[00:00:00] Speaker 02: Number 21-7T03, Process and Industrial Developments Limited versus Federal Republic of Nigeria and Ministry of Petroleum Resources of the Federal Republic of Nigeria, Appellants. [00:00:12] Speaker 02: Mr. Major for the Appellants, Mr. Claisen for the Appellate. [00:00:17] Speaker 00: Mr. Magin, good morning. [00:00:18] Speaker 00: Good morning, Your Honors. [00:00:20] Speaker 00: Chris Major for the Appellants. [00:00:21] Speaker 00: May it please the Court. [00:00:23] Speaker 00: Nigeria did not impliedly waive its sovereign immunity under the Foreign Sovereign Immunities Act by signing the New York Convention [00:00:31] Speaker 00: and then subsequently agreeing to arbitrate against PNID in England under Nigerian procedural and substantive law. [00:00:39] Speaker 00: As this court has held in case after case, the implied waiver exception under the FISA must be narrowly construed. [00:00:46] Speaker 00: Finding implied waiver requires unmistakable evidence that the sovereign intended to waive immunity under the acts that are alleged to be the implied waiver. [00:00:57] Speaker 00: Earlier this year, this court in the Ivanenko case [00:01:02] Speaker 00: noted that there's only been three circumstances in which this court has found implied waiver of sovereign immunity. [00:01:08] Speaker 00: Number one is executing a contract containing a US choice of law provision. [00:01:14] Speaker 00: Number two is filing a responsive pleading in a US court without asserting the sovereign immunity defense. [00:01:21] Speaker 00: And number three is agreeing to submit a dispute to arbitration in the United States. [00:01:26] Speaker 00: In all three of those circumstances, there's either contact with the United States or submission to US law. [00:01:34] Speaker 00: Critically, none of those circumstances apply in this case. [00:01:38] Speaker 00: The gas supply and processing agreement at issue in the arbitration was for a project in Nigeria. [00:01:46] Speaker 00: The agreement was governed and construed in accordance with Nigerian substantive law. [00:01:51] Speaker 00: The parties agreed to arbitration under the Nigerian Arbitration and Conciliation Act and the venue of the arbitration was London, England. [00:02:00] Speaker 00: There was nothing mentioned in the agreement about the US and certainly nothing about sovereign immunity. [00:02:10] Speaker 03: Well, the convention and the legislation, enacting a deposit law into the United States Code here, talk about the power of courts to order arbitration, to enforce the agreement to arbitrate, not just the awards here, but upfront the order arbitration. [00:02:35] Speaker 03: How could they do that if the parties were not [00:02:39] Speaker 03: waving their sovereign immunity to be subject to such order and authority. [00:02:43] Speaker 00: Yes, your honor and the pre FISA cases that dealt with the arbit with with implied waiver and arbitration all dealt with the circumstance of arbitrations taking place in the United States and the logic was. [00:02:56] Speaker 00: how can you have arbitration in the United States as the sovereign had agreed, if you can't go to US court and enforce the arbitration agreement and require the sovereign to actually fulfill its agreed, specifically agreed obligation to arbitrate in the US. [00:03:11] Speaker 00: However, the New York convention does not talk about any actions against states. [00:03:16] Speaker 00: The language in the convention is very clear. [00:03:19] Speaker 03: I'm sorry, do you agree that had they arbitrated [00:03:23] Speaker 03: Had the arbitration been here in the United States? [00:03:25] Speaker 03: I want to make sure I understood your answer. [00:03:26] Speaker 03: Had the arbitration been here in the United States, then sovereign immunity would be waived by virtue of the fact that they arbitrated here in the United States. [00:03:35] Speaker 00: Your Honor, under this Court's precedent, the Court has found foreign sovereigns have waived their sovereign immunity impliedly by agreeing to and ultimately arbitrating in the U.S., which of course Nigeria did not do in this case. [00:03:49] Speaker 03: Okay, but then isn't the whole point of the New York Convention is to make all the signatory countries like one big country. [00:03:58] Speaker 03: If you're in any of them, it's the same as if you're in one of them for these purposes. [00:04:03] Speaker 03: And so if you're in the New York Convention world and you're arbitrating in the New York Convention world, [00:04:10] Speaker 03: You are subject to enforcement. [00:04:12] Speaker 03: You've waived sovereign immunity from enforcement, either of the agreement to arbitrate or the award in this New York Convention world. [00:04:22] Speaker 00: Your Honor, the New York Convention contains one core obligation by each of the signatory states, and that's