[00:00:04] Speaker 00:
process and industrial developments related versus the Federal Republic of Nigeria at health balance.

[00:00:12] Speaker 00:
Mr. Pizoro for the balance.

[00:00:14] Speaker 00:
Mr. King for the evaluation.

[00:00:17] Speaker 00:
Good morning, Mr. Pizoro.

[00:00:18] Speaker 01:
Good morning, Your Honors.

[00:00:24] Speaker 01:
May it please the Court?

[00:00:25] Speaker 01:
My name is Joseph Pizoro, President of the Republic of Nigeria and its Ministry of Petroleum Resources.

[00:00:35] Speaker 01:
Your Honor, the fundamental attribute of sovereign immunity is that until the United States Court has determined that the state is not entitled to sovereign immunity, it may not order that sovereign to take any action other than that which is necessary to make the jurisdictional determination.

[00:00:54] Speaker 01:
And that is why, from the Verlinden case over 35 years ago to the Hemeluk and Payne case in 2016, the Supreme Court has repeatedly stated that the foreign sovereign is entitled to a threshold determined with sovereign immunity.

[00:01:10] Speaker 01:
That requirement is not based solely on or even primarily on a litigation burden which is imposed on the state in responding to an order of the court.

[00:01:22] Speaker 01:
It is based on the fundamental dignity that each foreign sovereign has as a co-equal with all other sovereign entities, including the United States.

[00:01:32] Speaker 01:
And that's set forth in the decision cited at page seven of our reply brief, Franchise Board of California v. Hyatt, and the Puerto Rico Aqueduct and Sewer theory.

[00:01:42] Speaker 03:
The district court seemed to think that the Termo Rio decision counseled differently.

[00:01:48] Speaker 03:
Why is that not the case?

[00:01:50] Speaker 01:
Your Honor, in Termo Rio, the only issue before the court that... Let me back up.

[00:01:57] Speaker 01:
The district court felt that somehow, because this is a proceeding that was brought under the Federal Arbitration Act, that Section 6 of the Act, which requires that applications be made and heard as motions, somehow altered this calculus and the sequencing of the immunity determination and looked to the Termo Rio case.

[00:02:16] Speaker 01:
The Termo Rio case did affirm the fact that

[00:02:19] Speaker 01:
applications ought to be heard as motions, but did not address in any way the issue of sovereignty, whether the threshold determination required by the Supreme Court was impacted.

[00:02:29] Speaker 01:
The Court did go on to reject an argument that Rule 12b6 was not available to dismiss that action, because under the technical pleading requirements, there was some alternative avenue for recovery, because of the permissive language versus the

[00:02:48] Speaker 01:
mandate language in the U.N.

[00:02:51] Speaker 01:
Convention and the Federal Arbitration Act.

[00:02:54] Speaker 01:
But the court said nothing about the particular issue here.

[00:02:58] Speaker 01:
The district court recognized that this procedural posture is significantly different from termoreo, recognized that in the original decision and recognized that in the court's decision in refusing to dismiss the appeal as frivolous.

[00:03:11] Speaker 01:
So Termo Rio really doesn't address this issue at all.

[00:03:14] Speaker 01:
Termo Rio doesn't say that because Section 6 of the Federal Arbitration Act requires applications to confirm and enforce arbitral rewards, shall be heard as a motion, means that the court can require a foreign sovereign to address the merits of the case before the court has determined that sovereign immunity is or is not appropriate.

[00:03:35] Speaker 03:
What if the district court had said, look, to expedite

[00:03:41] Speaker 03:
resolution of this, and just for my own kind of efficiency and case management purposes, I want you to brief sovereign immunity and the merits, so to speak.

[00:03:58] Speaker 03:
And what I'm going to do is I'm going to rule on sovereign immunity first.

[00:04:03] Speaker 03:
And if I grant sovereign immunity, then the case goes away.

[00:04:09] Speaker 03:
And if I'm going to deny it, I'll allow you to appeal that.

[00:04:16] Speaker 03:
But I just want to do all the briefing together.

[00:04:19] Speaker 01:
I understand.

[00:04:20] Speaker 01:
What would be wrong with that?

[00:04:21] Speaker 01:
What would be wrong with that is that the court is ordering the sovereign to do something in advance of the determination of sovereign immunity.

[00:04:28] Speaker 01:
The sovereign, in many cases, the sovereign has chosen to raise its merits defenses along with its jurisdictional defenses.

[00:04:35] Speaker 01:
And it certainly has that.

[00:04:37] Speaker 01:
has that ability.

[00:04:38] Speaker 01:
But the court does not have the ability to order the sovereign to do so.

[00:04:43] Speaker 01:
So the order that your honor posits would violate sovereign immunity.

[00:04:48] Speaker 01:
However, the idea that if all of those issues were brought to the court in the first instance and the court were to deny, if they were all brought to the court in the first instance, the district court would be on immunity issue first, if the sovereign

[00:05:07] Speaker 01:
sovereign immunity issue were denied, then it would be obligated to permit an interlocutory appeal under the collateral order doctrine.

[00:05:15] Speaker 01:
It would be divested in the jurisdiction until the foreign sovereign had a definitive appellate determination of its sovereign immunity.

[00:05:22] Speaker 00:
Mr. Pizaro, I understand your position to be that the briefing on the non-sovereign immunity issues is the burden.

[00:05:33] Speaker 00:
And what I'm curious about is there is some ambiguity in the way our cases talk about litigation burdens.

[00:05:41] Speaker 00:
It is clear that the immunity is not just immunity from liability.

[00:05:46] Speaker 00:
It is immunity from suit.

[00:05:49] Speaker 00:
And cases have talked about discovery and trial, perhaps even the answer.

[00:05:56] Speaker 00:
But my question is, is there any case that talks about the burden of lawyers briefing?

[00:06:04] Speaker 00:
And do you see the distinction I'm making?

[00:06:06] Speaker 00:
The client, in fact, doesn't have to do anything as a factual matter if the lawyer is coming and saying, here are the legal defenses.

[00:06:15] Speaker 01:
Well, to answer your honest first question, am I aware of a court that has addressed this particular issue, exactly briefing?

[00:06:22] Speaker 01:
I am not.

[00:06:23] Speaker 01:
I think this is a case of first impression.

[00:06:25] Speaker 01:
The cases of which we are aware are the cases cited in the briefs, which include

[00:06:29] Speaker 01:
having to file an answer.

[00:06:31] Speaker 01:
That happened in the Butler case in the 11th Circuit.

[00:06:33] Speaker 01:
It actually happened in this court in the Price and Fry case, in which there was an order.

[00:06:39] Speaker 01:
And this is set out completely, actually most clearly, in the plaintiff's brief at page 25, where the sovereign defendant was ordered to file an answer before the issue of sovereign immunity would be addressed, and there were some discovery requests that went along with it.

[00:06:58] Speaker 01:
Mandamus was applied for and immediately granted by the court.

[00:07:00] Speaker 01:
And the district court was told that it had to determine the issue of sovereign immunity before it could order an answer.

[00:07:05] Speaker 01:
Now, the notion that the actual laboring war is undertaken by the lawyers for the sovereign as opposed to the sovereign itself, I don't think that's a meaningful distinction.

[00:07:16] Speaker 01:
Obviously, the sovereign as a client is still under some obligations to assist counsel in the defense in presenting what's ever necessary.

[00:07:25] Speaker 01:
They have to pay.

[00:07:26] Speaker 01:
I mean, the burden is there.

