[00:00:02] Speaker 00: Case number 16-7051, Buddha Ismel Jam at El Appellant vs. International Finance Corporation. [00:00:10] Speaker 00: Mr. Hertz for the appellant, Mr. Vasquez for the appellee. [00:00:59] Speaker 06: Good afternoon, Mr. Hertz. [00:01:01] Speaker 04: Good morning, Your Honor, and may it please the Court. [00:01:03] Speaker 04: I'm Richard Lawrence Herz on behalf of the Appellants. [00:01:06] Speaker 04: I'd like to reserve three minutes. [00:01:09] Speaker 04: The IFC is not immune under the circumstances of this case, both because the International Organizations Immunities Act does not provide them immunity here and because they've waived any immunity they might have. [00:01:22] Speaker 04: The International Organizations Immunities Act provides the IFC only the same immunity as is enjoyed by foreign sovereigns. [00:01:30] Speaker 04: What IFC wants here is immunity even from its commercial activities. [00:01:34] Speaker 04: And that's a form of immunity that all three branches of the government have rejected for decades for foreign sovereigns. [00:01:41] Speaker 01: Even if your problem with your statement that you know as well as we do, that you said that foreign sovereigns, implying foreign sovereigns today, [00:01:50] Speaker 01: rather than at the time the statute was passed. [00:01:54] Speaker 01: Correct, Your Honor. [00:01:55] Speaker 01: And that's your first issue in the case. [00:01:58] Speaker 04: Right, we have our two issues. [00:01:59] Speaker 01: Do you think that Atkinson, which both Judge Silverman and Judge Edwards sat on, is patently wrong and we should ignore it? [00:02:11] Speaker 04: I think that what the court has to look to first is subsequent Supreme Court authority. [00:02:17] Speaker 01: Right. [00:02:18] Speaker 04: And so [00:02:20] Speaker 04: and under that authority there is no immunity. [00:02:24] Speaker 01: It's a very interesting argument you make concerning subsequent Supreme Court cases. [00:02:29] Speaker 01: None of the subsequent Supreme Court cases deal with the actual legislation [00:02:38] Speaker 01: And what date was it, 1948? [00:02:39] Speaker 01: Five. [00:02:41] Speaker 01: Forty-five. [00:02:42] Speaker 01: 1945. [00:02:44] Speaker 01: Dealing with international organizations. [00:02:48] Speaker 03: That's correct, Your Honor. [00:02:49] Speaker 01: So none of the cases tried to interpret that statute. [00:02:53] Speaker 03: That's correct, Your Honor. [00:02:54] Speaker 01: So we have tried to interpret that statute and have reached a point which has been affirmed by various courts, various panels of this court, right? [00:03:06] Speaker 04: That's correct. [00:03:07] Speaker 04: And if I might explain why that doesn't, why those cases are still directly out. [00:03:11] Speaker 01: I'm pointing out is even if the Supreme Court had concluded that a more dynamic notion of foreign sovereign immunity applied to foreign sovereigns, that doesn't necessarily affect the meaning of the statute passed in 1940. [00:03:32] Speaker 04: Um, there's there's two questions saying [00:03:35] Speaker 01: You're saying because one element of the construction of that statue may be [00:03:46] Speaker 04: I don't think that's... Is that your argument? [00:03:48] Speaker 04: No. [00:03:48] Speaker 04: What we're saying, Your Honor, is that Atkinson is based on two propositions. [00:03:53] Speaker 04: The first proposition is that when you read the As Is Enjoyed clause, that means as immunity was in 1945. [00:04:01] Speaker 04: The second proposition is, well, what was immunity in 1945? [00:04:06] Speaker 04: And Atkinson said it was absolute. [00:04:08] Speaker 01: Well, that's your key. [00:04:09] Speaker 01: But the real key, what I'm trying to say, is the interpretation of the statute. [00:04:14] Speaker 01: And the statute goes on to consider the legislative history of that statute and provides and concluded that since that statute provided specifically for a safety valve, the president could change. [00:04:32] Speaker 01: It froze the immunity of the international organizations as of 45. [00:04:40] Speaker 01: It also said the legislative history [00:04:42] Speaker 01: of the statute included that Congress had explicitly considered a commercial exception and rejected it. [00:04:51] Speaker 01: So in other words, what your effort is to do is focus on one of the premises, one of the factors that led into the statutory interpretation. [00:05:02] Speaker 01: But you're not realizing that the statutory interpretation is broader. [00:05:08] Speaker 04: I know, Your Honor, I disagree with that. [00:05:10] Speaker 04: And let me explain why. [00:05:12] Speaker 04: So there's two pieces. [00:05:14] Speaker 04: I will address the substance of what you just said, but the first point is that even if we accept for the moment that we're looking to 1945, [00:05:24] Speaker 04: Then you look at the five Supreme Court cases that have been decided since Atkinson that say that immunity in 1945 was not absolute. [00:05:33] Speaker 04: And what happened, what immunity was in 1945, and this is very clear, particularly in Sandantar and in Altman, is that the first thing, it's all deference to the political, to the political judgments of the political branches. [00:05:45] Speaker 04: So the first thing is you look, is there a suggestion of immunity by the State Department? [00:05:52] Speaker 06: Government asserted immunity by enacting the IOIA. [00:05:56] Speaker 06: Can't we just say that is an assertion of immunity that Congress enacted and the President signed it? [00:06:02] Speaker 06: And so to the extent you're looking at an immunity that depends on political choice, a categorical political choice was made. [00:06:09] Speaker 04: No, Your Honor, because the statute does not say that international organizations are entitled to absolute immunity. [00:06:19] Speaker 04: It actually doesn't say they're entitled to any particular immunity at all. [00:06:22] Speaker 04: The plain language of the statute is that they get the same immunity as states. [00:06:28] Speaker 04: So the question then, assuming we're looking to what it was in 1945 is, assuming that part, [00:06:34] Speaker 04: which we don't agree. [00:06:35] Speaker 04: But assuming that, then the question is, what was immunity in 1945? [00:06:39] Speaker 04: And in 1945, there was no substantive standard of immunity. [00:06:43] Speaker 04: It was entirely deference to whatever the political judgment was. [00:06:47] Speaker 01: But that's why we concluded, we started with a statement virtually, absolute, and then concluded absolute, because it was obvious that in every case, the State Department came in and said there was a great immunity, with one exception. [00:07:04] Speaker 01: And that was a case where Mexico improperly asserted immunity because it was claiming immunity over a ship that it did not own. [00:07:22] Speaker 01: It had license and did not operate. [00:07:25] Speaker 04: But Your Honor, that was a case against the Republic of Mexico. [00:07:28] Speaker 01: It only became a case against the Republic of Mexico in the Supreme Court. [00:07:33] Speaker 01: The case was originally brought against the ship. [00:07:36] Speaker 01: Mexico intervened and said, we own that ship. [00:07:40] Speaker 01: And they said, tough luck, you gave it away. [00:07:43] Speaker 01: You licensed it and it was gone. [00:07:46] Speaker 01: So that's the only case you could ever find [00:07:49] Speaker 01: where the government said, no, I'm leaving. [00:07:51] Speaker 04: But the point is, that's a reason, at the time Atkinson's was decided, that is a reasonable, could be, we disagree with it, but it could be a reasonable