[00:00:00] Speaker 02:
Case number 19-7087, CIG Insurance Company, a successor by merger to International Insurance Company, an international surplus line insurance company, Appellant, versus Republic of Argentina, a successor to Caja Nacional de Auro Iseguro and Caja Nacional de Auro Iseguro.

[00:00:24] Speaker 02:
Mr. Bravian for the Appellant, Mr. Edelstein for the Appellee.

[00:00:29] Speaker 02:
Good morning, Mr. Braden.

[00:00:30] Speaker 04:
You may proceed.

[00:00:32] Speaker 06:
Good morning.

[00:00:33] Speaker 06:
May it please the court.

[00:00:34] Speaker 06:
In my opening, I will focus on how and why the court should rule in TIG's favor on the narrowest of grounds.

[00:00:43] Speaker 06:
And I reserve five minutes for rebuttal.

[00:00:46] Speaker 06:
We asked the court to decide a very narrow question of statutory interpretation.

[00:00:52] Speaker 06:
Does the FSIA section 1610A

[00:00:55] Speaker 06:
abrogate execution immunity for a foreign state's property if the property is used for a commercial activity at the time a judgment creditor applies to the court for such relief.

[00:01:09] Speaker 06:
The parties agree that no court in any circuit has ruled on this precise question.

[00:01:15] Speaker 06:
PIG urges the court to establish a time of filing rule for determining commercial activity.

[00:01:23] Speaker 06:
Because it's based on a straightforward textual analysis.

[00:01:27] Speaker 06:
It's supported by congressional intent, a fair reading of the cases cited by both sides, and the common law time of filing principle that has applied in court decisions for over 200 years.

[00:01:42] Speaker 00:
You are said to have abandoned the totality of circumstances view as an alternative to that.

[00:01:49] Speaker 00:
Is that accurate to say you're

[00:01:52] Speaker 00:
abandoning that proposition?

[00:01:54] Speaker 06:
No, Your Honor.

[00:01:57] Speaker 06:
We're not abandoning Totality of the Circumstances.

[00:02:01] Speaker 06:
It only became an issue after the district court adopted Time of Rit for reasons that we felt were adequately addressed by the Third Circuit in Crystal X, where Crystal X said, no, Time of Rit is not correct.

[00:02:19] Speaker 06:
Totality of Circumstances is correct.

[00:02:23] Speaker 06:
If the court focuses on the narrowest of grounds, there isn't much to consider in terms of totality of circumstances except perhaps to understand what the commercial activity was at the time the risks were applied for.

[00:02:39] Speaker 00:
Don't we need to decide it correctly rather than necessarily in the narrowest possible way?

[00:02:46] Speaker 00:
The issue of when

[00:02:52] Speaker 00:
You lose when the sovereign loses the immunity on that property is a statutory issue that is before us.

[00:02:59] Speaker 00:
And if, if you look at independence, uh, national bank of Oregon or since your independent insurance agency, unanimous spring court said once the issue is before the court on the question of law, the court is obligated to decide it correctly.

[00:03:13] Speaker 00:
Even if the court is stipulate to leaving out one view, if that's the proper interpretation, the court still has to reach it.

[00:03:21] Speaker 00:
So.

[00:03:22] Speaker 00:
It seems that some of the problems that occur with using the time of the service or time of the writ and the time of filing do not get rid of all the problems with that.

[00:03:36] Speaker 00:
If the sovereign can just suddenly reimmunize its property by taking down the for sale sign, couldn't they also do that to defeat

[00:03:50] Speaker 00:
at the time of filing if they get word of filing is about to happen.

[00:03:57] Speaker 00:
Do you understand what I'm asking?

[00:03:59] Speaker 06:
Actually, I'm having a little difficulty hearing this.

[00:04:02] Speaker 06:
There's some interference in the line.

[00:04:04] Speaker 06:
Is it only my phone?

[00:04:07] Speaker 06:
I can hear it fine.

[00:04:12] Speaker 06:
I apologize.

[00:04:14] Speaker 00:
A problem with the time of writ used by the district court is that the sovereign can

[00:04:20] Speaker 00:
re-immunized property just in time to keep it from being attached.

[00:04:26] Speaker 00:
Wouldn't the same kind of problem exist if you use the time of filing?

