[00:00:02] Speaker 00:
Face number 19-7106 et al.

[00:00:05] Speaker 00:
LLC SPC's dialects versus the Republic of Moldova appellant.

[00:00:10] Speaker 00:
Mr. Grasso for the appellant, Mr. Bird for the appellee.

[00:00:14] Speaker 04:
Mr. Grasso, good morning.

[00:00:16] Speaker 03:
Good morning, Judge.

[00:00:17] Speaker 03:
Good morning, Judge Rogers, Judge Ginsburg, Judge Henderson.

[00:00:21] Speaker 03:
I really hate to do this, but would it be OK to take a two-minute bathroom break?

[00:00:29] Speaker 04:
Well, we're on a very tight schedule right now, I guess.

[00:00:33] Speaker 04:
I guess we'd better let you.

[00:00:35] Speaker 03:
I really appreciate it.

[00:00:36] Speaker 03:
I will be right back.

[00:00:37] Speaker 03:
Thank you very much.

[00:00:40] Speaker 04:
Ann?

[00:00:44] Speaker 06:
Ann, are you there?

[00:00:49] Speaker 06:
Is it possible the judges could have some privacy for the next few minutes?

[00:00:55] Speaker 06:
Judge Henderson, is that okay?

[00:00:57] Speaker 04:
That's fine.

[00:00:57] Speaker 04:
That's perfect.

[00:00:59] Speaker 04:
Thank you.

[00:01:01] Speaker 04:
All right, Mr. Grasso, proceed.

[00:01:03] Speaker 03:
Thank you very much.

[00:01:03] Speaker 03:
I apologize.

[00:01:04] Speaker 03:
I was entranced by the previous case.

[00:01:06] Speaker 03:
May it please the court.

[00:01:09] Speaker 03:
Good morning, Judge Rogers, Judge Ginsburg, and Judge Henderson.

[00:01:15] Speaker 03:
I must start by saying that it is an honor to be arguing before this court today, even under these circumstances, that we have to do it virtually.

[00:01:28] Speaker 03:
is beyond going pandemic.

[00:01:31] Speaker 03:
It's a little bit weird.

[00:01:33] Speaker 03:
I think that it deprives us of a dynamic that we would normally have.

[00:01:38] Speaker 04:
Mr. Grasso, would you please get to this case?

[00:01:40] Speaker 03:
Absolutely.

[00:01:43] Speaker 03:
So the facts underlying this case are extremely complicated.

[00:01:47] Speaker 03:
They're 20 years in the making.

[00:01:50] Speaker 03:
It has a very complicated procedural history.

[00:01:53] Speaker 03:
The facts of this case are not illustrious, they're not sexy, but the legal issue and the precedent that may be set by this court is of potentially historical magnitude.

[00:02:09] Speaker 03:
And that is because this case involves the interpretation of statutes that codify international law and thereby impact the entire world

[00:02:18] Speaker 03:
just as the ongoing pandemic is.

[00:02:22] Speaker 03:
As this case with all matters of this nature is before this court, one of the planet's most prestigious courts, the implications of this precedent cannot be ignored, and they will have an unpredictable trickle-down effect for the duration of human existence.

[00:02:41] Speaker 05:
Let's talk about your argument as to why you contend the district court abused its discretion in lifting the stay.

[00:02:52] Speaker 03:
OK.

[00:02:54] Speaker 03:
So in terms of the district court lifting the stay, I think that it was done prematurely because of the ongoing proceedings in Europe.

[00:03:05] Speaker 03:
And that is currently the crux of the issue before the court today, which is why I implore the court to reserve judgment pending the outcome of the highest court in Europe.

[00:03:17] Speaker 05:
So can you argue to the district court?

[00:03:21] Speaker 03:
I'm sorry?

[00:03:22] Speaker 05:
when you argued to the district court.

[00:03:27] Speaker 03:
I didn't.

[00:03:30] Speaker 05:
When an attorney on behalf of your client argued to the district court that lifting the stay would be premature, he referenced or she referenced

[00:03:50] Speaker 05:
both what had happened at the Paris Court of Appeals and subsequently the referral to the European Court.

[00:04:10] Speaker 02:
Yes.

[00:04:12] Speaker 05:
The record shows as well that the district court was aware

[00:04:20] Speaker 05:
that your client was contesting the jurisdiction of the tribunal to proceed?

[00:04:32] Speaker 03:
That is correct.

[00:04:38] Speaker 03:
My client has always contended that the tribunal did not have jurisdiction under the ECF.