interpretation of Hoffman. [00:07:59] Speaker 04: But that interpretation is foreclosed by Samantar. [00:08:02] Speaker 04: Because what the court said in Samantar was that there was a two-step process. [00:08:07] Speaker 04: The first step is, is there a suggestion of immunity? [00:08:11] Speaker 04: There's no suggestion of immunity here. [00:08:13] Speaker 04: So you go to the second step. [00:08:15] Speaker 04: And the second step is, is there a policy [00:08:19] Speaker 04: in the State Department. [00:08:21] Speaker 01: We're talking about 1945, remember? [00:08:22] Speaker 01: Excuse me? [00:08:24] Speaker 01: We're talking about 1945? [00:08:25] Speaker 04: Yes. [00:08:26] Speaker 04: That's what Salantar said the approach was in 1945. [00:08:30] Speaker 04: So the second step would be, and this is what they did in Hoffman, was is there a policy favoring immunity here? [00:08:36] Speaker 04: And it was essentially a rule of deference to no immunity because... I remember that Mexico wasn't even sued in the case. [00:08:41] Speaker 01: No, I'm saying what the rule was that they apply. [00:08:44] Speaker 01: So we asserted that it was virtually absolute. [00:08:48] Speaker 01: But I'm trying to tell you, it doesn't really matter. [00:08:51] Speaker 01: Even if we got that wrong, which I don't think we did, we are interpreting the statute. [00:08:58] Speaker 01: And the statute, we conclude, maybe the Congress got it wrong. [00:09:04] Speaker 01: But it's a question of what Congress meant in 1945. [00:09:08] Speaker 04: It's a question of what Congress meant is whatever the law is in 1945. [00:09:12] Speaker 01: And Altman tells us that once you... But we use legislative history, too. [00:09:16] Speaker 01: So, let me turn... What you do not counter is that Congress in 1945 put in the safety valve. [00:09:26] Speaker 04: Right, and let me turn to the legislative history part of that. [00:09:29] Speaker 04: What the court said was not on the side of what was immunity in 1945, but on the side of do we look to 1945 or do we look to now? [00:09:38] Speaker 04: What the court said was, and let me, which court? [00:09:41] Speaker 04: This court in Atkinson, what the court said, and let me get the language exactly right, is that the as-is-enjoyed provision provides, quote, no express guidance. [00:09:52] Speaker 04: And so what Your Honor did is look to indications of legislative intent. [00:09:57] Speaker 01: Our position is- Structure of the statute is always the most important thing. [00:10:00] Speaker 04: No, plain text is the most important thing and that's where I'm going here. [00:10:04] Speaker 01: There is no difference between structure of the statute and plain text. [00:10:08] Speaker 04: What the Supreme Court has said since Atkinson is that when you have a jurisdictional statute that's expressed in the present tense, because jurisdiction is always decided as of the time of suit, that when you have such a [00:10:21] Speaker 04: statute, and the IOIA is such a statute, you have to apply the law existing as of the time of suit. [00:10:27] Speaker 04: And in Altman, the Supreme Court said basically the same thing about immunity statutes, that because immunity always looks to immunity as it stands today, [00:10:39] Speaker 04: that you apply an immunity statute as of the time of suit. [00:10:43] Speaker 01: Well, we have continued to apply Atkinson over and over and over in this case, the court, right? [00:10:49] Speaker 01: Even after a number of your cases which you rely on in the Supreme Court. [00:10:54] Speaker 04: But none of this court's cases ever considered any of those cases. [00:10:59] Speaker 04: They're just not mentioned. [00:11:00] Speaker 01: It doesn't matter. [00:11:01] Speaker 04: It doesn't matter. [00:11:03] Speaker 01: It doesn't matter. [00:11:03] Speaker 01: We are found by our court, by our decisions. [00:11:06] Speaker 04: No, Your Honor, because the case we rely on most heavily for that is Your Honor's decision in Dellums versus Nuclear Regulatory Commission, where Your Honor said for the court that where subsequent Supreme Court authority has undermined a decision of this court, undermined the rationale of a decision of this court, it's simply not binding. [00:11:24] Speaker 04: It's not followed anymore. [00:11:26] Speaker 01: Yes, yes, but there's a question of timing. [00:11:29] Speaker 01: If you have a Supreme Court case that undermines our prior opinion, we are at liberty to change our position. [00:11:39] Speaker 01: I would suggest how to change it. [00:11:40] Speaker 01: If after that Supreme Court case comes down, we continue to apply our law, then I [00:11:53] Speaker 01: I understand your point. [00:11:54] Speaker 04: We don't like it. [00:11:55] Speaker 04: No, I think it's mistaken, Your Honor. [00:11:57] Speaker 01: No, I don't think it is. [00:11:59] Speaker 01: When a court continues to apply a position which you think was undermined earlier by a Supreme Court case, you have to assume that our court concluded otherwise and continue to apply the law of the circuit. [00:12:16] Speaker 04: The court reached this decision in Atkinson. [00:12:19] Speaker 01: Do you understand the point I made? [00:12:21] Speaker 04: I do, Your Honor. [00:12:21] Speaker 04: But what I'm suggesting is just the simple proposition that the Supreme Court sets the rules. [00:12:30] Speaker 04: If there's an inconsistency between what this court says and what the Supreme Court says. [00:12:34] Speaker 01: The Supreme Court gets to set the rules, you're right. [00:12:38] Speaker 01: But if we conclude otherwise, then it's the law of the circuit that we're bound to apply. [00:12:43] Speaker 04: Yes. [00:12:46] Speaker 04: The point I was alluding to earlier is that this court has never considered Atkinson or the scope of international... That argument is not available. [00:12:55] Speaker 01: If the court has subsequently taken a position which you think is inappropriate in light of Supreme Court cases, it doesn't matter. [00:13:04] Speaker 01: Then it's the law of the circuit that binds. [00:13:07] Speaker 01: You can't go back and say, well, you made a mistake because the Supreme Court... [00:13:13] Speaker 01: This is even assuming you were right. [00:13:15] Speaker 01: I think you're wrong about your interpretation of 45. [00:13:17] Speaker 01: I'm trying to tell you what we're bound by. [00:13:20] Speaker 01: We're bound by the law of the circuit. [00:13:23] Speaker 01: Now, to be sure, if after a case of the circuit comes down, the Supreme Court comes down with an opinion which undermines that, it is open to the circuit to change its position. [00:13:37] Speaker 01: But if the circuit afterwards does not change its position, then we're bound by the law of the circuit. [00:13:46] Speaker 04: With respect, John, I don't believe that can possibly be correct, because in particular, in the case after Atkinson, not only wasn't this issue ever presented, all they said was... It doesn't matter. [00:14:03] Speaker 04: But respectfully, honor, I think at the end of the day, the Court has to follow what the Supreme Court says. [00:14:11] Speaker 01: That proposition, of course, is true. [00:14:15] Speaker 01: And that's, you know, that's where we... But that's also... But you understand the point at the outset, which was even if you were right about the law in 1945, it doesn't matter, because we were interpreting the statute, and the Supreme Court never has said that our interpretation of the statute was wrong. [00:14:33] Speaker 04: No, I disagree with that as well, Your Honor, because there are two independent questions in Atkinson. [00:14:38] Speaker 04: The first question