[00:07:29] Speaker 00:
It's my understanding, though, that there is no case in this circuit where there was an interlocutory appeal allowed under the collateral order doctrine, where there was no order by the district court denying the immunity and requiring the case to go forward.

[00:07:48] Speaker 00:
There was an order actually saying, I see you've claimed sovereignty.

[00:07:51] Speaker 00:
No.

[00:07:52] Speaker 01:
No, I think the Price case is an example of one where the court, in effect, deferred the decision on immunity.

[00:07:59] Speaker 01:
The court didn't say you don't have immunity.

[00:08:01] Speaker 01:
The court said, I'm not going to decide the issue of immunity until you've filed your answer.

[00:08:06] Speaker 01:
That's exactly what happened in the Butler case in the 11th Street, where the court deferred the issue.

[00:08:13] Speaker 01:
So the issue isn't whether or not you require a denial

[00:08:18] Speaker 00:
As I read Butler, there was an order that denied immunity in favor of allowing plaintiff jurisdictional discovery, and then the court appeals said, no, that discovery is not even relevant to immunity, so that's wrong.

[00:08:33] Speaker 00:
But there was an order denying a request for immunity.

[00:08:36] Speaker 01:
Effectively, it did, Your Honor, but it was effectively a deferral, because it wasn't denied with prejudice.

[00:08:41] Speaker 01:
It wasn't the conclusive determination of denigration in the case.

[00:08:44] Speaker 01:
The sovereign would have been entitled to raise that again once it had done what the district court had ordered it to do, and it was that that the 11th Circuit took issue with.

[00:08:54] Speaker 00:
And you said Price was your other case?

[00:08:56] Speaker 01:
The Price case is a case, all of this, it's a little difficult to, because there isn't a real written opinion, but I do, I again would say that the plaintiffs did a very nice job of laying out exactly what happened at page 25 of their brief.

[00:09:10] Speaker 01:
in which Libya, which was the defendant, had been ordered, after some litigation conduct that may or may not have been dilatory, sort of beside the point, that the District Court, I guess at one point, threw up tans and said, you know, file your answer, and then I'm gonna, you know, we'll get to sovereign immunity, but you're gonna file your answer, and you're gonna comply with these discovery requests.

[00:09:30] Speaker 01:
And Mandamus was issued, ordering the District Court to determine the issue of immunity before the answer needed to be filed.

[00:09:37] Speaker 00:
You mentioned Mandamus, and one question I have is,

[00:09:40] Speaker 00:
Why would we recognize a collateral order, a category of appeal available under the collateral order doctrine when what we've seen is ordinarily without an order denying immunity, no appeal.

[00:09:57] Speaker 00:
In the case where the burden might be extraordinary, there's always mandamus as a backstop, and in fact, it's been used.

[00:10:04] Speaker 01:
Yes, Your Honor.

[00:10:05] Speaker 01:
But in those cases, there wasn't any effective alternative vehicle that the defendant, the Southern defendant, had at its disposal.

[00:10:12] Speaker 01:
Here, we did, because the District Court recognized that it had been divested of jurisdiction and basically said, we're not going to take any more action until

[00:10:20] Speaker 01:
this is resolved on the appeal.

[00:10:23] Speaker 01:
And as we cited the Cheney case, which is to the effect that mandamus will be denied if there is some other effective vehicle for review.

[00:10:33] Speaker 01:
So it was, could we have asked for mandamus?

[00:10:37] Speaker 01:
We could have, but we ran the risk that it would have been denied because the appeal was a sufficient vehicle to address the issue and preserve the rights of the sovereign.

[00:10:47] Speaker 04:
But collateral order doctrine

[00:10:50] Speaker 04:
requires these issues to be resolved on a categorical basis, right?

[00:10:59] Speaker 04:
We don't look to the burden in an individual case.

[00:11:05] Speaker 01:
Correct, Your Honor.

[00:11:06] Speaker 04:
So why wouldn't if we're talking about how a district court is structuring its briefing orders.

[00:11:18] Speaker 04:
And you make a fair point that that could implicate to one degree or another an immunity, but it's on the margin.

[00:11:30] Speaker 04:
And what would be wrong with saying that mandamus is the vehicle if the district court does something really off the wall, you come up and seek mandamus, but you don't get

[00:11:44] Speaker 04:
a de novo appeal as a matter of right for every pedestrian briefing order?

[00:11:54] Speaker 01:
Your Honor, that's the central question here.

[00:11:57] Speaker 01:
Is this briefing order that we're talking about by the district court a conclusive determination or violation of the right of the sovereign to its immunity?

[00:12:07] Speaker 01:
If the answer to that is yes, if the sovereign cannot be compelled

[00:12:13] Speaker 01:
to take any action that's otherwise unnecessary to a determination of sovereign unity, and that's the court's own subject matter jurisdiction, then any order, no matter how invasive or how burdensome, becomes a violation.

[00:12:26] Speaker 01:
And it is that which is before the court.

[00:12:27] Speaker 01:
That has been conclusively determined.

[00:12:30] Speaker 01:
And that's why the issue in this case of both the applicability of the collateral order doctrine in this court's jurisdiction and the merits of the appeal

[00:12:41] Speaker 01:
Because if we're correct, that the order is a violation of immunity, then the collateral order doctrine does apply, and the order must be reversed.

[00:12:54] Speaker 04:
Your position would be the same for any non-sovereign immunity issue.

[00:13:03] Speaker 04:
So district court couldn't say,

[00:13:06] Speaker 04:
I won't get into the merits, but I want joint briefing on all threshold non-merits grounds, form non-convenience or discretionary abstention or grounds like that.

[00:13:17] Speaker 04:
District Court couldn't do that.

[00:13:20] Speaker 01:
Correct, Your Honor.

[00:13:20] Speaker 01:
That would be our position.

[00:13:22] Speaker 04:
And the District Court couldn't say, I want briefing on all issues that can be resolved

[00:13:33] Speaker 04:
as a matter of law that are akin to a 12-26 issue rather than an issue where you need to, where the defendant would want to put on evidence.

[00:13:42] Speaker 01:
Correct, Your Honor.

[00:13:43] Speaker 04:
And the district court couldn't even make the sovereign file an answer.

[00:13:50] Speaker 04:
That's correct, Your Honor.

[00:13:52] Speaker 04:
That's an awfully broad set of positions.

[00:13:56] Speaker 01:
Your Honor, we believe that's supported by the case law.

[00:13:58] Speaker 01:
It's supported by Butler.

[00:14:00] Speaker 01:
We believe it's supported by this court's action in the Price case.

[00:14:03] Speaker 01:
We believe it's supported by the Supreme Court decision in Hemingway campaign.

[00:14:07] Speaker 01:
It is this right to a threshold determination because the dignity of the foreign state is immediately assailed if it is required to take some action in a court which has not even determined whether it has power over that sovereign, whether or not that sovereign is entitled to immunity.

[00:14:25] Speaker 01:
And so there's no basis for the order that Your Honor has hypothesized.

[00:14:29] Speaker 04:
The dignity of a foreign sovereign is implicated to one extent or another when a district court is managing jurisdictional discovery on the scope of sovereign immunity.

[00:14:46] Speaker 04:
Correct, Your Honor.

[00:14:47] Speaker 04:
But not every discovery order in that context

[00:14:52] Speaker 04:
qualifies as a collateral order, right?

[00:14:56] Speaker 04:
Mandamus is the vehicle for policing in that context.