that in their courts, they will enforce arbitral awards [00:04:32] Speaker 00: that are entered in the countries that are also signatories. [00:04:36] Speaker 00: So the obligation is not that they're submitting themselves as states to the jurisdiction of the others. [00:04:41] Speaker 03: You said they are if they are arbitrating you in the country itself. [00:04:46] Speaker 03: I thought you said there is a waiver of sovereign immunity. [00:04:49] Speaker 03: It's no more explicit, it's implicit if they arbitrate in, if the courts in the place of arbitration are the same country. [00:04:57] Speaker 00: Your honor, historically before the arbitration except. [00:05:00] Speaker 03: Do you agree that that's a proper reading, that that was a way? [00:05:02] Speaker 03: I don't want a history lesson here. [00:05:03] Speaker 03: I just want a legal answer. [00:05:05] Speaker 03: Do you agree that had they arbitrated in the United States, there would have been an implicit waiver of sovereign immunity? [00:05:13] Speaker 00: Your honor, I agree that that would be the case before the FISA was amended to input a specific. [00:05:20] Speaker 03: Yeah, we're in a world now where FISA is here. [00:05:24] Speaker 03: But today, right now, with this arbitration, had it occurred in the United States, would there have been an implicit waiver of sovereign immunity? [00:05:32] Speaker 00: Your Honor, I think under current law, with the arbitration exception, which was enacted in the late 1980s, it would not. [00:05:38] Speaker 00: But historically, this court's precedent was that an arbitration in the United States would be enforceable under the implied waiver. [00:05:46] Speaker 00: But Congress amended the FISA in the late 1980s to add an arbitration exception. [00:05:51] Speaker 00: and a counterparty to an arbitration with the state should be pursuing a waiver argument under the arbitration exception, not the implied waiver exception. [00:06:01] Speaker 03: The core obligation- The arbitration exception incorporates expressly the implied waiver provision as well at the very end, correct? [00:06:11] Speaker 00: As one of the conditions, one of four potential conditions that you have to meet to satisfy the arbitration exception, but you can satisfy the arbitration exception without establishing an implied waiver. [00:06:25] Speaker 03: I get that, but if there was an implied waiver before, Congress wasn't taking that away. [00:06:32] Speaker 00: Correct. [00:06:35] Speaker 00: As an extra condition on the arbitration exception. [00:06:37] Speaker 00: Your honor, so there's one core obligation for each of the states under the New York Convention, and that is to accept in their courts cases enforcing foreign arbitral awards. [00:06:48] Speaker 00: Those cases though, and this is article one of the convention, is very specific. [00:06:53] Speaker 00: It's for our foreign arbitration awards arising out of differences between persons, whether physical or legal, [00:07:01] Speaker 00: The word states is used in the New York Convention to describe the signatories what this article one when it talks about the scope of the convention is dealing with private litigants, whether they be persons or entities, and we know from law that states are not treated as persons, for example, the due process. [00:07:20] Speaker 00: body of law in the United States. [00:07:23] Speaker 00: The convention made no attempt to submit the states who were signing and agreeing that their courts would enforce foreign arbitral awards, that those states were waiving their own sovereign immunity. [00:07:36] Speaker 00: And of course, there's nothing in the convention itself about sovereign immunity. [00:07:41] Speaker 00: And I think this court's recent holding in the Ivanenko case is instructive on that point. [00:07:45] Speaker 00: There, there was a treaty between the US and the Ukraine [00:07:48] Speaker 00: The treaty provided only for the parties, which were the states, to entertain civil suits in their own courts. [00:07:58] Speaker 00: And that's what the New York Convention says, is we will permit enforcement of foreign arbitral awards in our courts. [00:08:05] Speaker 00: It's not a waiver of sovereign immunity. [00:08:08] Speaker 00: I think that in terms of the fact that Congress has enacted the arbitration exception, [00:08:19] Speaker 00: is further evidence that the court should not expand the scope of where it's gone in terms of finding an implied waiver, which again requires some level of connection to the United States, whether that be a suit in the United States with the sovereign [00:08:36] Speaker 00: answers without asserting sovereign immunity or agrees actually to arbitrate in the United States or submits itself. [00:08:44] Speaker 03: I don't know where that gets you because then you just lose under the arbitration exception. [00:08:49] Speaker 