is, [00:14:40] Speaker 04: what time frame are we looking at? [00:14:44] Speaker 04: And the second independent question is, okay, assume, we'll assume for the moment that we're looking at 1945, what was the law in 1945? [00:14:51] Speaker 04: And the Supreme Court has said five times since Atkinson that it simply was not an absolute meeting. [00:14:57] Speaker 01: In other words, you're not focusing on what the statute means. [00:15:00] Speaker 04: No, well, it's a separate argument. [00:15:02] Speaker 04: We only have to win one of those arguments. [00:15:03] Speaker 01: Oh, yes. [00:15:04] Speaker 01: No, you have to win the statutory argument. [00:15:06] Speaker 04: No, because if I agree with you that you can look to 1945. [00:15:10] Speaker 04: No, no, no. [00:15:12] Speaker 01: But the statutory argument is that the structure of the statute providing for a safety valve on the part of the president means that Congress wanted to freeze it as of 1945, even [00:15:29] Speaker 01: if you were right that Congress was wrong about how to freeze it. [00:15:35] Speaker 01: Do you understand the point? [00:15:36] Speaker 04: I'm sorry, I don't think I do. [00:15:38] Speaker 01: I don't think you do either. [00:15:41] Speaker 06: I'm sorry. [00:15:43] Speaker 06: Go ahead. [00:15:44] Speaker 06: I mean, our court in Nyambal has said much more recently that it doesn't think that the Supreme Court – intervening Supreme Court cases displace Atkinson. [00:15:56] Speaker 04: I don't think that's correct. [00:15:57] Speaker 04: What the court said in Neambal was, so the Third Circuit came down with an opinion in the Calva and said, disagreed with Atkinson. [00:16:05] Speaker 04: And the argument in Neambal was, well, there's this Third Circuit case. [00:16:10] Speaker 04: And in that case, you know, [00:16:12] Speaker 04: I agree with that. [00:16:14] Speaker 04: But what wasn't presented in the Anval was the five Supreme Court cases that say immunity in 1945 was not absolute. [00:16:22] Speaker 04: And the Dole case, which says that when you read a [00:16:27] Speaker 04: that's written in the present tense, you have to apply it as of the time of suit. [00:16:34] Speaker 04: And that is a plain language. [00:16:36] Speaker 04: That is what the Supreme Court has told us is the plain language reading of a jurisdictional statute. [00:16:42] Speaker 04: And that's why, Your Honor, when in Atkinson, the Court said, [00:16:48] Speaker 04: you know, we're looking for indications of legislative intent. [00:16:52] Speaker 04: That may have been fine, but you don't get to that step because now the Supreme Court has told us what the plain language of the as is enjoyed statute is. [00:17:01] Speaker 04: And that's what the court said in Atkinson, there was no express guidance on, and now there is in the Dole case. [00:17:08] Speaker 04: And in the Altman case, which also says that jurisdictional, that immunity statutes are decided as of the time of suit. [00:17:15] Speaker 04: And so we have a plain language, a plain text guidance from the Supreme Court about how to read that provision of the IOIA. [00:17:25] Speaker 04: And so there's no reason to go beyond that to look to indications of legislative intent. [00:17:31] Speaker 01: You know, as this is a practical matter, if we were ever to agree with you that the Supreme Court would take the case in reverse 9-0, [00:17:39] Speaker 01: I think we are based... I don't see how it could... That's my prediction. [00:17:43] Speaker 01: I can just imagine what would happen if all these international organizations were subject to your notion of lawsuits. [00:17:53] Speaker 04: Well, so in a sense that's a policy argument, Your Honor. [00:17:56] Speaker 01: No, no, that's why. [00:17:57] Speaker 01: Where we don't do policy, we do law. [00:17:58] Speaker 01: That was the point I was going to make. [00:18:00] Speaker 01: We do law, but the Supreme Court does policy. [00:18:02] Speaker 04: Well, but in this case, the statute after Dole and in light of the five Supreme Court cases is clear. [00:18:08] Speaker 04: I'm teasing. [00:18:11] Speaker 04: Even if, Your Honors, we have a wholly separate argument here under Mandara. [00:18:17] Speaker 01: I understand. [00:18:18] Speaker 01: Do I go to the waiver issue? [00:18:19] Speaker 04: Yeah, I mean, look, so this court has said in a number of times that the institution needs the trust of a third party. [00:18:30] Speaker 04: Like in Villa, they needed the trust of a consultant. [00:18:34] Speaker 04: And they said that helps the IFC's mission. [00:18:36] Speaker 04: But in this case, [00:18:37] Speaker 04: You know, Mr. Jam is a subsistence fisherman whose livelihood was destroyed by the IFC's project. [00:18:45] Speaker 04: That isn't just help — a suit by him isn't just — his trust isn't just helpful to the IFC. [00:18:52] Speaker 04: That is the IFC's mission. [00:18:53] Speaker 01: Do you realize what a nightmare for the organization would be created by our concluding as a waiver here? [00:19:01] Speaker 01: Your Honor, the problem is — Every time they authorize a loan, [00:19:06] Speaker 01: they would be faced with liability from the ultimate beneficials. [00:19:09] Speaker 04: No, yours because so so there have only been 10 cases out of the 5000 projects that have gone through the IFC. [00:19:20] Speaker 04: Only 10 of them have gone through the IFC's compliance mechanism. [00:19:24] Speaker 04: Had the IFC had the compliance mechanism say that they were out of compliance and have the IFC given opening, though, for class actions. [00:19:37] Speaker 01: say what would happen to the organizations? [00:19:40] Speaker 04: The point is that the organizations would actually follow their own policy. [00:19:44] Speaker 04: What the IFC is saying here is that it is not in their interest to follow their own policy. [00:19:49] Speaker 04: And our only point is that that can't be right. [00:19:52] Speaker 06: It's very odd for us to be, though, in the position of determining what's in the IFC's interest. [00:19:57] Speaker 06: And I just find the Mandara test to be very strange, in a strange position. [00:20:02] Speaker 04: I agree with you. [00:20:03] Speaker 04: I think that Judge Berger was right in speaking for this court in Lutcher when he said that the plain text of this waiver provision means that there's waiver. [00:20:11] Speaker 01: Wilkie was wrong, right? [00:20:14] Speaker 04: Wilkie was wrong. [00:20:16] Speaker 04: Isn't that right? [00:20:17] Speaker 04: I mean, that's what the court said in Lutcher. [00:20:21] Speaker 01: And, you know, judging by your honors... You made the argument that Mandurah was incorrect because it [00:20:27] Speaker 01: didn't follow the earlier opinion. [00:20:30] Speaker 06: Right. [00:20:31] Speaker 04: That's right. [00:20:31] Speaker 04: It didn't follow Letcher. [00:20:32] Speaker 04: And that's the point that you were making to me about how bound the court is to Atkinson. [00:20:36] Speaker 04: And if Your Honor believes that, then we're back in Letcher. [00:20:40] Speaker 04: Because the Mendaro overturned Letcher. [00:20:43] Speaker 04: It didn't have authority to do that. [00:20:46] Speaker 04: There was no intervening Supreme Court authority. [00:20:48] Speaker 02: No, they didn't overturn it. [00:20:50] Speaker 02: It's a strange interpretation, but they didn't overturn it. [00:20:53] Speaker 02: Well, I think they're fundamentally inconsistent. [00:20:56] Speaker 04: And Lutcher says, you know, we have a clear waiver provision that says they're waiving immunity for all suits except for suits by members of the bank. [00:21:06] Speaker 04: And Mendaro adopts a test. [00:21:09] Speaker 04: And it's