[00:00:00] Speaker 00:
Phrase number 21-1719, Saint-Gobain Performance Plastics Europe versus Bolivarian Republic of Venezuela, a balance.

[00:00:09] Speaker 00:
Mr. Yalowitz for the balance, Mr. Yelling, amicus curiae, Mr. Yanos for the eboli.

[00:00:16] Speaker 05:
Good morning, Council for Appellate.

[00:00:19] Speaker 03:
Thank you, Your Honor.

[00:00:20] Speaker 03:
May it please the court, Kent Yalowitz of Arnold and Porter for the Republic of Venezuela.

[00:00:26] Speaker 03:
The district court in this case misconstrued the Hague Service Convention.

[00:00:32] Speaker 03:
Its judgment should be reversed and the case should be remanded to give the plaintiff an opportunity to affect service correctly.

[00:00:40] Speaker 03:
The practical question presented by this case is what to do under the Hague Convention when main channel service on a foreign sovereign fails or is unavailable.

[00:00:52] Speaker 03:
We simply ask the court to apply the convention as written

[00:00:56] Speaker 03:
and give the plaintiff the opportunity to affect official formal service through diplomatic channels.

[00:01:03] Speaker 03:
If the court grants this relief, the plaintiff will not lose its legal claim.

[00:01:09] Speaker 03:
We have been telling the plaintiff this since August of 2019.

[00:01:12] Speaker 03:
The plaintiff has refused to follow that process and the Republic is now faced with a troubling precedent.

[00:01:19] Speaker 03:
We asked the court to correct the district court's misstep and apply the conventions written

[00:01:26] Speaker 02:
I'm sympathetic to your argument that 15-1B may not even apply in situations like this where Venezuela has made an appearance.

[00:01:49] Speaker 02:
But I'm not sure if you argued that below.

[00:01:52] Speaker 02:
If you did, can you point me to

[00:01:56] Speaker 02:
where in the record you did?

[00:01:58] Speaker 03:
I would have to look for that and send the court a letter.

[00:02:05] Speaker 03:
I'm fairly confident that we did argue that to Judge Contreras and to Judge Stark, but I'd have to look for that and send the court a letter.

[00:02:16] Speaker 02:
Well, and even if you didn't, your opposing counsel has not necessarily argued

[00:02:24] Speaker 02:
that you happen.

[00:02:25] Speaker 02:
So maybe that they have forfeited their forfeiture argument.

[00:02:30] Speaker 03:
I was about to say that that that that was not an issue raised by the appellee.

[00:02:36] Speaker 03:
So if there was a forfeiture, it would have been forfeited in this court.

[00:02:42] Speaker 02:
Do you read 15 to?

[00:02:46] Speaker 02:
To also only apply to situations where the defendant has not appeared.

[00:02:53] Speaker 02:
Yes.

[00:02:54] Speaker 03:
Yes, 15-2 is a safety valve for 15-1.

[00:03:00] Speaker 03:
Like 15-2, it only applies where the defendant has not appeared, and it only applies to allow entry of a default judgment in specified cases.

[00:03:13] Speaker 03:
It's not a freestanding service authorization, and so it doesn't

[00:03:24] Speaker 03:
It doesn't satisfy, nothing in Article 15 satisfies the requirement of service of process in the FSIA.

[00:03:35] Speaker 03:
And as the court knows, personal jurisdiction under the FSIA requires service.

[00:03:41] Speaker 03:
And so any inconsistency between 15-2 on the one hand and the FSIA on the other would be resolved by the FSIA's superseding later in time provisions.

[00:03:56] Speaker 03:
The district court acknowledged that there is no explicit authorization of service in the text of Article 15.

[00:04:11] Speaker 03:
And there are other articles that expressly authorize service, Article 8, 9, 10, 11, and 19.

[00:04:20] Speaker 03:
Article 15, it just isn't one of them.

[00:04:24] Speaker 03:
to the extent that Article 15 references service at all, it points us elsewhere in the convention.

[00:04:31] Speaker 03:
15.1a refers to a method prescribed by the internal law of the receiving state, and 15.1b refers to another method provided for by this convention.

[00:04:45] Speaker 03:
And when 15b says another method provided for by this convention, it's referring to another method to affect service.

[00:04:55] Speaker 03:
There's also a structural argument with the appellate with the appellee's position as well.

[00:05:00] Speaker 03:
One treaty should not be read to strip other provisions of meaning.

[00:05:04] Speaker 03:
But St.

[00:05:04] Speaker 03:
Cobain's argument that delivery to the central authority of Venezuela would be enough to affect service would render Article 13 superfluous.