00: Your honor, I don't think we lose under the arbitration exception in this case because [00:08:53] Speaker 00: There is no foreign arbitral award to enforce because it was vacated. [00:08:58] Speaker 03: This court has precedent treating arguments that has been set aside or invalid on some of their grounds as affirmative defenses. [00:09:06] Speaker 03: They don't bear on the jurisdiction of the court, which is all we're deciding here and all the district court decided here. [00:09:13] Speaker 00: Your Honor, sovereign immunity is different as this court held on the first appeal. [00:09:17] Speaker 03: We've held this in sovereign immunity cases. [00:09:20] Speaker 00: Your Honor, on the FISA issue, as the Supreme Court held in the Bavarian Republic of Venezuela case, which we cite in our brief, [00:09:29] Speaker 00: sometimes the merits and the FISA jurisdictional issues can be intertwined. [00:09:35] Speaker 03: However, the court- Sometimes they're not, and we have held the D.I. [00:09:39] Speaker 03: Keenan case, the Stillicks case, we treated the invalidity or asserted invalidity or absence of an enforceable arbitration award as an affirmative defense, not something that bears on jurisdiction. [00:09:55] Speaker 00: Your honor, the exception under 16056 is to confirm an award. [00:10:00] Speaker 00: And if the ward has been vacated, as we contend it has here, then there's no award and there's no prerequisites. [00:10:07] Speaker 03: I can ask you one question because your time's about to run out here. [00:10:10] Speaker 03: I assume when you say it's been set aside, you're referring to the order of the Nigerian High Court. [00:10:17] Speaker 03: Correct? [00:10:18] Speaker 00: Yes. [00:10:19] Speaker 03: And that says it is setting aside and or remitting for further consideration all or part of the arbitration award. [00:10:29] Speaker 03: So how do I know they have set aside rather than remitted and they set aside all rather than part? [00:10:36] Speaker 03: How do I know from the face of their order that they've set aside the entire award? [00:10:42] Speaker 00: You have to go to the motion that Nigeria filed on February 24, 2016. [00:10:46] Speaker 00: That's in the record at page 203. [00:10:49] Speaker 00: There, they sought to set aside. [00:10:52] Speaker 00: And in the opening preamble, also asked in the alternative. [00:10:55] Speaker 00: That's not. [00:10:56] Speaker 03: No, I should think that we would look at the order of the court itself. [00:10:58] Speaker 03: And if I can't tell from the order of the court itself, what are we supposed to do? [00:11:04] Speaker 00: Your honor, I think you can tell from the order. [00:11:06] Speaker 03: If I think I can't tell from the order, just answer this question. [00:11:10] Speaker 03: I understand your argument. [00:11:13] Speaker 03: I respect that. [00:11:14] Speaker 03: But if I couldn't tell, hypothetically, couldn't tell what it did, what would happen then? [00:11:24] Speaker 00: I would ask the court to look at page 24 of the record, which is the motion where it clearly seeks to set aside without, again, [00:11:32] Speaker 00: mentioning remitting, which of course means cancel. [00:11:34] Speaker 00: Makes things worse, right? [00:11:35] Speaker 03: That makes things worse for you because they added words that you weren't asking for, so they seem to be doing not what you asked for. [00:11:42] Speaker 00: Your Honor, I think it's adopting the form of order that was submitted as proposed, but I don't think... Did your form order have the word remitting in all her heart? [00:11:53] Speaker 00: Yes, Your Honor, and it was in the preamble of the motion. [00:11:55] Speaker 00: However, there was no limiting, there was nothing in the order that limits the scope of the vacator. [00:12:01] Speaker 00: So the I think in reading the motion together with the order the only conclusion is that the entire award was set aside. [00:12:08] Speaker 00: Even if the court's unsure about that, which I think the court can become sure on, then it's a decision that the district court would have to reach in order to determine whether or not that order actually set aside the award. [00:12:22] Speaker 00: And the court, even if it has to delve into the merits to some degree, as the Supreme Court has held, it has to do so. [00:12:28] Speaker 00: And it can do so in determining the FISA, even if it decides some merit issues along the way. [00:12:35] Speaker 00: Does that answer your question, Judge Millett? [00:12:37] Speaker 00: Yes. [00:12:38] Speaker 03: Yes, thank you. [00:12:40] Speaker 01: Mr. Clayson. [00:12:45] Speaker 01: Yes, good morning, Your Honors, and may it please the court, I just plaza for the petitioner appellee. [00:12:53] Speaker 01: Judge Millett, you said it right when you said that the New York Convention [00:12:58] Speaker 01: creates essentially a