exactly the sort of test that Lutcher specifically said that's not the road we're going down. [00:21:18] Speaker 06: So we have Mandaro, and you're saying we should make a determination that it is in the interest of the bank. [00:21:23] Speaker 06: And I guess there's some dynamic questions here, whether even though there have been only a few cases to go through the internal process, presumably if this were thrown open, there would be a lot more cases that would go through the internal process. [00:21:36] Speaker 06: Also, this is a project that was funded by many different entities. [00:21:40] Speaker 06: Are there other cases pending against any of the other funders? [00:21:44] Speaker 04: They're all foreign entities. [00:21:46] Speaker 04: It's an Indian conglomerate. [00:21:51] Speaker 06: Are there cases pending in India? [00:21:52] Speaker 04: I don't specifically know if there's cases pending in India right now. [00:21:56] Speaker 04: India is, you know, it's very clear to our clients that India is not going to give them, particularly against this company, there's not going to be an effective remedy in India. [00:22:07] Speaker 04: And it's very clear that there's no effective remedy for the IFC to actually enforce its own policies in this case. [00:22:15] Speaker 04: So remember, IFC has control here. [00:22:18] Speaker 04: They wrote into their contract that their policies have to be followed. [00:22:24] Speaker 04: And so they could step in at any time and say, you know, you have to do what we've been promising would be done. [00:22:33] Speaker 04: But they say they're not going to do that. [00:22:35] Speaker 04: In fact, here they say that our promises, the ones that we say are central to our mission, [00:22:41] Speaker 04: to protect people like Mr Jam just aren't really that important that they're not even part of our mission at all. [00:22:46] Speaker 04: And that's precisely why I have seen needs cases like this, because they are denying what icing management in this particular case is denying. [00:22:59] Speaker 04: And so the question is, how can I see performance mission if I have seen management. [00:23:13] Speaker 04: is going to say these policies don't matter in individual cases, and there's no lawsuit to make them do it. [00:23:19] Speaker 04: And so I don't think the court has to make a judgment about what's in the IFC's best interest. [00:23:24] Speaker 04: I think the IFC has already made that judgment. [00:23:26] Speaker 04: They've said time and again that hurting people like Mr. Jem or not protecting people like Mr. Jem is fundamentally. [00:23:34] Speaker 06: They've made that judgment against a backdrop of international organizational immunity and saying, [00:23:40] Speaker 06: We will, as an aspirational matter, we will, as a non-judicial matter, we will promise these things, and here's our mechanism. [00:23:48] Speaker 06: It's a soft law mechanism, it's an internal mechanism that we ultimately control, and that's what our promise means. [00:23:56] Speaker 06: Why is that not the case? [00:23:58] Speaker 04: The decision they made, and these sorts of things are not just made by management, they go through the board, they go through outside consultation. [00:24:06] Speaker 04: The decision they made is that we cannot perform our development mission unless these safeguard policies are rigorously enforced. [00:24:18] Speaker 04: And so to now say that it was not made against the backdrop of the fact that the compliance mechanism existed, it was made as a judgment about what it takes for them to fulfill their mission. [00:24:34] Speaker 04: the IFC or IFC management to now say when the IFC through this consultative process and through the board it made these statements that this is what development requires for management to now say that's not true these these these [00:24:52] Speaker 04: These policies just aren't that important to us, only highlights why the only recourse, the only way to make IFC actually do what IFC itself says is fundamental to its mission is through waiver. [00:25:08] Speaker 04: The other aspect about this is that one of the policies is that the IFC, before it can even take a project to its board for approval, IFC has to get broad community support. [00:25:20] Speaker 04: And so put yourself in the position of somebody like me. [00:25:24] Speaker 04: And that means that, you know, that means that they have to have people trust them when they say, we will protect you. [00:25:33] Speaker 04: And so this is a much stronger case than Villa, where it was just a contractor. [00:25:42] Speaker 04: So put yourself in the position of somebody like Mr. Jam in his community, or a hypothetical Mr. Jam in the future, who's facing a project like this. [00:25:56] Speaker 04: And when the IOC comes in here and says that, well, we don't think these policies are really all that important. [00:26:02] Speaker 04: Somebody like Mr. Jam, who's afraid that this project is going to destroy his livelihood, and it's going to destroy his children's future, there is no way that person and that community is going to give broad community support. [00:26:14] Speaker 04: And that stops the project, unless they say, as they did here, that we're just not going to follow our broad community support requirement. [00:26:22] Speaker 04: And so the only way- So as they did here? [00:26:24] Speaker 04: As they did here. [00:26:26] Speaker 06: They didn't care whether they got broad community support. [00:26:28] Speaker 04: They did not get broad community support from the fixer pull. [00:26:30] Speaker 06: They'll just continue operating that way. [00:26:31] Speaker 06: I mean, that's ultimately their decision what kind of organization they want to be. [00:26:37] Speaker 04: You know, the entire point of the waiver provision is that there's waiver when it's in the organization's best interest, and they have told us that they cannot perform their mission unless they stick to it. [00:26:50] Speaker 06: They've spoken out of two sides of their mouths. [00:26:52] Speaker 04: No, they've spoken out of one side of their mouth until they got into court, and then management spoke out of a different side of its mouth. [00:26:59] Speaker 04: But management is never going to want to be sued. [00:27:02] Speaker 04: You've got to go by what the IFC itself says is the IFC's mission and what it needs to perform its mission. [00:27:09] Speaker 06: But you understand what an odd position this puts us in, right? [00:27:12] Speaker 06: I mean, it's our own court that put us in that position. [00:27:14] Speaker 06: It's not you. [00:27:15] Speaker 06: I understand that. [00:27:17] Speaker 06: But the IFC board or the member states should be coming in and saying to management, don't mess around with our project this way. [00:27:27] Speaker 06: But they haven't done that. [00:27:29] Speaker 04: I mean, I think, Your Honor, the court has to take this as it lies. [00:27:34] Speaker 04: And as it lies now, just go with what the IFC says it needs to do to perform its mission. [00:27:40] Speaker 04: And if, Your Honor, if the court does that and then thinks about whether somebody like Mr. Jem would ever in a million years risk his children's future, that the IFC will fulfill their policies when they haven't done it here, and they deny here that their policies even matter, [00:27:57] Speaker 04: they just can't go forward with high-risk projects anymore unless there's some mechanism in which they're forced to follow their own policies. [00:28:07] Speaker 04: Thank you. [00:28:08] Speaker 04: Thank you, Your Honor. [00:28:12] Speaker 06: Mr. Vasquez? [00:28:18] Speaker 05: May it please the Court? [00:28:30] Speaker 