, which was the miner, and Guinea.

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They created a board.

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That board basically controlled all the activities.

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That board met, pursuant to this particular claim, in New York in November.

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the United States and the United States.

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In 2011, we found they ratified an agreement that getting ultimately entered into with the appellant.

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What's critical about that agreement is that agreement is called a technical assistance agreement.

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It's a

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enlist the support of independent contractors to help develop the resources from the mining contract, which were rooted in 50% of the shipping.

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And to be clear, the shipping is the 50% of the proceeds were anticipated to come back to Guinea, for purposes of development in Guinea, developing the maritime activities in the land.

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So come back to the economy, not to the government.

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Come back to the economy in the sense that if it's a Guinean-based company just

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Because the company would be presumably spending money in its country where it's chartered?

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Is that the idea?

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basically manage the shipping rights, control the shipping rights, and occasionally do shipping.

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The proceeds will go back to Guinea with the objectives of Article 9, which would be development in nature to help develop Guinean workers, train them, develop potentially shipping companies, et cetera, et cetera.

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So Guinea could ultimately develop some economies.

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So the next step, the answer is yes.

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You provided the CBG agreement, but not the TAA.

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And this is just at the complaint stage, I understand.

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But we don't have much information about what happens.

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I mean, it seems quite significant to your client's position, whether it is, in fact, plausible that it is the assigning you or the chosen shipper under Guinea's rights.

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Well, I think that, first of all, the court is correct.

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It is a motion to dismiss for purposes of, it's at the pleading stage.

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For purposes of the pleading stage, as pled, there is an extensive second amendment to complain upon which the court based its ruling.

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While it decided not to allow us to amend that second complaint, we think erroneous grounds that it would be futile

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That second amended complaint details, in fact, and I don't think there's any reason to question the specific facts here, as alleged, that NANCO shipping received a technical assistance agreement, and it outlines in detail what the rights are under the technical assistance agreement.

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And not only that, that the technical assistance agreement was the subject of a resolution in New York pertinent to basically ratifying it and allowing them to manage control of the shipping rights.

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In addition to that, I would point to the court's attention to the exhibits to the first complaint, which are at pages 33, 34, 35, 36, 37.

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This is an exchange of correspondence where NICO shipping articulates to our co-esteem ship.

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the particular rights that it is alleging that it has under the technical assistance agreement.

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And those particular documents incorporated by reference is exhibited to the amended complaint and consistent therewith for the second amended complaint.

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So I don't think there's any ambiguity there.

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All right.

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So let me just, I'm sorry to go back to square one here, but just so I'm very clear, what we are presented with is whether the district court heard as to counts two, three and four of the second amended complaint in ruling that first you had failed to join a necessary party under rule 19 B.

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That's correct.

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And then abused its discretion in denying reconsideration.

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Well, there's a little bit more, Judge Rogers, if I may.

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That's partly true, but also the Court, though it doesn't give a profound analysis, there is also the issue of whether the arbitration clause in the CBG actually applies to the dispute between NICO shipping pertinent to the 1981 claim and the Tortures and Inferences claim.

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But that's all part of the Rule 19B analysis.

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Actually, I think it may be part of... No, it's whether you have another remedy.

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That's one of the considerations.

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Yes, but also the court says in its decision that notwithstanding the Rule 19 argument, that the arbitration clause does apply.

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I can briefly address both of those issues.

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And one of the things that I think pert to the Rule 19 argument is this.

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In this jurisdiction, in assessing the Rule 19 argument, particularly where you have a sovereign jurisdiction, the court basically operates on, I think,

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an erroneous presumption that because we have Guinea, and it's a sovereign entity, that Guinea has interests, and if it's not a party, that those interests can't be resolved.

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Well, I think that this jurisdiction and its interpretation of Rule 19 believes that you have to look at the facts.

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in order to make that assessment.

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In this particular situation, the error of the lower court is that the lower court operated on the presumption that Guinea's interests would be impaired in prejudice.

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However, if you look at the lower court's decision at pages 8 and 9, the lower court says this.

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It says, we would have to examine

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the CBG, the convention, to determine what rights Guinea had, and therefore what rights NICO shipping had.

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It's more profoundly stated, however, in the court's opinion on the motion for reconsideration.

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And in that particular opinion, at pages of the Appendix 153, starting at the bottom paragraph,

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The court again says we can't determine these issues without first examining and conducting an analysis.

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So is your argument that it was an abuse of discretion for the district court to rule on the Rule 19 issue before allowing you limited jurisdictional discovery?