[00:05:14] Speaker 03:
Article 13 permits a foreign sovereign to refuse to complete service if it deems compliance to infringe

[00:05:23] Speaker 03:
the receiving state's sovereignty.

[00:05:27] Speaker 03:
The drafting history, which is available in cases of ambiguity, also confirms that subparagraph B, which is what the district court relied on, establishes a heightened standard where service was not achieved by the internal laws of the receiving state.

[00:05:45] Speaker 03:
We've set forth that negotiating history with our translations

[00:05:52] Speaker 03:
in our reply brief, and I would reference the court to volume three of the negotiations, particularly page 95.

[00:05:59] Speaker 03:
I would also defer to the United States on the construction given by the parties, particularly the United States executive, which the courts hold carry great weight.

[00:06:16] Speaker 03:
The views of the executive carry great weight,

[00:06:19] Speaker 03:
I would say that the views of the Justice Department in this case, which are long established, they're not tailor-made for this case, they're long established and pre-existing, are reasonable and indeed consistent with the way that district courts in this circuit have treated service on the United States in domestic cases.

[00:06:46] Speaker 03:
Finally, I want to turn to

[00:06:49] Speaker 03:
three aspects of the district court's rationale that I think are are unpersuasive.

[00:07:00] Speaker 03:
The first and most important is that treaties, because they are made by the president and ratified by the Senate, are a function of foreign policy.

[00:07:11] Speaker 03:
And so it is particularly improper as a matter of the judicial function to

[00:07:18] Speaker 03:
to find gaps in treaties and attempt to fill them by inferring authority that's not explicitly provided in the text of the treaty or convention.

[00:07:29] Speaker 03:
Second point I'd like to make about the district court's decision is that the district court relied on unpublished out-of-circuit cases that either had little or no textual analysis or indeed were not even about Article 15.1.

[00:07:46] Speaker 03:
The only appellate decision relied on by the district court was a non-precedential decision that turned on 15-2, not 15-1.

[00:07:56] Speaker 03:
And at bottom, the district court was relying on what it perceived as a moral hazard or what it called the risk of evasion of service.

[00:08:07] Speaker 03:
The convention and the Foreign Sovereign Immunities Act have a built-in safety net against moral hazard, which is service through diplomatic channels.

[00:08:16] Speaker 03:
That form of service has been used to serve process on the Republic repeatedly over the last three years without incident or complaint from any litigant that we know of.

[00:08:29] Speaker 03:
Service through diplomatic channels, at least at the time the convention was drafted in the 1960s, was actually the preferred method of service on foreign sovereign according to the House report that accompanied the Foreign Sovereign Immunities Act.

[00:08:46] Speaker 03:
In fact, as I mentioned, we explain this to the appellee in August 2019 in our very first brief.

[00:08:55] Speaker 03:
And in February of 2020, I actually stood, I'm sorry, go ahead.

[00:09:00] Speaker 02:
Let me ask, at one point in the appellee's brief, there's a footnote along the lines of, you know, this whole case could just go, they would just agree with you.

[00:09:16] Speaker 02:
if you'd be willing to post a bond.

[00:09:20] Speaker 02:
Do you have any thoughts on that?

[00:09:24] Speaker 03:
Yeah, the Republic is not in a position to post a bond.

[00:09:27] Speaker 03:
That's just not feasible.

[00:09:31] Speaker 03:
That's not.

[00:09:32] Speaker 03:
And the convention doesn't require it.

[00:09:34] Speaker 05:
Does that mean the amount of money involved in the claim?

[00:09:37] Speaker 03:
The claim is, I think, a $30 or $40 million claim.

[00:09:42] Speaker 05:
$42 million.

[00:09:43] Speaker 05:
So it's just a bond

[00:09:49] Speaker 05:
saying they're bankrupt.

[00:09:53] Speaker 03:
As the court is aware, the Republic of Venezuela at this time is facing an economic, humanitarian, and political crisis of unprecedented proportions.

[00:10:05] Speaker 03:
And in particular, the Guaido administration from whom we take instruction is operating on a shoestring budget.

[00:10:15] Speaker 03:
We have no ability to make special deals with litigants who don't follow the rules.

[00:10:28] Speaker 03:
Unless the court has questions, I think you have my argument.

[00:10:37] Speaker 05:
Thank you.

[00:10:38] Speaker 05:
Your counsel for appellate.

[00:10:45] Speaker 05:
We have Amicus, pardon me.

[00:10:49] Speaker 05:
We have counsel for Amicus, the United States, Mr. Yellen.

[00:10:54] Speaker 06:
Thank you, Judge Rogers.

[00:10:56] Speaker 06:
May it please the court, Louis Yellen from the Department of Justice on behalf of the United States.