05: Thank you, Ron. [00:28:32] Speaker 05: My name is Frank Vasquez, and I'm joined at council table by Maxwell Hyman, and we're here on behalf of IFC. [00:28:38] Speaker 05: Good afternoon. [00:28:40] Speaker 05: As we've been discussing, the plaintiffs in this appeal have attacked the district court's decision in essentially two ways. [00:28:47] Speaker 05: First, as to the overall methodology and interpretation of the IOIA, and they contend that the Atkinson case is no longer good law. [00:28:56] Speaker 05: And then second, they've attacked the district court's analysis under the Mendaro test as to whether IFC should be immune in this particular lawsuit and other lawsuits that could potentially arise from the actions of the compliance advisor ombudsman, also known as the CAO. [00:29:15] Speaker 05: Going to the first argument, as I gathered from the court's questions to Mr. Herz, this court continues to believe that Atkinson remains vigorous law, as Judge Brown wrote in an eyeball case in 2014. [00:29:27] Speaker 05: The IOIA and the FSIA are, in fact, two separate statutory frameworks designed to work in two different ways for two different groups of potential defendants. [00:29:42] Speaker 05: And I think, as Judge Silverman noted, actually only two of the cases the plaintiffs rely upon as supposedly overturning Atkinson, which were Beck-Marcazi cited at their brief at page 26 and Horani cited at their brief at page 26. [00:30:00] Speaker 05: only those two cases were decided after 9-ball and none of them has anything to do with the IOIA. [00:30:10] Speaker 05: So as the district court held, we do not see any reason to depart from the established law in this circuit. [00:30:16] Speaker 06: Now, addressing the argument specific to IFC and the CAO, what the Mindaro analysis comes down to is whether... Just before you get onto the Mindaro analysis, it is odd that we have a statute that says give international organizations the same immunity as is enjoyed by foreign sovereigns. [00:30:35] Speaker 06: And they don't have the same immunity as is enjoyed by foreign sovereigns. [00:30:38] Speaker 06: They have a much broader, more categorical immunity. [00:30:41] Speaker 06: There's no commercial activities exception. [00:30:44] Speaker 06: There's no direct effects exception. [00:30:46] Speaker 06: I mean, that's just looking at it afresh. [00:30:48] Speaker 06: I understand that we have Atkinson and Amba on the books. [00:30:51] Speaker 06: But if you were looking at that today, how would you justify having more immunity for international organizations than for foreign states? [00:30:57] Speaker 05: Well, actually, the international organizations still start with complete immunity. [00:31:05] Speaker 05: And the way that that statute works is then you need to look at the exceptions to see whether any of those apply in a particular case. [00:31:12] Speaker 05: But if you look at, I believe it's [00:31:15] Speaker 05: 28 U.S.C. [00:31:16] Speaker 05: section 1603, they have immunity. [00:31:23] Speaker 06: But here, for example, the plaintiffs have said you make no claim that this is not commercial activity. [00:31:31] Speaker 06: If it were under an FSIA-type analysis, this is commercial activity, and there would not be immunity. [00:31:36] Speaker 06: Do you dispute that? [00:31:37] Speaker 06: Have you disputed that in this case? [00:31:40] Speaker 05: We would dispute that for a couple of reasons. [00:31:43] Speaker 05: First, our claims sound in tort. [00:31:46] Speaker 06: But torts can arise out of commercial activity, no? [00:31:50] Speaker 05: Potentially, but this, and the question is whose activity? [00:31:56] Speaker 05: Yes, loaning money is a commercial activity, but the kinds of things that they're complaining about in India are activities of a different party. [00:32:09] Speaker 05: And so there is a requirement, and I've litigated this, that it be an act of the foreign state. [00:32:17] Speaker 05: That the commercial activity, not just be any commercial activity, but the commercial act has to be of the foreign state. [00:32:27] Speaker 05: There's a case called Velasco in the Fourth Circuit that I argued and another one called FANF, P-H-A-N-E-U-F, that's in the Ninth Circuit that both deal with this issue where plaintiffs attempted to sue a sovereign based on fraudulent activity that rogue employees use the addition of authority from the sovereign to [00:32:54] Speaker 05: to do things that were illegal. [00:32:57] Speaker 05: And the courts held in those cases that you can't just say any commercial activity. [00:33:02] Speaker 05: It has to be a commercial activity of the foreign state. [00:33:06] Speaker 01: That's an issue. [00:33:06] Speaker 01: We do not wish to add to your response to the question that Congress in 1945 explicitly considered and rejected [00:33:22] Speaker 01: an exception for commercial activity. [00:33:26] Speaker 05: That's correct, Your Honor. [00:33:27] Speaker 05: They did do that. [00:33:28] Speaker 01: Or the international organizations. [00:33:32] Speaker 05: That's correct. [00:33:33] Speaker 05: They looked at this. [00:33:34] Speaker 01: But that's in response to my colleague's question. [00:33:38] Speaker 01: Why would there be a distinction? [00:33:40] Speaker 05: Yes, that's correct, Your Honor. [00:33:42] Speaker 05: These are two separate frameworks, and they're designed to work in two separate, distinct ways. [00:33:47] Speaker 05: The IOIA framework [00:33:49] Speaker 05: gives the absolute immunity and has the executive order, which decides not only who gets it, but also whether there's limitations on it and that executive order can be modified from time to time. [00:34:00] Speaker 01: Your organization decided to start a chain of pizza parlors in East Coast to fund some of its activities. [00:34:13] Speaker 01: What would be the response? [00:34:20] Speaker 01: the capacity to. [00:34:21] Speaker 01: That's correct. [00:34:26] Speaker 05: The executive could come in and say those pizza parlors are not subject to immunity. [00:34:32] Speaker 06: So the U.S. [00:34:33] Speaker 06: executive can remove the immunity of an international organization? [00:34:36] Speaker 05: Well, there are two separate protections for international organizations. [00:34:41] Speaker 05: We need to recall that the agreements that they enter into here, the articles of agreement for IFC and the various charters for all these international organizations, [00:34:51] Speaker 05: Those are treaties. [00:34:53] Speaker 05: Those are United States treaties enshrined in law. [00:34:56] Speaker 05: Right. [00:34:57] Speaker 06: And that's where that waiver language that law sure uses is found. [00:35:00] Speaker 05: So these things have to be interpreted together. [00:35:04] Speaker 05: So for example, if the executive were to do something that violated the treaty, then you have a different issue. [00:35:10] Speaker 06: How could one sovereign's executive waive the international organization's immunity to the extent that it's intact under its treaty? [00:35:19] Speaker 05: It could not. [00:35:21] Speaker 05: OK, so it can't. [00:35:22] Speaker 05: You would go. [00:35:22] Speaker 01: Well, now, wait a minute. [00:35:24] Speaker 01: So what is the waiverability of the executive? [00:35:26] Speaker 01: What is the capacity of the president? [00:35:30] Speaker 01: I thought my understanding of the briefing is the president could modify the immunity. [00:35:37] Speaker 05: Yes, yes, if it's consistent with the treaty. [00:35:41] Speaker 05: And in this case, it would be in your piece of law. [00:35:43] Speaker 05: Yes, OK, that's what you're saying. [00:35:45] Speaker 06: How