framework, an international framework for enforcement of foreign arbitration awards arising from commercial disputes. [00:13:08] Speaker 01: And so Mr. Major said that Nigeria really only committed to enforcing awards in its own courts. [00:13:15] Speaker 01: But in fact, by joining a multilateral treaty like the convention, every state that does so agrees to have awards enforced in every or any [00:13:26] Speaker 01: other convention country, including the United States? [00:13:30] Speaker 03: Well, they agree to enforce awards according to their own procedures. [00:13:33] Speaker 03: That's the language of the convention. [00:13:36] Speaker 03: And our procedures, I should think, would include our principles of sovereign immunity and what it takes to waive sovereign immunity. [00:13:44] Speaker 03: And in this country, because of separation of powers, from the court's perspective, it takes very clear language to have a waiver of sovereign [00:13:53] Speaker 03: immunity. [00:13:55] Speaker 03: Do you know whether the United States government agrees with your reading of the convention? [00:14:04] Speaker 03: Does the United States agree that its sovereign immunity has been waived if, for example, someone tried went to Afghanistan and tried to enforce an award against the United States there? [00:14:19] Speaker 01: Judge, I do not know the U.S. [00:14:21] Speaker 01: position, the U.S. [00:14:22] Speaker 01: government's position. [00:14:23] Speaker 01: I would say that, of course, a prior panel of this court in Taft-Neft applied this exact analysis. [00:14:29] Speaker 03: That was not a published decision. [00:14:32] Speaker 03: And I mean, it's fair of you to reference it, of course. [00:14:36] Speaker 03: But I'm concerned. [00:14:37] Speaker 03: I think the waiver theory here, as opposed to the arbitration theory, the waiver theory here would definitely implicate as a matter of surrogate precedent that the United States itself [00:14:49] Speaker 03: implicitly waived its sovereign immunity. [00:14:52] Speaker 03: And we, at least in the past, have generally required a lot more clarity for the United States to subject itself to the jurisdiction of 167 other countries around the world. [00:15:09] Speaker 03: I'm just worried about this very big step. [00:15:11] Speaker 01: that we're taking. [00:15:12] Speaker 03: But if the government has already signed off on that reading, then I don't have to worry about that. [00:15:17] Speaker 01: I'd say a few things in response to that. [00:15:18] Speaker 01: First of all, while the TATNEF case was unpublished, there was a petition for rehearing on bank and also a cert petition, both of which were rejected. [00:15:29] Speaker 01: So there may have been opportunities for the US government to respond to that. [00:15:33] Speaker 01: But in any event, to address your specific question, [00:15:35] Speaker 01: I would say two things. [00:15:36] Speaker 01: First of all, the waiver, it is true that this theory could another court in another country could apply the same rationale that we are asking your honors to apply here. [00:15:47] Speaker 01: Of course, it's not merely the agreement to sign up to the New York Convention. [00:15:52] Speaker 01: It is then the subsequent agreement [00:15:54] Speaker 01: to arbitrate a particular dispute. [00:15:57] Speaker 01: So it is a combination of those two things. [00:16:00] Speaker 01: And so if the United States, as a signatory to the New York Convention, then agreed to arbitrate a commercial dispute, then by the same rationale, indeed, if another court applied the same rationale, then they would have waived immunity. [00:16:16] Speaker 01: That does not mean, of course, that the award would actually be enforced. [00:16:20] Speaker 01: And that really goes to the heart of the issue here, which is that [00:16:24] Speaker 01: the jurisdictional question as to whether the court has jurisdiction to decide whether an award should or should not be enforced. [00:16:33] Speaker 01: That is separate from the question whether the award should or should not be enforced. [00:16:38] Speaker 01: And so in your hypothetical, General, that the United States would presumably have various arguments under Article 5 of the New York Convention as to why a particular award should not be enforced. [00:16:50] Speaker 03: But your position is that's not a jurisdictional inquiry. [00:16:54] Speaker 03: The existence of a legitimate award is not a jurisdictional inquiry. [00:17:00] Speaker 01: That's correct. [00:17:02] Speaker 03: So someone could go into a report in the Russian Federation and they pull out on a piece of paper written in crayon and it has some little stamp on it. [00:17:12] Speaker 03: And they say, here's our certified arbitration award against the United States government. [00:17:18] Speaker 03: enforce it, please. [00:17:20] Speaker 03: And the United