[00:04:30] Speaker 00:
If the sovereign becomes aware that a filing is about to occur, the sovereign could take the for sale found down and defeat the exception to the immunity.

[00:04:42] Speaker 00:
That way, couldn't they?

[00:04:44] Speaker 00:
Isn't there the same kind of problem if we use time of filing?

[00:04:48] Speaker 06:
I understand the question now, Your Honor.

[00:04:51] Speaker 06:
Thank you.

[00:04:51] Speaker 06:
The issue of whether the facts in some other case might change shortly before the time of filing is something that would be useful to apply the totality of circumstances test to evaluate.

[00:05:09] Speaker 06:
It's not necessary.

[00:05:10] Speaker 06:
In this case, when Judge Coler-Cattelli looked at

[00:05:15] Speaker 06:
attachment by NML of the very same building.

[00:05:19] Speaker 06:
She thought that three months gap between the taking down of the for sale sign and the time of commencing the enforcement action was too long, but the record that was developed in that case and the opinion don't really provide enough facts to understand what the totality of circumstances were.

[00:05:42] Speaker 06:
and perhaps that would have helped her to more particularly decide that question.

[00:05:50] Speaker 06:
Okay.

[00:05:50] Speaker 04:
So Argentina's... Mr. Brabant, you said in your list of factors that determine the outcome, the language of the statute, but all the language of the statute tells you the property is used for, is it in the present tense?

[00:06:07] Speaker 04:
It doesn't tell you

[00:06:09] Speaker 04:
when is the present time, right?

[00:06:14] Speaker 06:
That's correct.

[00:06:15] Speaker 06:
If you just focused on the is, you would have those two choices.

[00:06:21] Speaker 06:
But there's another part of the statute that helps to distinguish.

[00:06:26] Speaker 06:
And that's the definition that Congress included in 1603D for commercial activity.

[00:06:33] Speaker 06:
And if that's included in the sexual analysis,

[00:06:37] Speaker 06:
The is has to be at the time of filing because otherwise, as we point out in our brief, all single transaction, single commercial act evidence that a creditor may bring to the court would be excluded because it has to happen before the case is brought.

[00:06:59] Speaker 06:
It can't still be ongoing at some later time.

[00:07:05] Speaker 03:
Right.

[00:07:06] Speaker 03:
Just the other textual concern that's raised is the contrast between the language of 1610A and 1610A2 and where 1610A2 says is or was, and it appears that you're really trying to read that same is or was into 1610A.

[00:07:25] Speaker 03:
How do you account for that difference, which ordinarily would lead us to assume that Congress meant to differentiate the two?

[00:07:35] Speaker 06:
Congress did need to differentiate.

[00:07:38] Speaker 06:
A2 deals with a situation where the plaintiff in the suit is seeking to enforce rights that may have come up years before in the contract and only now are being brought to bear in execution against the property that was the subject of that contract.

[00:08:00] Speaker 06:
And Congress wanted to make it clear that

[00:08:02] Speaker 06:
the was allows for the court to consider events that otherwise might be too attenuated, whether the three months in ML was too attenuated under the circumstances, we wouldn't know.

[00:08:18] Speaker 06:
But the underlying concern that Congress expressed about sovereigns manipulating the facts, that's a concern in every case, not just

[00:08:27] Speaker 06:
But in particular, it's a concern here because that's exactly what happened after the... Well, why doesn't that cut against you?

[00:08:35] Speaker 03:
Why doesn't that cut against you?

[00:08:36] Speaker 03:
If there's that same concern about manipulation as the Third Circuit discusses in Crystallix, then Congress would have closed the door by adding is or was in 1610A.

[00:08:53] Speaker 06:
Well, we don't know exactly why the concern was expressed in the way it was.

[00:09:00] Speaker 06:
I think it might have been more fully explained as I just did by noting that when an A2 case is brought, there could be quite a long time between the cause of action accruing and the enforcement action, but the underlying concern

[00:09:17] Speaker 06:
Even if it were not expressed in the legislative history for 1682, it's a concern that this court needs to take a count out because we're looking for an interpretation of the statute that's fair both to the sovereign and to the private creditor.

[00:09:36] Speaker 06:
That was Congress's intent.

[00:09:38] Speaker 06:
And that's a supervening intent that goes beyond this.