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That's correct.

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And in addition to that, the court could not possibly ascertain.

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And this is a critical point here.

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The court is presuming that Gideon's interest is impaired one way or the other.

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Even the appellee states at 31 of his brief in footnote 53, it states that there has to be an analysis of the convention to even understand whether the 1981 racial discrimination rights are implicated.

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However,

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Notwithstanding the fact that the convention was provided to the court, the court at no point analyzed the convention and made any findings as to the convention relative to the impact, substantively, on the impairment of Guinea.

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Keeping in mind that it is Guinea that has 50%, and that's the issue, whether it's a 50% issue.

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Article 9 says that, and by the way, that's not disputed, at no point does the appellee say that Guinea doesn't have a 50% interest.

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In fact, the very fact of the matter is that the CBG board met in New York and basically ratified that 50% interest by agreeing to the TAA.

[00:11:14] Speaker 03:
Well, to be fair, this is on a motion to dismiss.

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They aren't allowed to bring in facts, or they don't have an obligation, nor are they permitted to bring in facts that would dispute the facts that you allege.

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At this stage, we're testing the sufficiency of the complaint, assuming all well-plated facts are true.

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So we can't assume, because there's nothing contesting that, that they don't actually

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But I'm not dealing just with all due respect to the issue of the emotions.

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I'm dealing with the question of the Rule 19, indispensable party ruling, and the fact that even there's a different burden there, because that burden is abuse of discretion.

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The court cannot logically, intelligently make a decision that Guinea's rights are impaired.

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No, I take your point.

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That there's a lot of things, a lot of determinations that the court appears to have made that would depend on more than the allegations of the complaint.

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I take that point.

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But additionally to the court's point,

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The inferences in the close factual situations, the lower court made inferences consistently again to Nyko and in favor of the defendant's alcoa.

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And so to that extent, when we go to the great example linking right into the issue of Rule 19, linking it into the arbitration, the Court's attention is directed to the arbitration clause.

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This is an interesting arbitration clause, isn't it?

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Because logically, I would agree with the appellate.

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If there's an arbitration clause, there's a derivative contract.

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Arbitration clause applies.

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But in 1963, when HALCO entered into a contract with Guinea,

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It did something that was very peculiar.

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There was a stipulation clause, and it's unambiguous.

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That stipulation clause stated that unless parties other than the government are getting HACO and the CBG, quote unquote, the company,

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entered into a stipulation accepting the terms of the arbitration clause, it would not apply.

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It is not ambivalent.

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But the fact that you have to stipulate in order for it to apply doesn't mean you're precluded from doing that.

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In other words, isn't the language broad enough to cover your disagreement here?

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In other words, it's a contract which arises out of

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you know, this convention.

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And so the arbitration clause could cover it if you wished it to do so.

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Is that correct?

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I think the court's point here is yes.

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However, I think that is a juxtaposition of that particular point with the very fact of contract law.

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And the fact that the court below and the appellee makes the argument that this arbitration is mandatory because of the language in Article 13 and that stipulation.

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It is not mandatory.

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And as the court appropriately pointed out, it might be optionable, but it's not mandatory.

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Therefore, it doesn't obviate the fact that we can come to the federal court to protect the federal rights, constitutional rights, of the contractor in a situation that's potentially racially discriminatory.

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In fact, I note to the court that

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That particular provision was not even addressed by the lower court and totally ignored by the appellee in its brief.

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Why?

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Because of the point that the court is making, it does not apply in, that's first year law school language, there's no evidence contract that shouldn't apply.

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As to the issue of the discrimination,

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We have a 42 USC 1981 claim, and it's an interesting claim because at first glance, one would say, how does a mining contract in Africa come into a federal court in the United States?

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Well, the American corporation Alcoa is based here in the United States.

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Alcoa is based here in the United States, and it's an interesting thing because Alcoa has two, three tiers.

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There's Alcoa Aluminum, which owns Alcoa World Aluminum, which is based in Delaware, and then there's Alcoa Steamship, which is based in Knoxville.

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And we have been trying to connect the dots in something that's somewhat of a maze, and so I would understand if the court's confused, except I'll say this.

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Here, we have a contract, an international agreement, where Guinea has 50 percent, and that's a predicate of our claim.

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Guinea gives that because it wants to implement it, operationalize it to NACO shipping.

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NACO shipping then attempts to implement it

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Guinea, NICO goes to New York, it's ratified, it gets blessed, but New York says- In the New York meeting, you mentioned Guinea.