[00:04:47] Speaker 05:
The district court took the position, as I understand it, that the only matter remaining was not jurisdiction, but whether public interest.

[00:05:10] Speaker 02:
I'm sorry, Judge, you just broke up before public interest.

[00:05:24] Speaker 05:
do the district court took the position that in light of what had happened by the time the matter was before him the only remaining issue was not jurisdiction but public interest is that correct that's my understanding judge yes was that

[00:05:55] Speaker 05:
Accurate?

[00:05:57] Speaker 03:
I don't believe so.

[00:05:59] Speaker 03:
It depends on how you define public interest, which I think is part of the issue that is before this court today.

[00:06:09] Speaker 05:
Well, do you consider it to be a jurisdictional issue?

[00:06:15] Speaker 03:
I think that this court can decide to consider it a jurisdictional issue, yes.

[00:06:20] Speaker 05:
Well, do you have any cases that that's how this court has viewed the public interest standard?

[00:06:27] Speaker 03:
Well, I think that

[00:06:30] Speaker 03:
As to public interest specifically, I do not have any cases, no.

[00:06:36] Speaker 03:
However, I think that the most on point case as to that question is actually the case that was most recently introduced by a counsel for the appellee, which was recently decided by this court in process.

[00:06:52] Speaker 03:
Um, and it was in that court, it was in that case, I'm sorry, where the court went out of its way to, um, to stress the importance of affording, uh, it's almost every reasonable inference to a foreign sovereign.

[00:07:15] Speaker 05:
Let me focus you more directly.

[00:07:17] Speaker 05:
Okay.

[00:07:18] Speaker 05:
Um, because in your reply brief,

[00:07:22] Speaker 05:
You state that appellee has not addressed the argument that you're making.

[00:07:32] Speaker 02:
This was the supplemental brief.

[00:07:37] Speaker 05:
In my record, it's the reply brief in this court.

[00:07:44] Speaker 03:
As far as process goes, it was only- No, no, no.

[00:07:48] Speaker 05:
I'm sorry, we're missing- In the reply brief, you say,

[00:07:53] Speaker 05:
that Appellee deliberately ignored Moldova's argument that the Paris Court of Appeals had stayed the remand proceeding and transferred the matter to the Court of Justice.

[00:08:11] Speaker 05:
That's correct.

[00:08:11] Speaker 05:
Is there anything in the record that indicates under French law

[00:08:22] Speaker 05:
The award, nevertheless, is to be enforced.

[00:08:33] Speaker 03:
Well, Your Honor, with all due respect, I'm not familiar with French law.

[00:08:41] Speaker 05:
Well, I asked you in the record.

[00:08:44] Speaker 03:
I believe that there is.

[00:08:46] Speaker 05:
Where?

[00:08:47] Speaker 03:
Because in the record,

[00:08:50] Speaker 03:
it's in the record very clearly that there is currently a case pending before the highest court in Paris.

[00:09:00] Speaker 03:
So I think that it is an open question.

[00:09:05] Speaker 03:
I don't think that that question of law has been settled.

[00:09:11] Speaker 05:
So the answer to my question is no.

[00:09:14] Speaker 03:
I think that the answer to your question is yes.

[00:09:17] Speaker 05:
Um, because there is evidence in the record that the award can be enforced, not withstanding these jurisdictional appeals.

[00:09:32] Speaker 03:
Well, that I think is a different question and that I would have to answer no to grass.

[00:09:44] Speaker 06:
So I was under the impression that

[00:09:47] Speaker 06:
Nobody notified the district judge before he lifted the stay order that the court in Paris had referred the matter to the European Court of Justice a few weeks before.

[00:10:00] Speaker 06:
Is there any indication on the record that the district judge was informed of that?

[00:10:07] Speaker 03:
Not that I am aware of.

[00:10:10] Speaker 06:
No, I couldn't find it either.

[00:10:13] Speaker 06:
So it seems to me that Moldova dropped the ball here.

[00:10:17] Speaker 06:
in not informing the district judge about the reference, but regardless of that, that it's out of bounds for you to be arguing the reference to the European Court of Justice when it wasn't put before the district court.

[00:10:30] Speaker 06:
Although it did occur in time before he lifted the stay order, a three weeks difference.

[00:10:37] Speaker 03:
That's correct, which is

[00:10:39] Speaker 03:
in large part why I'm arguing it.

[00:10:42] Speaker 03:
Also because I don't believe that this case should be viewed in a vacuum.

