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Base number 19-7153, Teco Guatemala Holdings LLC versus Republic of Guatemala Appellant.

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Mr. Baldwin for the appellant, Ms.

[00:00:10] Speaker 03:
Menaker for the appellee.

[00:00:14] Speaker 02:
Good morning, Council.

[00:00:16] Speaker 00:
Good morning, Your Honor.

[00:00:19] Speaker 00:
My name is Edward Baldwin, and I'm appearing on behalf of the Appellant of the Republic of Guatemala.

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I'd like to start off because this is a unique case in a much different way.

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My colleague opposing counsel and I spend a lot of time in the EXID system, the International Center for the Settlement of Investment Disputes, referred to as EXID.

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And it's a unique system.

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So this is not your standard arbitration enforcement case in which there's a case under the New York Convention or some other case that's being heard.

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has lots of implications that will arise throughout the case.

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So there are issues here that are a matter of first impression in this circuit, and as far as we're aware, anywhere.

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One of those has to do with the unique procedural history in the exit, where you had an original tribunal.

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Then you had an annulment mechanism, which was applied in this case, resulting in a partial annulment.

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and then you had essentially a second arbitration or a resubmitted arbitration.

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All of those have the same case number, have given the same exit arbitration number.

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All of those are before exit.

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It's all a self-contained system, which is different when a different issue might be sent to one tribunal or to another.

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So that makes it different with regard to both the complete arbitration rule issues and also the Rule 60.

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Can I ask you just to follow up on that procedurally?

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I understand there's now been an award in the post annulment round from another arbitration tribunal dealing with the costs, fees on costs, or interests on costs.

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And do you know what the status of that is?

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Has anyone moved to annul?

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that or has that been finalized or what is the time frame for it becoming finalized or seeking annulment?

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I'm not counsel for the Republic in that case, so I'm limited in what I can know about the case.

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But the client's the same, presumably the client could have answered that question for you.

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The client is, but there's confidentiality issues that go with regard to the case.

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But my opposing counsel can discuss this.

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But I will say, as far as I'm aware based on recent discussions,

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there is no decision on the request for revision.

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I can say that once that request for revision or interpretation is completed, then there will be an opportunity to seek annulment within 120 days of that second award.

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So the second award is not final, and it's subject to an annulment

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period that I don't believe is run and only should start to run once that revision is made.

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OK.

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And that makes sense.

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I'm sorry, is the revision separate from seeking annulment?

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Yes, it's separate.

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And what is the timetable for that?

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I don't want you to reveal any confidence.

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I'm just trying to figure out the timing here of when this second arbitration is going to be final.

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I don't know when.

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And I'm not sure my, I'm not sure TECO's counsel will know either, because it's up to the

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arbitration tribunal to do it.

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And there's, I don't think they have a set timeframe in that case.

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Sometimes cases can take a year or, you know, sometimes they're, they're done very quickly.

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So assuming it's not been done yet, it's, I don't think there's a deadline by which we'll know when the court will do that.

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But even once that happens, you have 120 days.

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Let me ask you, counsel, you started out by saying it is a,

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self-contained system, and yet I understand you want to add a rule of completeness as has been applied by the courts under federal arbitration law.

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Wouldn't that be inconsistent with the convention?

[00:04:42] Speaker 00:
No, Your Honor, I don't think it would be inconsistent with the convention because the purpose of the there's nothing in the convention or in the implementing language that talks about the complete arbitration rule makes any reference.

[00:04:55] Speaker 02:
Well, it doesn't speak in that language, but it does set up a system whereby once there is a decision.

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You could move for a stay.

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And that would be true of the original award of the annulment.

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So why isn't that the completeness option offered under the convention?

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In other words, it's through a series of stays that I'll say the party against whom the award has been rendered.

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can in effect postpone, if the request for a stay is granted, the effectiveness of the award.

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And that would accomplish, would it not, the same thing as what you're seeking in a rule of completeness.

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Stay everything until all these decisions have been rendered under this case number against your client.

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Your honor, I would note that those rules were in the ICSID convention were party of discussion and negotiation between many sovereigns in which the Republic of Guatemala is a party to that convention.

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That convention sets up procedures that are specific to ICSID.

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What the complete arbitration rule is not about ICSID, it's about

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The courts and it's about efficiency.

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It's about other issues when you look at the basis for the complete arbitration rule.

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It's so you don't have cases being decided piecemeal and a system that might allow for a stay does not deprive this court or the district court of deciding

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that it's better to wait to enforce or that it should wait to enforce decisions once the arbitration is complete, because that doesn't have anything to do with the Ixen Convention.

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Well, what about Article 53?

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That's recognition and enforcement.

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And paragraph two says, for purposes of this section, an award shall include any decision

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So when I read that, I thought, well, that's not the type of completeness that you've been arguing for.

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It allows the winning party to have an award.

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An award is in quotation marks.

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provided it's properly certified and come to the court.

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And the courts may be, how should I put it, the victims of having multiple requests for enforcement.

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But that's the system that was set up.

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And that's why I'm asking, how could a court impose a rule of completeness

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when in effect you're seeking an interest of the courts and exit gives you the opportunity to act in the interest of your client by seeking a stay.

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That's what I'm trying to understand.

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It's all very nice for you to argue about our efficiency, but

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If it's a self-contained system and the courts have jurisdiction, and this very limited jurisdiction, since we're to give full faith and credit, how can we develop another system that says we're not going to act as Article 53 provides?

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We're going to say to Tico,

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Hold on there.

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We're not going to deal with this until this matter is completely Resolved And your honor, what I would say to that is that again if we look at Article 53 and I'm going to just read from the language here.

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It talks, it says the this is in paragraph in front of me.

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Okay, so it says there that the the award shall be binding on the parties and not shall not be subject to any appeal or remedy.

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That's what it's talking about with the enforcement.

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We're not suggesting that the complete arbitration rule means that the award can never be enforced.

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What we're saying is it's improper to enforce it at this point, that we should wait till the end.

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There's nothing in Article 53 which suggests that this court doesn't have the power to decide whether or not something should happen.

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And it's- But move on to Article 54.

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OK.

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Article 54 says, for the purpose of this section, award shall include any decision interpreting, revising, or annulling.

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But again, you have to read articles

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Oh, I'm sorry.

[00:10:32] Speaker 00:
Move on to Article 54.

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I'm sorry.

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I thought you meant paragraph 2.

[00:10:35] Speaker 02:
Article 54, paragraph 2.

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And again, Your Honor, this is not saying.

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This is talking about whether or not an award, whether or not there's remedies to an award or how an award should be treated.

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But this does not prevent this court from exercising its duties to decide whether or not efficiency or engaging in piecemeal

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I mean, it's hard for me to believe that if there was a exit arbitration tribunal that was sending interim awards every couple of weeks, that this court would allow those awards to continue.

[00:11:14] Speaker 02:
Well, that may be an interesting hypothetical, but that's not our case.

[00:11:18] Speaker 00:
No, that's not.

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I'm just trying to look at this convention and what it contemplates.

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And while there's not a lot of law out there, the question of whether or not

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the system you're suggesting that the courts ought to adopt is consistent with the convention.

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And I haven't heard you say it is.

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But rather, you're arguing we shouldn't be taxed with these interim awards, et cetera.

[00:11:46] Speaker 00:
Well, Your Honor, I do think it is.

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And let me be clear that I do think it is.

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Because again, articles 53 and 54 are talking about remedies and an award being enforced.

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The timing of that enforcement is up to the court.

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It's a matter for the court to decide whether or not it can be enforced at a particular time.

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It doesn't annul or appeal or vacate.

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We're not asking for the award to be vacated such that it can never be enforced.

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We're asking about the complete arbitration rule.

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And so we could hold it in advance.

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Well, in fact, that happens.

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If there's an Owens-Illinois v. Venezuela case that's an Exit case that was stayed for a period of time.

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There's others.

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I just don't.

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Was that case stayed because of the complete arbitration rule?

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No.

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The Owens-Illinois one?

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No, I don't believe this complete.

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Because of the unique facts of this case, Your Honor, I don't think the complete arbitration rule.

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What was the reason that one was stayed?

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Owens-Illinois?

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It was stayed because the annulment was going on at the time.

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Because keep in mind, as was pointed out, articles 53 and 54 allow for a stay, or there might be a provision to stay with exit, but then you can bring it.

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So the district court in DC has stayed decisions or held decisions in abeyance pending this issue.

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You have examples other than this

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Owens-Illinois case?

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There are, Your Honor, but I don't have them just off.

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So you think this is standard operating procedure in the district courts?

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Because I got the impression that the district courts are routinely, almost summarily, enforcing these exit awards.

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But I don't know the underlying facts.

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I believe I could submit a letter to the clerk outlining other cases.

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But I can certainly say with Owens-Illinois,

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that that case was stayed.

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And I think there have been others that have been stayed, not because of the complete arbitration rule, because it's not been challenged, but for other reasons.

[00:13:56] Speaker 01:
Wanted to I'm sorry to I know I don't want I want to let you get to your points, but I had another question that's related to Judge Rogers line of questioning.

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What is the standard for obtaining a stay from A post annulment a new a new tribe with a new tribunal post annulment.

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Is there a legal standard for the say What is the test if if you're talking about a stay

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from a new tribunal, you know, from the tribunal that's hearing the second arbitration.

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Right, that has the authority to say enforcement of the non-annulled portions.