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Did Guinea have a representative in New York?

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The meeting in New York is a CBG board meeting, and Guinea is part of that CBG.

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Did they have a representative?

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Yes, they did.

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And at that meeting, the directive coming from CBG was that NICO's shipping,

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would have to go to Alcoa Steamship in Knoxville, Tennessee, excuse me, and Knoxville, Tennessee to implement the TAA.

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When it went to Knoxville, Tennessee and encountered an all-white group of representatives there, everything that happened in New York and all the substance of Article IX was challenged.

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For three years, NICO shipping consistently, and it's reflected in the record in terms of the communications at A33 and thereafter to about A40, consistently has these communications.

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And what happens is that Alcoa in Knoxville absolutely refuses to recognize the fact that Guinea is entitled to, and therefore, NICO shipping to manage, essentially, and control this 50%.

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Now, what's critical about that, yes?

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Would this court have personal jurisdiction over Guinea, the district court in DC have jurisdiction over Guinea if a party wanted to bring it before the district court?

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Actually, the issue would not necessarily be personal jurisdiction.

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It would be sovereign immunity.

[00:17:13] Speaker 03:
Well, both need to be over common.

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Guinea is not, in the case

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It hasn't asserted any sovereign immunity.

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But if somebody were to seek to impede Guinea, would this court have personal jurisdiction?

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I think that to the extent that sovereign immunity was resolved, it would.

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Guinea has connections to this jurisdiction.

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What are they?

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It has an embassy here.

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It has lobbyists here.

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It has representatives here.

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And Guinea does business in the United States.

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Anything relating to this case?

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this dispute?

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Has it come to meet with anybody in D.C.

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with regard to these shipping rights?

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I do not know that to be the case that Guinea has definitively come here, other than through NANCO shipping.

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I would note, though... It has come to NANCO shipping?

[00:17:59] Speaker 00:
No, no.

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I want to make a point of clarification, which is significant relative to Guinea.

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NACO Shipping's proposition here, and NACO Shipping has a relationship with the Guinean government as well.

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So it has a, NACO Shipping when it's seeking these rights through the TAA, it's actually working in conjunction with the Guinean government in the same way the court references in the complaint in the record as a prior transaction where the government created a joint venture with the all-white entity Clavis.

[00:18:28] Speaker 03:
So the government- Why is this case here in DC?

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Why is it in D.C.?

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Because Nicoshipping is, Guinea and Nicoshipping's parents are located here in D.C.

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And Nicoshipping, when it's communicating with the parties, all of Nicoshipping, when you look at the communications that Nicoshipping is having, it's having by way of its D.C.

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office.

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Nicoshipping Guinea is having by way of its D.C.

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office.

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Moreover, the value issues have not been raised by the appellee.

[00:19:00] Speaker 03:
It's just an issue, a threshold issue in rule 19, which is why I'm asking about it.

[00:19:06] Speaker 03:
Because the court has to consider whether absent party would be prejudiced in its absence, and whether it could be brought in, and if it can't be brought in, whether the case has to be dismissed.

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So part of the question is, could Guinea be brought in?

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Does Guinea communicate with NANCO in DC about this shipping?

[00:19:25] Speaker 00:
I think it could, but I would disagree with the court, respectfully, relative to its interpretation that this question of Rule 19A means that if there is sovereign immunity, whether it could be brought in is the primary question.

[00:19:36] Speaker 03:
I wasn't talking about sovereign immunity because nobody's raised sovereign immunity.

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Only the sovereign can raise that.

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It's not even in the case yet.

[00:19:42] Speaker 03:
But the prior question about whether the court could exercise jurisdiction of immunity.

[00:19:47] Speaker 00:
Yes.

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I see my time has expired.

[00:19:50] Speaker 04:
Why don't we hear from Appoli, and then we'll give you a few minutes in rebuttal.

[00:19:59] Speaker 02:
If it please the court, my name's Tom Bursick, representing the Appalachians here.

[00:20:05] Speaker 02:
I believe Council for NANCO conceded, and the court recognizes that all of the claims asserted in this case derive from shipping rights that allegedly belonged to the Republic of Guinea under the 1983 agreement referred to as the Convention between HALCO on one hand and the Republic of Guinea on the other hand.

[00:20:29] Speaker 02:
and for more than 50 years, HALCO and McGinney have been operating under this commercial agreement.