[00:09:42] Speaker 06:
question that Argentina focused on about including the words in the legislative district for A2 but not for A6 or A generally.

[00:09:55] Speaker 06:
So Argentina's urging adoption of a time of writ rule because it changed the facts after PIG convinced its enforcement action.

[00:10:04] Speaker 06:
It wants a time of writ so it can continue to evade a creditor that twice arbitrated and won

[00:10:11] Speaker 06:
went to court, confirmed the arbitral awards, and now seeks to enforce those judgments in accordance with federal policy that favors arbitration, consistent with the New York Convention on Enforcement of Foreign Arbitral Awards.

[00:10:28] Speaker 03:
Mr. Graven, you, sorry to interrupt, but you refer to the, in your very first sentence, I think you referred to the default rule of time of filing as a rule that goes back 200 years,

[00:10:40] Speaker 03:
Isn't that default rule principally for jurisdictional determinations, whereas our court in Weinstein has held that execution immunity isn't jurisdictional?

[00:10:52] Speaker 03:
Am I wrong that that's the long-standing default rule that you're referring to?

[00:10:59] Speaker 03:
That jurisdictional determinations are made by reference to time of filing?

[00:11:05] Speaker 03:
Are there other... Is that a broader doctrine or are there other doctrines you would point to?

[00:11:10] Speaker 06:
It is a broader doctrine.

[00:11:12] Speaker 06:
There's no reason why execution immunity in this case should not be subject to the same time of filing for the same reasons as were articulated by the Supreme Court in Dole and in other cases where the issue was not purely jurisdictional.

[00:11:30] Speaker 06:
In Dole, it was underlying a definition of an agency or instrumentality of a foreign state

[00:11:38] Speaker 06:
But in other cases, it's been used to determine, for example, estoppel.

[00:11:44] Speaker 06:
There's no logical reason why it should be limited to jurisdictional cases.

[00:11:50] Speaker 06:
But even if it were, this issue of 1610A immunity is jurisdictional.

[00:12:00] Speaker 06:
The court has to determine whether Congress gave the court power to grant the release by stripping away

[00:12:08] Speaker 06:
execution immunity.

[00:12:10] Speaker 06:
It is a jurisdictional issue.

[00:12:14] Speaker 04:
Now, Argentina... Do either of my colleagues have any other questions?

[00:12:19] Speaker 00:
No further.

[00:12:21] Speaker 04:
Judge Pillard?

[00:12:24] Speaker 04:
No.

[00:12:24] Speaker 04:
Okay.

[00:12:25] Speaker 04:
We'll hear from Mr. Edelstein.

[00:12:33] Speaker 01:
Mr. Edelstein?

[00:12:35] Speaker 01:
Yes.

[00:12:36] Speaker 01:
Thank you, Your Honor, and may it please the Court

[00:12:38] Speaker 01:
TIG's argument here is based on the fundamentally flawed premise that past commercial use of a foreign sovereign's property forever waives its immunity from execution.

[00:12:50] Speaker 01:
The court below correctly held.

[00:12:53] Speaker 03:
I don't, Mr. Edelstein, I don't take that to be their position if they're adopting either

[00:12:58] Speaker 03:
time of filing or totality of circumstances.

[00:13:02] Speaker 03:
We don't see the Third Circuit, for example, saying, you know, any commercial activity at any time in the past is forever changed.

[00:13:09] Speaker 03:
That just sounds like a bit of a straw man.

[00:13:14] Speaker 01:
Well, Your Honor, I think in part that's due to the constantly changing nature of TIG's argument.

[00:13:24] Speaker 01:
In their opening brief in this court, they adopted totality of the circumstances in its entirety with only passing reference, if any, to time of filing.

[00:13:36] Speaker 01:
Now, at oral argument, they seem to be returning to time of filing.

[00:13:41] Speaker 00:
Neither of those presupposes that the change is forever, does it?

[00:13:48] Speaker 00:
You're saying that they're arguing, you're saying now that they're arguing that it forever has lost its character.

[00:13:53] Speaker 00:
Now that may be the case, but that isn't their argument, is it?

[00:13:58] Speaker 01:
Your Honor, it is to the extent that they have, that they read 1610A not to include a present tense requirement for use for a commercial activity.

