[00:00:01] Speaker 00: Case number 16-7083 at L, Belize Bank Limited versus Government of Belize Appellant. [00:00:08] Speaker 00: Mr. Basilbaro for the Appellant, Mr. Kimmelman for the Appellee. [00:00:54] Speaker 03: Sudassin Barrow, welcome back. [00:00:56] Speaker 02: Yeah. [00:00:57] Speaker 02: Nice to see you, Your Honor, and glad to be here. [00:01:00] Speaker 02: Juan Basombrillo for the Government of Belize. [00:01:05] Speaker 02: I want to try to touch base on three points, highlight three issues. [00:01:08] Speaker 02: One has to do the ethics issues. [00:01:11] Speaker 02: Number two, whether the New York Convention is applicable to Belize. [00:01:16] Speaker 02: And third, just quickly, FNC. [00:01:18] Speaker 02: Going through the first point, [00:01:20] Speaker 02: We believe that District Court has to be reversed because confirmation should have been denied based on Arbitrator Douglas's failure to disclose and based on his apparent bias. [00:01:33] Speaker 02: Now there are two articles in the New York Convention that we have involved and I want to clarify a point first. [00:01:39] Speaker 02: One of the articles is 5-1-D. [00:01:42] Speaker 02: That deals with the [00:01:46] Speaker 02: creation of the arbitration panel. [00:01:48] Speaker 02: That issue is governed by international law. [00:01:51] Speaker 02: The second article that we invoke is 5-2b, and that's the public policy exception. [00:02:00] Speaker 02: That issue is governed by US law. [00:02:03] Speaker 02: So in applying the two articles, you apply two separate sets of laws. [00:02:08] Speaker 02: That's where the district court makes its fundamental error. [00:02:12] Speaker 02: because it decides the first issue, the international law issue, Article 5.1d, and then when it gets to the public policy exception, it basically incorporates its discussion on international law and the British rule. [00:02:28] Speaker 02: It never applies U.S. [00:02:29] Speaker 02: law. [00:02:30] Speaker 02: And that's a fundamental error of law that has to be reversed. [00:02:34] Speaker 02: So let me catch on that first. [00:02:36] Speaker 03: Can I ask about D? [00:02:38] Speaker 03: D is the composition of the [00:02:41] Speaker 03: Arbitrary authority was not in accordance with the agreement of the parties or not in accordance with the law of the country where their arbitration took place. [00:02:49] Speaker 02: Not in accordance with. [00:02:50] Speaker 02: Either standard can be used where the arbitrator had a conflict of interest. [00:02:58] Speaker 03: Yes, but I'm talking about the difference between international law and British law, for example. [00:03:02] Speaker 03: So the second one, the country where the arbitration took place, that would have been British law, right? [00:03:06] Speaker 02: All right, so we're dealing with the first one. [00:03:08] Speaker 03: Did the agreement say that it was subject to international law? [00:03:13] Speaker 02: No, it doesn't have to. [00:03:16] Speaker 02: The composition, according to the Hervesta case that we cited, the composition of the panel in an international arbitration is governed by international law. [00:03:27] Speaker 02: And that case, that was a case from EXCEP. [00:03:29] Speaker 02: EXCEP, it's an international institution like the LCIA. [00:03:34] Speaker 02: And the author of that decision was the immediate past president [00:03:38] Speaker 02: of the LCIA, John Paulson, who's a world-renowned arbitrator and a professor at the University of Miami. [00:03:45] Speaker 03: Right, but I'm trying to interpret the New York Convention, and it says was not in accordance – there's two choices. [00:03:51] Speaker 03: Either it was not in accordance with the agreement of the parties or not in accordance with the law of the country where the arbitration took place. [00:03:58] Speaker 03: Correct. [00:03:58] Speaker 03: So you have to rely on the first. [00:04:00] Speaker 03: Does the agreement of the parties say anything about [00:04:07] Speaker 03: about the composition of the arbitral panel? [00:04:10] Speaker 02: The agreement of the parties requires arbitration. [00:04:14] Speaker 02: The question is, what ethics rules governs that arbitration? [00:04:19] Speaker 02: The ethics rules that apply would be international law under her person. [00:04:24] Speaker 03: Yes, but that's not what the New York Convention says. [00:04:27] Speaker 03: The New York Convention specifically says two