[00:15:00] Speaker 01:
Your Honor, I would agree, but there, the principle that we are advocating here is cabined by the proviso, that actions that are necessary for the court to determine that issue of immunity are not within what we're talking about.

[00:15:16] Speaker 01:
And this order has nothing to do with this.

[00:15:17] Speaker 01:
I understand.

[00:15:18] Speaker 04:
I'm just saying, there is at least that category of orders where intrusions on the sovereign's dignity are policed through mandamus rather than through collateral order appeals.

[00:15:30] Speaker 01:
Correct, Your Honor.

[00:15:31] Speaker 01:
But in those instances where you're now in the discovery arena, you're not talking about situations in which there is an appeal that is available that would divest the court of jurisdiction.

[00:15:44] Speaker 01:
or where the district court says, OK, I'm going to wait until I hear from the court of appeals.

[00:15:48] Speaker 01:
That's our case, which is why.

[00:15:49] Speaker 00:
But that's a little bit circular.

[00:15:50] Speaker 00:
I mean, the district judge did that recognizing that this was an open question.

[00:15:54] Speaker 01:
Yes, Your Honor.

[00:15:55] Speaker 00:
But if we were to rule in your favor, then whether the district court said that or not, sovereign counsel would say, we're going up.

[00:16:05] Speaker 00:
We're going up.

[00:16:06] Speaker 00:
This is too much.

[00:16:07] Speaker 00:
And in fact, I mean, one question I'd be interested in hearing from you about is,

[00:16:12] Speaker 00:
Many of these cases with the foreign sovereign immunity claim the immunity is quite intertwined with the merits.

[00:16:21] Speaker 01:
Correct.

[00:16:22] Speaker 00:
And I wonder how you could

[00:16:27] Speaker 00:
answer the concern that we would have a lot of appeals saying, well, that's too far into the merits.

[00:16:34] Speaker 00:
You don't really have to decide that issue, or we don't really have to brief that issue for the court to decide the immunity.

[00:16:40] Speaker 00:
There are going to be a lot of judgment calls about the appropriateness of the spillover into merits issues.

[00:16:49] Speaker 00:
part of resolution of immunity.

[00:16:51] Speaker 01:
I understand, Your Honor.

[00:16:52] Speaker 01:
Let me ask you, I think there's two questions there.

[00:16:54] Speaker 01:
Let me try to answer the first one first.

[00:16:56] Speaker 01:
The answer to the first one is, had the district court judge said, I don't recognize your right to appeal, and I don't recognize being divested in jurisdiction, in that instance, yes.

[00:17:08] Speaker 01:
I think that mandamus would have been the only available remedy, and that would have been applied for.

[00:17:14] Speaker 01:
But that's not where we were.

[00:17:16] Speaker 01:
And given the admonition of the Supreme Court in the Cheney decision,

[00:17:18] Speaker 01:
where you have an alternative avenue because mandamus is so strictly regulated.

[00:17:25] Speaker 01:
appeal was appropriate.

[00:17:27] Speaker 01:
To answer Your Honor's second question, which has to do with the intertwining of the merits and the jurisdictional issue, I think that was resolved conclusively by the Supreme Court in the Hamilton campaign.

[00:17:36] Speaker 01:
Judge Justice Breyer said that in response to precisely that point, that a determination of the jurisdictional issue would entail perhaps a resolution of some merits issues at the threshold of the case.

[00:17:52] Speaker 01:
He said, so be it.

[00:17:54] Speaker 01:
Do it.

[00:17:55] Speaker 01:
because that is how important this principle of immunity is, how important it is that it be resolved before any other aspect of the case is addressed.

[00:18:04] Speaker 00:
It's typical in these cases that the sovereign does respond on immunity grounds and on other, at least, motion susceptible defenses in one filing.

[00:18:19] Speaker 00:
And it's your position that they do that as a matter of, they do that voluntarily,

[00:18:24] Speaker 00:
But that if a court wanted to make that the standard practice, it would lack the power to do that.

[00:18:30] Speaker 01:
Yes, Your Honor, exactly.

[00:18:33] Speaker 01:
I see my time has expired quite a while ago.

[00:18:43] Speaker 02:
Morning, Your Honors.

[00:18:44] Speaker 00:
Morning, Mr. Kim.

[00:18:45] Speaker 02:
May it please the Court, my name is Michael Kim from the firm of Cobray & Kim, and I represent the APLE Process and Industrial Developments Limited, as I did in the proceedings below.

[00:18:57] Speaker 02:
I believe that the court's analysis can start and stop at the collateral order doctrine without struggling with how much burden is enough or too much.

[00:19:09] Speaker 02:
And that reason is that there really is no case where an appellate court has determined that, where a district judge had not actually made a decision.

[00:19:21] Speaker 02:
that the district judge's actions somehow constituted some effective decision and therefore the party had a right to immediate interlocutory appeal.

[00:19:31] Speaker 04:
The first prong of Cohen is designed to distinguish decisions that are tentative from decisions that are firm.

[00:19:39] Speaker 04:
There's nothing tentative about the district court's decision that

[00:19:46] Speaker 04:
the sovereign against its will can be forced to brief merits issues together with immunity issues.

[00:19:53] Speaker 04:
Perfectly firm ruling and the district court indeed state its proceedings so that that question could come up to this court.

[00:20:01] Speaker 02:
I agree, Your Honor, that a court not actually issuing a decision but perhaps being attentive about what it might do would not qualify.

[00:20:10] Speaker 02:
However, here what we have is not an actual decision on jurisdiction in every case that has been cited in these briefs.

[00:20:20] Speaker 02:
no matter how the parties have characterized it, how the appellate court has characterized it, the actual order by the district judge just said denied.

[00:20:28] Speaker 00:
And here- I'm sorry, your friend has said, however the district court characterized it, because if it infringes our immunity to do that merits briefing, the order was a denial of the immunity.

[00:20:41] Speaker 00:
So it depends on how you define what it is that the immunity protects against.

[00:20:45] Speaker 00:
Correct.

[00:20:46] Speaker 00:
And they're taking a broader view of what it protects against.

[00:20:48] Speaker 00:
So on their view,

[00:20:50] Speaker 00:
It does decide the immunity.

[00:20:52] Speaker 02:
Correct.

[00:20:53] Speaker 02:
And that is, I think, the adoption of that position by the appellate court, I would submit, now would create an entire category that is very murky of anything that could happen in a district court.

[00:21:05] Speaker 02:
that it's not an actual decision on an issue, but some type of behavior by the district judge that subjectively would constitute an effective decision.

[00:21:15] Speaker 02:
And I would say this is completely impractical as a matter of judicial administration to say that parties can fit within the collateral order doctrine by citing practical effects of a district judge's behavior.

[00:21:28] Speaker 04:
Here, the district judge's- Well, but it's more than practical effects.

[00:21:35] Speaker 04:
final, definitive decision on one aspect of immunity.

[00:21:43] Speaker 04:
I mean, there are two different aspects.

[00:21:45] Speaker 04:
One is the merits issues about the waiver exception.

[00:21:51] Speaker 04:
and the arbitration exception.

[00:21:52] Speaker 04:
The other is this procedural aspect of immunity, which is do they have a right to tee up those issues first?

[00:21:59] Speaker 02:
And I would submit that what this district judge ordered simply said that the party shall adhere to a briefing schedule and then gave a number of dates.

[00:22:08] Speaker 02:
The district judge did.