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You know what that standard is?

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I think, I'm trying to recall, I think that standard would, in essence, that standard would essentially be up to, it would be in the discretion of the arbitration tribunal as a habit.

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There's no,

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common understanding of what you have to show to get such a stay?

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They just make it up as they go along?

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There may be, but it's been pointed out in this case, there's no stare decisis in international law.

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Unless we stare decisis, I'm just asking for a principle for getting a stay.

[00:15:01] Speaker 01:
So you ask and they can go, we tossed a coin and you don't get a stay or we tossed a coin and you do get a stay or do you have to show lack of finality or concerns about complete arbitration or

[00:15:15] Speaker 00:
I don't think it would be lack of finality necessarily.

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I think it would more have to go with the equities of the case.

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And there are cases that get stayed in the annulment phase.

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There are cases that don't get stayed in the annulment phase.

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I'm not aware of any cases being brought before a second tribunal to stay the enforcement of the original case.

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And I'm not sure sitting here that- But that's what everyone says the remedy, this whole process, is that the remedy is if you don't want the non-annulled portions to be enforced while the second round of arbitration is going on, then you just ask that new arbitration panel to stay the non-annulled portions of the award.

[00:15:58] Speaker 01:
That seems to be the practice that's envisioned here.

[00:16:04] Speaker 00:
I, you know, to be quite frank, Your Honor, I don't know that that is the practice or where that would arise from, and I'm sure Counsel Patiko can address this.

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Tribunals will hear all manner of applications, much different than the U.S.

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court system where there are certain motions that are proper, others that aren't.

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You could make perhaps almost any application to a tribunal because you have those parties before you

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But I do not think it's standard to request that, nor do I know of a specific mechanism.

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Do you dispute that Guatemala could have sought a stay from this tribunal of the non-annual enforcement of the non-annual portions?

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I'm going to fully admit that I could be missing something here, but I don't think there's anything in the rules that give it some right to do it.

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But as I mentioned, you can always ask the tribunal for anything, almost, and most of that

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But I don't know that it's within the tribunal's kin or authority here to make that determination.

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It may be, but it's part of an exit system.

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It's not their award, in a sense, because it's an exit award.

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It's part of this overall system of award, annulment, resubmission, all contained under the same case number.

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I'm not sure that that can be done.

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But I don't believe there's anything that gives it, give that course.

[00:17:38] Speaker 01:
Sorry, I have, isn't it rule Article 55.3?

[00:17:41] Speaker 01:
Am I wrong about that?

[00:17:48] Speaker 00:
It might be a rule or article.

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Let me get to the rules here.

[00:17:52] Speaker 01:
Oh, no, I think I've got the wrong citation.

[00:17:53] Speaker 01:
Never mind.

[00:17:54] Speaker 01:
It's not 55.3, whatever it is.

[00:17:55] Speaker 01:
I'll have to find it for you.

[00:17:58] Speaker 01:
No, not the article itself.

[00:18:01] Speaker 01:
Does it have its own rules?

[00:18:02] Speaker 00:
It has rules in addition to articles.

[00:18:04] Speaker 01:
Sorry, yes, I misspoke.

[00:18:06] Speaker 01:
Rule 55.3 is what I have is allowing the stay.

[00:18:12] Speaker 00:
And you're right, thank you.

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It may stay or continue.

[00:18:20] Speaker 00:
Okay, so there you go.

[00:18:21] Speaker 00:
There's the express authority to do this.

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Up to the discretion of the tribunal.

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There's no other rules.

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With regard to how that can be done, but you're absolutely correct.

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You're on it.

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We could under 55 Well, it refers you back to rule 54 That has this process for space.

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And

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I don't know what the effect of asking for a stay would have been.

[00:18:59] Speaker 02:
It's like filing a motion for the arbitration panel or the committee to enter a stay.

[00:19:16] Speaker 00:
Your Honor, but I would just say the rules of exit, which is not even the convention, the convention is the treaty.

[00:19:23] Speaker 00:
Now we're talking about rules of Ixid.

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Those rules of Ixid cannot override this court's rules regarding a complete arbitration.

[00:19:35] Speaker 00:
Imagine these rules are being in the process of being changed now.

[00:19:40] Speaker 00:
Ixid's going to change these rules.

[00:19:41] Speaker 02:
What rules are you talking about?

[00:19:43] Speaker 00:
Well, we're talking about rule 55, where it talks about the rules of the court.

[00:19:49] Speaker 00:
I'm sorry, the rules of Ixid.

[00:19:51] Speaker 00:
There's an exit convention which is not be overridden by it.

[00:19:56] Speaker 04:
What rules in this court are you talking about?

[00:19:58] Speaker 04:
They can't be overridden.

[00:19:59] Speaker 00:
I'm saying the complete arbitration rule is something that... Complete arbitration rule?

[00:20:04] Speaker 04:
Yes.

[00:20:05] Speaker 04:
Do you have a... What authority applies the complete arbitration rule to this review of this tribunal, the review of this award, arbitration?

[00:20:15] Speaker 00:
Well, I think in that it's an arbitration, Your Honor, is the only thing I can say, because this has never been litigated, because that's such a unique case.

[00:20:23] Speaker 00:
This complete arbitration.

[00:20:24] Speaker 00:
It's overruling some sort of rule of this court if it's never been litigated.

[00:20:29] Speaker 00:
Well, I agree.

[00:20:29] Speaker 00:
And I don't think it does.

[00:20:31] Speaker 00:
What I'm saying is that these are exit rules.

[00:20:34] Speaker 00:
This isn't the exit convention.

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And I don't think that a rule that exit promulgates with regard to how it handles arbitration can prevent this court

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from using the, or somehow vitiates the complete arbitration rule in this court.

[00:20:49] Speaker 00:
I just don't think that that can happen in this case.

[00:20:53] Speaker 00:
Well, I'm saying what I've heard here this morning, Your Honor, is that there's a discussion that these rules provide a stay.

[00:21:05] Speaker 00:
And therefore, if there's an ability for a stay, and there's this issue of the award being enforced, that therefore,

[00:21:14] Speaker 04:
that makes the complete arbitration rule not applicable because- What complete arbitration rule is it that you say applies in this case?

[00:21:23] Speaker 04:
Give me a citation that you're- Sure, Your Honor.

[00:21:27] Speaker 00:
The complete arbitration rule that's laid out, for example, in Berkowitz v. Republic of Costa Rica.

[00:21:33] Speaker 00:
That was not this kind of arbitration rule.

[00:21:36] Speaker 00:
It was not.

[00:21:37] Speaker 04:
It's never, there's never been- There is no rule of this court that's effective

[00:21:42] Speaker 04:
completeness on this type of arbitration, right?

[00:21:49] Speaker 00:
It's never been litigated, Your Honor, if that's so fair.

[00:21:52] Speaker 04:
If you said we're evicting, it'd be evicting a rule to do that.

[00:21:57] Speaker 04:
If there is no such precedent, never been litigated, and you keep coming up with the rule of completeness, I'm not sure how you can say there is such a rule that governs this case.

[00:22:11] Speaker 00:
You know, I would say the Berkowitz v Republic of Costa Rica is an investor state arbitration case, just like this case.

[00:22:17] Speaker 00:
It's in a different forum was in a forum under the UN's arbitration rules and not under the exit forum, but But

[00:22:30] Speaker 00:
It's still an investor state arbitration case like this case.

[00:22:33] Speaker 00:
It's the same arbitration.

[00:22:35] Speaker 00:
It's just administered by a different one.

[00:22:38] Speaker 00:
So what we would suggest, because this has never been litigated before, as far as we know, is because this is an arbitration that we're talking about, the TECO, the Guatemala holdings, the public of Guatemala is an arbitration, that the complete arbitration rule

[00:22:52] Speaker 00:
should apply.

[00:22:53] Speaker 00:
And the reason for that is there's a, the idea behind that complete arbitration rule is that it's meant to keep cases from, awards from coming in and coming in piecemeal.

[00:23:04] Speaker 00:
And that can be done in an exit arbitration in the same way that it can be done in this Berkowitz v. Republic of Costa Rica case, where it's done with an investor state.

[00:23:14] Speaker 04:
So this is an, I would say this- What port was that Puerto Rican case?

[00:23:18] Speaker 00:
And- I'm sorry, can you repeat that, Your Honor?

[00:23:20] Speaker 00:
Was that our case, the Puerto Rican case you just added?

[00:23:24] Speaker 00:
I cited the Berkowitz case, which is, it was a Judge Leon case, I believe.

[00:23:29] Speaker 04:
And it was... You said that case or you said it's an FSUP case?

[00:23:36] Speaker 00:
It's an FSUP case, 288 FSUP 3rd, 166.

[00:23:39] Speaker 00:
Right.

[00:23:40] Speaker 04:
It was not a decision of this court, it was a decision of the district court, right?

[00:23:45] Speaker 00:
That is correct, Your Honor.

[00:23:46] Speaker 00:
But this court has looked at

[00:23:49] Speaker 00:
complete arbitration rule cases, if you'll give me a moment, Your Honor.

[00:24:01] Speaker 00:
The American Federation of Government Employees versus the Federal Labor Relations Authority, D.C.

[00:24:08] Speaker 00:
Circuit Case, 1985, 777, F. Second, 751, also addresses the complete arbitration rule with regard to an arbitration.