[00:10:49] Speaker 03:
I think that there are much broader implications in this matter and that this court does have the power to decide in accordance with its previous decisions and the decisions

[00:11:05] Speaker 03:
such as process, to the extent that the language and process constituted stare decisis, that there was no waiver of sovereign immunity by the Republic of Moldova in this matter, and that the appellee's argument does not hold water in that respect.

[00:11:29] Speaker 03:
and that this court should therefore reserve judgment because it's always been the policy of the United States to defer these cases to the sovereigns that may be more familiar with cultures that we don't understand, different politics, different jurisprudence.

[00:11:51] Speaker 04:
Ms.

[00:11:52] Speaker 04:
Ginsburg.

[00:11:53] Speaker 06:
Nothing further.

[00:11:54] Speaker 06:
Thank you.

[00:11:55] Speaker 04:
All right, Judge Rogers.

[00:11:56] Speaker 05:
Yes, I have a question.

[00:11:57] Speaker 05:
Going back to my first question, what were the jurisdictional arguments that your client made to the tribunal, to the Paris Court of Appeals?

[00:12:19] Speaker 03:
Well, Your Honor,

[00:12:22] Speaker 03:
My client never agreed that the that the treaty that the ECT, the energy charter treaty applied to the arbitration and thereby

[00:12:44] Speaker 03:
invoking the arbitration exception here under 28 United States Code 160526, which is one of the Pelley's primary arguments.

[00:12:58] Speaker 03:
And that was one of their main arguments before the tribunal.

[00:13:03] Speaker 05:
They make another jurisdictional argument?

[00:13:08] Speaker 03:
I believe so.

[00:13:10] Speaker 03:
that the New York Convention did not apply either.

[00:13:20] Speaker 05:
And what did the Paris Court of Appeals hold?

[00:13:27] Speaker 03:
Well, the Paris Court of Appeals, I believe, remanded the case.

[00:13:34] Speaker 05:
What I'm focusing on is

[00:13:38] Speaker 05:
It specifically said it was not going to address other issues.

[00:13:46] Speaker 05:
It said, right?

[00:13:50] Speaker 03:
The Paris Court of Appeals?

[00:13:54] Speaker 03:
Yeah.

[00:13:57] Speaker 03:
I don't know that that language was specifically used.

[00:14:02] Speaker 05:
Well, the briefs don't tell me either.

[00:14:05] Speaker 05:
When it got up, when the case got before the court of Cassiassin, I'm not sure how to pronounce, highest court in France, it said the Paris court had mistakenly added a requirement that was not in the treaty, but that

[00:14:34] Speaker 05:
The court itself, the highest court, was not going to address other issues.

[00:14:41] Speaker 05:
Sent the case back to the Paris Court of Appeals to start all over.

[00:14:50] Speaker 03:
Um, I don't believe to start all over your honor.

[00:14:53] Speaker 03:
Um, I believe that the purpose was, um, because to, to lift the stay and, um, it was the Paris court of appeals that said it was going to start all over before it certified the matter to the European court.

[00:15:13] Speaker 03:
Okay.

[00:15:15] Speaker 05:
Um, that's not an okay answer.

[00:15:17] Speaker 05:
I mean, is that correct?

[00:15:19] Speaker 03:
Well, so our interpretation is that the Paris Court of Appeals simply chose not to follow the instructions of the French Court of Cessation and did decide to reopen all of the appellate issues.

[00:15:45] Speaker 03:
And this includes the issues which we were just talking about referring to the tribunal's findings regarding the arbitration, the arbitration award and my client's issues with the award to begin with on the merits of that case.

[00:16:04] Speaker 03:
And this is a substantial issue and there's a lot of money involved.

[00:16:12] Speaker 03:
between two foreign parties.

[00:16:15] Speaker 03:
And I think that it boils down to the fact that I just don't think that it belongs in this court.

[00:16:25] Speaker 05:
I think we understand that's your argument.

[00:16:27] Speaker 05:
I'm trying to flesh out what's the basis for that argument.

[00:16:34] Speaker 03:
OK.

[00:16:37] Speaker 03:
So obviously, this case has a very

[00:16:41] Speaker 03:
complicated procedural history.

[00:16:44] Speaker 03:
And part of the basis of my argument is the fact that there is such a complicated procedural history because of the action of foreign courts, of which we can't even pronounce the names of.

[00:16:59] Speaker 03:
I think that that in and of itself says something about the reservation of judgment in this matter.