[00:11:01] Speaker 06:
Your honors, the district court made two fundamental errors in this case.

[00:11:06] Speaker 06:
The first error was in construing article 15 as a service provision, whereas it's a default judgment provision

[00:11:15] Speaker 06:
The second was in concluding that even the requirements for default judgment were satisfied in this case.

[00:11:24] Speaker 06:
The first error, Your Honors, is not a close question.

[00:11:30] Speaker 06:
It's as if the district court here misconstrued federal rule of civil procedure 55 governing default judgments as a service provision similar to federal rule of civil procedure four by its plain text

[00:11:45] Speaker 06:
all of Article 15.

[00:11:47] Speaker 06:
15, what the United States has referred to as 15.1 and 15.2, refers explicitly to circumstances, requirements under which a court may enter default judgment against a party.

[00:12:01] Speaker 06:
The only references to service are references elsewhere to service as required under the convention.

[00:12:09] Speaker 06:
And service simply was not made in this case pursuant to a provision

[00:12:15] Speaker 06:
of the convention.

[00:12:16] Speaker 06:
The thing that I'd like to emphasize with respect to that is under 1571, which is the only provision of Article 15 that plaintiffs have relied upon in this litigation, a plaintiff, I'm sorry, default judgment may not be entered unless, and I'm quoting now from Article 151B,

[00:12:41] Speaker 06:
quote, the document was actually delivered to the defendant or to his residence by another method provided for by this convention.

[00:12:50] Speaker 06:
Plaintiffs completely ignored the latter part of that qualification, that is, by another method provided for by this convention.

[00:12:57] Speaker 06:
And they act as if 15.1b authorizes entry of default judgment simply by actual delivery.

[00:13:06] Speaker 06:
Now, I want to hasten to add

[00:13:07] Speaker 06:
This is error on top of error because the threshold question is whether or not Article 15 has anything to do with service, provides any requirements for adequate service, and it simply does not.

[00:13:23] Speaker 06:
The last point I'd like to make, Your Honor, is as Mr. Yellowwood's pointed out, the FSIA service provision, which after all is the governing law in this case for determining service, does have a

[00:13:37] Speaker 06:
fallback provision if service is not able to be affected by any of the preceding provisions.

[00:13:43] Speaker 06:
That is, A4 provides for service through diplomatic channels.

[00:13:48] Speaker 06:
And one thing that's quite important, I think, for some of the moral hazard arguments that plaintiff has made here is that A4 service, service through diplomatic channels, is effective upon the transmission by the State Department of the papers

[00:14:04] Speaker 06:
through diplomatic channels.

[00:14:07] Speaker 04:
You suggested in your brief that really a simple solution, you say the case should simply be remanded to the district court to allow the plaintiff to attempt service through diplomatic channels.

[00:14:20] Speaker 04:
How would that work in your mind?

[00:14:23] Speaker 04:
This court, assuming we agreed with that, we would remand and our judgment would say what?

[00:14:28] Speaker 04:
to the district court.

[00:14:29] Speaker 04:
The district court, you're wrong in suggesting that service can be affected through the central authority.

[00:14:35] Speaker 04:
That's not what the law is.

[00:14:37] Speaker 04:
But there can be effective service by attempting through diplomatic channels.

[00:14:43] Speaker 04:
And what?

[00:14:44] Speaker 04:
What happens?

[00:14:46] Speaker 06:
Well, at that point, Your Honor, as our brief noted, multiple suits against Venezuela.

[00:14:52] Speaker 04:
No, no, no, no.

[00:14:53] Speaker 04:
I understand the possibility is real.

[00:14:56] Speaker 04:
I'm being very mundane.

[00:14:58] Speaker 04:
I'm a district court judge, and I have a judgment that says, allow them to affect service through diplomatic channels.

[00:15:06] Speaker 04:
And let's assume this is the district court judge's first day on the bench, and he or she says, what does that mean?

[00:15:12] Speaker 04:
What am I supposed to do?

[00:15:13] Speaker 06:
I understand, Your Honor.

[00:15:15] Speaker 06:
The statute is helpfully very specific on this point.

[00:15:19] Speaker 06:
1608A4 requires a plaintiff seeking to serve through diplomatic channels to ask the clerk of court

[00:15:26] Speaker 06:
to transmit the papers to the State Department.

[00:15:29] Speaker 06:
And the statute specifically identifies the office in the State Department, that is the Director of Special Consular Service.

[00:15:37] Speaker 06:
And then the Secretary shall transmit one copy of the papers through diplomatic channels to the foreign state.

[00:15:42] Speaker 04:
Is the case still pending before the District Court Judge?