States would have to subject itself to jurisdiction and litigation in that court and then litigate and maybe have discovery before it could [00:17:31] Speaker 03: hopefully extricate itself or maybe not from that judgment. [00:17:36] Speaker 03: If the United States government, if the political branches have agreed to do that, then it's not for me to question. [00:17:42] Speaker 03: I'm just concerned about this notion that you don't look beyond the face of this piece of paper that purports to be an award until you've exercised jurisdiction and then they can be drawn through discovery and all kinds of other proceedings before there's actual decision on the merits. [00:18:00] Speaker 01: Right. [00:18:00] Speaker 01: Well, first of all, judge, I would say, you know, I do not know one way or another, what the US government's position is they could also have appeared or sought to intervene in this case and they haven't. [00:18:10] Speaker 01: And I just don't know what their position would be on the waiver but yes it, you know, you're correct that under this theory. [00:18:19] Speaker 01: The United States, if they agreed to arbitrate the dispute, would be subject to the jurisdiction of courts of other convention countries. [00:18:26] Speaker 01: Of course, under your hypothetical, if a Russian court were then to say, based on what the US would consider an invalid award, and the Russian courts decided to enforce it, there's still the question whether [00:18:44] Speaker 01: the United States would actually end up paying the award, first of all, because they might choose not to. [00:18:50] Speaker 01: And if there were assets in Russia belonging to the United States, I don't know that there are. [00:18:54] Speaker 01: But if there are, there would be immunity from execution as well as a particular asset. [00:18:59] Speaker 01: So it by no means means that that decision to waive immunity, the implied waiver, would result in, for example, the seizure of US government assets. [00:19:15] Speaker 03: I'll just do a hypothetical, because I know there's litigation about this issue. [00:19:18] Speaker 03: But if you have an arbitration award, and then two weeks later, it's set aside by, shall we say, like the same arbitrators, or it's an arbitration appellate panel of some sort. [00:19:34] Speaker 03: But in the same jurisdiction, everyone's a signatory to the convention. [00:19:38] Speaker 03: And so it's set aside in sort of like a New York minute, right? [00:19:40] Speaker 03: This award doesn't last very long at all. [00:19:43] Speaker 03: Is it your position that someone, the person who had that original award, which is clearly as a matter of public record, been thrown out completely, could still go and take that award into a court here in the United States and say, please enforce it? [00:20:01] Speaker 03: And when that foreign country comes in and says, what are you doing? [00:20:05] Speaker 03: France comes in and says, what are you doing? [00:20:07] Speaker 03: That thing was set aside. [00:20:08] Speaker 03: The district court would have to go, I can't look at that. [00:20:12] Speaker 03: You know, they came in, they showed me an arbitration agreement, a treaty, and an award that's got a stamp on it. [00:20:19] Speaker 03: And you're going to have to go through, subject yourself to our jurisdiction and go through litigation before I can address the existence of a valid arbitration award. [00:20:32] Speaker 03: It's not a jurisdictional fact. [00:20:35] Speaker 01: Right, it's not jurisdictional, but I would take issue with your characterization of the award having been thrown out, because the New York Convention expressly contemplates that an arbitration award, and in that sense, it's different from a court judgment, that an arbitration award, which is a private dispute resolution mechanism, that an arbitration award can be enforced, and in fact, the New York Convention [00:21:01] Speaker 01: essentially requires a word to be enforced, but that it can be enforced, even if it has been set aside and if there has been a lawful set aside in the sense that it was a court with supervisory powers under Article five of the convention, then [00:21:16] Speaker 01: you know, that is something the court can consider as part of the merits analysis as to whether the award should be enforced. [00:21:23] Speaker 01: So it is different. [00:21:26] Speaker 01: It's not thrown out. [00:21:27] Speaker 01: There is a court decision that certainly casts doubt on whether the award should be enforced, but it does not affect the jurisdictional analysis. [00:21:37] Speaker 01: And Judge Malad, you mentioned earlier the DIAC human case. [00:21:41] Speaker 01: That was actually, well, that was a situation in, I think, when you started your hypothetical, you mentioned that the award had been reversed by another arbitral [00:21:51] Speaker 01: You