[00:17:06] Speaker 05:
The fact that my friend is not perfect is not going to help you.

[00:17:12] Speaker 03:
Well, I would also state that in Chevron, as was argued in the briefs, the court of appeals stated that if there was no arbitration award to be enforced, that the district court would lack jurisdiction over a foreign sovereign and that the action must be dismissed.

[00:17:39] Speaker 03:
I think that the facts here are more knowledgeable to Chevron and that the underlying logic of all of these cases, the underlying rationale, the underlying policy is stagnant throughout.

[00:17:58] Speaker 03:
And that there is an entire body of law that is much broader

[00:18:06] Speaker 03:
than the body of law that carves out these narrow exceptions to the New York Convention, to the Foreign and Sovereign Immunities Act, and to all of these laws that we have since 1976 that

[00:18:28] Speaker 03:
only were implemented because as things go, different issues arise in the courts involving foreign parties and it needs to be dealt with by the legislature.

[00:18:41] Speaker 03:
Now here we are and we are discussing and arguing about procedure and purely procedural issues that have no bearing on the facts of the case or the merits of the case.

[00:18:59] Speaker 03:
that are best decided elsewhere.

[00:19:05] Speaker 04:
Judge Rogers, has he answered your question?

[00:19:09] Speaker 05:
I'm fine.

[00:19:10] Speaker 04:
All right, Judge Ginsburg.

[00:19:12] Speaker 06:
Nothing further, thank you.

[00:19:14] Speaker 04:
All right.

[00:19:17] Speaker 07:
Mr. Byrd.

[00:19:20] Speaker 04:
Mr. Byrd.

[00:19:21] Speaker 07:
Yes.

[00:19:23] Speaker 07:
Good morning, may it please the court.

[00:19:25] Speaker 07:
My name is Jim Bird, and I will be and I'm representing Stylix, the appellee in this matter.

[00:19:32] Speaker 07:
Unfortunately, in two days, we will be commemorating very important date that seven years since the tribunal in Paris issued an award, almost $60 million in favor of the predecessor of Stylix, the company named Energo Alliance.

[00:19:49] Speaker 07:
For seven years, Moldova resisted enforcement in the awards through various court proceedings in which it participated or which it initiated.

[00:20:02] Speaker 07:
Even here in Washington, D.C., in the district court, Moldova initially did not even bother to retain a consul and spend time of the district court

[00:20:15] Speaker 07:
to bring up, to raise all defenses, very defenses, that the consul, which, from Moldova, who entered representation, several years after the petition was filed in the district court, even tried to revoke, tried to bring back, to turn back the time, and tried to file his defense all anew, which district court, of course, denied.

[00:20:41] Speaker 07:
The question that was discussed here before is the abuse of discretion.

[00:20:47] Speaker 07:
The abuse of whether the District Court abused its discretion and Judge Rogers was absolutely properly asked where did the District Court abuse its discretion because this is the standard to deny, to grant or to reverse the decision of the District Court to grant or deny stay.

[00:21:09] Speaker 05:
Under the in the petition proceedings under the New York Convention and I yes an abuse of discretion can arise both where there is an error of law or A clear error of fact, correct?

[00:21:29] Speaker 07:
That is my understanding.

[00:21:30] Speaker 07:
Yes, your honor.

[00:21:31] Speaker 05:
So my question is is

[00:21:35] Speaker 05:
and I'm just looking for it in the record to point you directly to the district court statement.

[00:21:42] Speaker 05:
When the district court described his understanding of the case that was before him, did he accurately describe it?

[00:21:59] Speaker 07:
I believe so, Your Honor, and the District Court pointed out that the Cassation Court, that's my understanding how it's pronounced, but... The Cassation, yeah, it's, of course.

[00:22:13] Speaker 07:
Cassation, yes.

[00:22:14] Speaker 07:
The highest court in France, they set aside or reversed the Court of Appeals.

[00:22:26] Speaker 07:
That was the moment

[00:22:27] Speaker 07:
when the award became valid and binding again.

[00:22:32] Speaker 07:
And when the Cassation Court sent the case back to the Court of Appeals, since that moment of time, the award became valid and binding.

[00:22:49] Speaker 07:
So there is no indication on the record

[00:22:52] Speaker 07:
that presently the award is not valid.

[00:22:55] Speaker 05:
Well I looked at your expert's statement that's in the record and he does make a general statement to the effect that if there's an award and there's no stay then the award is immediately enforceable.