[00:15:47] Speaker 06:
It is pending in the sense that any case before service has been affected is pending before the District Court Judge.

[00:15:54] Speaker 04:
So the district court judge says, I'm reserving judge.

[00:15:57] Speaker 04:
I'm trying to figure out, I want to be very limited.

[00:16:01] Speaker 04:
District court judge says, what?

[00:16:03] Speaker 04:
Okay, the court of appeals has sent it back to me saying, my assumptions about the law is simply wrong, but we can use this alternative process.

[00:16:12] Speaker 04:
And so now I am ordering what?

[00:16:16] Speaker 04:
Until when?

[00:16:19] Speaker 06:
So until when?

[00:16:21] Speaker 04:
Ordering what?

[00:16:22] Speaker 04:
And then until when?

[00:16:23] Speaker 04:
I really want, you know, play judge.

[00:16:25] Speaker 04:
What do you do?

[00:16:29] Speaker 04:
What are you saying to the parties?

[00:16:31] Speaker 06:
So if I might be quite explicit, Your Honor, it is the plaintiff or the party that's seeking service.

[00:16:39] Speaker 06:
It's their discretion whether they want to affect service.

[00:16:41] Speaker 04:
I understand.

[00:16:42] Speaker 04:
Let's assume they want to continue to try and pursue it.

[00:16:47] Speaker 04:
Go ahead.

[00:16:47] Speaker 06:
Understood, Your Honor.

[00:16:49] Speaker 06:
In all other cases that we've cited in our brief, this court looks at the docket.

[00:16:54] Speaker 06:
What the court will see is that the party seeking to effect service provides an update to the district court about its attempts to effect service.

[00:17:02] Speaker 06:
And ultimately, those parties have told the district court, we've not been able to effect service through these other methods.

[00:17:08] Speaker 06:
We are now attempting to effect service through diplomatic channels.

[00:17:12] Speaker 06:
We are going to ask the clerk of this court

[00:17:14] Speaker 06:
to send our papers to the State Department for it to serve through diplomatic channels.

[00:17:20] Speaker 05:
The district court says, if Tango Vance wishes to proceed with efforts to obtain service, it should advise the court within five days and update any papers

[00:17:44] Speaker 05:
that it wants to submit for the clerk of the court to transmit those papers to the ex office in the department of state.

[00:17:56] Speaker 06:
Your honors, the amount of time, if this is really what you're asking about, like how much time should the district court give St.

[00:18:02] Speaker 06:
Gobain?

[00:18:03] Speaker 06:
That's a matter within the district court's discretion.

[00:18:07] Speaker 05:
You're amicus.

[00:18:09] Speaker 04:
I'm just, I'm being at a very low level.

[00:18:12] Speaker 04:
Maybe my colleague Judge Walk, he was a district court judge, he can tell me.

[00:18:15] Speaker 04:
I'm just- Not for very long.

[00:18:17] Speaker 04:
Yeah, district court judge is sitting there and assume the district court judge knows nothing.

[00:18:22] Speaker 04:
And I say that- So I can- All I'm asking you is, what do you envision happening?

[00:18:27] Speaker 04:
It's like talk to someone in the world who knows nothing about the law.

[00:18:31] Speaker 04:
So the kid says to you, well, what happens, counsel?

[00:18:34] Speaker 04:
What do they do?

[00:18:34] Speaker 04:
The court of appeals tells, said does what?

[00:18:37] Speaker 04:
And the district court does what?

[00:18:39] Speaker 06:
So I will tell the court, this court, what District Court Secretary did, typically done in this case.

[00:18:44] Speaker 05:
Tell us what the order says.

[00:18:49] Speaker 04:
Right.

[00:18:51] Speaker 06:
With respect, Your Honor, I will give you an example of an order that could be entered.

[00:18:55] Speaker 06:
However, it is not, with that, I must make the following caveat, Your Honor.

[00:19:00] Speaker 06:
It is not the appropriate role of the United States to direct the calendaring of the District Court.

[00:19:09] Speaker 06:
I understand, Your Honor, but with the deepest respect.

[00:19:13] Speaker 05:
Give us your best thought on how... We're making this too hard.

[00:19:18] Speaker 04:
We're just trying to get a picture.

[00:19:19] Speaker 04:
That's all.

[00:19:20] Speaker 06:
I completely understand, Your Honor.

[00:19:22] Speaker 04:
No, you don't.

[00:19:24] Speaker 04:
We're trying to help you to understand.

[00:19:26] Speaker 04:
We want a very low level of information.

[00:19:29] Speaker 06:
I understand, Your Honor.

[00:19:30] Speaker 06:
I do understand, Your Honor.