[00:22:10] Speaker 04:
And ordered the sovereign to present all of its merits issues together with

[00:22:17] Speaker 04:
its immunity defenses.

[00:22:20] Speaker 02:
It actually did not order the sovereign to present any particular arguments.

[00:22:24] Speaker 02:
It basically allowed the sovereign to say whatever it wanted to say.

[00:22:28] Speaker 04:
And said, give me all of your jurisdictional and merits defenses together.

[00:22:34] Speaker 04:
This is the sovereign's one and only chance to litigate the confirmation action.

[00:22:40] Speaker 02:
I believe that perhaps some of that might have been implied based on some readings, but the court did not actually literally order Nigeria to brief any particular issue.

[00:22:51] Speaker 02:
It basically ordered Nigeria to respond to the petition and allowed Nigeria to raise any arguments in which.

[00:22:57] Speaker 04:
Nigeria shall include all jurisdictional and merits arguments that it asks the court to consider.

[00:23:04] Speaker 02:
Right, that it asks the court to consider.

[00:23:06] Speaker 02:
It is really up to Nigeria whatever it wishes to include.

[00:23:09] Speaker 04:
And what I would submit is that... Suppose they had filed something and raised

[00:23:18] Speaker 04:
three merits defenses and then later in the case they sought to raise a fourth.

[00:23:24] Speaker 04:
Do you have any doubt that this order would bar them from doing that?

[00:23:28] Speaker 02:
No, I think Judge Cooper would have barred them.

[00:23:30] Speaker 02:
However, I think where we are talking about what is the court actually ordering them to do and is it actually a decision on the issue of jurisdiction such that any party in the future in a district court proceeding could come up here and complain about it, I would submit that if you read into the notion of what a judge might do on jurisdictional issues or the fact that he ordered a

[00:23:54] Speaker 02:
response to a petition to come at a particular date would, as I mentioned, open up an entire category of appealable conduct.

[00:24:03] Speaker 03:
But the district court did not indicate in this order that it would decide jurisdiction first.

[00:24:13] Speaker 03:
and allow Nigeria to appeal if it denied sovereign immunity.

[00:24:20] Speaker 03:
There's no indication of that in this order.

[00:24:22] Speaker 03:
That's correct.

[00:24:23] Speaker 03:
Is there any indication of that otherwise in the record that the district court was going to proceed in that fashion?

[00:24:29] Speaker 02:
No, Your Honor.

[00:24:30] Speaker 02:
And there is no legal requirement for him to do so that way.

[00:24:33] Speaker 03:
Pardon me?

[00:24:33] Speaker 02:
There is no legal requirement for him to do so in that way.

[00:24:37] Speaker 03:
There is no legal requirement?

[00:24:38] Speaker 03:
Correct, Your Honor.

[00:24:40] Speaker 03:
So you're asking us to

[00:24:43] Speaker 03:
affirm this order even though, as far as we know, if we were to affirm this order, the district court could perhaps decide demerits and say, you know, I'm not going to decide sovereignty.

[00:25:03] Speaker 02:
Correct, Judge, because this is a petition to confirm an arbitration award.

[00:25:07] Speaker 02:
So what we are calling the merits here, in fact, is just one petition and one motion, which by operation of the Federal Arbitration Act, the FSIA contemplates a petition to confirm an arbitration order to be brought as one motion.

[00:25:22] Speaker 02:
And the district judge then gets the motion answered and decides the motion.

[00:25:26] Speaker 03:
So let me see if I understand your position.

[00:25:30] Speaker 03:
So if the district court had said,

[00:25:32] Speaker 03:
I'm not going to let you brief sovereign immunity, I just want to brief the petition to confirm.

[00:25:43] Speaker 02:
That would be okay?

[00:25:46] Speaker 02:
actually not be physically possible because it is an integral part of the Petition Confirmed Arbitration Award that sovereign immunity actually debriefed because the petitioner has a prima facie burden of establishing lack of immunity.

[00:26:00] Speaker 02:
So if a petitioner were to file a petition without those arguments in it,

[00:26:04] Speaker 02:
Or if the district judge were not to consider those arguments, it would be a defective proceeding.

[00:26:10] Speaker 03:
Would the language in Helmer campaign where the Supreme Court said that, well, yeah, there may be lots of instances where merits and jurisdiction are intertwined, but that doesn't mean that you go to the merits before you decide jurisdiction.

[00:26:23] Speaker 03:
You've got to decide jurisdiction first.

[00:26:25] Speaker 02:
And I would submit, Your Honor, the district judge here was trying to decide jurisdiction first, because in Homer campaign, obviously, that is not an arbitration award confirmation proceeding.

[00:26:35] Speaker 02:
Here, federal statute has set out that the way that these proceedings go is by motion.

[00:26:41] Speaker 02:
Now, the district court here chose the least burdensome type of motion practice one could have, which is one motion.

[00:26:47] Speaker 02:
on the issues that are already embodied and what it means to confirm an arbitration award.

[00:26:53] Speaker 02:
So he did not expand the proceedings beyond what the statute already required.

[00:26:57] Speaker 00:
Well, you say the statute requires that.

[00:26:59] Speaker 00:
It talks about seeking confirmation by motion.

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

[00:27:05] Speaker 00:
But what's your strongest authority that it requires an omnibus motion in the sense that we're familiar with, for example, in the Rule 12?

[00:27:15] Speaker 02:
I don't believe any court has directed district courts, any appellate court has directed district courts to do it by one or multiple motions.

[00:27:23] Speaker 00:
Is there any sort of practice norm that you can point us to?

[00:27:28] Speaker 02:
The practice norm is that in virtually every reported case, the sovereign has briefed the petition, because the petition itself, the immunity issue is one of a set of necessary issues for the district court to decide whether an arbitration award can be confirmed.

[00:27:48] Speaker 02:
So it has to be stamped.

[00:27:49] Speaker 04:
But Section 6 doesn't say

[00:27:52] Speaker 04:
everything has to be decided under the rubric of one motion.

[00:27:57] Speaker 04:
That's correct.

[00:27:58] Speaker 04:
It doesn't prevent a 12b1 motion from the defendant.

[00:28:04] Speaker 04:
doesn't prevent either party from seeking discovery, doesn't prevent either party from seeking to introduce live testimony or cross-examine witnesses or anything remotely like that.

[00:28:19] Speaker 04:
It just says when you tee this up, you don't file something that's called a complaint.

[00:28:24] Speaker 04:
You file something that's called a motion to

[00:28:27] Speaker 02:
Nor does it prevent a district judge, if he or she feels appropriate for that particular case, of dividing the motion into multiple motions and deciding issues in different configurations.

[00:28:39] Speaker 04:
Right.

[00:28:39] Speaker 04:
Which is to say that Section 6 doesn't do all the work

[00:28:45] Speaker 04:
that you attribute it to, which is to automatically, as a matter of law, compress all issues into one round of briefing.

[00:28:54] Speaker 02:
Just doesn't do that.

[00:28:55] Speaker 02:
Yes, I agree that section six does not require a district judge to do it by one motion.

[00:28:59] Speaker 04:
Okay, so then if we're back to ordinary principles of foreign sovereign immunity, we have pretty settled law that a court is supposed to decide the immunity first,

[00:29:13] Speaker 04:
even if development of the immunity issues requires discovery and fact-finding and such.

[00:29:22] Speaker 04:
As early as practicable.

[00:29:24] Speaker 02:
Yes.

[00:29:25] Speaker 02:
I believe that the guidance is as early as practicable.