[00:24:16] Speaker 00:
That certainly was not an exit,

[00:24:18] Speaker 00:
arbitration is against the FLRA, but it was an arbitration and this rule was invoked by the DC Circuit.

[00:24:24] Speaker 02:
That was where we didn't have any such rule, but we looked to another system and decided we would adopt that approach.

[00:24:38] Speaker 02:
So that supports your thesis here.

[00:24:43] Speaker 00:
I believe that's, yes.

[00:24:45] Speaker 02:
This court.

[00:24:47] Speaker 02:
where there's a question of first impression such as this, could adopt this complete arbitration approach in the context of exit.

[00:25:04] Speaker 02:
And it would not be contrary in your view to anything in exit itself.

[00:25:13] Speaker 00:
That's right, Your Honor.

[00:25:14] Speaker 00:
It wouldn't be contrary because the exit talks about enforcement, not when that gets enforced.

[00:25:20] Speaker 00:
It's up to this court to decide how this court should be run in terms of allowing piecemeal awards to come in.

[00:25:29] Speaker 02:
But what I'm trying to understand is, I'm sure you know better than I, you know, the legislative history of exit was this was supposed to be fast.

[00:25:38] Speaker 02:
It wasn't supposed to drag on for years.

[00:25:41] Speaker 02:
So that while

[00:25:43] Speaker 02:
The convention starts out by defining the word award as all the questions presented to it.

[00:25:53] Speaker 02:
Then when it comes to its discussion of enforcement, it redefines what is an award for purposes of enforcement.

[00:26:06] Speaker 02:
And so that's what got me started on

[00:26:12] Speaker 02:
I mean, it's interesting, your counsel for the courts here in this argument, as opposed to counsel for your client, because I was thinking of from your client's perspective, the exit does offer a way to avoid, or at least to request that an award not take effect immediately.

[00:26:36] Speaker 02:
So were your clients successful,

[00:26:39] Speaker 02:
And that's where Judge Millett's question is key.

[00:26:42] Speaker 02:
And you think, well, it's a matter of equity, and we don't know.

[00:26:45] Speaker 02:
We don't have a pattern here.

[00:26:47] Speaker 02:
Yet from the exit practice, for the courts to have this leeway,

[00:27:06] Speaker 00:
Yes, because again, I think that the question is whether or not an award can be enforced, not when.

[00:27:11] Speaker 00:
There's nothing in the exit convention or even the exit rules.

[00:27:15] Speaker 02:
No, I agree.

[00:27:15] Speaker 02:
I was referring to the legislative history.

[00:27:18] Speaker 02:
This is supposed to be a fairly quick process, and you couldn't come to the courts like you can under the New York Convention and under the Federal Arbitration Act and raise all these issues.

[00:27:31] Speaker 02:
Here's the award.

[00:27:32] Speaker 02:
You have to give full faith and credit to it.

[00:27:34] Speaker 02:
End of discussion.

[00:27:35] Speaker 02:
But it doesn't say, you argue, that the court can't decide as a matter of its own control over its docket when it's going to consider the application for enforcement.

[00:28:01] Speaker 02:
It could just hold it in abeyance

[00:28:04] Speaker 02:
arguably for years while the matter is litigated back and forth under exit.

[00:28:13] Speaker 00:
Yes, and I think it should.

[00:28:14] Speaker 00:
The exit system is what it is, and the party, sorry to use that phrase, but the exit system is what it is.

[00:28:22] Speaker 00:
And the claimants have the option of choosing different systems.

[00:28:25] Speaker 00:
They decide to choose the exit system.

[00:28:28] Speaker 00:
But we should, in my view,

[00:28:31] Speaker 00:
in client's view, wait until there is a final determination of the dispute.

[00:28:37] Speaker 00:
When you look at the complete arbitration rule, and I can give you case authority on this, it talks about the dispute being done.

[00:28:44] Speaker 00:
This is clean.

[00:28:45] Speaker 02:
So let me ask you, if we had a state court judgment that a party was seeking to have the district court here enforce,

[00:29:00] Speaker 02:
And under the state law, it was a final judgment, enforceable in that state.

[00:29:11] Speaker 02:
Just under my hypothetical, how could this court say, well, we want to wait until all the appeals are resolved and everything, because we don't think it's a final enforceable judgment or final enforceable order?

[00:29:33] Speaker 00:
Again, I would say I don't know of a situation like that, but just to use that as a hypothetical, full faith and credit also does not require an instant, does not allow for instant enforcement necessarily of that state court decision.

[00:29:55] Speaker 02:
The other thing that I would- But all I'm getting at is, and the district court explored this to some extent,

[00:30:02] Speaker 02:
what controls where we're talking about the enforcement of a judgment of a state.

[00:30:12] Speaker 02:
All right, and it's sort of that hands-off approach.

[00:30:16] Speaker 02:
And just because other things involving the parties are still going on in the state, full faith and credit says we don't look behind what the state has said

[00:30:31] Speaker 02:
is a final enforceable judgment.

[00:30:33] Speaker 02:
Just interesting.

[00:30:36] Speaker 00:
Yeah.

[00:30:36] Speaker 00:
Your honor, if I may, as this goes, when the district court did that, it was in the context of these Rule 60 defenses, which we haven't discussed.

[00:30:46] Speaker 00:
But about that, let me say that one thing that makes this different from Rule 60, as we say in our brief, was the codification of the common law.

[00:30:57] Speaker 00:
things to allow, give equitable reasons to challenge something.

[00:31:02] Speaker 00:
The difference in this case is that a state court judgment, if I had a judgment from Florida, I could go to Florida and have pretty, you know, have mechanisms to be able to challenge that decision.

[00:31:16] Speaker 00:
In the exit system, the annulment.

[00:31:19] Speaker 01:
You wouldn't have any mechanism to challenge that state court judgment in federal court under rule 60.

[00:31:25] Speaker 00:
Well, I would argue that there's a part in the breach you'll see that we argue that you could.

[00:31:30] Speaker 00:
There's courts that have found that.

[00:31:32] Speaker 01:
There's no court that I could see of any of your cases that applied Rule 60 to revise a state court judgment.

[00:31:43] Speaker 05:
Yes.

[00:31:44] Speaker 01:
It's not totally clear one district court can do it to another district court.

[00:31:47] Speaker 01:
That's an open question.

[00:31:48] Speaker 01:
In at least many circuits it is.

[00:31:52] Speaker 01:
And we're talking here about

[00:31:55] Speaker 01:
sort of crossing federalism lines here and having a federal court grant Rule 60B to revise the state court judgment.

[00:32:03] Speaker 01:
I've never seen such a thing.

[00:32:05] Speaker 00:
I agree, Your Honor.

[00:32:06] Speaker 00:
I haven't seen it either.

[00:32:07] Speaker 00:
It would be issues of federalism.

[00:32:09] Speaker 01:
The rule doesn't apply.

[00:32:10] Speaker 01:
I mean, the federal rules could not adopt such a dramatic change in sort of the legal order.

[00:32:18] Speaker 01:
They don't have that authority as a matter of the Rules Enabling Act.

[00:32:22] Speaker 00:
Right.

[00:32:23] Speaker 01:
It was will be an awful lot of freight rule 60 would be carrying there.

[00:32:27] Speaker 00:
I think you're on you're absolutely right with regard to federalism with regard to it not being done with regard to state courts, the issues that would be we're not asking that obviously that a state court is be

[00:32:37] Speaker 01:
Applied to to state courts, but we think the test here is how we were supposed to enforce enforce exit God judgments, the same way we would a final judgment from a state court.

[00:32:49] Speaker 01:
And so that's why I didn't understand your rule 60 be argument, because we would never in applying full faith and credit Rely on rule 60 be

[00:33:00] Speaker 00:
Right, it would only be subject to full faith and credit.

[00:33:02] Speaker 00:
I think that's correct.

[00:33:04] Speaker 00:
The difference here is that state courts have mechanisms by which this can be challenged.

[00:33:10] Speaker 00:
So what?

[00:33:12] Speaker 04:
What does that have to do with whether we should move ahead to enforce this or that arbitration?

[00:33:20] Speaker 04:
So they have ways in which it can be challenged.

[00:33:25] Speaker 04:
It can be challenged in state court, but that doesn't have anything to do with whether we enforce

[00:33:30] Speaker 04:
the judge would have brought before us, does it?

[00:33:34] Speaker 00:
Well, Your Honor, I would say that there are, the exit system has 120 day period for annulment.

[00:33:41] Speaker 00:
There is a three year period if there was corruption, limited only to the corruption of an arbitrator, not for any- You're saying we could hold off on enforcing these into those time periods, sir?

[00:33:53] Speaker 04:
I'm sorry, can you ask anything- Anything in the law that tells us not to go ahead and enforce.

[00:33:57] Speaker 04:
or does it get difficult not to go ahead and enforce?

[00:34:03] Speaker 00:
Well, I think the question is whether or not this court should extend Rule 60.

[00:34:06] Speaker 00:
This is a question that's never been considered before.

[00:34:10] Speaker 00:
Even the full faith and credit has never been considered before.

[00:34:13] Speaker 00:
The appellee is arguing that even full faith and credit is not applicable here.

[00:34:16] Speaker 00:
They argued that in the brief.

[00:34:18] Speaker 00:
But the court did apply a limited full faith and credit review.

[00:34:22] Speaker 00:
But we think that the purpose of Rule 60 is to

[00:34:26] Speaker 00:
have an equitable provision to be able to get relief from a judgment when needed.