choices. [00:04:30] Speaker 03: Either agreement to the parties or, failing that, [00:04:35] Speaker 03: the law of the country in which arbitration occurs. [00:04:37] Speaker 03: So is there something in the agreement of the parties from which we can conclude that international law was the rule? [00:04:47] Speaker 02: You may answer it by saying it this way. [00:04:50] Speaker 02: If two American entities decided to arbitrate before the AAA, their agreement would say, we're going to arbitrate in New York under New York law before the AAA. [00:04:59] Speaker 02: But it is US ethics rules that would apply. [00:05:02] Speaker 02: That doesn't have to be laid out in the arbitration, because it's a US arbitration. [00:05:07] Speaker 02: This is an international arbitration by virtue of which international ethics rules apply under Herber's law. [00:05:15] Speaker 02: And so to finish that point, [00:05:17] Speaker 02: Under 5.1d, if you had applied Herbesta, you have to ask whether Matrix Chambers is a collaborative venture or not. [00:05:29] Speaker 02: Now, we presented evidence to the LCIA. [00:05:32] Speaker 02: It's in my letter, which is attached to the appendix volume 2 at pages 7 through 70, where I presented evidence that Matrix does not act as traditional arbitration chambers. [00:05:47] Speaker 02: It acts like a law firm. [00:05:48] Speaker 02: Their website says, [00:05:50] Speaker 02: we are a, quote, collaborative venture. [00:05:53] Speaker 02: That means that the LCIA could not rely on the British rule that barristers are independent and should have conducted. [00:06:03] Speaker 01: Do you think that's enough for us to find that basically they were acting in violation of British laws and rules governing how barristers associate themselves? [00:06:16] Speaker 02: Under Article 5.1d, that's enough to reverse [00:06:21] Speaker 02: the district court and instruct the district court to conduct that analysis. [00:06:26] Speaker 02: The district court didn't conduct the analysis. [00:06:28] Speaker 02: It basically rubber stamped what the LCIA did. [00:06:32] Speaker 02: The district court, under the New York Convention, was required to conduct its own independent analysis. [00:06:38] Speaker 02: But let me turn now to v2b, the public policy exception, which I believe is even a more compelling argument. [00:06:46] Speaker 02: Under the public policy exception, [00:06:50] Speaker 02: U.S. [00:06:50] Speaker 02: law has to be applied, our own public policy. [00:06:54] Speaker 02: I provided the court with a [00:06:58] Speaker 02: Rule 28-J lettering, which I cited at decision Enron, Nigeria, is from this court from December the 27th of 2016. [00:07:08] Speaker 02: That decision is dispositive and requires reversal on the public policy defense. [00:07:14] Speaker 02: This court held that if enforcement of the award based on the ICC's interpretation, the ICC being like the LCIA, violates a public policy of the US, that this court was obliged to refrain from enforcing it. [00:07:28] Speaker 02: And that's an issue for resolution by the district court. [00:07:32] Speaker 02: Here, the district court did not apply US law, did not engage in any analysis. [00:07:38] Speaker 02: We have submitted the amicus brief of Professor Painter, a renowned ethics expert, who concludes that if you apply US law to these facts, [00:07:49] Speaker 02: There would have been a conflict. [00:07:51] Speaker 02: Now, this court should not do that in the first instance, that analysis. [00:07:56] Speaker 02: You need to send it back to the district court and ask the district court to reconsider the public policy defense in light of US law. [00:08:04] Speaker 01: Why can't we do it? [00:08:05] Speaker 01: I mean, we have your briefs and all the information in front of us. [00:08:08] Speaker 01: So even if we agree that the district court misapplied the law, why can't we properly apply the law? [00:08:16] Speaker 02: You could, and we would welcome that if you are inclined to do it in the first instance. [00:08:20] Speaker 02: And again, the letter that I sent to the LCIA that I cited lays it all out. [00:08:25] Speaker 02: We showed specific evidence that Arbitrator Douglas's chambers represented Belize Bank, the opponent, Lord Ashcroft, who controls Belize Bank, [00:08:37] Speaker 02: and with respect to matters regarding the lease. [00:08:40] Speaker 02: In any arbitration in the US, that would have been sufficient to require at least