[00:29:28] Speaker 02:
And I submit that where you have a district judge operating within a legal construct that

[00:29:36] Speaker 02:
directs him or her to do this by motion.

[00:29:39] Speaker 02:
And the district judge, based on that case, decides how to structure those motions.

[00:29:44] Speaker 04:
Was it improper for the defendant to file a 12b1 motion?

[00:29:50] Speaker 04:
No.

[00:29:50] Speaker 04:
No?

[00:29:51] Speaker 02:
So you have two motions?

[00:29:53] Speaker 02:
Right.

[00:29:54] Speaker 02:
But I believe it's within the discretion of the district judge as to how he wishes the particular issues in the petition to be heard.

[00:30:01] Speaker 02:
And I think to create a category where you have an arbitration confirmation proceeding, which the statute says has to be done by motion, and where it does not direct the district judge to do it by one or multiple motions.

[00:30:14] Speaker 02:
I understand if the district judge were to expand the scope of the proceedings beyond what's necessary to confirm the arbitration award, he would have a potential mandamus issue.

[00:30:23] Speaker 02:
However, where the district judge is literally taking the issues in the petition and dividing it however he or she wishes, I believe it would be dangerous to create now an immediately appealable category based on some subjective determination of how the district judge should have done that.

[00:30:37] Speaker 00:
Your position I take it is

[00:30:39] Speaker 00:
is confined to arbitration confirmation proceedings, that you're seeing that as a different kind of proceeding, supposed to be very abbreviated, done traditionally mostly on the papers.

[00:30:55] Speaker 02:
My position on the burden is confined to the arbitration context.

[00:30:58] Speaker 02:
My position on collateral or the doctrine, I would say, sweeps across all cases, which is a district judge actually has to decide something before it can be appealed if it otherwise fits other requirements.

[00:31:10] Speaker 04:
So you would say in a non-arbitration case, it's just an FSIA action against a sovereign, and the district court enters a briefing order requiring

[00:31:24] Speaker 04:
the 12b1 foreign sovereign immunity motion to be briefed and decided together with all other 12b6 motion, your position would be no, let's assume we think that's an abrogation of immunity.

[00:31:48] Speaker 04:
You would say still no collateral order appeal.

[00:31:51] Speaker 02:
Correct.

[00:31:51] Speaker 02:
I would say that's, depending on the facts, potentially vulnerable to mandamus.

[00:31:56] Speaker 02:
Why?

[00:31:57] Speaker 04:
Because I believe that- Well, it's not final in the sense that it doesn't resolve all aspects of immunity, but how's that different from, say the district court denies a foreign sovereign immunity motion,

[00:32:14] Speaker 04:
at the motion to dismiss stage and says come back to me on summary judgment.

[00:32:19] Speaker 04:
I mean that's not fully final and yet we permit interlocutory appeals of that sort of order.

[00:32:26] Speaker 02:
But it is actually a decision, not actions that people argue constitute an effective decision.

[00:32:32] Speaker 02:
believe that actions that are not decisions but which otherwise aggravate law are dealt with by mandamus if it otherwise satisfies the requirements.

[00:32:40] Speaker 02:
If one creates a category of virtual decisions that district judges could be deemed to have made,

[00:32:47] Speaker 02:
without actually making a decision, I would say it basically swallows up the entirety of what could happen in district court proceedings, and I would submit could occur multiple times in a proceeding after the first interrogatory appeal of some action by a district judge that's deemed to offend the dignity of a sovereign, that that same dignity could be offended yet again multiple times in the proceedings.

[00:33:08] Speaker 02:
And if the standard is simply that the district judge effectively denied or offended the dignity and allowed interlocutory appeals, I would say that is an unmanageable doctrine to try to have district judges understand what they're supposed to do and not do.

[00:33:25] Speaker 04:
Your opponent's position is broad, but it doesn't seem to me it's murky.

[00:33:31] Speaker 04:
They want a bright line rule.

[00:33:33] Speaker 04:
that in confirmation cases like other cases, the immunity issue gets decided first, period, full stop.

[00:33:43] Speaker 04:
And you do what?

[00:33:45] Speaker 04:
You brief it, you develop the facts, you have discovery, you have a mini trial, you do whatever you have to do to resolve the immunity before you go on to other issues.

[00:33:54] Speaker 02:
It's not a hard rule to understand.

[00:33:57] Speaker 02:
Right.

[00:33:57] Speaker 02:
I believe my opponent's position is murky on the collateral order doctrine, but it's quite clear, as you're on the point south, on the burden.

[00:34:04] Speaker 02:
My opponent's position is that a district judge setting a deadline is itself a violation of sovereign immunity.

[00:34:11] Speaker 02:
And I submit that there really is no case law or statutory basis

[00:34:15] Speaker 04:
What would be murky, suppose we rule for your friend on the other side and the case goes back and we establish a rule that binds district courts going forward.

[00:34:29] Speaker 04:
What would be murky in how that is implemented?

[00:34:34] Speaker 04:
I mean, the district courts in future cases will get the FAA petition.

[00:34:41] Speaker 04:
And if the sovereign tees up, does a 12-by-1 motion, and says, no, we really are immune, that issue will get litigated.

[00:34:50] Speaker 04:
There'll be a collateral order appeal.

[00:34:52] Speaker 04:
And if the sovereign loses, then the case goes forward.

[00:34:57] Speaker 02:
Well, that aspect would not be murky at all.

[00:34:59] Speaker 02:
But what would be murky is what allows a party to lodge an interlocutory appeal and fit within a collateral order.

[00:35:07] Speaker 00:
You said setting a deadline.

[00:35:08] Speaker 00:
I'm not sure.

[00:35:09] Speaker 00:
Setting a deadline for what?

[00:35:10] Speaker 02:
for answering the petition.

[00:35:13] Speaker 00:
How would that?

[00:35:13] Speaker 00:
I mean, if the first thing the judge does is set a framework for deciding the immunity, any briefing or any orders relating to that would not be immediately appealable.

[00:35:26] Speaker 00:
It would only be orders relating to other aspects of the case.

[00:35:30] Speaker 02:
Correct.

[00:35:30] Speaker 02:
And I think that what would be murky is not the, if this court were to say from now on in all arbitration confirmation cases,

[00:35:39] Speaker 02:
that the district judge is required to say on the first deadline, you should only brief the immunity issue.

[00:35:45] Speaker 02:
I would decide that first and nothing else would be decided.

[00:35:47] Speaker 02:
That part would be quite clear.

[00:35:49] Speaker 02:
What I'm suggesting is that because we're not here on the mandamus petition, that to take jurisdiction over this appeal and say this appeal fits within the collateral order doctrine, because the district judge, even though Judge Cooper did not actually decide

[00:36:03] Speaker 02:
the issue of immunity in the ways that all the other judges and all the other cases had, we are going to deem him to have somehow decided it or to have exhibited some behavior that qualifies as a denial of immunity and therefore the appellate court will step in and actually issue a ruling.

[00:36:21] Speaker 02:
I believe that part would be quite marquee because of the endless configuration of different events that can happen in a district court proceeding that could be deemed to have been an offense to the sovereign's dignity.

[00:36:33] Speaker 04:
the district court's management of the immunity part of the case.

[00:36:40] Speaker 04:
If we have this strict sequencing rule, it would still be the case that the district court's management of the immunity component would be reviewable only through mandates.

[00:36:54] Speaker 04:
That's Papandreou, right?

