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Case number 18-7040, DNS Consulting, Inc., ESCI, a New Jersey Corporation appellate versus Kingdom of Saudi Arabia, His Excellency Adel Ben Ahmed al-Jubeir, Minister of Foreign Affairs.

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Mr. Sternberg for the appellate, Mr. Pan for the appellate.

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Thank you, Madam Clerk.

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Good morning.

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Good morning, Your Honor.

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Good morning.

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Richard Sternberg on behalf of DNS Consulting, which I'll refer to as DSCI often.

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We begin by addressing the Court's per curiam reference to Asimov case, because it is surely determinative in this case.

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The case starts with a substantial presumption in favor of the plaintiff's foreign selection, citing MBI, which was decided by two members of this court.

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Step one in that analysis is for the court below to have determined whether this is mandatory or permissive.

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But that matter is a matter for de novo review by this court in Asimov and Section 382.

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The court accepts plaintiff's complaint in the light most favorable to the plaintiff, also referred to in Asimov citing Xi.

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The court defines mandatory as requires that litigation proceed in a specific forum.

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Permissive is it allows but does not bar.

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Well, looking at some of the examples, in the asthma case itself, the language was the parties submit to the exclusive jurisdiction of the courts of England and Wales.

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In the MS Bremen case, it's any dispute must be treated in merit.

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And here it shall be assigned, right?

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I'm sorry, what?

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Shall be assigned.

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No, grievance counsel, not shall be assigned.

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It's not that the case shall be assigned.

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That's the point.

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That the grievance counsel shall be assigned.

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The shall is not operative for where the hearing will occur.

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It's no different in language.

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What does it mean to assign the, whatever you said, to the

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grievance counsel.

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Well, similar to the contrary.

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I'm sorry.

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What is assigned to the grievance counsel?

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That a grievance counsel shall be assigned.

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The case is not assigned to the grievance counsel.

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The grievance counsel shall be assigned.

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It shall be assigned to any case.

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Pardon me, Your Honor.

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It says to any case arising under this case.

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The grievance counsel shall be assigned.

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The grievance counsel is the operative noun there.

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So if it says the panel of the DC Circuit shall be assigned,

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That would not be, I would think that is not the same language.

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If the case, what the language in asthma says is that permissive is allows but does not bar.

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So I'm looking for language that bars.

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Yeah, but you have to read the rest of the sentence.

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It says that Shelby is signed for settlement of

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any disputes arising under the execution of this contract?

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I think that's substantially different than the language shall be settled by the Greek courts.

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I think that's substantially linguistically different, and indeed, I write language like that when I write employment contracts.

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And all I'm doing is creating a grievance process.

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Your whole case depends on this argument, right?

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No, it does not, Your Honor.

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It doesn't?

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Because the district court and the defendant here say that

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you know, that if it is, if we think it's mandatory, you don't make any public interest argument at all.

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Is that true?

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No, Your Honor.

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No, Your Honor.

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The analysis... Where do you make a public interest argument?

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Oh, I'm sorry.

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I'm only half hearing you, Your Honor.

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I'm sorry.

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Oh, I'm sorry.

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The defendant says that

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that and the district court said that you made no argument that if this is mandatory that it's outweighed by the public interest.

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What we focus on instead your honor is step two of the analysis in asthma and that is that even if it is permissive

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The standard goes to the fourth step in the asthma analysis, even if permissive.

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But I'm asking you, suppose it's not permissive.

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Suppose we think it's mandatory.

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I'm sorry.

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Even if it's mandatory.

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Then what?

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If it is a mandatory clause, I simply said it backwards.

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In a mandatory clause, we go through a fourth factor analysis as to whether we're required to go to that forum.

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And the fourth factor is so gravely difficult and inconvenient that plaintiff will, for all practical purposes, be deprived his day in court.

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And that language is what we need a factual finding on.

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We have argued in the court below, and as we argue in our briefs here, that we can't meet that standard, that there's no transparency, there's no legal framework for resolving commercial disputes.

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There's no starting to ceases.

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It applies Sharia law.

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It's lengthy and unpredictable.

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All of those things are provided with substantial citations.

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Furthermore, unlike the care and caution taken by the trial court in the MBI case, the trial court refused to address the fact that DSCI has no standing in Saudi Arabia.

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They cannot appear.

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They cannot sue before the grievance council because it's a U.S.

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entity.

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They have no standing?

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Correct.

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One, we cite in the materials that as a U.S.

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corporation they cannot sue there.

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Furthermore, they can't enter the country.

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The furthermore, the kingdom's law discriminates against non-citizens, which is both the corporation and its counsel.

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Performance was done in the country, right?

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Excuse me?

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Performance was done in the country.

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That's correct.

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Performance was done in Saudi Arabia.