so? [00:35:45] Speaker 06: How would it be consistent with the treaty? [00:35:49] Speaker 05: Because the way, and this has been interpreted here, is that if you read that, I guess it's Article 6, Section 3 of the Articles of Agreement, talks about being able to sue where the IFC has an office in that country, in those country's courts. [00:36:12] Speaker 05: And that's been interpreted around [00:36:16] Speaker 05: that so the president could authorize a suit for that under the way the articles are structured here. [00:36:21] Speaker 05: For instance, what the president could not do, for example, is tax IFC because there's a specific provision there against taxation that's separate apart from the immunity we're talking about to be sued. [00:36:36] Speaker 05: Um, so there there is, um, [00:36:42] Speaker 05: There is a way to interpret this. [00:36:44] Speaker 05: And I also would want to point out, and this case is not cited in the briefs, but how does this court view these international organizations when the US is not involved? [00:36:58] Speaker 05: And there is a case that the court decided it's Abbas versus Foreign. [00:37:03] Speaker 05: I'm sorry, that's not the right case. [00:37:06] Speaker 05: It's Freedom Watch versus OPEC. [00:37:09] Speaker 05: I'm excited at 766 F-374 in 2014. [00:37:13] Speaker 05: And the issue there was what is OPEC? [00:37:19] Speaker 05: is it a sovereign entity that qualifies for foreign sovereign immunity and the Foreign Sovereign Immunities Act is one of those, or is it something else? [00:37:27] Speaker 05: And the court determined it's not. [00:37:30] Speaker 05: In those circumstances, it is an unincorporated international association. [00:37:37] Speaker 05: So absent the executive [00:37:41] Speaker 05: issue an order designating somebody as entitled to IOIA immunity. [00:37:46] Speaker 05: They wouldn't get it. [00:37:47] Speaker 05: They would have to go through. [00:37:48] Speaker 05: They would be treated as something different. [00:37:50] Speaker 06: So, Mr. Vasquez, under Mandara, which I've expressed some skepticism about that as a [00:38:00] Speaker 06: that we as a court relish. [00:38:03] Speaker 06: But nonetheless, the precedent gives us the task of deciding whether it is in the organization's interest or not to be susceptible to suit in U.S. [00:38:11] Speaker 06: courts. [00:38:12] Speaker 06: And it does seem that there's a lot that the plaintiffs have pointed to in this case that makes it seem like it is susceptible, it is in the interest of the IOC to have enforceable obligations to carry out the undertakings that it [00:38:27] Speaker 06: It itself has said it would adhere to. [00:38:30] Speaker 06: What's your response to that? [00:38:32] Speaker 05: Our response is that it would open up floodgates to all kinds of lawsuits if every single policy that the IFC ever issued was... Is that a legal argument? [00:38:44] Speaker 06: It would open up floodgates. [00:38:45] Speaker 06: We're not rewriting the law. [00:38:46] Speaker 06: We're not rewriting the test. [00:38:47] Speaker 05: We're saying... That's what the lower court said. [00:38:50] Speaker 06: Okay, and I'm just asking you to respond to, so it's not in your interest because it would, because you do so many things that are against your stated commitments that you would be subject to suit everywhere? [00:39:02] Speaker 05: Well, I mean, we agree that what the district court found is that a waiver of immunity for CAO-related cases would not advance IFC's chartered objectives, which is the law, but would impair them substantially. [00:39:15] Speaker 05: And then it said it would open up a floodgate of lawsuits from agreed complaints all over the world. [00:39:20] Speaker 05: And the district court also found that there's little reason to doubt that finding a waiver in CAO-related cases would produce a chilling effect on IFC's capacity and willingness to lend money. [00:39:30] Speaker 05: in developing countries, and that also goes against IFC's charge. [00:39:34] Speaker 06: I mean, candidly, that makes sense to me, that if IFC doesn't want to be sued, it's never going to be in IFC's interest. [00:39:39] Speaker 06: And so that's why I think the Mandar test is a very odd test. [00:39:43] Speaker 06: Nonetheless, it is our circuit's test. [00:39:44] Speaker 06: If we're going to give it any meaning whatsoever, when does it allow suit? [00:39:50] Speaker 06: Why doesn't every suit fall into the argument you're making that it would open floodgates and it would make IFC pull back on some of the undertakings that it otherwise more generously extends? [00:40:01] Speaker 05: Well, there's also other law that where IFC is subject to suit is when it's got direct lending agreements or direct arrangements for in connection with its chartered objectives. [00:40:14] Speaker 01: Suppose you were building a building to put your employees in. [00:40:19] Speaker 01: and you contracted with a architect and contracted with a builder and then refused to pay. [00:40:28] Speaker 01: And you were sued. [00:40:30] Speaker 01: We would conclude there was no way you could... You might wish to get out of the lawsuit, but we would conclude there was no way you could build the buildings and hire architects and therefore do your operations without a waiver there. [00:40:46] Speaker 01: That's your classic case. [00:40:49] Speaker 06: And Mr. Hurst says this is just the same. [00:40:51] Speaker 06: There's no way that you can get community buy-in on projects in the future if you blow it off this time, just like you're never going to be able to hire an architect if when the architect comes calling, you blow off their bills. [00:41:03] Speaker 05: Well, that's not true. [00:41:05] Speaker 06: Because you have the power and the communities don't. [00:41:07] Speaker 05: Well, as part of reviewing whether to take on a project or loan money to it, they don't actually take a project, they loan money to a project because IFC is forbidden for managing these projects. [00:41:19] Speaker 06: Right, you agree to fund a project. [00:41:21] Speaker 06: Yes. [00:41:21] Speaker 06: It becomes part of your portfolio, so you take it in that sense. [00:41:24] Speaker 05: Um, and so the CAO has only been in existence since the year 2000. [00:41:29] Speaker 05: For the 45 years prior to that, there was no CAO, there was no policies that we're talking about here. [00:41:36] Speaker 05: IFC had no trouble finding projects, being able to invest in projects, and didn't think that by creating the CAO, they were somehow creating an avenue for lawsuits. [00:41:47] Speaker 06: Right, probably to the contrary. [00:41:49] Speaker 06: But I think their position is broader that they're saying that you do have a public interest mission and you've always had a view of wanting to get the community buy-in where you're going to do essentially development work, right? [00:42:05] Speaker 06: That predates the CAO. [00:42:07] Speaker 05: Well, the way I see it structured is all of these projects have to be approved by a board of directors, which represents the countries at issue. [00:42:16] Speaker 05: So if a country said, we don't want that project in our country, we certainly wouldn't go there and put a project in it. [00:42:23] Speaker 06: But this idea of the more sort of finely granular community buy-in, where we're going to cite this project, where does that come from? [00:42:32] Speaker 05: That is also done at the project level, and when IFC investigates what to invest in. [00:42:37] Speaker 05: Because another thing that is required is to be in compliance with local law. [00:42:41] Speaker 05: IFC is not going to invest in projects that are not in