[00:36:57] Speaker 04:
They issue a jurisdictional discovery order and the sovereign says it goes too far and

[00:37:04] Speaker 04:
They can try to come back, but it's difficult.

[00:37:07] Speaker 04:
That's not a collateral order appeal.

[00:37:11] Speaker 02:
I agree.

[00:37:11] Speaker 02:
I agree.

[00:37:12] Speaker 02:
But I think that if on this appeal, you take jurisdiction and say this fits within the collateral order doctrine, I think that's really what will create the murkiness.

[00:37:23] Speaker 04:
Because we say that the immunity includes a procedural component to have the immunity issue decided first.

[00:37:34] Speaker 04:
that was abrogated here and we send it back.

[00:37:38] Speaker 02:
I believe that would still, I guess we're splitting hairs now, but I actually think that that would go to the issue of whether it's too much burden such that it violates the immunity for the district judge to order these issues.

[00:37:53] Speaker 04:
But that's just the debate over the substance of the immunity, right?

[00:38:01] Speaker 04:
And they have cases saying,

[00:38:04] Speaker 04:
They can't be made to do discovery.

[00:38:06] Speaker 04:
They can't be made to stand trial.

[00:38:07] Speaker 04:
They can't be made to answer a complaint on the merits.

[00:38:11] Speaker 04:
And you have cases saying they can be made to do a status conference on discovery.

[00:38:19] Speaker 04:
They can be made to be subjected to jurisdictional discovery.

[00:38:25] Speaker 04:
And there's just a legal question about whether this kind of joint briefing falls on one side of that line or the other.

[00:38:35] Speaker 02:
Correct, but then the opinion that this court would have to write is that the scheduling order issued by the court is an effective denial of immunity as opposed to a decision on the issue of immunity.

[00:38:47] Speaker 02:
And I think that categorical black and white distinction is quite important for the proper operation of the collateral order doctrine because where the appellate courts are going to try to create a category of appealable conduct or orders beyond what is already in 1291,

[00:39:05] Speaker 02:
1292, would require for the decision to actually have been made.

[00:39:11] Speaker 02:
And here, there is no decision on immunity that has been made, at least not the way that any other court has ever defined a decision.

[00:39:18] Speaker 02:
In every case cited, the district judge actually said deny, the word deny, or issue an order that actually decided the jurisdiction issue or the immunity issue.

[00:39:28] Speaker 02:
This would be the first case where a district judge, by exhibiting certain behavior,

[00:39:33] Speaker 02:
would be deemed to have effectively denied immunity.

[00:39:38] Speaker 03:
What are we to make of the language on the last, I guess, full paragraph of the district court's orders?

[00:39:46] Speaker 03:
It's page five of the order at docket 34.

[00:39:54] Speaker 03:
I'm not sure what the JA site is.

[00:39:57] Speaker 03:
But the district court said, and in any event, Nigeria has not explained

[00:40:03] Speaker 03:
how separate jurisdictional and merits stages with attendant appeals will alleviate its burdens relative to the ordinary process of a single round of briefing under notions practice.

[00:40:20] Speaker 02:
I think the way you should interpret that is that this district judge was actually trying to do what the law guides him to do, which is to minimize the burden on the sovereign.

[00:40:30] Speaker 02:
So to keep in mind, unlike the cases where there are depositions or discovery or other things that have not yet occurred, here the very arguments Nigeria is complaining

[00:40:41] Speaker 02:
that it would have to have put into the answer to the petition, the response to the petition, had already been briefed.

[00:40:47] Speaker 02:
It's really a cut-and-paste job.

[00:40:49] Speaker 02:
And what this district judge was trying to prevent is what has now occurred.

[00:40:53] Speaker 02:
What's been briefed?

[00:40:55] Speaker 02:
The merits of the New York Convention defenses?

[00:40:57] Speaker 02:
The immunity issues.

[00:40:59] Speaker 02:
Nigeria did advance the immunity issues in a briefing, and now instead of the one brief on immunity issues that they had already written and submitted to the district judge, we now have a year later an appellate proceeding, and I think I note with some interest that

[00:41:19] Speaker 02:
Nigeria's position on this appeal as to whether this court should decide the immunity issue, if otherwise it felt it was appropriate, was that this court should not decide the immunity issue.

[00:41:30] Speaker 02:
They want more proceedings in the district court and then to have another appeal.

[00:41:34] Speaker 02:
So you have this very odd situation where the district judge is trying to minimize the burden on this sovereign and this sovereign seeks out more burden

[00:41:43] Speaker 02:
with motivations that I think many can guess as to what that would be.

[00:41:47] Speaker 04:
They seek to front load immunity and they do so in the context where the substantive defenses we're talking about under the New York Convention might well be very fact intensive.

[00:42:07] Speaker 02:
And if that was their position, they could certainly brief it and then have the district judge ask the district judge to consider immunity first before going into any fact-finding, therefore relieving them of the need to actually have fact-finding.

[00:42:20] Speaker 04:
No, but the district court has said conclusively has ordered them to present their New York Convention defenses.

[00:42:30] Speaker 04:
And that's going to involve factual development.

[00:42:35] Speaker 04:
I mean, your opening submission had 500 pages worth of attachments, and they're the ones with the burden of establishing New York Convention defenses.

[00:42:48] Speaker 04:
And those oftentimes involve factual questions, oftentimes involve determining questions of foreign law, which are litigated

[00:42:59] Speaker 04:
through often can be litigated through affidavits and such.

[00:43:02] Speaker 04:
This is more than just doing like the equivalent of a 12b6 brief.

[00:43:07] Speaker 02:
Well, if in the initial submission, whatever Nigeria already knows as to why the petition should not be confirmed factual or not does have to be submitted.

[00:43:19] Speaker 02:
So burdensome or not, the procedure for

[00:43:21] Speaker 04:
Right, but you're treating that as if it's some minor, just a little bit of extra briefing.

[00:43:30] Speaker 04:
It's not that.

[00:43:31] Speaker 04:
It's the development of

[00:43:35] Speaker 04:
factual defenses that are likely to be pretty complicated?

[00:43:41] Speaker 02:
Well, I'm treating it that, depending on the case, it could be a lot or it could be a little, but in a petition to confirm an arbitration award, where the contemplation is that there is one motion, and of course if there's more fact-finding necessary, there'll be other issues with ordering more fact-finding.

[00:43:57] Speaker 02:
but where the statute already guides the district judge to do this by motion, a district judge says, let me see your position in response to the petition.

[00:44:06] Speaker 02:
whether it's factual or whatever, or if the response is we need more fact development.

[00:44:11] Speaker 04:
Let me see your whole case, not just the equivalent of an answer where they say admitted, denied, whatever.

[00:44:18] Speaker 02:
Well, I don't believe this district judge required Nigeria to submit its whole case.

[00:44:23] Speaker 02:
It required it to submit an answer to the petition.

[00:44:26] Speaker 02:
And it is quite common, as seen in all the arbitration confirmation cases, for parties to answer a petition and argue that more factual development is necessary.

[00:44:35] Speaker 00:
So the typical...

[00:44:36] Speaker 00:
answer to a confirmation petition or response to a confirmation petition is a brief.

[00:44:42] Speaker 05:
Yes.

[00:44:43] Speaker 00:
And it includes legal argument.

[00:44:46] Speaker 00:
And can you give us any sense of how often there are factual, there is also a request for some kind of factual development?

[00:44:55] Speaker 02:
I don't really know statistically.