[00:34:33] Speaker 00:
And when the exit system does not have those mechanisms by which you can bring it after 120 days, unless it's corruption, and even then after three years.

[00:34:43] Speaker 00:
So just a hypothetical on my end, if I may.

[00:34:46] Speaker 00:
But could I just be clear?

[00:34:47] Speaker 02:
You keep, as I understand it, your theory, even under this argument in your discussion with Judge Santel, is that

[00:34:55] Speaker 02:
your client had no ability to challenge the awards within the exit system.

[00:35:02] Speaker 02:
And our discussion has been focused on, well, exit does give you this stay opportunity, at least to opportunity to request a stay.

[00:35:16] Speaker 02:
And if you don't request a stay, I don't know if it's an exhaustion type analogy, but you haven't taken advantage of what

[00:35:24] Speaker 02:
is available to you.

[00:35:26] Speaker 02:
And by analogy to your most recent discussion about Rule 60B, what you might be able to do in a state, in challenging a state court judgment.

[00:35:38] Speaker 02:
So to hear the argument would be, under the convention, you could seek annulment, which your client filed a motion to annul the entire initial award.

[00:35:50] Speaker 02:
You could seek revision.

[00:35:53] Speaker 02:
And you could also seek stays so that whatever award was entered did not take effect immediately.

[00:36:07] Speaker 00:
Your honor, from your question, I would note again that this is not really an exhaustion mechanism, because the complete arbitration rule, the judge knows maybe it's applied, maybe it's not.

[00:36:18] Speaker 00:
But if it is,

[00:36:20] Speaker 00:
imply if it is applied to this case, which we believe it should be, it's the court's rule.

[00:36:25] Speaker 00:
It's the court's view of how something so there's not an exhaustion in one proceeding unrelated to the court that would exhaust something with respect to the court.

[00:36:35] Speaker 02:
No, I understand that.

[00:36:36] Speaker 02:
But I keep focusing on you as representing your client.

[00:36:40] Speaker 02:
What does your client get out of this by the courts adopting this procedure, your urge

[00:36:49] Speaker 00:
Because my client, who could be before this court again in a decision, lots of sovereigns are, especially in this circuit.

[00:37:00] Speaker 00:
No, I understand.

[00:37:01] Speaker 00:
So they could be before again.

[00:37:03] Speaker 00:
We think that the rule, we think it was improper of Tico Guatemala Holdings to bring the, we think an enforcement action should not be brought in these unique factual circumstances, which is different than other factual circumstances.

[00:37:16] Speaker 00:
We think it should not have been brought until the arbitration was complete.

[00:37:20] Speaker 00:
It continues to go on.

[00:37:22] Speaker 00:
It will go on, potentially, for some time.

[00:37:25] Speaker 04:
Some arbitration is going on, but not the arbitration that is the procedure in this award that enforcement is thought of.

[00:37:33] Speaker 04:
This proceeding is over, isn't it?

[00:37:34] Speaker 04:
I mean, the award is final, isn't it?

[00:37:38] Speaker 00:
No, Your Honor.

[00:37:38] Speaker 00:
I wouldn't say that it's over, because the arbitration continues with the same case caption, the same case number,

[00:37:45] Speaker 00:
It's still all part of the exit system.

[00:37:47] Speaker 00:
We think the arbitration still very much going on.

[00:37:50] Speaker 01:
Well, it's better than that for you.

[00:37:52] Speaker 01:
I mean, you're You're missing the best part.

[00:37:54] Speaker 01:
And that is that they're still adjudicating interest on the very claims that they seek to enforce here at least at the time.

[00:38:01] Speaker 01:
The district court ruled here, you hadn't had

[00:38:06] Speaker 01:
interest resolution, certainly on costs.

[00:38:11] Speaker 01:
And there was the pre-sale interest.

[00:38:14] Speaker 01:
And both of those applied to the historic loss claim, not just the loss value claim that was being adjudicated for the first time by the second tribunals.

[00:38:25] Speaker 01:
So that seems to me much more relevant substantively that the total recovery for the historic loss claim has

[00:38:36] Speaker 01:
as of now not been resolved, finally, subject to, I guess it would be if this latest tribunal decision gets no more review.

[00:38:45] Speaker 00:
Right.

[00:38:46] Speaker 00:
And that's completely correct.

[00:38:47] Speaker 00:
And thank you, Your Honor, for noting that, because that is correct that the interest on the historical losses

[00:38:55] Speaker 00:
continues to be litigated, was litigated in that case, is subject to an annulment and could go on.

[00:39:01] Speaker 00:
So even under this idea that there's two claims, that there's a historical loss claim and a loss of value claim, that the historical loss claim continues to be litigated in the second arbitration.

[00:39:16] Speaker 00:
And along those lines, it's not proper to state that this is two claims.

[00:39:21] Speaker 00:
If you look at what happened in this case,

[00:39:24] Speaker 00:
the district court correctly notes, and this is at Joy Appendix, page 791, that the claim was the allegation that the Republic of Guatemala breached a provision of the DR CAFTA.

[00:39:42] Speaker 00:
That was the claim that was brought.

[00:39:44] Speaker 00:
Somehow this turned into something with damage components being part of a claim.

[00:39:49] Speaker 00:
And I would analogize this, for example, to a contract claim

[00:39:54] Speaker 00:
where somebody comes in and says, hey, you breached my contract.

[00:39:58] Speaker 00:
But with regard to damages, I want compensatory damages.

[00:40:01] Speaker 00:
I want damages.

[00:40:02] Speaker 00:
I want the money I paid refunded to me because you never delivered.

[00:40:06] Speaker 00:
And I want cover.

[00:40:08] Speaker 00:
The demand for the money to be repaid because the item wasn't delivered is not a separate claim from cover in the same way that historical losses are not a separate claim from loss of value.

[00:40:24] Speaker 00:
They're just ways to calculate what the damage is.

[00:40:26] Speaker 01:
If you don't need to go that far in this case, you can say the historical, even if we assume the historical loss and lost value are two separate claims, you still don't have final resolution on complete recovery for the historic loss.

[00:40:40] Speaker 01:
We don't need to cross go as far as you're arguing, do we?

[00:40:44] Speaker 00:
That's correct, Your Honor.

[00:40:45] Speaker 00:
It's still being litigated at this time.

[00:40:48] Speaker 00:
It's still subject to review.

[00:40:50] Speaker 02:
To follow up on that, suppose this third

[00:40:54] Speaker 02:
aspect of this same case number, that there is no further request for annulment within 120 days.

[00:41:11] Speaker 02:
Then TECO files a motion for enforcement.

[00:41:22] Speaker 02:
Is there anything left?

[00:41:25] Speaker 02:
before Inkson?

[00:41:28] Speaker 00:
If there's no application for annulment made, then no.

[00:41:32] Speaker 00:
Then that wouldn't affect the Rule 60 issue, but certainly at that point.

[00:41:35] Speaker 02:
Oh, I understand.

[00:41:36] Speaker 02:
But in terms of your rule on completeness.

[00:41:40] Speaker 00:
Yes.

[00:41:40] Speaker 00:
Yes, that's correct, Your Honor.

[00:41:41] Speaker 00:
It would be final.

[00:41:43] Speaker 00:
And we believe that's what TECO should have done is to wait for that.

[00:41:46] Speaker 00:
But it would be final at that point.

[00:41:47] Speaker 00:
And I know the court knows this much better than I do.

[00:41:52] Speaker 00:
And I am here arguing for my client, but there are

[00:41:55] Speaker 00:
you know, this court's decisions, you know, get researched and spouted by lawyers like me all the time.

[00:42:04] Speaker 00:
And a decision that says that you can give piecemeal or that you can continue to do awards, you know, it could be subject because we don't know what's going to happen in the future.

[00:42:13] Speaker 00:
And so there's a sense in which this court's resources are better done by when you have a unique case, this case does not happen all the time, where there's a partial annulment

[00:42:24] Speaker 00:
And it continues to go on, the same party, same case number, to invoke the complete arbitration rule so that parties wait until the arbitration is final.

[00:42:34] Speaker 01:
Just one last question.

[00:42:35] Speaker 01:
I know we've held you way over here.

[00:42:37] Speaker 01:
When people ask the Ex-ID Tribunal, the second round one, to grant a stay for whatever reason, do they usually explain why they grant or deny a stay?

[00:42:51] Speaker 00:
They do, but those decisions may be not ever disclosed publicly.

[00:42:57] Speaker 00:
So... But they're disclosed to the parties.

[00:43:00] Speaker 01:
The reasoning is disclosed to the parties.

[00:43:01] Speaker 00:
They're disclosed to the parties, yes.

[00:43:02] Speaker 01:
And are they secret or are there something the parties could disclose if they wish to?

[00:43:08] Speaker 00:
It depends on the confidentiality rules of the arbitration, which are itself probably confidential.

[00:43:14] Speaker 00:
And it could be varied and the parties could agree to disclose it, but a

[00:43:19] Speaker 00:
Typically, I will say typically in a case like this, a party cannot on its own start disclosing awards and rulings of the tribunal.

[00:43:27] Speaker 00:
It has to be agreed and has to be released in some particular way.

[00:43:30] Speaker 01:
Well, certainly the awards and rulings have been disclosed in this case.

[00:43:34] Speaker 00:
The two awards have been disclosed.

[00:43:36] Speaker 00:
That's my understanding.