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Our claim is therefore under the Foreign Sovereign Immunities Act.

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I think that's a jurisdictional issue, Your Honor.

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The performance is outside.

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I'm misunderstanding you.

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If it's mandatory, then all of those private

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considerations fall out, and the only question are the public factors, correct?

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No, that is not what asthma says, Your Honor.

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What asthma says is, if it is mandatory, there is then a four-factor analysis.

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This is in asthma at page seven, citing MS Bremen, which, of course, Your Honor is familiar with.

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And the language specifically is, even if it's mandatory, even if it's mandatory, so gravely difficult and inconvenient, the plaintiff will, for all practical purposes, be deprived of stay in court.

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And in fact, we are deprived that day in court.

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Anybody non-practicing Muslims are also barred in these hearings.

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Other religions, like Jewish lawyers from Maryland, are barred from these proceedings.

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Further, we filed supplements in the court below that we thought were not on factual issues here, so we didn't include them in the record.

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But the administrations changed in the kingdom since the contract was signed by DSCI.

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the kingdoms and prisons and tortured businessmen who were making claims for payment just like DNS Consulting is making here.

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The claimants were held in the Ritz-Carlton Riad and reported some substantial injuries, including death.

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Creditors were held there?

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Yes.

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That's my understanding of the articles I've read.

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And we provide citations to that in the record below.

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But we've had no factual hearing on that point.

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We'd also like to know about another person who complained about the transparency of the process in the kingdom and disappeared in the Turkish embassy and was chopped up into little pieces and dissolved in this nasty scene out of a breaking bed.

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And this court would send us there to try this case.

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The court below would send us there to try this case.

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Your first argument is that it's mandatory rather than permissive.

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My first argument is that it's permissive, not mandatory.

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I'm sorry, this permissive is not mandatory.

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But on that issue, suppose that the Foreign Selection Clause said the agreements counseled shall be assigned for settlement of any and all disputes instead of just any disputes.

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Would you, at that point, would you say that it's mandatory?

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Well, I think that case would be an interesting case to discuss what is excluded.

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But the language in the asthma case is that it must be... No, but I'm talking about the language in this case.

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So it says, the grievance counsel shall be assigned for settlement of any disputes.

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That's what the selection clause says, right?

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A grievance counsel shall be assigned.

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Okay.

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I thought it said the, but that's the district court says the grievance counsel shall be assigned for settlement of any disputes or claims.

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And my question is, what if it says,

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the grievance counsel shall be assigned for settlement of any and all disputes or claims.

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I would certainly, where I make a decision on what that means, I think what asthma means is I need to see two elements for it to be permissive.

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I need to see an assignment, and I need to see an exclusion.

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So even if it said any and all, as in every dispute?

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I might lose that case, but that's not this case.

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Okay, but then everything turns on whether it includes or all.

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And so what's the difference between any disputes and any or all disputes?

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Because it seems like if it says any disputes, it means every dispute.

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I think what I need in the asthma case is a statement first of where to go.

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And I don't think that clause at all, but I hear the court not hearing that.

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First, I need to hear an assignment of not a process, but of a forum.

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And then I need the exclusion of the others, like the language, exclusive, or must be treated, or shall be settled.

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So I don't really think that even if you add an all, I think what you'd have to have in there is exclusively by, or not in the United States, and something else.

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I'm looking for it in the language of asthma.

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the two elements.

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But importantly, since I may not be winning that point, even if I am in a mandatory clause,

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The asthma court refers to the fact that the trial court should be making a factual finding as to whether element four is met.

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And there is no such finding.

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We asked for such a hearing.

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We provided more than a good faith basis in the briefings.

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We provided State Department's findings of that nature, as well as other references from the CIA Factbook.

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And we did not get that hearing.

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The question becomes whether it's available and adequate, which is presumed if it's a mandatory, or whether it's accessible and able to afford relief, which is the language of what happens if it's a mandatory cause.

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And then in asthma at page eight,

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If the preselected form is substantially deficient, for instance, because it is effectively inaccessible or unable to afford the plaintiff any relief, then the clause is not enforceable.

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That's absolutely a mandatory setting.

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If that sentence is to have meaning from this court, it must have meaning in this case.

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Mr. Sternberg, you're out of time.

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I'm showing one minute, 20, 30.

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You're over your time.

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Good morning.

[00:12:17] Speaker 05:
My name is Alexandra Chopin, and on behalf of the Kingdom of Saudi Arabia, may it please the court

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Raqiya actually ratifies the decision of the district court to dismiss for forum nonconvenience for three key reasons.

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First, the forum selection clause here is mandatory because it states that any claim shall be assigned to the Saudi Board of Grievances.

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Shall means shall.

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Second, the district court did not need to ask whether the Saudi Board of Grievances was an adequate, available, or best for the party's private interest type of forum, because the parties had already agreed that the Saudi Board of Grievances is available and adequate.