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And the allegation here is that commencing in 2011, NANCO

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became entitled to assert, as a third-party beneficiary, any rights that Guinea has under the Convention and to enjoy the benefit of those shipping rights under this TAA agreement, which Judge Piller correctly recognized is not made part of the record anywhere.

[00:21:07] Speaker 02:
So we'll have to assume

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the facts regarding that agreement that are alleged by the plaintiff.

[00:21:14] Speaker 02:
So what we do know is that in this case, neither party to the convention, HALCO nor Guinea, is a party in this action.

[00:21:25] Speaker 02:
And also... Let me ask you about that.

[00:21:27] Speaker 04:
The district court ruled in light of the proposed second amended complaint.

[00:21:35] Speaker 04:
So you would agree with that, correct?

[00:21:38] Speaker 02:
I would agree.

[00:21:39] Speaker 02:
But I would agree if we got to that point, the only way.

[00:21:43] Speaker 02:
Correct, Your Honor.

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And let me proceed if I can come back to that.

[00:21:47] Speaker 01:
Of course.

[00:21:47] Speaker 02:
And so really, every cause of action comes from the assertion that NANCO is a third party beneficiary of Guinea's alleged shipping rights under the convention.

[00:21:58] Speaker 02:
The district court properly exercised its discretion to rule that Guinea was a necessary party.

[00:22:04] Speaker 02:
under Rule 19 and that it was the case could not go forward in good conscience with an inequity without Guinea because it determined that under 19A, Guinea's rights could be impaired or impeded.

[00:22:22] Speaker 02:
And that's appropriate.

[00:22:24] Speaker 02:
And also under 19A, it's also a consideration to determine whether an absent party is necessary if the remaining parties could face a substantial risk of inconsistent rulings or determinations.

[00:22:42] Speaker 03:
Can you elaborate a little bit?

[00:22:43] Speaker 03:
It's not clear to me.

[00:22:44] Speaker 03:
We often hear cases where

[00:22:48] Speaker 03:
somebody's evidence, information, understandings may be relevant to something before us, but if the district court were to determine that, for example, Guinea assigned these shipping rights to Nanko, and that's just clear and undisputed by Guinea,

[00:23:11] Speaker 03:
Why would Guinea need to be in the case?

[00:23:14] Speaker 03:
Because the issue really is whether then your clients, there can be any material issue of fact as to whether your clients discriminated or decided the contract issues on a different ground, the hiring issues on a different ground.

[00:23:29] Speaker 02:
Two reasons, Your Honor.

[00:23:30] Speaker 02:
In this case, the court, in order to determine the contract rights, has to construe two contracts.

[00:23:37] Speaker 02:
Firstly, the convention, and determine what rights, if any, Guinea has to shipping vis-a-vis Helco under the convention.

[00:23:47] Speaker 02:
So that's the first determination.

[00:23:49] Speaker 02:
Secondly, it has to make the determination that Your Honor indicated.

[00:23:55] Speaker 02:
In fact, NANCO has the right to enjoy whatever rights Guinea has under the Convention.

[00:24:04] Speaker 02:
In this case, the defendants could be subjected to inconsistent determinations if Guinea were not present in the following way.

[00:24:14] Speaker 02:
if, as you speculate, that the court decides, okay, under the TAA, NANCO has the rights, and also under the convention, that Guinea's entitled to 50% of these shipping revenues, so now NANCO is entitled to 50% of the shipping revenues directed towards it.

[00:24:36] Speaker 02:
If Guinea disagrees with that determination, that Guinea says, wait a second,

[00:24:44] Speaker 02:
NANCO is not entitled to those rights.

[00:24:47] Speaker 02:
You know, we're not party to this suit.

[00:24:49] Speaker 02:
We don't agree that the TAA says that.

[00:24:52] Speaker 02:
It would then institute an arbitration against HALCO under the convention, and the remaining parties here, Judge Rogers said, if we're thinking that HALCO would be a defendant, would be subjected to inconsistent, potentially inconsistent determinations.

[00:25:09] Speaker 02:
one here in this court, which binds it because it is here, and one under the arbitration agreement, which it has agreed to.

[00:25:19] Speaker 03:
This all assumes that Guinea has decided to assert its sovereignty.

[00:25:27] Speaker 03:
We don't have any information on that, do we?

[00:25:30] Speaker 02:
Well, I think you have to assume that Guinea is entitled to sovereign immunity here.

[00:25:36] Speaker 03:
Only if it doesn't fit in any of the exceptions under the Foreign Sovereign Immunities Act.