[00:43:38] Speaker 00:
I didn't have access, for example, to the second award until the parties agreed that it could be, I assume the parties agreed it could be made.

[00:43:46] Speaker 00:
It gets published and everything else.

[00:43:49] Speaker 00:
as counsel, even though I represent the Republic of Guatemala, I'm not counsel in that case.

[00:43:53] Speaker 00:
And there's confidentiality provisions that apply.

[00:43:56] Speaker 00:
So I didn't get it right away.

[00:43:58] Speaker 00:
And so it's not the case necessarily that these things become public.

[00:44:05] Speaker 00:
It's more typical for the final awards to be public, although that's not always done either.

[00:44:11] Speaker 00:
But it's more typical for the final, you know, when you have a final resolution to be

[00:44:15] Speaker 00:
public, but interim awards often take place in procedural orders.

[00:44:21] Speaker 00:
They're oftentimes not made public.

[00:44:26] Speaker 00:
I'm sorry.

[00:44:27] Speaker 00:
I want to be clear about something.

[00:44:28] Speaker 00:
I realize this is a DR CAFTA case.

[00:44:34] Speaker 00:
My apologies.

[00:44:34] Speaker 00:
I just slipped my mind for a moment.

[00:44:36] Speaker 00:
There are provisions in DR CAFTA that provide for transparency that are not done in all ICCID arbitration decisions.

[00:44:43] Speaker 00:
So in this case,

[00:44:45] Speaker 00:
those decisions should be after a short period of time be made available because it's part of DR CAFTA.

[00:44:51] Speaker 00:
So in this particular situation, there would be more transparency.

[00:44:55] Speaker 01:
Okay.

[00:44:55] Speaker 01:
And does DR CAFTA have any provisions on finality, stays, lead arbitration that will be relevant here or do we just look at everything through the exit lens and not through the other underlying, the treaty that triggered the exit process?

[00:45:12] Speaker 00:
I think, Your Honor, I believe in this case, you would only look at exit because there's DR CAFTA provides different routes that claimants could take.

[00:45:18] Speaker 00:
They don't have to bring exit.

[00:45:20] Speaker 00:
They can bring it under what we call an ad hoc proceeding under the UNSAT trial UNJ rules.

[00:45:25] Speaker 00:
So I don't believe there's anything in the DR CAFTA that talks about stays or finality.

[00:45:30] Speaker 00:
I think that would be done through exit.

[00:45:32] Speaker 00:
But what that's really done through is through this court.

[00:45:35] Speaker 00:
Because it's the courts, it's for this court to determine whether or not something is complete

[00:45:42] Speaker 00:
than not for anyone else to force cases onto this court.

[00:45:46] Speaker 00:
Because of that, even though, as I've argued, I don't think the convention does that.

[00:45:51] Speaker 02:
All right.

[00:45:51] Speaker 02:
So why don't we hear from counsel for Appellee?

[00:45:57] Speaker 02:
And we'll give you some rebuttal time.

[00:45:59] Speaker 00:
Thank you, Your Honor.

[00:46:02] Speaker 03:
Thank you.

[00:46:03] Speaker 03:
May it please the court?

[00:46:04] Speaker 03:
This is Andrea Medica from Whiting Case on behalf of Appellee Tico Guatemala Golding's LLC.

[00:46:10] Speaker 03:
The district court here properly ruled that the ICSID final award in this case is entitled to enforcement and issued a judgment, and this court should affirm.

[00:46:19] Speaker 03:
The ICSID convention, its Trevaux Preparatoire, the U.S.

[00:46:24] Speaker 03:
implementing legislation, its legislative history, and jurisprudence all confirm and all establish that ICSID awards are not subject to the enforcement defenses which Guatemala raises.

[00:46:36] Speaker 01:
ICSID awards- Can we talk about that?

[00:46:40] Speaker 01:
Can we talk about complete arbitration?

[00:46:42] Speaker 01:
There's background noise again.

[00:46:44] Speaker 01:
Can we talk about complete arbitration and the lack of finality just on the historic loss claims?

[00:46:51] Speaker 01:
Because that has not been resolved.

[00:46:53] Speaker 01:
You're still litigating interest.

[00:46:56] Speaker 01:
Part of the decision that was sent off to the second tribunal included the pre-sale interest for

[00:47:06] Speaker 01:
The historic loss claims and you've also got this interest on costs claim, which put aside the whole loss of value.

[00:47:14] Speaker 01:
I'll pretend it's not there.

[00:47:15] Speaker 01:
Historic loss claim has not been conclusively resolved.

[00:47:22] Speaker 01:
But your honor, the I'm right about that.

[00:47:24] Speaker 01:
The historic loss claim has not been conclusively resolved.

[00:47:28] Speaker 03:
Well, that one year of interest on a historical loss claim and then cost award for historical law.

[00:47:32] Speaker 01:
Right.

[00:47:32] Speaker 01:
So it's not the answer is correct.

[00:47:35] Speaker 01:
It has not been conclusively resolved.

[00:47:37] Speaker 03:
Yes.

[00:47:38] Speaker 01:
Okay.

[00:47:38] Speaker 01:
So it's not final.

[00:47:40] Speaker 03:
Well, but what is final is the award taken together with the enrollment decision.

[00:47:45] Speaker 03:
And that is what is final.

[00:47:47] Speaker 03:
And in exit parlance, once you have an award that is enforceable,

[00:47:53] Speaker 01:
So imagine the annulment process had said, we're not touching the determination of Guatemala's liability.

[00:48:04] Speaker 01:
That's a non-annulled, for lack of a better word, provision.

[00:48:08] Speaker 01:
Liability, not touching it, that's good to go.

[00:48:13] Speaker 01:
But we got to have a whole new proceeding on damages.

[00:48:16] Speaker 01:
Not just interest, but damages.

[00:48:21] Speaker 01:
Could you not enforce

[00:48:23] Speaker 01:
the liability, say you wanted to get some sort of declaratory relief or injunctive relief or something like that out of it, or you simply wanted to get on the record for purposes of other proceedings or ongoing behavior in Guatemala, you wanted to get on the record as final that they were liable for this, so they wouldn't keep repeating the problem, but their damages haven't been resolved.

[00:48:45] Speaker 01:
Would that be considered a final decision on an arbitral claim without damages?

[00:48:54] Speaker 03:
Well, the only thing that is subject to enforcement and entitled to full faith and credit are the pecuniary obligations in the award.

[00:49:01] Speaker 03:
Okay.

[00:49:01] Speaker 03:
So in that instance, you wouldn't have any pecuniary obligations.

[00:49:04] Speaker 01:
Okay.

[00:49:04] Speaker 01:
So what if they said, all right, we're going to decide half of the damages claims, but the other half have to go back.

[00:49:11] Speaker 03:
You see, and that's, that's key here because exit has no remand procedure.

[00:49:15] Speaker 01:
And that's how it's funded.

[00:49:17] Speaker 01:
Sorry, go where a knowing

[00:49:20] Speaker 01:
the initial tribunal's decision on 80% of its damages determination, but 20% of its damages determination, we're not annulling, we're not touching that.

[00:49:31] Speaker 01:
So now what we have is a liability decision, but only expressly only 20% of damages and 80% of damages are still being fought over.

[00:49:39] Speaker 01:
Let's imagine that's the decision from the Annulment Committee.

[00:49:43] Speaker 01:
Okay, can you go for liability and only 20% of damages as a final award?

[00:49:49] Speaker 03:
Yes, Your Honor.

[00:49:50] Speaker 03:
And the reason is because once you have the award with the annulment decision, that is final.

[00:49:56] Speaker 03:
It's subject to enforcement under the convention.

[00:49:59] Speaker 01:
That doesn't, as Judge Rogers pointed out, that doesn't remotely fit the definition of award under Article 48.

[00:50:08] Speaker 01:
I mean, there's just sort of internal conflict and exit.

[00:50:13] Speaker 01:
It's not dealing with every question submitted to the tribunal.

[00:50:16] Speaker 03:
But Your Honor, that particular award

[00:50:18] Speaker 03:
would have dealt with every issue.

[00:50:21] Speaker 03:
The initial award would have dealt with every issue.

[00:50:23] Speaker 03:
And then to the extent part of it's annulled.

[00:50:26] Speaker 03:
But they're not resolved.

[00:50:27] Speaker 01:
They're still being litigated.

[00:50:28] Speaker 01:
They're still being arbitrated.

[00:50:30] Speaker 03:
They're not closed.

[00:50:32] Speaker 03:
But Your Honor, the thing is that the initial tribunal becomes spunked as officio.

[00:50:36] Speaker 03:
It's gone.

[00:50:37] Speaker 03:
and then it is entirely at the discretion of the claimant, whether it wishes to pursue a second arbitration or not.

[00:50:44] Speaker 03:
TECO could have chosen, for instance, maybe it got a second opinion and determined that it's due to that.

[00:50:50] Speaker 01:
What if the, after annulment, they said liability and this damages award is a mess.

[00:50:57] Speaker 01:
We're sure you're entitled to at least $1, but it's probably millions of dollars.

[00:51:02] Speaker 01:
But for now, we're gonna hold that we're not going to annul liability

[00:51:06] Speaker 01:
or $1 worth of damages, but you got to go back and fight about the extra $300 million in damages.

[00:51:13] Speaker 01:
Really?

[00:51:15] Speaker 01:
You could come to a court and make us do enforcement for that $1, knowing we're going to have to do it all over again.