disclosure. [00:08:46] Speaker 02: The LCIA relied on the British rule and said no. [00:08:50] Speaker 03: Now, let me just briefly... Can I just back up for a second? [00:08:52] Speaker 03: So, the requirement that we apply American law is not a requirement that we apply the ABA's model rules of conduct. [00:09:03] Speaker 03: It's that we apply our public policy, correct? [00:09:07] Speaker 03: Correct. [00:09:08] Speaker 03: And our public policy has to be, according to our Tamorio case, [00:09:13] Speaker 03: It applies only when enforcement would violate the most basic notions of morality and justice, right? [00:09:20] Speaker 03: It's not enough just that under American law there would have had to have been a firewall or under American law two different partners in the same firm who don't share profits would have still been required not to be permitted. [00:09:37] Speaker 03: It has to be the most [00:09:39] Speaker 03: basic notions of morality and justice, right? [00:09:41] Speaker 03: Correct. [00:09:42] Speaker 03: And then we have this Al Harvey case where the court says that unless, and in a situation where the existence of facts are only marginally disclosable, that is maybe they would be under, if we're actually strictly applying an American rule, but that they don't violate a sense of morality, [00:10:04] Speaker 03: than they don't have to be. [00:10:07] Speaker 03: So how do you get yourself out of, you know, Professor Painter's amicus brief is about American law, but not about American notions of morality. [00:10:18] Speaker 03: It's not about the bottom line question of whether even a violation of American law is so terrible that we would upset an arbitral award. [00:10:28] Speaker 02: OK, let me answer it. [00:10:29] Speaker 02: You're correct, Your Honor. [00:10:32] Speaker 02: In order for the public policy to defend, there has to be, to apply the defense, there has to be a violation of the basic notions of morality and justice. [00:10:40] Speaker 02: I would submit to this court that American ethics rules go to the issue of morality and justice. [00:10:48] Speaker 02: Without ethics, you cannot have morality and justice. [00:10:51] Speaker 03: Is your view that all, when you say American ethics rule, you think every aspect of the model rules, if it's violated, is a violation [00:11:01] Speaker 03: of the underlying morality of American justice? [00:11:05] Speaker 02: In this case, there was a violation of the Supreme Court decision in Commonwealth which held that if an arbitrator refuses to disclose information that shows a bias, that constitutes grounds to [00:11:25] Speaker 02: deny confirmation of an award. [00:11:28] Speaker 02: That's a specific ethics rule announced by the United States Supreme Court. [00:11:32] Speaker 02: But that assumes a firm. [00:11:35] Speaker 01: And a firm is defined under American law firm practices, which this was not. [00:11:46] Speaker 02: Correct. [00:11:47] Speaker 02: But when you apply the public policy defense, [00:11:51] Speaker 02: you take our rules and you impose them on the facts. [00:11:56] Speaker 01: So does that mean in every international arbitration then barristers have to go to every member of the chambers and do an investigation and seek disclosures? [00:12:13] Speaker 01: and provide all of that information in every international arbitration that involves a U.S. [00:12:20] Speaker 01: party because later on, if there's a possibility of that arbitral award being enforced in the U.S., we're going to have to look at that information to see whether, under U.S. [00:12:34] Speaker 01: public policy, the arbitrator was fair. [00:12:37] Speaker 02: Yes, so let me give you the two reasons why. [00:12:40] Speaker 02: Number one, because that's what the New York Convention says. [00:12:43] Speaker 02: If you come to the U.S. [00:12:44] Speaker 02: later, U.S. [00:12:46] Speaker 02: ethics rules and U.S. [00:12:48] Speaker 02: law are going to govern that decision, whether it's enforceable. [00:12:51] Speaker 02: So if you choose to come here, you're going to play by our ethics rules like everyone else. [00:12:56] Speaker 02: Number two, also yes, because that's what international law requires after the Aguirre-Ferzcal decision. [00:13:06] Speaker 03: All right. [00:13:08] Speaker 03: Mr. Kimmelman, and welcome back to you. [00:13:16] Speaker 03: This is a continuing saga. [00:13:18] Speaker 03: Glad to have the same lawyers. [00:13:20] Speaker 