[00:14:12] Speaker 03:
But even if we, excuse me, even if we

[00:14:16] Speaker 03:
view the statute as written in the present tense.

[00:14:19] Speaker 03:
Time of writ seems like an unusual way to effectuate that in contrast to time of filing.

[00:14:24] Speaker 03:
I mean, we have a lot of threshold legal determinations, as Mr. Braven was arguing, that are key to the present in the sense of time of filing.

[00:14:33] Speaker 03:
I wonder what other threshold legal determinations can you point to that are key to time of issuance?

[00:14:41] Speaker 01:
Your Honor, I think it really just is time of writ.

[00:14:46] Speaker 01:
But, Your Honor, as you pointed out in questioning Mr. Braven, the time of filing case law really does arise out of the jurisdictional context.

[00:14:56] Speaker 01:
And by that, I mean subject matter and personal jurisdiction.

[00:15:01] Speaker 01:
He's not been able to point to any case.

[00:15:02] Speaker 03:
Well, what about, for example, what about motions to dismiss, which are assessed by allegations as a complaint, which are

[00:15:10] Speaker 03:
you know, articulated at the time of the filing of the complaint.

[00:15:13] Speaker 03:
I mean, a lot of the activity in a case assessing personal jurisdiction, which may be more analogous to what we have here.

[00:15:20] Speaker 03:
It's not a subject matter jurisdiction inquiry.

[00:15:23] Speaker 03:
It's waivable, but we typically look to the allegations of the complaint.

[00:15:25] Speaker 03:
It's very unusual to have a court making a determination based on facts as they are going to be at the moment that the court issues its opinion.

[00:15:35] Speaker 03:
I can't think of another example.

[00:15:37] Speaker 03:
Can you?

[00:15:39] Speaker 01:
I don't know that there's another example, Your Honor, but this is explained fairly nicely in the Fifth Circuit's decision in FG Hemispheres, where they say that the terminate, to the extent it's a jurisdictional question, it's a question of jurisdiction over the property.

[00:15:58] Speaker 01:
And in that case, they happen to be speaking of a writ of garnishment, but they use the same language to talk about a writ of attachment or execution.

[00:16:06] Speaker 01:
It attaches or executes on the property when it's issued and served.

[00:16:11] Speaker 01:
And that's the moment that the court must make its decision.

[00:16:16] Speaker 03:
FTA Hemisphere itself talks about the working interest share has been used for commercial activity in the United States.

[00:16:25] Speaker 03:
So it's not dealing with the differentiation that you have to make here between time of filing and time of issuance of the writ.

[00:16:35] Speaker 03:
That's not the concern in that case.

[00:16:37] Speaker 03:
And in fact, the language in that case, Dr. Redd, has been used.

[00:16:41] Speaker 03:
Well, Your Honor... From page 591 of FG Hemisphere.

[00:16:48] Speaker 01:
Your Honor, the has-been-used language, that takes back to the discussion that I was having before, that

[00:16:58] Speaker 01:
by abandoning a present tense and adopting a phrase of has been used for a commercial activity, that's what would mean that foreign sovereign property would forever lose its immunity if it was used once for a commercial activity.

[00:17:17] Speaker 03:
All I'm saying, Mr. Edelstein, is that you referred us to FG Hemisphere and FG Hemisphere

[00:17:24] Speaker 03:
uses the phrase on 591 has been used for commercial activity and on 592 were not used for commercial purposes.

[00:17:33] Speaker 03:
So it just doesn't seem to stand for the line that you're arguing for.

[00:17:38] Speaker 03:
That was my only point there.

[00:17:39] Speaker 01:
I understood, Your Honor.

[00:17:42] Speaker 01:
And the point that I was raising it for now was just to say that FG Hemisphere explains why the time the court should be making its determination

[00:17:52] Speaker 01:
uh... is the time of the wreck uh... and what you have to hemisphere uh... in that particular discussion that i was referring to uh... which is on page five eighty nine is is speaking of the first of section sixteen ten days to adjectival requirements or sixteen ten a require the property people in the united states and use for a commercial purpose uh... and there

[00:18:23] Speaker 01:
The court in FG Hemisphere says, well, 1610A says in the United States.

[00:18:29] Speaker 01:
It doesn't say was in the United States or has been in the United States.