compliance with their local law. [00:42:48] Speaker 01: If you would take advice from an ex-banker, you might [00:42:53] Speaker 01: respond that at any authorized loan to a project in a country that you would be dealing with, you would find a certain number of people who are against it and a certain number of people who are against it. [00:43:06] Speaker 05: That's correct. [00:43:08] Speaker 05: And that's why, as a general proposition, there is no lender liability. [00:43:11] Speaker 05: That's separate and apart from what we're talking about here. [00:43:17] Speaker 05: I mean, help the court, I think, and I want to enlist Judge Randolph's help, because I think he said something in a prior case that's useful to this court. [00:43:28] Speaker 05: And that issue appears on page 58 in our brief. [00:43:33] Speaker 05: And it goes to some dicta from the Osseron case. [00:43:39] Speaker 05: And I argued that case in front of Judge Randolph. [00:43:42] Speaker 05: He was sitting right where Judge Hildren is about nine years ago. [00:43:45] Speaker 05: And he suggested at that time that it would be helpful if [00:43:51] Speaker 05: organizations like IFC would express a specific desire or as to why they wanted immunity for particular classes of cases. [00:44:04] Speaker 05: And he put that as dicta in his opinion. [00:44:07] Speaker 05: And so [00:44:08] Speaker 05: We prepared this case below. [00:44:10] Speaker 05: To go with that, if you look at the Fadi Zidane declaration cited at JA 319 and 325, in particular, paragraphs 18, 20, 62, and 63, that the IFC explains that [00:44:32] Speaker 05: It did not intend that CAO activities would result in waivers of immunity. [00:44:39] Speaker 05: It feels that this opening of this class of cases would be very detrimental to IFC and hurt its mission. [00:44:50] Speaker 05: And what Judge Randolph said there is, [00:44:54] Speaker 05: We ought to give these agencies some form of deference. [00:44:58] Speaker 05: It would make our job a lot easier as a court if you, international organizations, when presenting your cases, would present that kind of evidence. [00:45:07] Speaker 05: And so we presented that kind of evidence. [00:45:09] Speaker 05: And we think this case presents an opportunity for the court to take that dicta and make it into a new precedent or circuit rule. [00:45:16] Speaker 05: And we invite the court to consider doing that. [00:45:19] Speaker 02: Is one of the objectives of ISC to do no harm? [00:45:24] Speaker 02: other side alleges no that's not that's not part of their chartered objective their chartered objective and frankly that's an impossible standard um i'm just asking whether they've adopted the standard i don't know whether it's impossible or not [00:45:40] Speaker 05: The chartered objectives, which we're about to talk about here, are in the Articles of Agreement. [00:45:45] Speaker 05: And they deal with IFC's mission is to loan money to projects in developing countries. [00:45:52] Speaker 02: Without regard to what the project is and whether it will do any harm in the community? [00:45:56] Speaker 05: Well, that's how they go through and determine which projects to invest in. [00:46:01] Speaker 02: And as I said... So there is a do no harm [00:46:05] Speaker 02: standard that they follow. [00:46:06] Speaker 05: There is well the components are you need approval from the board of directors including the country at issue. [00:46:12] Speaker 05: It needs to be lawful within the country. [00:46:15] Speaker 05: It needs to be it needs to be developmentally sound. [00:46:19] Speaker 01: Is there such a statement anywhere we our projects are limited by the proposition do not harm? [00:46:27] Speaker 05: No I don't believe there is. [00:46:28] Speaker 05: Of course not. [00:46:29] Speaker 06: Is the conduct alleged here in violation, assuming that it were proved in violation of local law or consistent with local law? [00:46:40] Speaker 05: We believe it's consistent with local law. [00:46:44] Speaker 05: We never got that far in this case. [00:46:45] Speaker 05: They raised the claims of nuisance. [00:46:47] Speaker 05: We did put in statements from Indian lawyers on the 12b6 aspect of the motion below who said that their claims should be dismissed under Indian law as well as [00:47:02] Speaker 05: the other law that they argued. [00:47:04] Speaker 05: So I don't know that, I don't think they have a claim. [00:47:08] Speaker 05: We moved to dismiss on the 12-6 basis below. [00:47:11] Speaker 06: And you don't actually think they have a claim in India either. [00:47:15] Speaker 06: You said they should go to India, but you don't think they have a claim in India either. [00:47:18] Speaker 05: They could bring a claim in India, but our Indian law expert said that their claims are- And you would not assert sovereign immunity against that claim? [00:47:27] Speaker 05: We don't have sovereign immunity. [00:47:29] Speaker 06: I mean, International Organizational Media, I'm sorry. [00:47:35] Speaker 05: There's no IOIA in India, so I don't know how it works. [00:47:40] Speaker 06: You hire a new lawyer. [00:47:41] Speaker 05: Yeah. [00:47:42] Speaker 06: But you would be unreachable, no doubt, in that case. [00:47:46] Speaker 06: Would you be reachable given that there's no funding at the at the Project your funding is is seeking to serve that jurisdiction presumably under Indian personal jurisdiction law principles [00:48:00] Speaker 06: You'd be present there. [00:48:01] Speaker 06: The IFC would be present there and susceptible to suit. [00:48:04] Speaker 05: The IFC has an office in India. [00:48:06] Speaker 06: Yeah. [00:48:06] Speaker 06: Well, you said you weren't there. [00:48:07] Speaker 06: So I'm just trying to understand what your response to my question was, which is, would you be susceptible to suit in India? [00:48:16] Speaker 06: Were they to bring a nuisance claim, an environmental degradation claim, some kind of claim? [00:48:21] Speaker 06: Why wouldn't you there be asserting [00:48:24] Speaker 05: There is a possibility of asserting claims against IFC in India. [00:48:31] Speaker 05: In particular cases, IFC might claim immunity or might not. [00:48:35] Speaker 05: I'm aware of another case that was in Belgium where the court ruled that you actually can't sue IFC in Belgium because it doesn't have an office there. [00:48:45] Speaker 05: IFC does have an office in India, so it's possible to sue them there. [00:48:49] Speaker 02: Is there, how far do you go with the waiver? [00:48:51] Speaker 02: If IFC and the borrower are in colludes and the deal really is corrupt, and IFC is aware that what is about to happen is going to be a disaster, and I'm not accusing you of this, I'm just trying to see how far you go. [00:49:04] Speaker 02: And they don't care. [00:49:05] Speaker 02: They understand that the building will not be done right, the environment will be destroyed, people will be hurt, and it can be shown. [00:49:15] Speaker 02: Are they still immune from suit? [00:49:18] Speaker 02: Suppose a borrower is sued. [00:49:19] Speaker 02: Can the borrower join in, join IFC in the suit as a co-defendant? [00:49:24] Speaker 01: Who carried the borrower? [00:49:26] Speaker 02: The borrower. [00:49:27] Speaker 05: Oh, borrower. [00:49:27] Speaker 05: The borrower probably can sue IFC already because there are extensive agreements between any loan agreement and their... Limited to the corrupt situation. [00:49:38] Speaker 02: There's no question. [00:49:40] Speaker 02: Somehow this evidence all comes out. [00:49:43] Speaker 02: They clearly are implicated in the sense that they know what's going to happen will be a disaster. [00:49:51] Speaker 