04: Yes, Your Honor. [00:13:21] Speaker 04: We're pleased to be here with you again. [00:13:25] Speaker 04: May it please the courts, Lewis B. Kimmelman, Sidley Austin on behalf of the Belize Bank, the petitioner below, and the appellee here. [00:13:35] Speaker 04: Let me just start and address Judge Wilkins' question first, because in Shark versus Alberto Culver in 1974, the Supreme Court said, we, the United States, cannot have international commerce on our terms under our law and expect to do business in the world. [00:13:52] Speaker 04: It was true then, it is so much truer today. [00:13:55] Speaker 04: And U.S. [00:13:57] Speaker 04: ethics rules are not part of the New York Convention, nor of the implementing legislation, and I'll come to that in a second. [00:14:04] Speaker 04: There are standards that we must apply under the New York Convention. [00:14:07] Speaker 04: This is a New York Convention award. [00:14:09] Speaker 04: It was confirmed by the court below, based on the New York Convention, and as I believe I will show you, it was properly confirmed. [00:14:18] Speaker 04: Going first to Chief Judge Garland's question, [00:14:22] Speaker 04: There are essentially two issues under the New York Convention. [00:14:28] Speaker 04: Bear in mind, this is a foreign award rendered in London under English arbitration law, brought to the United States for confirmation. [00:14:37] Speaker 04: So it's clearly governed by the New York Convention. [00:14:40] Speaker 04: And the question for the district court was, [00:14:43] Speaker 04: Should this award be confirmed under the terms of the New York Convention, there are only seven defenses. [00:14:49] Speaker 04: Only two of them really have been invoked here. [00:14:51] Speaker 04: One is 5-1-D. [00:14:54] Speaker 04: And with respect to that question, [00:14:56] Speaker 04: That deals, as the Court mentioned, with respect to the agreement of the parties. [00:15:01] Speaker 04: And the agreement of the parties is very precise on this. [00:15:05] Speaker 04: The agreement of the parties on this issue is the arbitration clause. [00:15:08] Speaker 04: It provides for arbitration under the LCIA rules, the London Court of International Arbitration. [00:15:14] Speaker 04: The rules that were in effect at the time were the 1998 rules. [00:15:18] Speaker 04: It provided for arbitration in London by three arbitrators in accordance with those rules. [00:15:24] Speaker 04: Now, when one looks at the LCIA rules, and this is really, this goes to the heart of the question, and those rules are in the record beginning on page, in the appendix of page 1292. [00:15:37] Speaker 04: These rules specify the requirements for each and every arbitrator who is to be appointed in the case. [00:15:44] Speaker 04: These rules provide for the disclosure obligations of those arbitrators. [00:15:49] Speaker 04: These rules provide for the challenge procedure in case one party challenges the independence and impartiality of an arbitrator. [00:15:58] Speaker 04: And it's these rules that were invoked [00:16:00] Speaker 04: by the government of Belize when it finally reappeared in this arbitration. [00:16:05] Speaker 04: Bear in mind, it did not appear for the first few years. [00:16:08] Speaker 04: It came back after a partial award was rendered in its favor by a panel consisting of the very arbitrator whom they're challenging today. [00:16:19] Speaker 04: And they invoke the specific procedures under the LCA rules. [00:16:24] Speaker 04: Now, under those rules, which are incorporated in the party's arbitration clause, it's part of their agreement. [00:16:31] Speaker 04: They provide that when there is a challenge, the LCIA shall constitute what is called a division, which is a panel, essentially, of either three to five members of the board of the LCIA. [00:16:44] Speaker 04: It consists of recognized international arbitrators. [00:16:48] Speaker 04: That panel will essentially hear the challenge de novo, make findings of fact, reach conclusions as to whether or not it finds there is a substantiation of the claim of lack of independence and impartiality. [00:17:04] Speaker 04: And that's exactly what was done here. [00:17:06] Speaker 04: And I think if one asks the question, what's probably the most important document in the record here, I suggest to the court that it is the decision on challenges in the appendix [00:17:17] Speaker 04: 0188. [00:17:18] Speaker 04: It is a reasoned decision