[00:25:41] Speaker 03:
And it's an affirmative defense.

[00:25:42] Speaker 03:
Doesn't it have to be raised?

[00:25:43] Speaker 03:
I mean, this is so different from the Philippines case in which the Philippines was in the case, the Philippines asserted its sovereign immunity.

[00:25:51] Speaker 03:
We're jumping way ahead, aren't we?

[00:25:53] Speaker 02:
No, because this Court has determined that in this consideration of Rule 19, there is no requirement or obligation of Guinea to make any affirmative indication of participation in this case.

[00:26:08] Speaker 02:
In the Kickapoo Tribe case, this Court determined that intervention

[00:26:13] Speaker 02:
is simply not a consideration to be made under Rule 19.

[00:26:18] Speaker 02:
So what we're left with is the fact that Guinea is a sovereign, they're not named, and therefore, you know, considering whether or not Guinea has made any affirmative determination that it's okay for this case to proceed is not appropriate.

[00:26:35] Speaker 02:
In the Wichita Tribes case, this

[00:26:38] Speaker 02:
court has similarly determined that imposing any obligations on an absent sovereign to come in and make affirmative statements would be, in a sense, putting that sovereign in what the Wichita Circuit Court decision said was on.

[00:26:56] Speaker 02:
Hobson's choice of having to waive their immunity

[00:27:01] Speaker 02:
And so under the 19A determination, it's not only impairment to Guinea, it's also subjecting the remaining parties here to inconsistent, substantial risk of inconsistent determinations if the absent party is not present.

[00:27:19] Speaker 04:
Could I ask a question?

[00:27:20] Speaker 02:
Certainly, Your Honor.

[00:27:28] Speaker 04:
Appellant.

[00:27:30] Speaker 04:
argued to the district court that it should allow discovery before it made its Rule 19 determinations ruling on the defendant's motion.

[00:27:48] Speaker 04:
This court has recognized the appropriateness of limited jurisdictional discovery in such context as the Foreign Sovereign Immunities Act.

[00:27:59] Speaker 04:
Why?

[00:28:00] Speaker 04:
given all the reasons you just outlined, wouldn't limited discovery have been appropriate here?

[00:28:09] Speaker 02:
Well, firstly, I don't know if they raised that below.

[00:28:12] Speaker 04:
And secondly, Guinea is... Well, it's in their motions, pleadings.

[00:28:16] Speaker 04:
Here, it's... I don't think counsel would all do respect.

[00:28:20] Speaker 04:
I don't know if you were counsel before the district court or not.

[00:28:23] Speaker 04:
But I don't think that's an issue here.

[00:28:26] Speaker 02:
And let me address your question, Your Honor, that here there's no dispute that Guiney is a sovereign entity.

[00:28:34] Speaker 02:
Secondly, what would we learn from limited discovery to determine... Precisely what Judge Pillard was reviewing with you.

[00:28:43] Speaker 02:
Which is, I'm sorry, Your Honor.

[00:28:45] Speaker 04:
The convention and the TAA.

[00:28:48] Speaker 04:
Exactly what the terms are.

[00:28:50] Speaker 04:
I mean, there's commercial activity by Guinea.

[00:28:53] Speaker 04:
There's no question about that, it seems to me.

[00:28:55] Speaker 04:
And so the question here is, what's the nature of this convention?

[00:28:59] Speaker 04:
What went on in New York?

[00:29:02] Speaker 04:
What's the nature of the TAA?

[00:29:04] Speaker 04:
And your clients might well prevail once we know the answers to those questions.

[00:29:10] Speaker 04:
Or the plaintiff might prevail.

[00:29:12] Speaker 04:
We just don't know.

[00:29:13] Speaker 04:
And neither did the district court.

[00:29:15] Speaker 02:
But when you say the nature of the convention, the convention is attached.

[00:29:19] Speaker 02:
We know that it's an agreement between two parties.

[00:29:22] Speaker 04:
Well, you're the one who just answered to Judge Pillard.

[00:29:24] Speaker 04:
There are two contracts that have to be explored.

[00:29:27] Speaker 02:
Right.

[00:29:28] Speaker 04:
And we were going over the fact that there are certain commitments that were made in the convention.

[00:29:33] Speaker 04:
And I was trying to get you to address the fact that the district court is looking at this proposed second amended complaint.

[00:29:40] Speaker 04:
And so the question is, what does the TAA say?

[00:29:44] Speaker 04:
And the second amended complaint says what it says, but we don't have it.