[00:44:57] Speaker 02:
I know it's uncommon, but not unheard of.

[00:45:00] Speaker 02:
to for a party much as in any motion, whether it's a summary judgment motion or perhaps one side moves to dismiss and the other side opposes it by saying there are factual issues embedded, it is not unheard of for parties for a sovereign to say

[00:45:15] Speaker 02:
in an answer to a petition, here are some factual allegations, more factual development is necessary.

[00:45:21] Speaker 02:
And it is really treated just like what a summary judgment motion or a motion to dismiss would be.

[00:45:26] Speaker 02:
Then the district judge has to make a determination, are the factual allegations being made sufficient to cause me to have to do some type of discovery, or can I resolve it based on what the parties have submitted?

[00:45:36] Speaker 00:
So it's quite parallel to what we see in

[00:45:40] Speaker 00:
cases in federal court that don't involve arbitration confirmation, where if you're filing a response to a motion to dismiss, or if you're filing a motion to dismiss under, which is like the, I guess, you're filing a rule 12 motion, the requirement is that it be an omnibus motion, that it be a motion that

[00:46:02] Speaker 00:
the defenses, except for subject matters.

[00:46:05] Speaker 02:
Pardon?

[00:46:06] Speaker 02:
At least the points that you wish the court to consider.

[00:46:09] Speaker 02:
District courts typically do not require parties at that stage to present every piece of evidence that could possibly exist on the issue, but it does wish to know what your position is and if you have any facts already in your possession to advance those facts.

[00:46:23] Speaker 02:
Particularly where it's an arbitration confirmation,

[00:46:26] Speaker 02:
where you have district judges thinking you're supposed to do this by motion.

[00:46:30] Speaker 02:
And all this district judge wanted was an answer to the actual motion on the issues that are already embedded within the issue of whether a petition to confirm an arbitration award should be granted.

[00:46:42] Speaker 04:
If the response to the petition to confirm is not the full-blown presentation of the case with exhibits and factual argument, it's simply the rough equivalent of an answer.

[00:47:04] Speaker 04:
and it's a pro forma document which says there are disputed facts so we need discovery or a hearing or whatever.

[00:47:12] Speaker 04:
I mean that really undercuts your view that arbitration cases have to be treated very differently because the FAA mandates this summary compressed proceeding.

[00:47:33] Speaker 02:
Well, I think the special thing about arbitration cases is that, unlike the cases where a complaint is filed and the sovereign moves to dismiss and says, I want the immunity issue adjudicated, and the court makes a decision on that, or the mandamus cases where the court says, no, I don't want to deal with the immunity issue.

[00:47:52] Speaker 02:
I want to have discovery or something else.

[00:47:53] Speaker 02:
Unlike those cases, here you have a statutory construct where there's only one type of motion that could be made, which is a petition to confirm the arbitration award.

[00:48:02] Speaker 02:
And then the district judges are directed to treat it as a motion, as motion practice.

[00:48:08] Speaker 02:
The district judges can do this by multiple motions or one motion.

[00:48:12] Speaker 02:
But if the appellate court is going to tell the district judge that now, even though the statute doesn't require it, that a petition to confirm arbitration work now must be broken out necessarily into multiple motions, regardless of what the district judge feels,

[00:48:30] Speaker 02:
And then the first motion has to be a jurisdictional motion to say that that is really, I think, without any basis for the court to really say that that is something that the FAA requires.

[00:48:41] Speaker 04:
No, the FAA neither requires nor prohibits sequencing.

[00:48:47] Speaker 04:
But the FAA does.

[00:48:48] Speaker 04:
So we just come back to general sovereign immunity principles, which are

[00:48:53] Speaker 04:
decide the immunity question first.

[00:48:56] Speaker 02:
But the FAA does already essentially declare that a sovereign does not have immunity for the proceeding of confirming an arbitration award.

[00:49:09] Speaker 00:
Which is assuming the merits of the sovereign immunity question.

[00:49:14] Speaker 02:
Yes.

[00:49:16] Speaker 00:
And is any part of your argument about the unitary confirmation petition

[00:49:23] Speaker 00:
It's not drawing on the New York Convention.

[00:49:26] Speaker 00:
It's really based on the FAA.

[00:49:29] Speaker 02:
Correct.

[00:49:29] Speaker 00:
I mean, I think... Do we have any... I'd be interested if either council has any sense of how this is taking care of in other jurisdictions where confirmation proceedings are abroad.

[00:49:40] Speaker 02:
You mean other countries?

[00:49:42] Speaker 02:
Yes.

[00:49:42] Speaker 02:
The practice varies quite a bit.

[00:49:44] Speaker 02:
The New York Convention does not require to be one motion or multiple motions.

[00:49:48] Speaker 02:
However, where I do think the New York Convention is relevant to this discussion is that Nigeria is a New York Convention country.

[00:49:55] Speaker 02:
So you have a sovereign that

[00:49:57] Speaker 02:
not only should expect by operation of the FAA to face at least one motion, where it says motion practice, at least one motion to confirm an arbitration award.

[00:50:08] Speaker 02:
And the factors for doing so are already well known.

[00:50:11] Speaker 02:
But you also have a sovereign that signed on to the New York Convention.

[00:50:14] Speaker 02:
Therefore, I think the notion that Nigeria has not already kind of essentially

[00:50:22] Speaker 02:
expected that this zone of at least having to answer the petition as directed by the district court is a violation of the sovereign immunity I think is really unsupportable.

[00:50:34] Speaker 02:
The whole scheme of the FAA, the New York Convention, is intended essentially to carve out as a proceeding to confirm an arbitration award

[00:50:45] Speaker 02:
that that is something that falls outside of the zone of immunity from suit by a sovereign in the US courts.

[00:50:52] Speaker 00:
But again, you're assuming the merits of the sovereign immunity question.

[00:50:55] Speaker 00:
You're assuming that there was, in fact, that this does, in fact, fall within the arbitration exception.

[00:51:01] Speaker 02:
I think that goes to the issue of whether the arbitration board should be confirmed as opposed to the jurisdictional issue.

[00:51:11] Speaker 02:
I think that- No, no.

[00:51:11] Speaker 04:
It goes to whether or not the arbitration exception

[00:51:14] Speaker 04:
immunity applies.

[00:51:17] Speaker 00:
The three questions, one is do we have jurisdiction here?

[00:51:20] Speaker 00:
The second is was the immunity in fact

[00:51:26] Speaker 00:
abrogated by the arbitration exception.

[00:51:28] Speaker 00:
And the final is, is there any other reason why the award should not be confirmed?

[00:51:33] Speaker 02:
Right.

[00:51:33] Speaker 02:
And I believe that both Thurma Rio as well as Chevron, this court basically treated the fact that when there's a prima facie showing that there's an arbitration agreement or an arbitration award,

[00:51:48] Speaker 02:
That goes to the jurisdiction, if there's a prima facie showing, that goes to the jurisdiction of the district court to be able to adjudicate the proceeding.

[00:51:56] Speaker 02:
Now in adjudicating the proceeding, based on the particular case, the district judge might conclude that there is no agreement to arbitrate that's valid, or that there is no award.

[00:52:07] Speaker 02:
And then that would lead to a possible decision of a refusal to confirm the award on the basis of immunity.

[00:52:16] Speaker 02:
However, that does not prevent the district judge from taking the case and adjudicating those issues, because the threshold prima facie case actually has been met.

[00:52:26] Speaker 02:
Thank you.

[00:52:27] Speaker 00:
Thank you, Your Honor.