[00:18:34] Speaker 01:
And therefore, the time that we should be making this determination is at the time we're making the writ.

[00:18:41] Speaker 01:
And that exact same grammar, that exact same logic applies to the second of 1616A's two adjectives used for commercial purposes.

[00:18:53] Speaker 03:
Another way of reading FG Hemisphere is consistent with a more totality of circumstances inquiry, because as the example that is used on that same page 589 talks about a plane that's really a diplomatic plane, but once touches down in the United States when there's a need for commercial aircraft, that that wouldn't convert it.

[00:19:20] Speaker 03:
But that seems that that's more talking about, you know,

[00:19:23] Speaker 03:
let's look at the heft of, you know, let's look at what this really is, the character of this item, and a little bit less hung up in that opinion on formalistic time definitions.

[00:19:38] Speaker 03:
I just wanted to back up for a minute because the use for commercial activity, you know, one of the parts, a key part of the district judge's analysis was that this is the present tense, and I'm not sure that

[00:19:51] Speaker 03:
I'm not sure that's right.

[00:19:52] Speaker 03:
If we see use for a commercial activity as an adjectival phrase, it doesn't necessarily have a specified time indicator.

[00:20:02] Speaker 03:
If it's like tables used for dining in contrast to tables used for working, it's more of, as I said, just an adjective.

[00:20:12] Speaker 03:
Do you have a response to that or disagree with that?

[00:20:16] Speaker 01:
I do have a response, and I think your example there is a very good one.

[00:20:21] Speaker 01:
a table used for dining versus a table used for working.

[00:20:27] Speaker 01:
Because of the nature of the current crisis, I happen to be working in my house.

[00:20:32] Speaker 01:
There is a table that many months ago I used for dining.

[00:20:37] Speaker 01:
Now it's up in my office, in my house, covered in all of my papers.

[00:20:42] Speaker 01:
It's a table used for working.

[00:20:44] Speaker 01:
You wouldn't call it a table used for dining right now.

[00:20:49] Speaker 01:
The adjectives in section 1610A, especially given that they are not modified by any verb tenses, and that's recognized by the court in FG Hemispheres, it's also recognized by the court in Aurelius, where there's no verb saying will be used for dining, was used for dining.

[00:21:10] Speaker 01:
What matters is right now.

[00:21:13] Speaker 01:
Can you describe the table as a table used for dining?

[00:21:16] Speaker 00:
How do we know that it means right and I as opposed to generally in the same sense as totality of circumstances?

[00:21:24] Speaker 00:
I don't see that as evident from the face of the statute.

[00:21:29] Speaker 01:
Well, it's evident from a few things, Your Honor.

[00:21:32] Speaker 01:
It is evident, we believe, from the face of the statute, from the fact that these adjectival phrases are not modified by any verb tenses.

[00:21:41] Speaker 01:
at the time of the court is looking to attach the property that the simple question is do these adjectives properly describe the property at issue uh... right now the the archery probably a little bit of the circumstances do they took uh... correctly from uh... described property what then you are the the the issue we have with the totality of the circumstances that uh... several first of all

[00:22:05] Speaker 01:
I don't believe it has support in the language of the statute.

[00:22:11] Speaker 01:
The phrase used for commercial activity in the statute has no adverbs attached to it.

[00:22:17] Speaker 01:
It doesn't say primarily used or predominantly used.

[00:22:22] Speaker 01:
Right, right, right.

[00:22:25] Speaker 00:
Which is totally consistent with totally the circumstances.

[00:22:28] Speaker 00:
If it were not totally the circumstances, it might have some adverbs to take it out of the totality.

[00:22:35] Speaker 01:
Well, you're right, I think I disagree with that analysis.

[00:22:39] Speaker 01:
So the court in Crystal X, and in the ASCAP case from 2004 that it relies on to get to a totality of the circumstances, those courts actually insert adverbs where there are none, predominantly, essentially.

[00:22:59] Speaker 01:
The other problem with the... Wasn't that the two bills?

[00:23:06] Speaker 01:
Yes.

[00:23:07] Speaker 01:
Would you like me to continue or stop?

[00:23:09] Speaker 04:
Finish your answer, and then I have a question.

[00:23:12] Speaker 01:
Sure.