know, panel, I think that's what you said and that was exact situation in die human, where there had been an arbitration award and and this court confirmed affirmed the decision to confirm the award and it then noted at the end of its judgment. [00:22:08] Speaker 01: that during oral argument, a question had been raised as to whether the award was still final because there actually was another arbitral appellate panel, which is pretty rare but does happen, an arbitral appellate panel that had arguably vacated the award. [00:22:24] Speaker 01: And this court said in that decision that that went to the merits of whether the award should be enforced and confirmed, not to the jurisdictional question. [00:22:34] Speaker 01: And as for situations where a court might have set aside an award, this court recognized in Termo Rio that, albeit in exceptional circumstances, an arbitral award can still be confirmed even if it has been set aside at the courts of deceit or any other court that might be considered to have the supervisory jurisdiction under the terms of the New York Convention. [00:23:04] Speaker 01: So I see my time is up. [00:23:06] Speaker 01: Unless there's other questions, I will rest on the brief. [00:23:10] Speaker 00: Thank you. [00:23:11] Speaker 00: All right, Mr. Clayson. [00:23:12] Speaker 00: Mr. Major, why don't you take two minutes? [00:23:16] Speaker 00: Thank you, Your Honors. [00:23:17] Speaker 00: While the New York Convention may contemplate an enforcement proceeding, even if there's been a set aside, we're talking about the Foreign Sovereign Immunities Act. [00:23:30] Speaker 00: And the court in the first appeal in this case held that the immunity is from suit. [00:23:35] Speaker 00: It's not immunity from liability. [00:23:37] Speaker 00: So Nigeria is entitled to have an upfront ruling on its sovereign immunity. [00:23:42] Speaker 00: One of the threshold questions to the extent the arbitration exception to the FISA is going to be argued by PNID is whether or not there's an arbitration award to enforce. [00:23:52] Speaker 00: That's a requirement of the FISA, regardless of whether that requirement exists [00:23:56] Speaker 00: in the New York Convention, which again deals with private party litigants, not states like the FISA does. [00:24:02] Speaker 00: So that has to be decided. [00:24:04] Speaker 03: Where does the FISA require that the existence of a valid arbitration award be determined as a jurisdictional fact? [00:24:13] Speaker 03: Where does it say that in FISA? [00:24:14] Speaker 00: In 16056, it says the arbitration exception is to enforce an agreement or, as applicable in this case, to confirm an award made pursuant to such an arbitration, an agreement to arbitrate. [00:24:31] Speaker 00: If the award has been set aside, it does not exist, just like the judgment under... It doesn't say that in FISA. [00:24:38] Speaker 03: It just says there has to be an award, which is the same thing our precedent has recognized. [00:24:42] Speaker 03: They come in with it. [00:24:43] Speaker 03: You have to have, I think, a certified copy of the award. [00:24:46] Speaker 03: Once you have that, then any other questions about its legitimacy can be addressed on a motion to dismiss. [00:24:54] Speaker 03: But jurisdiction exists. [00:24:56] Speaker 03: You need an agreement, a treaty, both of which you don't dispute you have here. [00:25:00] Speaker 03: And I think the adjective is certified award, which there is. [00:25:06] Speaker 00: Well, Your Honor, an award, just like a judgment, if once it's been set aside it doesn't exist just because the piece of paper still exists doesn't mean the award itself exists, and there has to be an award under the FISA for that arbitration. [00:25:22] Speaker 03: not a court may decline to enforce. [00:25:26] Speaker 03: Doesn't say it has to if it's been set aside. [00:25:29] Speaker 03: So I don't think it reads it that same way. [00:25:31] Speaker 03: And FISA doesn't address that situation. [00:25:34] Speaker 03: There's nothing in the statute that addresses that. [00:25:36] Speaker 00: The convention is not a sovereign immunity treaty. [00:25:39] Speaker 00: It's an agreement to enforce in your courts arbitration awards overseas between private litigants, persons, whether human or [00:25:51] Speaker 00: under law, which is distinct from states, both under the language of the convention and under historical law. [00:25:59] Speaker 00: Your honor. [00:25:59] Speaker 00: So here, without the award, there is no arbitration award to trigger that exception. [00:26:04] Speaker 00: And that's a threshold question that has to be decided, even if it requires delving into the merits. [00:26:11] Speaker 03: All right. [00:26:13] Speaker 03: Thank you, counsel. [00:26:14] Speaker 03: Madam Clerk, if you'll give us an adjournment. [00:26:17] Speaker 00: Thank you, your honor.