[00:23:12] Speaker 05:
What I did not see and you can tell me if I missed this was any explication that that is

[00:23:22] Speaker 05:
the rule under Paris law when the threshold question is jurisdiction of the tribunal to proceed at all is challenging the award.

[00:23:43] Speaker 05:
In other words, as you know, in this country, just because you get a judgment from the district court doesn't mean it's necessarily enforceable.

[00:23:52] Speaker 05:
either because someone appeals or they raise a jurisdictional argument.

[00:24:03] Speaker 05:
So when the district court was describing this, he says,

[00:24:14] Speaker 05:
to the stay, there are two questions.

[00:24:17] Speaker 05:
The first one is, what is the status of the 2013 Arbitral Award?

[00:24:26] Speaker 05:
All right?

[00:24:27] Speaker 05:
And then he references the statement you made.

[00:24:31] Speaker 05:
And then he goes to the Eurocal Factors, and he says, quote, citing Eurocar,

[00:24:42] Speaker 05:
that in many countries, an arbitration award is final, binding, and enforceable, even as subject to appeal in court.

[00:24:55] Speaker 05:
I'm not questioning that statement, but I'm trying to understand if that's also true in the jurisdictional context that's been an issue here from the very beginning.

[00:25:12] Speaker 05:
and that went up to the Paris Court of Appeals and up to the Court of Cassiation.

[00:25:20] Speaker 05:
And that court's ruling was limited in the sense that it said that the Paris Court of Appeals had mistakenly added a requirement that the treaty did not require.

[00:25:42] Speaker 05:
in terms of what is an investment, and send it back to the Paris Court.

[00:25:50] Speaker 05:
But that's as far as it went.

[00:25:54] Speaker 05:
Is that your understanding?

[00:25:56] Speaker 07:
Well, my understanding, Your Honor, is that there is no distinction, at least from the Cassation Court decision, whether there is between a jurisdictional issue that was brought

[00:26:11] Speaker 07:
in the arbitration, in the arbitral proceeding, the jurisdiction of the Arbitral Tribunal.

[00:26:16] Speaker 07:
These are all issues that are brought up together to the Court of Appeals, whether the award is valid,

[00:26:27] Speaker 07:
and the Court of Appeal decides on all of the issues that are brought up by the petitioner and then all of these issues, all issues together that are brought up to the Court of Cassation and the Cassation Court reviews all the issues and then decides on whatever issues the Court of Cassation decides to decide

[00:26:51] Speaker 07:
And based on its decision, the Court of Cassation sends the case back to the Court of Appeals.

[00:26:57] Speaker 05:
Court of Appeals, in turn, says- I'm not disagreeing with that general statement.

[00:27:02] Speaker 05:
But what I'm trying to understand is your understanding.

[00:27:07] Speaker 05:
If a party is arguing the original tribunal had no jurisdiction under the treaty, and that issue goes up,

[00:27:21] Speaker 05:
And the highest court in France says, well, and these are my words, obviously not the court.

[00:27:32] Speaker 05:
There are a lot of issues in this case.

[00:27:34] Speaker 05:
Some of them are jurisdictional, some of them aren't.

[00:27:37] Speaker 05:
But at least as to how the Paris Court of Appeals defined an investment, it added a factor that was error.

[00:27:50] Speaker 05:
So we're sending this matter back to the Paris Court of Appeals.

[00:28:00] Speaker 05:
When the case gets to the district court, the district court, and tell me if this is a correct reading or not, appears to think that the jurisdictional issue has been resolved

[00:28:20] Speaker 05:
And the only remaining question, basically under the New York Convention, is whether enforcement of the award would be contrary to international public interest.

[00:28:33] Speaker 07:
I'm not sure that that would be my understanding, Your Honor.

[00:28:36] Speaker 05:
All right, so what is your understanding?

[00:28:39] Speaker 07:
Well, my understanding is that the district court did not address, did not, well, it did address that.

[00:28:48] Speaker 07:
The district court was fully aware that the issue of the tribunal's jurisdiction has not been resolved.

[00:28:58] Speaker 07:
It just, I believe that's,

[00:29:01] Speaker 07:
clear from the district court's assessment, because the district court was well aware that this is the issue that was brought up in the Paris Court of Appeals.

[00:29:10] Speaker 07:
That is the issue that was brought up before the Cassation Court.

[00:29:14] Speaker 07:
That is the still issue that is being resolved.

[00:29:18] Speaker 07:
And the district court knew that, was aware of that, and considered all the balancing Eurocar factors.