[00:23:13] Speaker 01:
The other problem, as I was saying, with the totality of the circumstances test, is that it is, we think, poorly reasoned.

[00:23:24] Speaker 01:
And the crystal-x decision on that matter really just adopts it.

[00:23:29] Speaker 01:
The extent of the court's analysis is that it

[00:23:32] Speaker 01:
seems more appropriate.

[00:23:35] Speaker 01:
And there's no effort to engage with the text of section 1610A, which is contrary to the principle that the court should not soften the import of Congress's chosen words, even if it believes those words would be... I mean, this debate we're having here just convinces me that the word used doesn't answer the question.

[00:23:57] Speaker 04:
It does say present tense, but it doesn't answer the question.

[00:24:00] Speaker 04:
about whether it's at the time of filing or at the time of writ.

[00:24:05] Speaker 04:
And what I just don't understand is why the court would adopt an interpretation of that word that would allow what happened here, where a party, a plaintiff wins an arbitration award or any other award.

[00:24:27] Speaker 04:
and Filesuit, and then the defendant, Argentine in this case, is able to defeat it simply by taking it off the market.

[00:24:35] Speaker 04:
I just don't understand why we would adopt that interpretation.

[00:24:39] Speaker 01:
Your Honor, and the answer to that question is because that's the interpretation that Congress adopted.

[00:24:46] Speaker 04:
No, no, I just said I don't read used as driving the answer to that question, the use of the word used.

[00:24:54] Speaker 01:
Sure, Your Honor, and I, I'm sorry.

[00:24:56] Speaker 04:
That's all.

[00:24:57] Speaker 04:
I just, you know, you can go back to the language if you want, but I started my question by saying that I don't believe the word used answers the question.

[00:25:05] Speaker 04:
And therefore, why would I adopt the interpretation you're offering, which allows Argentina to escape simply by taking it off the market, taking the property off the market?

[00:25:15] Speaker 04:
Why would we do that?

[00:25:16] Speaker 01:
Yeah.

[00:25:18] Speaker 01:
And you're right.

[00:25:18] Speaker 01:
And I understand the question.

[00:25:21] Speaker 01:
And the answer is that Congress thought

[00:25:24] Speaker 01:
that the word used did answer the question.

[00:25:26] Speaker 01:
Okay.

[00:25:26] Speaker 04:
Well, you're not, you know, you're not, I, I, I, I, I'm saying I don't agree with that.

[00:25:35] Speaker 04:
If I don't agree with that, what's your argument?

[00:25:37] Speaker 04:
Do you want to answer that question or not?

[00:25:40] Speaker 04:
In other words, more functionally.

[00:25:41] Speaker 04:
So you're, you're, you can't answer the question by, by, by telling me that the premise of my question is wrong.

[00:25:51] Speaker 01:
I understood your honor.

[00:25:52] Speaker 04:
And then what is the answer to my question?

[00:25:54] Speaker 01:
If you don't agree that used answers the question, the answer to the question of why you would adopt an interpretation that allows a sovereign to do what Argentina did is that the purpose of the FSIA is protection of sovereignty and sovereign immunity and the value that it protects is sovereignty.

[00:26:19] Speaker 01:
The backdrop of the FSIA

[00:26:21] Speaker 01:
was a common law of absolute immunity for foreign sovereigns.

[00:26:26] Speaker 01:
The exceptions to that immunity are in derogation of the common law and must therefore be construed narrowly.

[00:26:35] Speaker 04:
So an interpretation... Judge Piller, did you have a question?

[00:26:40] Speaker 03:
I was just going to ask in the same vein how you think Congress

[00:26:45] Speaker 03:
if it meant time of writ, wasn't that undermining the particular commercial transaction or act part of the definition?

[00:26:56] Speaker 03:
Because under the time of writ interpretation, the foreign sovereign could presumably always abandon that single commercial transaction while the motion of protection was pending.

[00:27:07] Speaker 03:
So that language would also seem to

[00:27:11] Speaker 03:
pushes in the direction of, even if we assess it by reference to time of writ, looking more broadly at the properties used over a certain period of time.

[00:27:23] Speaker 01:
Sure.

[00:27:23] Speaker 01:
Your Honor, I think the answer to that question actually does lie in Section 1610A2, in that the concern really is, I think, overblown in that it would only, a situation such as occurred here,

[00:27:38] Speaker 01:
would only occur where a property could be removed from commercial activity without subjecting it to 1610A2 liability.