[00:19:31] Speaker 06:
The reason why I'm resisting, and I don't mean to be difficult with the court,

[00:19:35] Speaker 06:
is that what I can tell you is traditionally the courts in the other cases that we've cited have asked for updates every 30 days from the plaintiff about the plaintiff's efforts to make service through diplomatic channels.

[00:19:48] Speaker 06:
That would be inappropriate.

[00:19:49] Speaker 05:
Let me ask you this.

[00:19:51] Speaker 05:
Along the lines of Judge Edward's question, suppose in five days, under my hypothetical,

[00:20:03] Speaker 05:
Advise and support, thank you very much, but I'm not interested.

[00:20:07] Speaker 05:
Then what happens to the case?

[00:20:09] Speaker 05:
Does our order say anything about that?

[00:20:13] Speaker 06:
The case would otherwise be dismissed, Your Honor, because there is no service upon Venezuela.

[00:20:18] Speaker 05:
All right.

[00:20:20] Speaker 05:
Anything further?

[00:20:22] Speaker 06:
The one thing I would like to underscore, Your Honor, just because I fear that I may have created some confusion with the last colloquy,

[00:20:29] Speaker 06:
The case, if the court remands it along the lines that the court was just suggesting, it would be in the exact same posture as a case in which a plaintiff or other party has not affected service on the defendant.

[00:20:43] Speaker 06:
And so whatever happens in that case would be just as if there were no service.

[00:20:49] Speaker 05:
So in other words, are you suggesting our order should not go into all of this, but simply say we reverse, period?

[00:20:58] Speaker 05:
And then it's up to Saint-Gobain, as counsel for the republic has said.

[00:21:06] Speaker 05:
I think that would be- If it can make its own decision about what it wants to do, why does the district court have any more role to play?

[00:21:18] Speaker 06:
Your honor, that would be a perfectly appropriate order.

[00:21:20] Speaker 06:
It would be helpful in light of the dispute that's occurred between the parties.

[00:21:24] Speaker 06:
for the court to give an interpretation of 1608A4 and explain that the avenue that was available was serviced through diplomatic channels.

[00:21:32] Speaker 06:
I think if the court were hesitant.

[00:21:34] Speaker 06:
I'm sorry, Your Honor, I did not hear that.

[00:21:37] Speaker 05:
A little advisory opinion?

[00:21:39] Speaker 06:
With respect, Your Honor, it wouldn't at all be advisory.

[00:21:42] Speaker 06:
That would be specifically explaining the avenue that was available.

[00:21:45] Speaker 05:
Does the court have any jurisdiction?

[00:21:49] Speaker 06:
This court has jurisdiction over an appeal

[00:21:51] Speaker 06:
concerning a dispute between the parties.

[00:21:54] Speaker 05:
If we reverse, the case is gone, right?

[00:22:00] Speaker 06:
The case is in the same posture as if the plaintiff had never adequately served.

[00:22:04] Speaker 05:
No, Your Honor.

[00:22:06] Speaker 05:
All right.

[00:22:07] Speaker 05:
The answer is what?

[00:22:10] Speaker 05:
There is no case in the district court to adjudicate.

[00:22:17] Speaker 06:
Your Honor, with respect, this was an enforcement action seeking to enforce an arbitration award.

[00:22:24] Speaker 06:
The question would be whether or not the District Court could pursue anything on the merits.

[00:22:29] Speaker 06:
It cannot until there's proper service.

[00:22:32] Speaker 05:
So the answer is there's no role for the District Court if we were... Unless St.

[00:22:37] Speaker 06:
Gobain acts.

[00:22:38] Speaker 06:
Yes, Your Honor.

[00:22:39] Speaker 05:
Period.

[00:22:41] Speaker 05:
St.

[00:22:41] Speaker 05:
Gobain is an independent agent.

[00:22:44] Speaker 05:
It can decide to do whatever it wants.

[00:22:46] Speaker 05:
And as best I can understand, and maybe counsel can advise me here, Sangoban is concerned about something else.

[00:22:56] Speaker 05:
And I'm not clear what it is in that footnote about the bond.

[00:23:01] Speaker 05:
And you have suggested that in some other cases, the district court has sort of held on to the case and asked the party to report every 30 days on how is it doing on diplomatic service.

[00:23:17] Speaker 06:
Your Honor, I beg your pardon, Your Honor.

[00:23:20] Speaker 05:
And suppose Sango Ban comes back and says, we tried, but it's futile.

[00:23:27] Speaker 06:
That's not a hypothetical.

[00:23:28] Speaker 06:
That's realistic, Your Honor.