02: and they go ahead anyway. [00:49:54] Speaker 05: I don't think an outside third party plaintiff could sue the IFC directly. [00:49:58] Speaker 05: What could happen though is they could sue the project company on these issues that you've alleged and then they could be implicated under the agreements that IFC had. [00:50:09] Speaker 05: If there was a matching dispute resolution mechanism that could keep you in the same court or arbitration. [00:50:18] Speaker 02: And you think using Armendarro [00:50:21] Speaker 02: test, but they still would avoid. [00:50:26] Speaker 05: Suit. [00:50:28] Speaker 05: I don't think that a third party could sue IFC directly in a case like that. [00:50:32] Speaker 05: And there is a case like that, actually. [00:50:35] Speaker 05: It's called Banco de Seguiros. [00:50:38] Speaker 05: We've cited it. [00:50:38] Speaker 05: It's in the Southern District of New York, in which plaintiffs in Uruguay brought a case against IFC on the grounds that IFC had conspired with an Uruguayan bank. [00:50:50] Speaker 05: And the ruling was IFC was immune from that. [00:50:54] Speaker 05: You could sue the bank. [00:50:56] Speaker 05: go after people in Uruguay, but in terms of a third party trying to bootstrap and get around that immunity, no, that immunity is preserved in that circumstance, and that's a direct application of Maduro. [00:51:14] Speaker 06: Thank you, Mr. Basmas. [00:51:16] Speaker 05: Thank you. [00:51:18] Speaker 06: Mr. Herz, you reserved, you sought to reserve time, but you actually used all your time, and we'll give you two minutes. [00:51:31] Speaker 04: So, Your Honor, on waiver, all we're asking is for the court to actually apply the Mandaro test. [00:51:36] Speaker 04: And what I heard from my colleague is that they want to eviscerate the Mandaro test in two ways. [00:51:41] Speaker 04: First, they want this court to defer to them to their view of whether this case will help them. [00:51:48] Speaker 04: This court has never done that. [00:51:50] Speaker 04: It's always exercised its own independent judgment. [00:51:52] Speaker 04: And that's for an obvious reason, because they are always going to come in here and tell you that the sky will fall if they can be sued. [00:51:59] Speaker 04: And that's why this court has never deferred [00:52:01] Speaker 04: and should not now defer to what they're telling you will be the effect. [00:52:06] Speaker 04: What the court should look at is their actual policies, and that provides the answer. [00:52:11] Speaker 04: The other way they want to eviscerate the Mandara test is they want it to be that only the borrower, people like the borrower, [00:52:18] Speaker 04: have waived. [00:52:19] Speaker 04: But the borrower is in a real position with the IFC. [00:52:24] Speaker 04: They can put in their contract that there's some sort of remedy if things go south. [00:52:30] Speaker 04: But our clients were [00:52:33] Speaker 04: They were just neighbors. [00:52:34] Speaker 04: They had no influence over the IFC. [00:52:37] Speaker 04: There's nowhere for them to turn. [00:52:38] Speaker 04: There's nothing they could have done beforehand to prevent the IFC from harming them. [00:52:42] Speaker 04: There was supposed to be, because there was supposed to be a broad community support requirement, but they didn't follow it. [00:52:48] Speaker 01: Why would they sue the project in India? [00:52:56] Speaker 04: It's I'm not sure that there is no such suit, but but it is abundantly clear that there isn't that given the realities of the justice system in India, that that is not a viable one because it takes forever because it is seen at least if not actually seen as corrupt and in favor of huge multinational huge conglomerates like Tata Mundra on us to assume that [00:53:23] Speaker 01: the judiciary in India is corrupt? [00:53:25] Speaker 04: No, because I think it's completely, I think it doesn't matter. [00:53:29] Speaker 04: There's nothing about either the waiver provision or the IOA under which jurisdiction turns on whether we can sue the conglomerate elsewhere. [00:53:40] Speaker 04: Maybe we can, maybe we can't, but it's just not a deciding factor. [00:53:46] Speaker 04: On the question of the timing of the Supreme Court cases, the last [00:53:53] Speaker 04: The last decision of this court on the ILA was Neambal. [00:53:58] Speaker 04: Bank Marchese, which is a Supreme Court case, came out after that, which also said immunity in 1945 was not absolute. [00:54:05] Speaker 04: And this panel in Hurani also said that immunity in 1945 was not absolute, after Neambal, after Atkinson. [00:54:13] Speaker 04: And let me just talk for just a second at my last point about the history of this. [00:54:18] Speaker 04: There's – you know, Mr. Vasquez wanted to portray that there was sort of this background idea of immunity for international organizations. [00:54:26] Speaker 04: It was actually exactly the opposite. [00:54:28] Speaker 04: The U.S. [00:54:29] Speaker 04: government took the position from the beginning in 1945 that international organizations had no immunity. [00:54:36] Speaker 04: And the organizations came in and said, wait, we're a collection of states. [00:54:40] Speaker 04: Treat us like states. [00:54:42] Speaker 04: And so they came out with the International Organizations Immunity Act. [00:54:46] Speaker 04: And the first draft said, and I'm quoting this, that organizations, quote, shall enjoy immunity from soup. [00:54:54] Speaker 04: That was stripped out. [00:54:56] Speaker 04: And instead, they put in the provision that said that immunity should be exactly what states get, as is enjoyed by states. [00:55:04] Speaker 04: They gave, the United States gave international organizations exactly what they asked for. [00:55:10] Speaker 04: And the Supreme Court has said in cases like Chickasaw Nation that where Congress strips out a provision, in this case, an absolute immunity provision, the court shouldn't be trying to read it back in. [00:55:24] Speaker 04: So the one thing we know about the structure and history of the International Organizations Immunity Act is that it does not afford [00:55:32] Speaker 04: absolute automatic immunity. [00:55:35] Speaker 06: If we were to take the case en banc over rule, Atkins give you FSI Atkinson, get you, I knew as I was saying it, I was saying it wrong, then you, I mean it would presumably have to be further briefing on commercial exception or direct effects or any exception under the Foreign Sovereign Immunities Act? [00:55:58] Speaker 04: Potentially, but Your Honor, they had the chance to raise that in the district court and they didn't, and they had the chance to raise it here and they didn't, and it squarely presented. [00:56:04] Speaker 04: Because, you know, the question is, okay, Mr. Hirsch, you're correct. [00:56:09] Speaker 04: There's a commercial activity exception. [00:56:13] Speaker 04: If I were in their shoes and I actually believed there was a commercial activity argument, I would have said, even if they are right all along the line, you don't win under commercial activity. [00:56:21] Speaker 04: And in fact, that's the way this court decided broadband. [00:56:25] Speaker 04: It said that we don't have to decide the question. [00:56:27] Speaker 04: of what the scope of meaning is, because it doesn't matter. [00:56:30] Speaker 04: There's no commercial activity here. [00:56:31] Speaker 04: And in Atkinson, the court gave a separate reason that it didn't matter, because there was no commercial activity. [00:56:37] Speaker 04: All right. [00:56:38] Speaker 04: Thank you. [00:56:38] Speaker 04: The case is submitted. [00:56:39] Speaker 04: Thank you, Your Honors.