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And third, even if the forum selection clause is permissive, Saudi is still the best forum.

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because the Kingdom has waived its sovereign immunity as to any claim on this contract in the Board of Grievances, and the entire contract was performed in Saudi, which is also where all of the witnesses and records are located.

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Generally, as I hear the Court's questions, they focus in on the language of the Forum Selection Clause, and appropriately so.

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And we would emphasize that this clause contains not only language of mandate, which is really the court's instruction, regardless of the specific language itself.

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What the court is looking for, both in Mara and in Raqiya, is language of mandate.

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And here we have that, shall.

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But we also have breadth, and that is what Bremen speaks to, that we look to the all-encompassing nature of this forum selection clause

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which again tells us that it is mandatory.

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The court is correct when it asks, you didn't make any public interest argument, did you counsel for DSCI?

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The answer is no.

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In fact, as the district court recognized,

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There is no argument whatsoever as to the public interest factors.

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But on top of that, and critically, there is no evidence in the record whatsoever to substantiate any of the allegations.

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And they really are generalized allegations based on media reports.

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What could a party show under the public interest analysis to overcome a mandatory clause?

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a party, sir, or DSCI?

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I mean, what could a defendant show?

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What could the party show, in any case, where there's a mandatory clause like, let's assume it's mandatory?

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Sure.

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What would a public interest finding be that would overcome that?

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Well, the court has given us some examples.

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So for example, in the Menendez case, where we saw a bar by the United States on accessing Cuba,

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or, for example, if there were some other foreclosure in the Kingdom of Saudi Arabia barring entry to DSCI.

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But again, there's no evidence in the record.

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What about his argument that it has no standard?

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That's simply incorrect.

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In fact, the mandatory informed selection clause here makes it clear that the party's intent at the time of contracting was that any claim whatsoever on this contract would be brought in

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And so there is an effective way to get to any claim on this contract.

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But I think his argument, your colleague's argument on the other side, is not necessarily that it's incorrect or correct.

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It's that they haven't had a determination of whether it's correct or incorrect.

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As to the adequacy of the forum?

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Yeah.

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The district court did not need to make a determination as to the adequacy of the forum.

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Because when the clause is found to be mandatory, as it was in this instance,

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the party's bargain is in all but the most unusual cases respected by the court.

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But there is this language in Azima that invokes this fourth factor.

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Even in a mandatory case, the trial in the contractual form would be so gravely difficult and inconvenient that the plaintiff will, for all practical purposes, be denied to stay in court.

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And if the court will forgive me, I've come to refer to the cases, Rakia.

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Perhaps that's the focus on the sovereign in me.

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In fact, that analysis comes as part of the validity and enforceability part of the analysis.

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So in this court, Rakia makes clear that the initial analysis by the circuit court is a de novo one on the applicability, the enforceability, the validity, and the mandatory nature of the contract.

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And within that analysis, there's a binary question that gets asked, yes or no.

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Is the foreign so gravely inconvenient

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that you are effectively denied any remedy whatsoever.

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There is no dispute in this case whatsoever as to enforceability or validity.

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In fact, it's only about the mandatory nature.

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That analysis is not the same as the adequacy of the form.

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In fact, that's quite a low bar on adequacy.

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And in fact, there are many courts that have already held around the country that the Saudi board of grievances is an adequate one.

[00:17:41] Speaker 00:
But the adequacy, you said, is different from this fourth factor.

[00:17:45] Speaker 05:
It is.

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It is.

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And so first, there's no dispute in this case as to validity and enforceability.

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Within the context of that question, if there were one in this case about a validity and enforceability, then it would be appropriate for the court to ask, is the forum so gravely inconvenient that there is no remedy for DSCI?

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DSCI has made no argument to that effect in the district court or here on appeal.

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They are conflating adequacy of the forum with that validity enforceability inquiry.

[00:18:17] Speaker 00:
And what you're saying is the threshold validity enforceability question is spoken for.

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It's satisfied.

[00:18:22] Speaker 05:
It's certainly satisfied.

[00:18:24] Speaker 00:
And was never disputed?

[00:18:24] Speaker 05:
It was never disputed.

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But on top of that, to the extent that the court is making a de novo review, the contract is the best evidence for the adequacy of the forum.

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I'm sorry, for the validity.

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and reach, the ability to reach that forum.

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Beyond that, there are numerous decisions of the district courts around this country and ones that have been affirmed in addition by both the Fifth and Seventh Circuits that the Saudi Board of Grievances is accessible.

[00:18:57] Speaker 03:
If the district court were to dismiss this case with an order, holding the dismissal in abeyance for a period of

[00:19:07] Speaker 03:
six months or three months or something, within which the plaintiff can file or seek a remedy before the grievance counsel.