[00:23:30] Speaker 06:
The United States has effected service on Venezuela through diplomatic channels, typically within a number of weeks at the outside.

[00:23:39] Speaker 05:
Mr. Yellen, that's in the past.

[00:23:41] Speaker 05:
We're dealing with the present situation.

[00:23:44] Speaker 05:
Sango Ban is concerned about something.

[00:23:47] Speaker 05:
All right?

[00:23:48] Speaker 05:
And it's gone through this very expensive litigation because it wants its award enforced.

[00:23:56] Speaker 05:
And it doesn't want to lose anything in the process.

[00:24:01] Speaker 05:
So I thought that might be what Judge Edwards was getting at since Judge Edwards knows how to craft these orders.

[00:24:10] Speaker 05:
But this is sort of a foreign area in some respects.

[00:24:17] Speaker 06:
So respectfully, your honor, I'm making a representation about what the United States State Department will do in this case if St.

[00:24:24] Speaker 06:
Gobain asks it to make service through diplomatic channels.

[00:24:29] Speaker 04:
Is there any possibility that the US will not be able to effect service?

[00:24:34] Speaker 04:
I think that's part of the question Judge Rogers is asking.

[00:24:36] Speaker 04:
What happens if that happens?

[00:24:39] Speaker 04:
That is, the district court says, I'll wait a reasonable period of time.

[00:24:44] Speaker 04:
You have to report to me.

[00:24:46] Speaker 04:
And then it comes back.

[00:24:47] Speaker 04:
from the U.S., we couldn't affect services.

[00:24:50] Speaker 04:
Is that a realistic possibility?

[00:24:52] Speaker 04:
I know it has happened routinely, but is it possible they could not?

[00:24:56] Speaker 04:
And if so, what is the U.S.'

[00:24:58] Speaker 04:
's view on what now is the possibility for plaintiffs?

[00:25:04] Speaker 06:
It is not a realistic possibility, Your Honor.

[00:25:07] Speaker 06:
Venezuela has indicated its willingness to accept service through diplomatic channels.

[00:25:11] Speaker 06:
We have the diplomatic contacts.

[00:25:14] Speaker 06:
the State Department has represented candidates.

[00:25:17] Speaker 04:
Again, let me try to be really clear.

[00:25:18] Speaker 04:
We're really not trying to hold you up or make this more than it ought to be.

[00:25:23] Speaker 04:
Let's assume what has been the routine and most likely event doesn't happen.

[00:25:32] Speaker 04:
The people who have assured you we will accept service next week say, we changed our minds.

[00:25:38] Speaker 04:
It's not happening.

[00:25:40] Speaker 04:
What happens then in your view?

[00:25:42] Speaker 06:
In our view then, Your Honor, the district court has no subject matter jurisdiction if it is determined that service cannot be made because a district court's jurisdiction.

[00:25:50] Speaker 04:
There is no, under the law it says at a certain point, the plaintiff has to at least show that reasonable attempts are made.

[00:25:58] Speaker 06:
No, Your Honor, this is quite critical and if I might be very clear.

[00:26:02] Speaker 06:
Yeah, I want you to be.

[00:26:03] Speaker 06:
28 USC 1330 provides for subject matter jurisdiction in the district courts in FSIA cases

[00:26:11] Speaker 06:
when service has been made pursuant to 1608.

[00:26:15] Speaker 06:
If service is not affected under 1608, for whatever reason, a district court lacks jurisdiction.

[00:26:22] Speaker 04:
Even if they've made reasonable efforts.

[00:26:25] Speaker 06:
Yes, Your Honor.

[00:26:26] Speaker 04:
As this Court at 10-0.

[00:26:28] Speaker 04:
I just wanted to hear your position on that.

[00:26:30] Speaker 04:
Okay.

[00:26:30] Speaker 06:
Yes, Your Honor.

[00:26:31] Speaker 06:
Even if they've made reasonable efforts, 1608 incites against foreign sovereigns

[00:26:35] Speaker 06:
The formalities are critical, as this Court has recognized in TransAir.

[00:26:39] Speaker 05:
Let me get your argument.

[00:26:41] Speaker 05:
Thank you very much.

[00:26:42] Speaker 06:
Thank you, Your Honors.

[00:26:43] Speaker 05:
All right.

[00:26:44] Speaker 05:
Counsel for respondent here?

[00:26:47] Speaker 05:
No.

[00:26:48] Speaker 05:
Counsel for appellee.

[00:26:50] Speaker 01:
Yes.

[00:26:51] Speaker 01:
Thank you, Your Honor.

[00:26:54] Speaker 01:
May it please the Court?

[00:26:55] Speaker 01:
My name is Alex Yiannos.