[00:29:25] Speaker 07:
And based on this balancing, the district court said,

[00:29:28] Speaker 07:
Enough is enough.

[00:29:29] Speaker 07:
Seven years is enough.

[00:29:31] Speaker 05:
Here's what the district court said.

[00:29:33] Speaker 05:
And this is at the Appendix 318.

[00:29:35] Speaker 05:
It said, talking about the third factor under the year.

[00:29:42] Speaker 07:
I'm sorry.

[00:29:43] Speaker 07:
It's an appellant.

[00:29:43] Speaker 07:
It's A3.

[00:29:44] Speaker 05:
A318.

[00:29:48] Speaker 07:
Thank you.

[00:29:52] Speaker 05:
See the paragraph talking about the third factor.

[00:30:02] Speaker 07:
Almost there.

[00:30:03] Speaker 05:
Sorry.

[00:30:05] Speaker 07:
The third factor.

[00:30:15] Speaker 07:
Yes, it's in front of me.

[00:30:16] Speaker 07:
Yes, Your Honor.

[00:30:17] Speaker 05:
Good.

[00:30:18] Speaker 05:
OK.

[00:30:18] Speaker 05:
So if you scroll down, the district court says, moreover.

[00:30:25] Speaker 05:
You see that sentence?

[00:30:26] Speaker 07:
Yes.

[00:30:27] Speaker 05:
It says, the court de cassias.

[00:30:30] Speaker 05:
How do you pronounce it?

[00:30:32] Speaker 05:
Three syllables or four?

[00:30:36] Speaker 06:
Three.

[00:30:38] Speaker 05:
All right.

[00:30:39] Speaker 05:
Has already concluded that one of Moldova's arguments for setting aside the award that the ad hoc tribunal lacked jurisdiction is without merit.

[00:30:56] Speaker 05:
leaving just the argument that the arbitral award is contrary to public policy for consideration.

[00:31:08] Speaker 05:
This reduces the likelihood that the arbitral award will be set aside and thus counsels in favor of lifting the stay, end of quote.

[00:31:22] Speaker 05:
So my question is,

[00:31:26] Speaker 05:
Is this an accurate statement, essentially that the public policy is the only remaining issue?

[00:31:37] Speaker 05:
And if it's not, then doesn't this reflect or does it reflect a fundamental misunderstanding of the status of the proceedings

[00:31:55] Speaker 05:
which is what the district court said it had to determine.

[00:32:00] Speaker 05:
And that is so even as Judge Ginsburg noted, Moldova did not mention the referral to the European court before the judge decided to lift the state.

[00:32:26] Speaker 07:
Oh, Your Honor, regardless of this statement of how this court understood the, the Europe car factors do not even take into account the likelihood whether the award will or will not be set aside by the court, by the court in the foreign jurisdiction.

[00:32:50] Speaker 07:
The factor is the comparative level of scrutiny that the Arbitral Award will receive in the French system.

[00:32:58] Speaker 07:
That's the correct statement in the first sentence of that paragraph on 8.318.

[00:33:03] Speaker 07:
I believe that that would be the key factor, regardless how the judge understood the decision of the court of the Cassation.

[00:33:16] Speaker 06:
Well, if he misunderstood that,

[00:33:18] Speaker 06:
Why would it follow that he could count this factor as weighing slightly in favor of lifting the stay, if in fact, regardless of the level of scrutiny, the jurisdictional matter is in fact still in dispute?

[00:33:36] Speaker 07:
Well, the jurisdictional matter was in dispute from the get-go.

[00:33:41] Speaker 07:
We don't deny that.

[00:33:42] Speaker 07:
The question is the balance of the factors, because this is not only one factor.

[00:33:48] Speaker 06:
You don't deny it, but he was under the impression that it was no longer in dispute.

[00:33:55] Speaker 06:
I have another question closely related to this.

[00:33:59] Speaker 06:
Did Moldova ever argue about this?

[00:34:02] Speaker 07:
I don't believe so.

[00:34:03] Speaker 07:
I don't believe that Moldova brought this up.

[00:34:10] Speaker 05:
So we do have a doctrine that

[00:34:19] Speaker 05:
the court can, citing Supreme Court decisions, address a matter that goes to the heart of the case, where Moldova challenged the jurisdiction, never surrendered that challenge,

[00:34:48] Speaker 05:
The highest court in France has yet to rule on that.

[00:34:56] Speaker 05:
And yet, in determining whether or not to lift a stay, the district court proceeds on the assumption that the jurisdictional matter has been resolved as a matter of French law.