by three experienced international arbitrators written by an American, probably the most experienced American arbitrator in the world today. [00:17:31] Speaker 04: It goes through every single issue raised by the government of Belize. [00:17:37] Speaker 04: It makes findings a fact. [00:17:38] Speaker 04: It applies those facts to the standards that are specified in the LCA rules. [00:17:43] Speaker 04: And it concludes that there is no basis for the challenge and denizens. [00:17:48] Speaker 04: And we believe that these findings, both as to fact and conclusions as to the interpretation of the rules, are entitled to deference as the district court accorded them, because this process was agreed to by the parties when they put the LCA rules in their arbitration clause. [00:18:10] Speaker 04: And so therefore, this detailed opinion, and really there's no other way to describe it as an opinion, really sets out all the reasons why the challenge is misplaced and defective, not the least of which is that it's based on public information that was stale at the time the challenge was made. [00:18:31] Speaker 04: And beyond that, one of the most important and interesting facts in the record [00:18:36] Speaker 04: is that the government of Belize, before it made the challenge, made the proposal to the LCIA that Professor Douglas be appointed the chair of the tribunal. [00:18:48] Speaker 04: Think about it. [00:18:50] Speaker 04: Literally 10 days before they lodge the objection to his serving, they make the offer to the LCIA that if you, LCIA, allow us to appoint our own arbitrator now, years after we waive the right to do so, we will consent to Professor Douglas being made the chair of the tribunal. [00:19:09] Speaker 04: And that statement is in the record. [00:19:13] Speaker 04: It is that page. [00:19:16] Speaker 04: Appendix 543 and also again at Appendix 1173 to 1175. [00:19:23] Speaker 04: And of course, the government. [00:19:25] Speaker 01: That was after the prior chair resigned because he had done work for. [00:19:29] Speaker 04: Exactly. [00:19:30] Speaker 04: He disclosed that he had been retained by counsel for the Belize Bank, and then he resigned. [00:19:36] Speaker 04: And it's exactly after that this was done. [00:19:38] Speaker 04: So the government has tried to have it every which way. [00:19:42] Speaker 04: When it's convenient, they're willing to move Professor Douglas to become the chair of the tribunal. [00:19:47] Speaker 04: When that's not accepted, they suddenly want to challenge him to try to essentially [00:19:53] Speaker 04: re-institute a new tribunal contrary to the LCA rules. [00:19:58] Speaker 04: So with respect to the 501D challenge, we believe it's governed by the agreement of the parties, that agreement's the LCA rules, and there's absolutely no basis on which that defense stands. [00:20:10] Speaker 03: Can I ask you, without regard to the merits or even the interpretation, [00:20:14] Speaker 03: of the Hrvatska opinion. [00:20:17] Speaker 03: Can you give me an idea of what the authority is of the International Center for Settlement and Investment disputes, what kind of presidential impact it has on these kind of arbitrations? [00:20:30] Speaker 04: Your Honor, first, this was an investment treaty arbitration under the ICSID Convention, which involves public international law. [00:20:40] Speaker 04: So it has treaty status. [00:20:42] Speaker 04: It's very different from a commercial arbitration like this one. [00:20:45] Speaker 04: The ICSID case of Artsville was not governed by the New York Convention at all. [00:20:49] Speaker 04: It's totally within the ICSID framework. [00:20:53] Speaker 04: That decision, frankly, has been used by parties on one side or another, if and when. [00:20:58] Speaker 03: I don't want to get into an argument of what it actually supports. [00:21:00] Speaker 03: I'm actually just interested in what is its authority over arbitration to create rules or to precedent, anyway, with respect to the New York Convention, since that's what we have. [00:21:13] Speaker 04: Your Honor, I think, frankly, none. [00:21:16] Speaker 03: It's either as persuasive as it's persuasive. [00:21:19] Speaker 03: Exactly. [00:21:20] Speaker 04: And there is, as we cited in our brief, ICSA decisions post-Havarska, which basically have tried to limit it to its facts, because another panel disagreed with the conclusion that you can, in fact, exclude counsel from an