[00:52:33] Speaker 00:
I believe that Mr. Pazuro's time expired, but we'll give you a couple of minutes for rebuttal, two minutes for rebuttal.

[00:52:43] Speaker 01:
There's a lot there to unpack, and let me be as brief as I possibly can.

[00:52:47] Speaker 01:
I want to start out with a couple of issues that came up at the end of your discussion with counsel and then go back to one of the first things that was discussed.

[00:52:57] Speaker 01:
At the end, there was some discussion regarding the underlying jurisdictional argument as to whether or not one of the exceptions to immunity applies in this case.

[00:53:07] Speaker 01:
That is not an issue before the court.

[00:53:09] Speaker 01:
That was not an issue that's even been considered yet by the district court.

[00:53:12] Speaker 01:
It's not an issue that's been briefed in this court, and they haven't even submitted a brief on any of the issues in the district court.

[00:53:18] Speaker 01:
So that issue is not here.

[00:53:21] Speaker 00:
I think that the concern, Mr. Frazerro, is that in a case in which a party, a sovereign, has agreed to arbitrate, and therefore falls within the arbitration exception under the Foreign Sovereign Immunities Act,

[00:53:38] Speaker 00:
If your position prevails, in every such case where the sovereign is unhappy with the results of the arbitration, they have a tool for delay in the enforcement proceeding.

[00:53:53] Speaker 00:
They can, say, insist on a determination about immunity first.

[00:53:59] Speaker 00:
And when that determination is made, even if that's open and shut, take an appeal.

[00:54:03] Speaker 00:
And then that, as we know, depending on the circuit in this country, can take months to even years.

[00:54:12] Speaker 00:
And then it goes back to the district court, and they begin the confirmation process.

[00:54:16] Speaker 00:
And the scheme under the FAA and under the New York Convention contemplates that the confirmation proceeding will be a quick and unitary proceeding.

[00:54:26] Speaker 00:
So the concern is that this just hands a delay card.

[00:54:31] Speaker 00:
to every sovereign.

[00:54:33] Speaker 01:
Your Honor, I understand what you're saying.

[00:54:35] Speaker 01:
Let me say that what Your Honor posited in terms of the procedural prerogatives of the sovereign are that exist in every single case brought against the sovereign.

[00:54:46] Speaker 01:
Any case brought against the sovereign, the sovereign can raise its immunity.

[00:54:49] Speaker 01:
It has a right to have that litigated.

[00:54:51] Speaker 01:
It has rights for immediate appeal, whether that's an arbitration case or a non-arbitration case.

[00:54:56] Speaker 01:
So the issue is, is it different in an arbitration case?

[00:54:58] Speaker 01:
Is there anything in the case law?

[00:55:00] Speaker 01:
Is there anything in the statutes?

[00:55:01] Speaker 01:
Is there anything that would support the notion that this is different, that the delay

[00:55:07] Speaker 01:
issue creates some sort of an exception.

[00:55:11] Speaker 01:
And I would request that the court take a look at the recent case by the Supreme Court in Harrison v. the Sudan, in which the Supreme Court was addressing the issue of the necessity for formal adherence to the pleading requirements under the Foreign Sovereign Utilities Act.

[00:55:27] Speaker 01:
And in that case, the sovereign was on actual notice that there was a case.

[00:55:30] Speaker 01:
They ignored the case.

[00:55:31] Speaker 01:
They allowed the case to go to a default.

[00:55:33] Speaker 01:
A default was entered, and it was after enforcement proceedings started that they intervened in the case and said, no effective service.

[00:55:41] Speaker 01:
And understandably, the plaintiff was upset and called this military tactics, and the Supreme Court said, too bad.

[00:55:49] Speaker 01:
So unless there is some support, and they've offered none,

[00:55:53] Speaker 01:
that this is a different kind of animal because it is a confirmation of an arbitration award, then I don't think that that concern is even relevant.

[00:56:03] Speaker 01:
Let me make a couple of things also pretty clear.

[00:56:06] Speaker 01:
First of all, Your Honor asked a question about the New York Convention.

[00:56:08] Speaker 01:
The New York Convention itself has nothing to do with motion practice.

[00:56:12] Speaker 01:
There is nothing in that convention that talks about how issues are to be litigated or raised.

[00:56:18] Speaker 01:
In the United States, it's in the implementing legislation.

[00:56:22] Speaker 01:
And in the, I guess it's Chapter 2 of the Federal Arbitration Act, which is the implementing legislation for the New York Convention, it imports those provisions from Chapter 1 of the FAA, the domestic section, that aren't otherwise inconsistent with the Convention.

[00:56:36] Speaker 01:
And that's how we get Section 6 in the motion practice.

[00:56:39] Speaker 04:
There actually is something, which is that

[00:56:42] Speaker 04:
The convention itself says that the sovereign has the burden of proving the defenses, which suggests this is done by evidence, not just on, not just on papers.

[00:56:56] Speaker 01:
Correct, Your Honor, and just to that point, very briefly, because it was raised, I want to, the court I'm sure has read all the papers, and you can see this is a, now as we stand here, is approaching $10 billion.

[00:57:12] Speaker 01:
This is one of the largest international arbitration awards in history.

[00:57:15] Speaker 01:
It is extremely complex.

[00:57:16] Speaker 01:
There are a lot of underlying issues regarding the validity and enforceability of this award, not just jurisdictional issues.

[00:57:22] Speaker 01:
So we're not talking here about the run-of-the-mill normal arbitration case.

[00:57:26] Speaker 01:
I'm not sure that that is necessarily relevant to the issue we're discussing here about an invasion of the sovereign's immunity.

[00:57:33] Speaker 01:
But it is something, to the extent that we've heard about delay and people are not raising meritorious arguments and just write a brief and it's not really a big problem, I think that that is something that ought to be taken into account.

[00:57:45] Speaker 01:
In terms of the inability or the problem with creating a rule, we think the rule is pretty easy.

[00:57:57] Speaker 01:
If a court orders a sovereign to take any action which is otherwise unnecessary to a determination of its own jurisdiction, then the court has assumed jurisdiction over the sovereign.

[00:58:08] Speaker 01:
You can't order somebody to do something unless you have some power to do that.

[00:58:12] Speaker 01:
And unless the court's order relates directly to its determination of the sovereign's immunity,

[00:58:18] Speaker 01:
that order violates the sovereign's immunity.

[00:58:21] Speaker 01:
That's an easy test.

[00:58:23] Speaker 01:
If it arises in certain contexts procedurally, it will arise where perhaps mandamus is the appropriate remedy, where there is no other way for the sovereign to effectively vindicate the right of claims to have been violated in the discovery context, in the Papandreou case, where ministers were being subpoenaed.

[00:58:40] Speaker 01:
But in a case where otherwise the jurisdiction of the district court or the proceedings are effectively halted and there has been this determination as in this case, then the collateral appeal doctrine is appropriate.

[00:58:56] Speaker 01:
I would submit, Your Honor, it should not be decided on some technical issue of whether or not it is mandamus or should have been the collateral order doctrine, should have been an appeal or not an appeal.

[00:59:07] Speaker 01:
The issue is whether the district court ordering the sovereign to do something before it had determined whether it had the jurisdiction to make that order is a violation of sovereignty and thus appealable.

[00:59:20] Speaker 01:
Thank you, Your Honor.

[00:59:25] Speaker 00:
Thank you.

[00:59:25] Speaker 00:
Case is submitted.