[00:26:56] Speaker 01:
And as the Court just noted, I'm

[00:27:00] Speaker 01:
here on behalf of Saint-Gobain Performance Plastics Europe, the appellee and the plaintiff in these proceedings.

[00:27:07] Speaker 01:
And just for a moment, because I think there was some confusion implicit in the discussion before, I want to return to a couple of facts.

[00:27:18] Speaker 01:
First of all, just to remember that this is

[00:27:23] Speaker 01:
a case about an arbitration award rendered by a tribunal under the Washington Convention.

[00:27:29] Speaker 01:
As I'm sure the court knows, pursuant to that convention and also pursuant to 22 USC 1650A, arbitration awards already have the status of judgements of one of the highest court of one of the several United States.

[00:27:48] Speaker 01:
So it's not like

[00:27:49] Speaker 01:
a commercial arbitration award.

[00:27:51] Speaker 01:
This is already a judgment under the law of the United States.

[00:27:57] Speaker 01:
And then to move forward with the enforcement, you know, we initially filed a petition in Delaware to enforce the award and we served.

[00:28:07] Speaker 01:
This is the other thing that I thought was said that was, you know, mistaken.

[00:28:13] Speaker 01:
We did serve the petition on Venezuela

[00:28:18] Speaker 01:
We did it by means, you know, established in the Hay Convention.

[00:28:23] Speaker 04:
We sent, uh, I mean, you, you just can't find support for that.

[00:28:28] Speaker 04:
The district court seemed to assume you could get to the central authority and that's an effective service process.

[00:28:34] Speaker 04:
That is wrong.

[00:28:37] Speaker 04:
That is, that is, and that is all you have done.

[00:28:40] Speaker 04:
You have got to show that you affected service on the attorney general.

[00:28:44] Speaker 04:
When you read all of these papers and the law, and you didn't do that.

[00:28:49] Speaker 04:
And you didn't get a certification of service either.

[00:28:52] Speaker 01:
Your honor, we had to serve the papers on Venezuela.

[00:28:56] Speaker 01:
And we did serve the papers on Venezuela.

[00:28:58] Speaker 04:
You did not serve.

[00:28:59] Speaker 04:
You did not.

[00:29:00] Speaker 01:
Recall that.

[00:29:01] Speaker 04:
Wait, wait, wait.

[00:29:03] Speaker 04:
I'm one of the three people you have to convince.

[00:29:05] Speaker 04:
You might want to know what's bothering me, OK?

[00:29:08] Speaker 04:
You did not affect service of process on Venezuela.

[00:29:10] Speaker 04:
There's a way to do that.

[00:29:12] Speaker 04:
And it's not through the central authority.

[00:29:14] Speaker 04:
It has to go to the attorney general.

[00:29:16] Speaker 04:
There's a way to do that.

[00:29:17] Speaker 04:
District court, respectfully, was mistaken in its assumption about how you affect service of process and was seemed to be concerned that it might be unfair not to allow it.

[00:29:27] Speaker 04:
Well, that's too bad.

[00:29:29] Speaker 01:
Well, no, no, Your Honor.

[00:29:31] Speaker 01:
There are two methods of service.

[00:29:34] Speaker 01:
The United States would, for whatever reason they want to, pretend that there's no opportunity under the Hague Convention to serve papers.

[00:29:44] Speaker 01:
through the central authority there are.

[00:29:46] Speaker 01:
In this case, the central authority designated by Venezuela is Venezuela.

[00:29:50] Speaker 01:
It's the foreign ministry.

[00:29:52] Speaker 04:
Not to serve process.

[00:29:53] Speaker 04:
Council, really, we've all read this.

[00:29:55] Speaker 04:
It's not to serve process.

[00:29:56] Speaker 04:
It's to receive papers.

[00:29:58] Speaker 04:
They've then got to get it to the attorney general and give you a certificate.

[00:30:01] Speaker 01:
It is to serve process.

[00:30:03] Speaker 01:
That's completely wrong, Your Honor.

[00:30:05] Speaker 04:
Well, then we are looking at very different documents.

[00:30:09] Speaker 04:
There's nothing to support that interpretation.

[00:30:12] Speaker 04:
And in that respect, the United States is exactly correct based on my read of what's before me.

[00:30:18] Speaker 04:
You cannot affect service the way you did it.

[00:30:21] Speaker 04:
And you have to have a certification that went to the attorney general of Venezuela.

[00:30:25] Speaker 04:
It did not.

[00:30:27] Speaker 01:
Well, it's true we didn't get a certification, but that's because Venezuela itself pocketed the documents.

[00:30:34] Speaker 04:
All you're doing is explaining to us an unfortunate situation.