[00:35:18] Speaker 07:
Well, Your Honor, this is just only one of the factors.

[00:35:21] Speaker 07:
There are multiple factors and this is the court discretion.

[00:35:26] Speaker 07:
This court never ruled, at least my understanding, my recollection is this court never ruled that the district court ever abused discretion, the abuse of a discretion standard in lifting or granting a stay.

[00:35:41] Speaker 07:
So regardless of the understanding of the court decision, there are many other factors to consider as well.

[00:35:52] Speaker 05:
All right.

[00:35:53] Speaker 05:
So your point then, and I'll ask counsel for appellant about this, is that appellant never argued there was an abuse of discretion, merely that it was premature.

[00:36:06] Speaker 07:
That is correct, Your Honor.

[00:36:07] Speaker 07:
Yes.

[00:36:08] Speaker 05:
So in arguing it was premature,

[00:36:11] Speaker 05:
was not Moldova saying, although I grant you it's not in Haikverba, it's premature because the question of jurisdiction is still at issue, being litigated.

[00:36:33] Speaker 07:
Well, I believe that what Moldova argued is that generally there are proceedings in foreign countries that are ongoing and there was no indication that they specifically argued just because the jurisdictional issue is still allegedly an issue in foreign proceedings, then the state should be granted.

[00:37:01] Speaker 05:
And moreover, more- Say that again for me, so I'm very clear on what your position is.

[00:37:10] Speaker 07:
What my position is that the general statement, the general argument of Moldova that there are, which is what they made, that there are foreign court proceedings ongoing, never pointed out to specific jurisdictional issues, that it's just something that Moldova waived.

[00:37:31] Speaker 05:
But what I'm trying to get at is the district court understood it had raised the jurisdictional question.

[00:37:40] Speaker 05:
But it understood that that was resolved.

[00:37:46] Speaker 05:
And you don't think it's a fair understanding of the argument that it's premature to lift the stay because there are these pending proceedings

[00:38:01] Speaker 05:
on the question of jurisdiction of the tribunal.

[00:38:06] Speaker 05:
Yeah, excuse me, go ahead.

[00:38:09] Speaker 07:
My understanding, Your Honor, is that it's a general argument that there are, Moldova makes a general argument that there are pending proceedings, and the court was very well aware of this pending proceedings, that nothing was hidden from the court.

[00:38:23] Speaker 07:
So regardless which issue was before the court,

[00:38:29] Speaker 07:
specifically, whether it's jurisdictional issue or public policy or other issues, the court will aware that there is an ongoing proceedings which may in fact take more years to decide because the European Court of Justice does not simply issue a decision

[00:38:46] Speaker 07:
on the merits.

[00:38:48] Speaker 07:
It only issues an advisory, that's what my understanding, only issues an advisory decision on the European, on the issue of the Convention of the Energy Charter Party that goes back to the Paris Court of Appeals, and then Court of Appeals may decide whatever they may decide, and then it goes up to the, may go up to the Court of Cassation, it may as well take

[00:39:11] Speaker 07:
three, four, five, six, seven years more.

[00:39:14] Speaker 07:
And that's what the district court was aware of.

[00:39:19] Speaker 05:
My only question would be then, you may be right that even if the district court understood that it had misunderstood that the jurisdictional issue had been resolved, it may still have decided

[00:39:41] Speaker 05:
that it was going to lift the stay.

[00:39:45] Speaker 05:
But why wouldn't this court want to remand that question to the district court to correct its understanding of the fundamental issue in the case?

[00:40:00] Speaker 05:
Because the district court was proceeding on the premise that jurisdiction had been decided.

[00:40:10] Speaker 05:
He understood that jurisdiction was still an open question.

[00:40:16] Speaker 05:
He might decide to deny the motion to lift the stay, or he might decide to lift the stay.

[00:40:29] Speaker 05:
But from reading the record, I can't tell what he would do.

[00:40:39] Speaker 05:
I mean, there's no question this is an old matter.

[00:40:41] Speaker 05:
The contracts are 20 years old.

[00:40:43] Speaker 05:
That arbitration is a slow process, a costly process, not the speedy, inexpensive arbitration notion that was entertained by the Supreme Court in the early days.

[00:41:01] Speaker 05:
I mean, the international treaties and conventions

[00:41:09] Speaker 05:
have changed the nature of arbitration.

[00:41:14] Speaker 05:
And I think the hesitancy here, and I just want to be clear on your position on that, I agree that this is only one of several factors for the district court to consider.