[00:51:20] Speaker 03:
I think technically one could, whether one would for $1 is another question.

[00:51:27] Speaker 03:
How would you reconcile that with Article 48-3?

[00:51:31] Speaker 03:
Because the award that was issued by the initial tribunal was a final award.

[00:51:37] Speaker 03:
It answered every single question.

[00:51:39] Speaker 03:
The annulment decision, all it does is it takes away a part of that award.

[00:51:43] Speaker 03:
But that award still answered every question.

[00:51:45] Speaker 04:
And then what happens is- But it answered it wrong.

[00:51:48] Speaker 04:
So it gets- I think I'm not quite understanding how Judge Millett's approach is on this.

[00:51:56] Speaker 04:
Is the ongoing proceeding now capable of changing the award that was entered so far?

[00:52:01] Speaker 03:
It is not.

[00:52:02] Speaker 03:
It is not at all.

[00:52:03] Speaker 03:
And that is what it is.

[00:52:04] Speaker 04:
So as far as anything in the award, it is?

[00:52:05] Speaker 04:
Wow.

[00:52:05] Speaker 04:
OK, thank you.

[00:52:07] Speaker 03:
Yes.

[00:52:08] Speaker 03:
But it can add to the award.

[00:52:09] Speaker 03:
It could add to the award.

[00:52:11] Speaker 03:
It could add to the award, and that's it.

[00:52:12] Speaker 03:
And that's why it's so.

[00:52:13] Speaker 04:
It could grant a new award.

[00:52:14] Speaker 04:
It could grant a new award that would add more remedy.

[00:52:18] Speaker 04:
But as far as the subject's covered in that first award, it can't change, can it?

[00:52:24] Speaker 03:
Right?

[00:52:24] Speaker 03:
Absolutely.

[00:52:25] Speaker 03:
Absolutely, Judge Santel.

[00:52:27] Speaker 03:
And that's the point is that TECO, again, could have decided

[00:52:31] Speaker 03:
It didn't want to pursue the second arbitration for whatever reason.

[00:52:35] Speaker 03:
And unlike in a court where you remand a case, there would have been nothing for anyone to do.

[00:52:41] Speaker 03:
You would not have had to have closed the case.

[00:52:43] Speaker 03:
It wasn't opened.

[00:52:44] Speaker 03:
Ixid would not have had to do anything.

[00:52:46] Speaker 03:
It's unlike if a claimant did not.

[00:52:48] Speaker 01:
If you didn't pursue the second tribunal, then you would be done.

[00:52:51] Speaker 01:
You wouldn't have any opportunity to get more relief.

[00:52:54] Speaker 01:
You wouldn't be determining other claims that could actually offset against the initial claim.

[00:53:00] Speaker 01:
It would just, you'd both be done and walking away.

[00:53:02] Speaker 01:
That's quite different from we're going to keep fighting about how much damages they owe.

[00:53:08] Speaker 03:
But again, it is like a second arbitration where we are seeking additional damages.

[00:53:13] Speaker 03:
Guatemala never had a claim for offset.

[00:53:16] Speaker 03:
Had it had truly thought it had a claim?

[00:53:18] Speaker 01:
No, but you've had a claim for damages.

[00:53:20] Speaker 01:
You had that same claim of damages before the first tribunal, and now you're litigating it again before the second tribunal.

[00:53:28] Speaker 04:
Yes, but- So there is no final reward as to that, and you're not seeking any court enforcement for anything as to that for it to still be an arbitration.

[00:53:38] Speaker 01:
But that's absolutely correct.

[00:53:40] Speaker 01:
And the arbitration is not done.

[00:53:43] Speaker 02:
What do you do with the article 48 paragraph three definition of the award?

[00:53:54] Speaker 02:
So the initial award, you say, that's consistent with that because every question presented was decided.

[00:54:05] Speaker 02:
All right, so you would get three quarters of what you asked for, but you decided or your client decided it wanted to get 100% of what it asked for.

[00:54:20] Speaker 02:
So then I understood you to say, well, we can come into court because in Article 53, an award is redefined.

[00:54:34] Speaker 02:
for purposes of recognition and enforcement?

[00:54:39] Speaker 03:
That's correct, Judge Rogers.

[00:54:40] Speaker 03:
Because in 53.1, it indicates that the award is binding and not subject to any other appeal, et cetera.

[00:54:48] Speaker 03:
And you can seek enforcement in 53.2.

[00:54:50] Speaker 03:
It defines award to include any decision on annulment, revision, or interpretation.

[00:54:57] Speaker 03:
And so that's still.

[00:54:59] Speaker 03:
Go ahead.

[00:55:00] Speaker 03:
Sorry.

[00:55:00] Speaker 03:
So it still maintains its character

[00:55:03] Speaker 03:
as a final award.

[00:55:05] Speaker 03:
And in fact, and that is why if the second award, as Judge Santel said, it had no ability to change or anything that happened with the first award, it can only give us an additional award.

[00:55:20] Speaker 03:
And that one has been rendered, as you know.

[00:55:23] Speaker 03:
And that is pursuant to Article 55.3, where it specifically says that a new tribunal in a resubmitted case cannot reconsider any portion of the award that has been annulled.

[00:55:36] Speaker 03:
And Guatemala.

[00:55:38] Speaker 02:
So then the question is, following up on one of Judge Millett's hypotheticals, the way you're reading the

[00:55:48] Speaker 02:
convention as to Article 53 and 55, and I suppose 54, the federal district court has no ability, you haven't argued this yet, but has no authority to stay in the sense of holding in abeyance enforcement of the duly

[00:56:18] Speaker 02:
certified award, even if it means that your client will be here every other month seeking enforcement in this same case, as counsel says, the original claim like on a contract.

[00:56:41] Speaker 02:
And so now we're just disputing forms of damages to which you're entitled.

[00:56:45] Speaker 02:
And so you could come back on every dollar

[00:56:48] Speaker 02:
for millions of dollars.

[00:56:52] Speaker 02:
The court has no ability, and it's not contemplated that a court could hold matters in abeyance until it sees the final award.

[00:57:05] Speaker 03:
No, Your Honor, the court's obligation under the convention is to enforce the pecuniary obligations of the award.

[00:57:11] Speaker 03:
And ICSID defines what is an award.

[00:57:14] Speaker 03:
This was labeled as an award.

[00:57:16] Speaker 03:
It did deal with all the questions.

[00:57:17] Speaker 03:
Parts of it were annulled.

[00:57:20] Speaker 03:
Notably, after the annulment decision came down, the ICSID secretary wrote to Guatemala reminding it of its obligations to pay in full that award and said those amounts were

[00:57:33] Speaker 03:
full in owing, and they were due, and did not indicate, it noted that it had been partially annulled, but said that Guatemala had failed in its annulment application.

[00:57:43] Speaker 03:
And so it was under a treaty obligation at that point in time to pay that award, and that is at JA 317 to 318, and that is four years ago now, October 26, 2016, when ICSID was saying, this award is now final, it is due and payable.

[00:58:00] Speaker 03:
And Guatemala had the option, as you've

[00:58:03] Speaker 03:
both noted or all noted, to seek a stay of enforcement of a program.

[00:58:11] Speaker 02:
It says you can file for a stay.

[00:58:15] Speaker 02:
It doesn't say you get a stay.

[00:58:17] Speaker 02:
So somebody, presumably the annulment committee, has to decide whether or not to grant a stay or the original arbitral community.

[00:58:28] Speaker 02:
And are there any standards?

[00:58:30] Speaker 03:
There are, Your Honor.

[00:58:32] Speaker 03:
So first of all, there are.

[00:58:34] Speaker 02:
Did you say or are not?

[00:58:36] Speaker 03:
There are.

[00:58:37] Speaker 03:
And what are they?

[00:58:39] Speaker 03:
So they're very similar to the standards that courts look at.

[00:58:42] Speaker 03:
So they look at the likelihood of success on the merits of the claim.

[00:58:46] Speaker 03:
They look at the balance of interest of the parties, whether one party will suffer irreparable harm.

[00:58:53] Speaker 02:
And we know this because, can you give us a citation?

[00:58:57] Speaker 03:
One can look to, and I don't have it on my fingertips, but even in this case, there was briefing on a state of enforcement before the Annulment Committee.

[00:59:08] Speaker 03:
I could find several others for you.

[00:59:12] Speaker 02:
But that's different than what I thought you were telling me.

[00:59:16] Speaker 02:
In other words, you're saying the parties filed pleading suggesting this is how you should look at whether you should grant a stay.

[00:59:25] Speaker 02:
But it's not as though, to your knowledge, we have any guidance.

[00:59:31] Speaker 02:
It's just a discretionary matter to be decided by the individual committee or tribunal.

[00:59:38] Speaker 03:
That's correct, Your Honor.

[00:59:40] Speaker 03:
It's not in the treaty itself or in the convention or in the arbitration rules.

[00:59:45] Speaker 03:
Nothing in the rules?

[00:59:47] Speaker 03:
No, Your Honor.

[00:59:48] Speaker 03:
So just the rule just indicates you can issue a stay.

[00:59:52] Speaker 03:
And I would note that the annulment committee, after it issued its decision in its decision in paragraph 382 subsection 10, I believe, it lifted this day of enforcement of the original award, the final award that we are seeking to enforce here.