[00:27:49] Speaker 01:
And what I mean by that is if you have a particular transaction or occurrence, such as a sale that actually is reduced to a non-contingent sale contract, Argentina could not have removed the property from the market

[00:28:06] Speaker 01:
without opening itself up to a waiver of immunity to the contracting part.

[00:28:13] Speaker 01:
So it's a very particular circumstance that allows what happened here to happen.

[00:28:20] Speaker 01:
I don't think it, go ahead, I'm sorry.

[00:28:23] Speaker 04:
That's okay, I was just going to say if neither of my colleagues have any other questions, I think.

[00:28:27] Speaker 04:
No questions.

[00:28:29] Speaker 04:
Okay.

[00:28:29] Speaker 04:
That's it for me, thanks.

[00:28:30] Speaker 04:
Okay.

[00:28:30] Speaker 04:
Let's see, Mr. Braven, I think you were out of time, but if you have anything you would like to add, you can have one minute.

[00:28:38] Speaker 06:
Thank you, Your Honor.

[00:28:39] Speaker 06:
So, quickly, the FG Hemisphere case was not as Argentina represented.

[00:28:47] Speaker 06:
FG Hemisphere's panel only focused on the location requirement.

[00:28:52] Speaker 06:
It's a requirement that must be in the present tense at the time of the court's decision so that the court can

[00:29:00] Speaker 06:
exercise power over the property.

[00:29:02] Speaker 06:
It was banned, the panel there, it was banned by AFCAP, the Fifth Circuit's decision in 2004, and the panel referred to the fact that use for commercial activity had already been decided.

[00:29:16] Speaker 03:
Let me ask you, Mr. Braven, what exactly is the rule that you would have us apply here?

[00:29:24] Speaker 03:
Sometimes you seem to be focusing on time of filing, sometimes it's all your circumstances.

[00:29:29] Speaker 03:
I can see, you know, looking at either the time of the writ or the time of the filing, but using that as a touchstone for a broader consideration of facts.

[00:29:40] Speaker 03:
I'm just not entirely sure if you could just, you know, boil it down, the rule that you're asking for.

[00:29:46] Speaker 06:
Thank you, Your Honor.

[00:29:48] Speaker 06:
So the narrowest way of reserving this case is on time of filing.

[00:29:53] Speaker 06:
But to deal with examples such as the absurd

[00:29:57] Speaker 06:
idea that Argentina advances that once commercial activity is established on the data filing, that it's forever, not immune for any case going forward, that's where totality of the circumstances comes in to say, no, we're going to confine our analysis

[00:30:14] Speaker 06:
to the relevant circumstances.

[00:30:16] Speaker 06:
So we may go back three months.

[00:30:18] Speaker 06:
We may go forward a short amount of time, not for the purpose of allowing the sovereign to avoid its creditor, but to take into account relevant facts.

[00:30:28] Speaker 06:
But in this case, on the data filing, it was certain.

[00:30:32] Speaker 06:
And there really isn't a need to come up with a more complicated analysis.

[00:30:38] Speaker 06:
In section 1606 of the FSIA, Congress said,

[00:30:43] Speaker 06:
In effect, once an exception to sovereign immunity is established, immunity is no longer outcome determinative, the foreign state will be treated as a private party and its property as a private party, as property of a private party, and the DC creditors' rights laws

[00:31:02] Speaker 06:
this case would have been resolved on the day it was filed.

[00:31:05] Speaker 06:
And if the debtor had some exotic argument, like Argentina has... Mr. Brayden, finish up.

[00:31:12] Speaker 04:
You're well over time.

[00:31:13] Speaker 06:
They could have come in and attempted to quash the rents.

[00:31:17] Speaker 06:
In this case, we waited months and we ended up with a result that is not based on any... Judge Miller, do you have any further questions?

[00:31:29] Speaker 04:
I'm done, thank you.

[00:31:31] Speaker 04:
Mr. Braven, thank you.

[00:31:34] Speaker 04:
Mr. Braven, Mr. Edelstein, thank you both.

[00:31:36] Speaker 04:
The case is submitted.

[00:31:39] Speaker 00:
Thank you.