arbitration. [00:21:35] Speaker 04: And so I think it really has... [00:21:37] Speaker 04: It's at best persuasive in similar circumstances, but it has no authority in commercial arbitration at all. [00:21:45] Speaker 04: Nor do I think it represents necessarily a wave of belief with respect to how one treats barristers. [00:21:52] Speaker 03: Leaving that question again aside, on the question of whether it's international law or the law of the forum state, [00:22:07] Speaker 03: In the circumstance where the agreement provides, in this case, that the London rule applies, is there any case that says international law applies? [00:22:17] Speaker 03: That's the argument of the other side. [00:22:19] Speaker 03: I should have asked, and I will ask on rebuttal, whether there's any kind of authority other than, I suppose, law reviews, other than that, is there authority for the proposition that an international rule rather than the forum rule applies? [00:22:32] Speaker 04: Your Honor, I know of none, and in fact, because the New York Convention is written, as you indicated before, in terms of either the agreement of the parties or, in the absence thereof, the law of the place of arbitration, there are really, I think, only two possible choices. [00:22:51] Speaker 04: One would be [00:22:52] Speaker 04: the agreement which I believe governs here because the LCI rules are incorporated in the arbitration agreement, and if there were no such rules incorporated, then the law that would govern would be the law at the place of arbitration, which is English arbitration law, and it is identical, not surprisingly, to the LCI rules. [00:23:10] Speaker 03: Is there a complication and the division said it was going to follow, I can't pronounce the name, but the Herbertska case? [00:23:18] Speaker 04: No, I don't think so. [00:23:19] Speaker 04: I think what the division did was take every single argument that was made, factual and contractual and legal, and address them. [00:23:27] Speaker 04: and it addressed Savartska and I think addressed it properly. [00:23:30] Speaker 04: And what's really, what's quite interesting is, again, if you look at the very end of the decision of the division, it's paragraph 55, it's on page 206 of the appendix. [00:23:42] Speaker 04: The division finds the following to be the relevant circumstances in this case. [00:23:48] Speaker 04: It makes factual findings based on the facts of this case, bearing in mind all the arguments in Hrvarska. [00:23:54] Speaker 04: And it concludes that on the facts of this case, there is no basis for disqualification of Professor Douglas. [00:24:03] Speaker 04: Can I interrupt you, Judge Wilkins? [00:24:04] Speaker 01: So what if one of the barristers in the matrix chambers during the arbitration was advising the Belize Bank on this very contract in arbitration? [00:24:24] Speaker 01: While another barrister from that same tribunal was presiding as an arbitrary, what if those were the facts? [00:24:37] Speaker 01: Should that trouble us at all? [00:24:40] Speaker 04: Well, first, obviously they're not the facts, but if they were the facts, under the rules, and there's a code of ethics, we cited it, that barristers are obligated to live by and conduct themselves by, they must maintain the confidentiality of their own files and their own clients and their own work. [00:25:03] Speaker 04: There is no sharing of work. [00:25:06] Speaker 04: because that would destroy confidentiality. [00:25:08] Speaker 04: There's no sharing of fees and expenses with respect to work. [00:25:13] Speaker 04: So there's a complete division between barristers within the chambers. [00:25:17] Speaker 04: It's quite likely in that circumstance that someone sitting on the tribunal would not know, would have no way of knowing that someone else in that chambers may have been contacted by the Belize bank. [00:25:29] Speaker 04: But what I would say is if obviously counsel for the Belize bank in the arbitration, [00:25:36] Speaker 04: could and should probably know that that's going on. [00:25:39] Speaker 04: I don't believe the Barristers would have any way of knowing because the way their system is designed, it's meant to insulate each one from the other so they can be at times on opposite sides before the same tribunal or be on a tribunal and be across the table and act for counsel. [00:25:57] Speaker 04: So there might well be an obligation on counsel conducting the arbitration to alert the tribunal