[01:00:10] Speaker 03:
So it clearly saw its annulment decision

[01:00:14] Speaker 03:
together with the original award as being final and enforceable at that point in time.

[01:00:19] Speaker 03:
And then Guatemala had the option to go to the second tribunal and seek a stay of the first award pending the completion of the second arbitration.

[01:00:29] Speaker 01:
What is the theory under which, if the second tribunal has no authority over these claims that were not annulled,

[01:00:36] Speaker 01:
then what authority do they have to stay enforcement of those claims?

[01:00:39] Speaker 01:
I mean, it's like they have no authority, but they have authority.

[01:00:41] Speaker 01:
They still have a jurisdiction over those very claims.

[01:00:44] Speaker 01:
That seems odd.

[01:00:45] Speaker 03:
I would think in this circumstance, it wouldn't have made sense, which is why Guatemala didn't do it.

[01:00:50] Speaker 01:
No, no, I'm not asking the strategic decision not to seek a stay.

[01:00:53] Speaker 01:
It's in the rules that in any case, you can seek from the new tribunal, if a new tribunal is called for, a stay

[01:01:05] Speaker 01:
of the non-annulled provisions.

[01:01:07] Speaker 01:
And that seems to me to suggest that they still have jurisdiction over those claims, at least to the extent to the ability to give a stay.

[01:01:14] Speaker 01:
So that seems odd.

[01:01:18] Speaker 03:
It may be a little odd.

[01:01:21] Speaker 03:
And I haven't seen a situation where a stay has been granted in such circumstances, although one could potentially imagine.

[01:01:27] Speaker 03:
It's in the rules.

[01:01:28] Speaker 03:
Yes, no, it is in the rules.

[01:01:29] Speaker 03:
But one could imagine a situation

[01:01:31] Speaker 03:
where both parties achieved some sort of partial annulment or maybe there are counterclaims.

[01:01:37] Speaker 03:
And so they argue at the balance of interest and efficiency, they argue that almost as a set off, not that they can disturb the first award at all, but that it would be inefficient and our likelihood of success on our counterclaims, for instance, is so great.

[01:01:53] Speaker 03:
that and we would be unable to recover for whatever reason.

[01:01:58] Speaker 01:
They are changing the non-annulled award if they grant a stay because presumably the stay keeps interest for money.

[01:02:08] Speaker 01:
The state wouldn't prevent interest from running, Your Honor.

[01:02:10] Speaker 01:
Even if something enforcement has stayed and then they're still going to hit them for interest when they didn't have the ability to pay it because it was stayed.

[01:02:18] Speaker 03:
Yes, Your Honor, the practice has been that it does not stop interest from running during the stay of enforcement that was in place during the annulment proceeding.

[01:02:28] Speaker 04:
Our interest continued to run during that three-year period.

[01:02:33] Speaker 04:
Even though you have a stay, interest continues to run on a judgment, even in courts of law.

[01:02:39] Speaker 03:
That's correct, Your Honor.

[01:02:42] Speaker 01:
Sorry, go ahead, finish your question, answer.

[01:02:44] Speaker 01:
Sorry.

[01:02:44] Speaker 03:
I was just going to say that I continue to run on our award during the tendency of the enrollment when there was a stay in place.

[01:02:50] Speaker 01:
That's good to know.

[01:02:51] Speaker 01:
Now, I had another question, because we're supposed, under the ICCID, the convention, enforcement by courts is to be in sort of the same manner as we would give full faith and credit to, for our purposes in the United States, a state court judgment.

[01:03:08] Speaker 01:
Do you know if a final state court judgment, do you know if in deciding whether a state court judgment is final, do we give full faith and credit to their decision that it's final?

[01:03:22] Speaker 01:
For example, if you had a contract dispute and a state court did what exit is done here, or it was in my hypothetical.

[01:03:29] Speaker 01:
If a state court said you win on liability for contract,

[01:03:35] Speaker 01:
And damages here are incredibly complicated.

[01:03:39] Speaker 01:
We're going to have to have another proceeding on damages, but I'm going to give you an interim award of $1,000.

[01:03:45] Speaker 01:
I know we're litigating millions here.

[01:03:48] Speaker 01:
But whatever happens at the end of the day, you're at least entitled to $1,000.

[01:03:51] Speaker 01:
And so you have contract liability and $1,000.

[01:03:54] Speaker 01:
And now let's have a whole other proceeding on the real contract damages here, which are in the millions of dollars.

[01:04:00] Speaker 01:
And I'm declaring that first part, liability on the $1,000 final.

[01:04:05] Speaker 01:
Do you know, I just don't have any idea, in full faith and credit, where finality is normally an argument you can bring to challenge the application of full faith and credit, would we defer to the state's, let's say state law, consider that final?

[01:04:21] Speaker 01:
Would we defer to that, or do we apply a federal test of finality for full faith and credit?

[01:04:26] Speaker 03:
So I can say definitively, because I haven't seen a case on point, but I would analogize to the instance when a federal court in determining the preclusive effect of a state court judgment looks to the rendering court, the state court to see if it considers that judgment to have

[01:04:46] Speaker 03:
perclusive effect.

[01:04:48] Speaker 03:
And so in the same way, I would think that the federal court would similarly look to the state court to determine whether it deemed its judgment to be final.

[01:04:57] Speaker 01:
Although the requirement of a final state court judgment itself in the Constitution.

[01:05:04] Speaker 01:
It wouldn't seem to turn on state law finality.

[01:05:12] Speaker 03:
OK, well then, but still never the best.

[01:05:14] Speaker 01:
I have no idea, but maybe we do.

[01:05:16] Speaker 01:
Because you're right, on preclusion and a lot of other things that happen.

[01:05:19] Speaker 01:
So that's a fair point.

[01:05:24] Speaker 03:
So Your Honors, I see that I'm out of time.

[01:05:28] Speaker 03:
Unless you have more questions, which I'm happy to entertain, I will stop here.

[01:05:35] Speaker 01:
Does it have law on issue preclusion between

[01:05:42] Speaker 01:
For the, I don't know if I'm saying it right, the Ibn Dirola decision.

[01:05:46] Speaker 03:
Yes, it's not so much that Iqsid does, but the governing law and the arbitration was international law and there is an international law of res judicata.

[01:05:59] Speaker 03:
which actually is very similar to the law in the US.

[01:06:05] Speaker 03:
So they look to an identity of the parties and identity of the cause of action, those types of things.

[01:06:10] Speaker 03:
In fact, I'm often what they call the triple identity test.

[01:06:14] Speaker 03:
And here on that issue, as we briefed, you will know that

[01:06:19] Speaker 03:
in the arbitration, but the Arbitral Tribunal and the ad hoc committee looked in detail at the Evidrola award and the effect on its award.

[01:06:29] Speaker 03:
And both of those tribunals found that the Evidrola award had no preclusive effect.

[01:06:33] Speaker 03:
And of course, it should not have had because TECA was not a party to that arbitration, nor could it have been.

[01:06:38] Speaker 03:
that arbitration was under a different treaty, the Spanish-Guatemala Treaty.

[01:06:43] Speaker 03:
That tribunal would not have had jurisdiction over TECO and vice versa.

[01:06:47] Speaker 03:
Spain is not a party to the DRCAPTA and could not have brought its claim in our arbitration.

[01:06:52] Speaker 03:
That arbitration concluded over a year before ours did.

[01:06:56] Speaker 03:
It was represented the claimant by different counsel.

[01:07:01] Speaker 03:
It was conducted entirely in Spanish.

[01:07:03] Speaker 03:
We had different legal theories of the case, different arguments.

[01:07:08] Speaker 01:
I would have thought the important thing is that they were the lack of jurisdiction seem to turn on the fact that they were presenting claims under Guatemala law and they did find jurisdiction over the one claim that seemed to implicate International law.

[01:07:23] Speaker 03:
That's right.

[01:07:23] Speaker 03:
And that's why the and that arose out of the same at all.

[01:07:27] Speaker 03:
That it wasn't the same at all because it was argued differently.

[01:07:30] Speaker 03:
They had a treaty that provided them similar types of legal avenues that they didn't pursue we argued our cases differently.

[01:07:38] Speaker 03:
We introduced different evidence, etc.

[01:07:40] Speaker 03:
But what's notable is that in our arbitration.

[01:07:44] Speaker 03:
what Guatemala argued, it never argued, that the Evidrola Award had preclusive effect.

[01:07:49] Speaker 03:
It argued what I would say if I were urging this court to follow the reasoning of a Sixth Circuit decision, I would say it's not binding on you.

[01:07:57] Speaker 03:
It's not stare decisis, but I find the reasoning to be very persuasive.

[01:08:01] Speaker 03:
You ought to come out the same way.

[01:08:03] Speaker 03:
And Guatemala talked about the Evidrola Award.

[01:08:05] Speaker 03:
We had an entire round of briefing on it.

[01:08:08] Speaker 03:
And they said, look, Evidrola Award, of course, it doesn't, it's not preclusive.

[01:08:12] Speaker 03:
It's not res judicata.

[01:08:13] Speaker 03:
But they got it right.

[01:08:15] Speaker 03:
You should rule in the same way.

[01:08:16] Speaker 03:
We argued, no, they got it wrong.

[01:08:18] Speaker 03:
And it's distinguishable for all of these reasons.

[01:08:21] Speaker 03:
And the tribunal agreed with us.

[01:08:22] Speaker 03:
And then similarly, during the annulment phase, Guatemala, again, never argued rescue to Qatar.