[00:41:30] Speaker 05:
But if it's the fundamental issue in the case, why wouldn't we want to be sure that the district court

[00:41:39] Speaker 05:
wants to proceed, particularly when from the very beginning, the Paris court in the dissent by the chief judge pointed out that this question, I mean, to the extent Moldova says our decision may have extraordinary implications, so too may whatever the French courts do,

[00:42:07] Speaker 05:
on remand, much less what the European Court does in defining what is an investment under this treaty.

[00:42:16] Speaker 05:
That's the only question I have.

[00:42:19] Speaker 07:
Your Honor, may I address that?

[00:42:21] Speaker 05:
Of course.

[00:42:22] Speaker 07:
Yes.

[00:42:23] Speaker 07:
What I'd like to say is that the standard is abuse of discretion, that regardless whether the misunderstanding of the district court, whether it was misunderstanding or correct understanding,

[00:42:35] Speaker 07:
that does not rise to the abuse of discretion standard that is required for this court to to overrule the district court to send it back.

[00:42:48] Speaker 07:
So that that is and in the general understanding of the district court

[00:42:53] Speaker 07:
that the proceedings are still ongoing and that regardless whether it's jurisdictional issues or some other issues, that was absolutely correct understanding of a district court.

[00:43:05] Speaker 07:
The district court took into account in making this decision.

[00:43:10] Speaker 04:
Thank you.

[00:43:11] Speaker 04:
All right, Judge Ginsburg.

[00:43:14] Speaker 04:
Oh, thank you.

[00:43:14] Speaker 04:
All right.

[00:43:16] Speaker 04:
Mr. Grasso, you can have two minutes.

[00:43:20] Speaker 03:
Thank you very much, Judge Anderson.

[00:43:24] Speaker 03:
I would just like to point out the circular nature of Appelli's arguments, especially given Judge Rogers' comment about the treaties that we now have that have changed the game in terms of arbitration, which I agree with.

[00:43:45] Speaker 03:
And one of the relevant treaties here is the United Nations Treaty on Commissions and International Trade Law.

[00:43:59] Speaker 03:
And when you take that treaty along with the ECT and Moldova's position that it never agreed to the arbitration

[00:44:15] Speaker 03:
then it can't be argued that the issue of arbitration can be decided by the district court.

[00:44:25] Speaker 03:
So again, going to the heart of the issue, as pointed out by Judge Rogers of jurisdiction and what the district court knew and didn't know what they would have done, what they

[00:44:39] Speaker 03:
you know, under different, you know, hypothetically, under circumstances which none of us here can predict, and circumstances that are beyond our ken to a great extent, just for inherent reasons, I think that it's the most prudent thing to do for this court to reserve judgment.

[00:45:01] Speaker 05:
So let me ask you, counsel,

[00:45:07] Speaker 05:
Can you point me in the record to where Moldova argued before the district court that there were pending proceedings and they were addressing, among other things,

[00:45:36] Speaker 05:
the jurisdiction of the tribunal under the treaty.

[00:45:44] Speaker 05:
And if you can't do it now off the top of your head, I would ask that you submitted a letter to the court with my colleagues, subject to my colleagues' agreement.

[00:46:02] Speaker 05:
Can you answer it now?

[00:46:04] Speaker 03:
For the sake of being thorough, I'd prefer to submit a letter to the court just so that I don't miss anything because the only thing that I can think of off the top of my head, I don't think is as a clear-cut answer as Judge Rogers may be looking for.

[00:46:24] Speaker 04:
All right, Judge Rogers, could you restate what you want him to

[00:46:31] Speaker 04:
research.

[00:46:35] Speaker 05:
Where in the record did Moldova identify for the district court that the pending proceedings involved, among other things,

[00:47:00] Speaker 05:
a question of the jurisdiction of the tribunal under the treaty.

[00:47:12] Speaker 03:
Understood.

[00:47:13] Speaker 03:
I will submit that in a letter to the court.

[00:47:17] Speaker 03:
When would you like that by?

[00:47:20] Speaker 05:
Judge Henderson, be guided by you.

[00:47:24] Speaker 06:
How about five days and Mr. Bird?

[00:47:32] Speaker 04:
And Mr. Bird, you can have two days to respond to that.

[00:47:45] Speaker 04:
All right, any more questions, Judge Rogers, Judge Ginsburg?

[00:47:50] Speaker 05:
No, thank you, Judge Henderson.

[00:47:52] Speaker 04:
All right, your case is submitted.