to that. [00:26:04] Speaker 04: But the barristers themselves would probably not know. [00:26:07] Speaker 04: And so I don't believe there would be an issue. [00:26:10] Speaker 04: I don't think that would present an issue. [00:26:14] Speaker 04: If I could go, if I have questions. [00:26:21] Speaker 03: I'll give you five sentences. [00:26:24] Speaker 03: How about that? [00:26:25] Speaker 03: OK. [00:26:27] Speaker 03: I don't want to give you a time, because that could last. [00:26:31] Speaker 04: With respect to the public policy defense, as this court knows, oftentimes invoked, rarely, rarely, rarely is it ever applied. [00:26:39] Speaker 04: I know of only one case in the Second Circuit where it's been applied. [00:26:44] Speaker 04: Every other time, it's been rejected. [00:26:45] Speaker 04: Number two, the US public policy, what's fundamental to our society, is probably a fair and impartial tribunal. [00:26:56] Speaker 04: It is not US ethics. [00:26:59] Speaker 04: US ethics are not a law of the United States. [00:27:01] Speaker 04: They are not fundamental to our morality, but a fair and impartial tribunal is. [00:27:08] Speaker 04: What the district court found based on reviewing the decision and the findings of the [00:27:15] Speaker 04: LCI board, was that the facts in this case do not come close to making out what is required to establish evident partiality under Section 10 of the FAA and therefore U.S. [00:27:29] Speaker 04: public policy. [00:27:30] Speaker 04: As the Court mentioned in the case, in the D.C. [00:27:32] Speaker 04: Circuit case... That's all right. [00:27:34] Speaker 03: We already know that case. [00:27:36] Speaker 03: Okay. [00:27:36] Speaker 04: Any further questions? [00:27:37] Speaker 04: If there's nothing else, thank you very much, Your Honor. [00:27:47] Speaker 03: If you could answer the other question I asked, which is, is there a case that says that under these circumstances, international rules rather than the rules of the forum or the rules agreed to in the agreement, which were the London rules, would apply? [00:28:09] Speaker 02: Yes, I point you to that decision of the LCIA division. [00:28:13] Speaker 02: That's exactly what they do. [00:28:14] Speaker 02: They apply her versa. [00:28:16] Speaker 02: And that's in paragraph 48 of that decision. [00:28:20] Speaker 02: They apply her versa, and then they hold that [00:28:25] Speaker 02: Here, her barista does not require striking him, because there's no evidence that any barrister from matrix chambers other than Douglas has acted in this proceeding. [00:28:39] Speaker 02: So they misapply it. [00:28:41] Speaker 02: That's not what our argument was. [00:28:43] Speaker 02: Our argument is, your fellow baristers are representing [00:28:47] Speaker 02: Bellis Bank, that's the conflict. [00:28:50] Speaker 02: But they apply it, so that's right there evidence that the LCIA acknowledges that that's the governing standard. [00:28:57] Speaker 02: Also, even if you look at the LCIA rules, [00:29:01] Speaker 02: And look at their decision, again, the division decision, paragraph 42. [00:29:06] Speaker 02: Article 5.3 of the rule says that if there are justifiable doubts as to impartiality or independence, an arbitrator has to step down. [00:29:16] Speaker 02: We presented that evidence. [00:29:18] Speaker 02: So the issue here is that the district court just rubber stamped it, didn't do its own analysis. [00:29:24] Speaker 02: Now quickly, on V2B, the public policy defense, [00:29:28] Speaker 02: Everything my colleague has just told you is totally irrelevant. [00:29:33] Speaker 02: Why? [00:29:33] Speaker 02: Because the LCIA did not apply U.S. [00:29:36] Speaker 02: public policy. [00:29:38] Speaker 02: The district court cannot say, I rubber stamped the LCIA on the public policy defense because the US district court had to apply US public policy. [00:29:50] Speaker 02: The LCIA did not apply it. [00:29:52] Speaker 02: And that's why this has to be reversed and be sent back for reconsideration. [00:29:57] Speaker 02: And just in closing, I would submit that there's nothing more fundamental to morality and to justice than ethics rules. [00:30:05] Speaker 02: And that's why the public policy defense exists. [00:30:09] Speaker 03: Thank you. [00:30:09] Speaker 03: Thank you. [00:30:10] Speaker 03: We'll take the matter under submission. [00:30:12] Speaker 03: We'll take a brief recess while the next set of lawyers moves up.