[00:29:50] Speaker 04:
And so the district court might want to look at it before it rules that Guinea is

[00:29:57] Speaker 04:
an indispensable necessary party here.

[00:30:01] Speaker 04:
That's all I'm asking.

[00:30:02] Speaker 02:
Yes, I think you get to that conclusion assuming everything that they say about the TAA is true in the second amended complaint.

[00:30:09] Speaker 02:
But how can the district court... And you need no discovery for that.

[00:30:12] Speaker 04:
Yes.

[00:30:13] Speaker 02:
Guinea is still an indispensable party because when you said, Judge Rogers, discovery regarding the nature of the convention,

[00:30:22] Speaker 02:
By that, you can only mean what rights and obligations derive under the convention vis-a-vis the shipping rights.

[00:30:30] Speaker 02:
And so that is a substantive determination of which Guinea doesn't have to participate.

[00:30:38] Speaker 02:
And so that's the whole purpose behind the Rule 19 analysis.

[00:30:44] Speaker 04:
But you just admitted Guinea doesn't have to be in that case.

[00:30:49] Speaker 02:
Well, no, it does not have to submit itself to this court's jurisdiction.

[00:30:55] Speaker 02:
So what?

[00:30:56] Speaker 04:
The cases you cited are all talking about mandatory intervention.

[00:30:59] Speaker 04:
This is not what we're dealing with here.

[00:31:02] Speaker 02:
No, the cases, no.

[00:31:04] Speaker 04:
The ones you just cited to me, Kickaboo and Wichita.

[00:31:08] Speaker 02:
That wasn't mandatory, Your Honor.

[00:31:10] Speaker 02:
That was just a case where the tribe in Kansas were at issue, as Your Honor knows, because Your Honor was part of that

[00:31:19] Speaker 02:
But I don't think that that was mandatory.

[00:31:22] Speaker 02:
I think the case was that there was a necessary party that could not be compelled to participate.

[00:31:29] Speaker 04:
But do you understand, suppose, just hypothetically, under this second amended complaint, the discovery determined

[00:31:38] Speaker 04:
that Guinea had the 50%, that Guinea turned the 50% over to the plaintiff, just as Judge Killard was reviewing with you in questions.

[00:31:52] Speaker 04:
Your point is, well, HALCO might face inconsistent determinations, because Guinea might come up later and raise issues

[00:32:04] Speaker 04:
that are inconsistent with what it has agreed to in the convention and the TAA.

[00:32:11] Speaker 04:
Is that your argument?

[00:32:12] Speaker 02:
No, I'm saying that those, through discovery, you cannot determine

[00:32:18] Speaker 02:
for example, that Guinea has rights to 50% under the convention, because you have that.

[00:32:26] Speaker 02:
And if you look at that now, those are certainly qualified rights.

[00:32:29] Speaker 02:
And that would be a defense that would be raised down as part of this case.

[00:32:34] Speaker 04:
We're at Rule 19.

[00:32:35] Speaker 04:
At least I'm at Rule 19, trying to figure out, do we affirm?

[00:32:40] Speaker 04:
Do we reverse?

[00:32:43] Speaker 04:
Correct.

[00:32:44] Speaker 04:
I'm not later on in the case where all of these arguments can be raised to the district court.

[00:32:49] Speaker 02:
And I agree, Your Honor, but I'm saying is the determinations that you're focusing on are not discovery determinations.

[00:32:57] Speaker 02:
The determination of what rights

[00:33:00] Speaker 02:
Guinea has to shipping under the convention is a substantive right determination.

[00:33:06] Speaker 02:
And discovery would yield us nothing with respect to that, and Guinea couldn't even be compelled to really participate in any discovery to take a position one way or another.

[00:33:18] Speaker 04:
Discovery might tell me a lot about what happened in New York.

[00:33:22] Speaker 02:
Well, but Guinea would not even be subject to discovery if it decided not to participate in that discovery.

[00:33:30] Speaker 02:
Well, certainly you don't, but I don't think you need to go there as I say because when you say discovery might illuminate the nature of the convention and the nature of the TAA,

[00:33:44] Speaker 02:
What you're saying is the court would have to learn more and make a determination about what substantive rights exist under those contracts.

[00:33:55] Speaker 02:
And that's all Judge Collier was saying, that eventually the court is going to have to make those substantive right decisions.

[00:34:05] Speaker 04:
And if Guinea is a sovereign... But in the meantime, I'll dismiss the case.

[00:34:08] Speaker 02:
Pardon?