[00:19:15] Speaker 03:
Would the kingdom object to that?

[00:19:22] Speaker 05:
I would submit that there's no reason to do so, Your Honor, because there's already a submission to that tribunal by the kingdom.

[00:19:31] Speaker 03:
on top of that really flies in the face of what... If you think that the forum is adequate and dismiss the case and then it turns out for reasons or any one of the reasons that the plaintiff here has deduced from the public media that it's unable to pursue a remedy, the advocacy question will be raised here.

[00:19:57] Speaker 05:
Well, in that event we would invite the

[00:20:01] Speaker 05:
a plaintiff appellant to move to reopen the judgment, but to do otherwise would really – Reopen which judgment?

[00:20:09] Speaker 04:
I'm sorry.

[00:20:09] Speaker 04:
Reopen which judgment?

[00:20:10] Speaker 05:
The decision of the district court below.

[00:20:12] Speaker 05:
The FSAIA is designed to save the Kingdom of Saudi Arabia that very kind of burden where it must hold this case open while it sees – while the

[00:20:22] Speaker 05:
plaintiff-appellant begins to do the job it should have done in the district court.

[00:20:27] Speaker 05:
Instead, the FSIA, the decisions implementing it here, including Owens, says that really the FSIA is meant to save not only decisions of the US courts, but litigation in the US courts, and that

[00:20:43] Speaker 05:
As the moving party on the forum non-convenience motion to dismiss, the Kingdom of Saudi Arabia was entitled to pursue the, quote, most cheaply decisive, that's this court's words in Inrei Papandreou.

[00:20:56] Speaker 05:
We were not subjected, I'm sorry, we were not expected to keep the decision open while the SCIC sees if it can find some evidence to show that it's not able to access the forum, which clearly it is able to do.

[00:21:12] Speaker 03:
Okay, thank you.

[00:21:15] Speaker 03:
What circuit has appell the claim that the defense, that the Grievance Council is out of?

[00:21:23] Speaker 05:
There are a number of cases cited in our brief.

[00:21:26] Speaker 03:
Any circuit, please?

[00:21:27] Speaker 05:
Yes.

[00:21:27] Speaker 05:
On page 24 of our brief, we discuss UNC Weir, in which the Fifth Circuit affirmed a finding under forum nonconvenience that the Board of Grievances is an adequate forum.

[00:21:39] Speaker 05:
In addition, the Seventh Circuit

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in Camel, which is K-A-M-E-L, at 108 F-3rd, 799, affirmed a dismissal under Form 9 convenience for the same reason.

[00:21:54] Speaker 04:
Thank you.

[00:21:55] Speaker 05:
Thank you.

[00:21:56] Speaker 04:
Thank you.

[00:21:56] Speaker 04:
Mr. Sternberg, you are out of time, but you could take one minute if you would like it.

[00:22:01] Speaker 02:
Thank you, Your Honor.

[00:22:07] Speaker 02:
As my learned opponent has conceded, the district court did not decide the factual issue of whether the forum was available and adequate.

[00:22:20] Speaker 02:
Or, I'm sorry, the better term is accessible and able to afford relief.

[00:22:25] Speaker 04:
Well, isn't that because the district court thought it was mandatory?

[00:22:33] Speaker 02:
If this court concludes that, I may disagree with that, but that's for this court to decide to no vote.

[00:22:39] Speaker 02:
If the court decides that, there is still the second standard.

[00:22:42] Speaker 02:
There is still stage four.

[00:22:43] Speaker 02:
There is still the language I've quoted a couple of times that even if it is a mandatory provision, the court needs to make a finding.

[00:22:52] Speaker 02:
as to whether the, not as to whether it's a, I'm sorry, slightly different language between the two, but difficult, so gravely difficult and inconvenient that, and it's available and adequate.

[00:23:09] Speaker 02:
The, and even just to summarize, not to run out of time, the- You just did, but go ahead.

[00:23:15] Speaker 02:
Thank you, Your Honor.

[00:23:18] Speaker 02:
The Court should apply the factors and conclude the language as permissive, but regardless of that, remand for further fact-finding.

[00:23:25] Speaker 02:
The fact is neither DSCI, Ms.

[00:23:27] Speaker 02:
Chopin, Mr. Berger, myself, or the members of this Court would have standing.

[00:23:32] Speaker 02:
And you will, in fact, be deciding the merits of this case.

[00:23:36] Speaker 02:
And that's not your job.

[00:23:37] Speaker 02:
Okay.

[00:23:38] Speaker 04:
Thank you both.

[00:23:38] Speaker 04:
The case is submitted.

[00:23:39] Speaker 04:
Thank you, Your Honor.

[00:23:40] Speaker 04:
Call the next case, please.