[01:08:28] Speaker 03:
It argued an annulment.

[01:08:30] Speaker 03:
The tribunal got it wrong.

[01:08:31] Speaker 03:
They should have come out the same way as Ivadrela, and that was rejected.

[01:08:34] Speaker 03:
And so they can't raise preclusion here.

[01:08:36] Speaker 03:
And it's not even a defense.

[01:08:38] Speaker 01:
So that's a different question I wanted to follow up on.

[01:08:40] Speaker 01:
And that is, for purposes of what, in our court system, we would call forfeiture.

[01:08:45] Speaker 01:
Again, is it exit or international law?

[01:08:49] Speaker 01:
Or what principles of forfeiture apply, if they apply at all?

[01:08:55] Speaker 01:
We'll see.

[01:08:56] Speaker 01:
Odd for them not to, to me.

[01:08:57] Speaker 01:
But that's the whole point of arbitration.

[01:08:59] Speaker 01:
But where would we look for the principles of forfeiture?

[01:09:05] Speaker 01:
in an exit proceeding.

[01:09:08] Speaker 03:
And Your Honor, when you're talking about forfeiture, I'm sorry, are you speaking of waiver that Guatemala waived this argument?

[01:09:15] Speaker 01:
Waiver is a conscious decision not to raise something.

[01:09:18] Speaker 01:
Whereas forfeiture is, we don't care what your mindset was.

[01:09:20] Speaker 01:
You just didn't argue it.

[01:09:21] Speaker 01:
You didn't present it.

[01:09:23] Speaker 01:
And so forfeiture would be, you didn't argue, for example, preclusion below.

[01:09:30] Speaker 01:
It doesn't have to be a conscious knowing waiver.

[01:09:32] Speaker 01:
You didn't argue it below.

[01:09:35] Speaker 01:
Do you know what the rule of law, would it also be international law again?

[01:09:39] Speaker 01:
And is it sort of the same as what we do for forfeiture in this system?

[01:09:43] Speaker 03:
It's very similar, yes, insofar as they would in an annulment proceeding, for instance, you can't challenge the initial tribunal's award on the ground in which you didn't challenge in the underlying arbitration unless it's newly discovered evidence or something like that.

[01:10:01] Speaker 03:
But you can't, particularly on a procedural point, you can't

[01:10:06] Speaker 03:
criticize the tribunal for not doing something when you didn't bring it to its attention.

[01:10:09] Speaker 04:
Is that in the rules of ICT or is it just customary international law or where would we look to find that out?

[01:10:18] Speaker 03:
That would be certainly in the jurisprudence.

[01:10:21] Speaker 03:
It's not in a particular ICT rule.

[01:10:24] Speaker 03:
So it would just be a general principle of international law along the lines of estoppel.

[01:10:31] Speaker 04:
It would be.

[01:10:32] Speaker 04:
It's false law.

[01:10:33] Speaker 04:
It's not hard law.

[01:10:34] Speaker 04:
It's not treaty law.

[01:10:36] Speaker 04:
It's customary international law.

[01:10:38] Speaker 03:
That's correct, Your Honor.

[01:10:39] Speaker 03:
Thank you.

[01:10:41] Speaker 03:
And I note, for instance, in the system versus Kearney's Republic enforcement case in the Southern District of New York, that was under the exit additional facility rules.

[01:10:54] Speaker 03:
So it was a New York Convention FAA review.

[01:10:59] Speaker 03:
But there, the court found that,

[01:11:02] Speaker 03:
the Kyrgyz Republic could not raise one of the jurisdictional objections or its main jurisdictional objections because it had failed to make it before the arbitral tribunal.

[01:11:21] Speaker 03:
Thank you.

[01:11:33] Speaker 04:
I don't think we're hearing Judge Rogers.

[01:11:36] Speaker 01:
Are you muted?

[01:11:36] Speaker 01:
No.

[01:11:38] Speaker 04:
I hear you now.

[01:11:39] Speaker 01:
Council, can you hear me?

[01:11:41] Speaker 03:
Yes, I can hear you now.

[01:11:43] Speaker 02:
All right.

[01:11:47] Speaker 02:
So council for appellant, we'll give you a couple of minutes for rebuttal.

[01:11:57] Speaker 00:
Thank you, Your Honor.

[01:11:59] Speaker 00:
I was able to find some additional cases where there was a stay granted by courts in this district.

[01:12:06] Speaker 00:
And I'll give those to you now.

[01:12:08] Speaker 00:
Infrastructure Services, the Kingdom of Spain,

[01:12:11] Speaker 00:
It's case number 18CV017.

[01:12:15] Speaker 01:
Maybe you could just send those in a letter.

[01:12:17] Speaker 00:
I'll send those in a letter.

[01:12:18] Speaker 00:
There were several cases where the state was granted.

[01:12:21] Speaker 00:
And I'll note in those cases, as you'll see in the letter, that those, there was a particular case called Next Era v. Spain.

[01:12:29] Speaker 01:
And just before you go on, are those exit cases?

[01:12:31] Speaker 00:
These are all exit cases, yes.

[01:12:33] Speaker 00:
So there's a case, Next Era v. Spain, where the court granted a stay, I think it was in September,

[01:12:41] Speaker 00:
of this year, court granted a stay on the enforcement of an exit award.

[01:12:47] Speaker 00:
And in that case, the counsel for the claimant next era argued, I'll send this on page five of this next era decision, argued that the court's inherent, this is what counsel was arguing for the claimant, court's inherent authority to stay cases

[01:13:02] Speaker 00:
is limited by the exit's determination to lift a stay.

[01:13:06] Speaker 00:
Because in the three cases that I'm talking about, exit had lifted, had had a stay, had lifted it.

[01:13:14] Speaker 00:
And then the parties requested that the court implement a stay.

[01:13:19] Speaker 00:
And in all those cases, even though exit had lifted the stay, the court

[01:13:24] Speaker 00:
continued with the stay, the court or continued or gave a stay.

[01:13:30] Speaker 00:
So I don't think there was a discussion of having no authority and, you know, this court having no authority to prevent the enforcement based on what the exit rules or the exit conventions say.

[01:13:42] Speaker 00:
And I just don't think that

[01:13:44] Speaker 00:
can be correct, because this court has to decide for itself what, it's not a question, I'll just say this again, because it's so important, it's not a question of whether or not an award can ever be enforced, it's whether or not it's final, such that this court wants to have and hear cases in that regard.

[01:14:02] Speaker 01:
Did any of those cases involve, and I know you'll send them, I'm just asking a general question, a situation where no one had asked Ixid for a stay one way or the other, and they just came to court and asked for it first?

[01:14:15] Speaker 00:
These three cases, there was a stay requested before it was granted and then later removed.

[01:14:25] Speaker 00:
I see my time's up on rebuttal.

[01:14:27] Speaker 00:
I certainly have more things to say.

[01:14:29] Speaker 00:
Anything critical?

[01:14:37] Speaker 00:
Well, I do want to say with regard to the list penance with the race judicata, the preclusive effect issue, is that our argument there is that the court, the mechanism here is so different.

[01:14:54] Speaker 00:
It's to be treated as a final judgment.

[01:14:56] Speaker 00:
And I think that TECO wants the advantages of that, but without what else might come before it.

[01:15:02] Speaker 00:
It's true that the issue of stare decisis, for example, isn't an international law.

[01:15:07] Speaker 00:
But there may be the mechanisms different.

[01:15:11] Speaker 00:
This is a unique case because of the way it's coming in.

[01:15:13] Speaker 00:
So I wanted to note that.

[01:15:15] Speaker 00:
I also wanted to state that I don't agree with petitioners council that a exit tribunal would not hear an argument in an annulment proceeding that wasn't raised before.

[01:15:27] Speaker 00:
In particular, a case in which Whiten case was the respondent and I represented the claimant.

[01:15:34] Speaker 00:
a case called Fraport v. Philippines, there was an argument made, for example, in the annulment, an argument over whether you can be punishable for a crime without law that was not made in the case in chief.

[01:15:52] Speaker 00:
So I just, there is no rule.

[01:15:54] Speaker 00:
It's on a case by case basis.

[01:15:56] Speaker 00:
And I think there are examples where those have been heard.

[01:15:59] Speaker 00:
There's not some automatic right of forfeiture which you might have.

[01:16:03] Speaker 00:
for example, in a US court.

[01:16:05] Speaker 00:
So with that, Your Honors, I thank you very much.

[01:16:08] Speaker 01:
Is that case you just cited in your briefs?

[01:16:10] Speaker 00:
It's not, because I didn't.

[01:16:12] Speaker 01:
Maybe you could share that with us.

[01:16:14] Speaker 01:
But that involves something that's still being raised in the arbitration process and not for the first time in a court.

[01:16:20] Speaker 00:
Right.

[01:16:20] Speaker 00:
That was an arbitration process thing.

[01:16:22] Speaker 00:
And it was done now many years ago.

[01:16:24] Speaker 00:
Right.

[01:16:25] Speaker 02:
And it's the notion of the complete discretion of the panel hearing the matter.

[01:16:29] Speaker 00:
Right.

[01:16:30] Speaker 00:
The panel has the discretion.

[01:16:31] Speaker 00:
There's no rule that's conceded by

[01:16:33] Speaker 02:
petitioners council the panel has the discretion all right thank you council we'll take the case under advisement thank you