[00:34:11] Speaker 04:
We have said that limited discovery for purposes of jurisdiction is appropriate.

[00:34:19] Speaker 02:
And I'm saying there is no limited discovery that would cure the fact that eventually the court will have to make a substantive determination of the rights of the parties.

[00:34:33] Speaker 02:
And one of those parties, Guinea, is not present and is subject to sovereign immunity.

[00:34:42] Speaker 02:
And I think that's the focus.

[00:34:43] Speaker 03:
Do you think it would not be

[00:34:46] Speaker 03:
required before we decide the Rule 19, or before a court were just to decide the Rule 19 question, to know what the nature of the asserted technical assistance agreement is.

[00:35:03] Speaker 03:
Because if Guinea had a right and assigned it with those strings attached to a shipper, wouldn't that change the nature

[00:35:18] Speaker 03:
of Guinea?

[00:35:19] Speaker 02:
No, I don't think so because what you're talking about is making a determination that a substantive law determination that the TAA did in fact assign Guinea's rights and if you made that determination in the absence of Guinea participating or being bound by that decision you still have a Rule 19 issue.

[00:35:46] Speaker 02:
because they're not a party to that decision.

[00:35:49] Speaker 02:
And they can't be bound by that decision.

[00:35:52] Speaker 02:
And even if this court looks at the TAA and says, in discovery, produce the TAA, and they look at it and they say, well, it looks awfully clear to us.

[00:36:02] Speaker 02:
Okay?

[00:36:03] Speaker 02:
As long as Guinea has sovereign immunity and is not a party to this proceeding, it can turn around and take a different position any time at once and subject the remaining defendants to inconsistent rulings, and that's the point of the Rule 19.

[00:36:20] Speaker 02:
So I assume, for purposes of your analysis and when you say the nature of the TAA, that they're right and that it does a sign.

[00:36:28] Speaker 02:
But if Guinea's not bound by the proceeding, at any point in time, the government could change.

[00:36:33] Speaker 02:
They could say, hey, we didn't mean that.

[00:36:37] Speaker 02:
We're not bound by this.

[00:36:37] Speaker 04:
And what if the district court found this was a commercial transaction by Guinea?

[00:36:42] Speaker 02:
Pardon, Your Honor?

[00:36:45] Speaker 04:
What if the district court were to find or to rule that the nature of the transactions that issue are commercial?

[00:36:56] Speaker 02:
I don't think that has any

[00:36:58] Speaker 04:
Then Dini has no sovereign immunity to assert, because it's under one of the exceptions to the Foreign Sovereign Immunities Act.

[00:37:10] Speaker 02:
Okay, Your Honor.

[00:37:11] Speaker 02:
I missed your point.

[00:37:14] Speaker 04:
So what happens then, if there is no sovereign immunity?

[00:37:19] Speaker 02:
Well, if there's no sovereign immunity, then you have to then go the next step and say, can Guinea be bound and can Guinea be added here as a party to this proceeding?

[00:37:30] Speaker 02:
Because without Guinea being added as a party to the proceeding, you fall back to the Rule 19A analysis that... But all I'm getting at, Council, is A and B enter into a contract.

[00:37:41] Speaker 04:
B tries to execute on that contract with C and D.

[00:37:47] Speaker 04:
C and D repudiate the nature of the agreement that A made.

[00:37:54] Speaker 04:
And they do it for unlawful reasons, allegedly.

[00:37:59] Speaker 04:
So B sues C and D. Can that case not proceed without bringing in A?

[00:38:06] Speaker 04:
That's all I want to be clear about.

[00:38:09] Speaker 04:
A commercial transaction goes on every day.

[00:38:12] Speaker 02:
Well, I think it's different here because the

[00:38:16] Speaker 02:
what is being alleged is that B is trying to assert rights under a contract that A has with C and D. And therefore, in that scenario, yes, A is a necessary party and has to be brought into the proceeding.

[00:38:32] Speaker 02:
Otherwise, C and D would be subjected to potentially inconsistent rulings, Your Honor.

[00:38:38] Speaker 02:
And that's the point behind the 19A analysis that I think

[00:38:41] Speaker 02:
I'm trying to bring to the court's attention.

[00:38:44] Speaker 02:
I think that's what Judge Collier was focused on.

[00:38:48] Speaker 04:
Thank you.

[00:38:48] Speaker 04:
That was helpful.

[00:38:49] Speaker 04:
Anything else?

[00:38:50] Speaker 02:
No, Your Honor.

[00:38:51] Speaker 04:
Thank you.

[00:38:54] Speaker 04:
Council for Appellate?

[00:38:56] Speaker 00:
Yes, just briefly.

[00:38:58] Speaker 00:
The appellant states, at footnote 68, contrary to what it's arguing here, that it's noted by the district court to determine whether defendants discriminated against NICO shipping in violation of section 1981, by refusing to implement NICO shipping Guinea shipping rights, compels an analysis of the convention to determine what shipping rights are.

[00:39:19] Speaker 00:
Consistent therewith, the lower court

[00:39:21] Speaker 00:
that the court can avoid the indispensable party analysis that's at A-153.

[00:39:31] Speaker 00:
altogether if it looks no further than the technical assistance agreement.

[00:39:35] Speaker 00:
But it is not possible, as we contend, it's not possible to resolve any question regarding the nature and extent of NICO shipping guineas rights under the technical assistance agreement without analyzing the convention from which such rights flow.

[00:39:46] Speaker 00:
Nevertheless, the court made a decision therein.

[00:39:49] Speaker 00:
The appellant is incorrect.

[00:39:50] Speaker 00:
The appellant's argument is based on a claim that we conceded at the very outset.

[00:39:55] Speaker 00:
Our argument is not based on a third-party beneficiary claim.

[00:39:57] Speaker 00:
It's based on a contract, the TAA claim.

[00:40:01] Speaker 00:
Therefore, the analysis has to be redirected to the TAA and the implications of the TAA.

[00:40:07] Speaker 00:
As to Guinea, it is anti-Moronic that Guinea, which gives a contract to NACO shipping, which then goes to a board meeting where the contract is ratified, that its interest is going to be disputed.

[00:40:18] Speaker 00:
It is not disputed.

[00:40:19] Speaker 00:
Unlike the cases, the Indian tribe cases, where the sovereign entity, there were disputed claims about their rights.

[00:40:27] Speaker 00:
That doesn't exist in this particular situation.

[00:40:30] Speaker 00:
The case should be remanded.

[00:40:34] Speaker 00:
It should be jurisdictional discovery.

[00:40:36] Speaker 00:
And we would otherwise submit on the record.

[00:40:38] Speaker 00:
Thank you.

[00:40:39] Speaker 04:
Thank you.

[00:40:39] Speaker 04:
We'll take the case under.

[00:40:41] Speaker 03:
Oh, sorry.

[00:40:42] Speaker 03:
Just two questions.

[00:40:43] Speaker 03:
One is, have you conceded that Guinea is immune under the Foreign Sovereign News Act?

[00:40:50] Speaker 00:
No.

[00:40:51] Speaker 00:
And your question is, I'm sorry.

[00:40:53] Speaker 03:
That Guinea has immunity under the Foreign Sovereign News Act?

[00:40:57] Speaker 00:
I don't concede that, necessarily.

[00:41:01] Speaker 03:
And what discovery do you think is relevant?

[00:41:04] Speaker 00:
I think it's very clear, first and foremost, as a predicate, is that this issue, the 50 percent issue in Guinea's intentions, would be very important and very clear.

[00:41:13] Speaker 00:
And we would expect that Guinea, while it wouldn't necessarily be a party, could very easily, and we argue that, could very easily testify that what its view of its rights are, but not only Guinea, Alcoa as well, because they're on the board of the CBG.

[00:41:33] Speaker 03:
I'm a little bit confused by your opening concession.

[00:41:35] Speaker 03:
What do you mean that you're not challenging the third-party beneficiary?

[00:41:38] Speaker 03:
You're not pressing that claim, because I thought that was how you got what the TAA claim is essentially resting on.

[00:41:47] Speaker 00:
Oh, not at all.

[00:41:47] Speaker 00:
No, not at all.

[00:41:48] Speaker 00:
The 1981 claim is not based at all on necessarily the derivative rights that Guinea has from the CBG.

[00:41:54] Speaker 00:
The 1981 claims are based upon the fact that there's a TAA.

[00:41:58] Speaker 00:
which derives from the Article 9 right, but is rooted in the technical assistance agreement and the implementation of the technical assistance agreement and Alcoa's impairment of the technical assistance agreement and its interference and refusal on racial grounds as well as other grounds to give rights to Guinea, I mean to mango shipping Guinea, which it would otherwise have and it's spelled out in the paperwork.

[00:42:26] Speaker 04:
Anything further?

[00:42:28] Speaker 04:
We'll take the case under advisement.