[00:30:40] Speaker 01:
It's not an unfortunate situation.

[00:30:42] Speaker 04:
Well, from your standpoint, it's certainly unfortunate.

[00:30:44] Speaker 04:
You would have wished that this would have been enough, but it isn't enough.

[00:30:48] Speaker 01:
Well, no, it is absolutely enough because the entire premise of Article 15 is that where there is actual service,

[00:30:59] Speaker 01:
then nothing else is required.

[00:31:01] Speaker 01:
And here, the only thing that didn't happen is Venezuela wearing one hat, the central authority hat, the same entity, the foreign ministry, which is of course the entity that is designated to deal with the outside world, just put the documents in its pocket instead of acting.

[00:31:20] Speaker 01:
That's simply not what Article 15 is designed to do.

[00:31:26] Speaker 01:
The situation might be different if we were trying to serve some random individual in Venezuela.

[00:31:35] Speaker 01:
And the central authority said, well, I tried to find that random individual, but I couldn't.

[00:31:40] Speaker 01:
Here, the random individual is the same person who is the central authority.

[00:31:45] Speaker 01:
So what the district court said, and multiple district courts have said this, by the way.

[00:31:50] Speaker 04:
And that's why we have courts of appeals.

[00:31:55] Speaker 01:
Well, absolutely, Your Honor.

[00:31:56] Speaker 04:
You're mistaken, respectfully, on my read.

[00:32:01] Speaker 04:
And I don't know why you don't take that as, unless my colleagues tell you, no, you're right on track.

[00:32:11] Speaker 04:
I don't know how you can get that read out of it.

[00:32:13] Speaker 04:
And so what else should we be thinking about if that read that I'm giving you is a problem?

[00:32:20] Speaker 04:
What do you got left?

[00:32:22] Speaker 04:
I think you have a huge problem.

[00:32:23] Speaker 04:
You have to affect service.

[00:32:25] Speaker 04:
and you can't do it through the central authority, and you have not served the attorney general of Venezuela, which you must do.

[00:32:32] Speaker 01:
Well, Your Honor, again, I have to disagree because the Hague Convention expressly permits service through the central authority.

[00:32:39] Speaker 01:
It's not like that option doesn't exist.

[00:32:42] Speaker 05:
Yes, let me say, you keep saying service through.

[00:32:48] Speaker 05:
central authority.

[00:32:49] Speaker 05:
No one is disagreeing with that.

[00:32:52] Speaker 05:
But that's not the same as effectuating legal service on Venezuela.

[00:33:02] Speaker 05:
And what I'm trying to understand here is, you know, the hate convention, while it does a lot of great things, it also protects defendants.

[00:33:15] Speaker 05:
And one of the things that seems to me that your argument overlooks is it may well be that someone is in this position of Saint-Gobain and it sends its papers to the central authority and nothing happens.

[00:33:29] Speaker 05:
And the convention contemplates that situation.

[00:33:35] Speaker 05:
All right?

[00:33:36] Speaker 05:
Then Venezuela, I mean, Saint-Gobain has to figure out another way to serve Venezuela.

[00:33:42] Speaker 05:
if it wants to proceed in the US courts?

[00:33:47] Speaker 01:
Well, again, I think the critical distinction here is between a situation where we're trying to serve someone, a third party in Venezuela, and when we're trying to serve Venezuela itself.

[00:34:00] Speaker 05:
Let me ask you a question.

[00:34:03] Speaker 05:
The footnote in your brief about a bond.

[00:34:09] Speaker 05:
Can you explain to me what your client is concerned about absent a bond?

[00:34:16] Speaker 01:
Well, obviously Venezuela is trying to play cat and mouse here.

[00:34:20] Speaker 01:
And that's been the situation over and over again.

[00:34:23] Speaker 01:
Remember that they didn't, although they had actual notice, they didn't show up until the last day before a default was issued.

[00:34:32] Speaker 01:
And then they raised this issue and then we

[00:34:35] Speaker 01:
You know, they've obviously had actual notice for the better part of, you know, two years, even on their own account of the facts.

[00:34:42] Speaker 05:
But actual notice is not good enough here.

[00:34:46] Speaker 01:
Well, it is when it's the product of service.

[00:34:50] Speaker 05:
No, what I'm getting at is the convention says, here's how you can serve a foreign sovereign.

[00:34:58] Speaker 05:
And you either do it my way or there's no service.

[00:35:02] Speaker 05:
But the Foreign Service says, if you want to do it one way, then you can send your papers to the central authority, and it will forward them to the attorney general.

[00:35:17] Speaker 05:
So that didn't happen.

[00:35:19] Speaker 01:
Well, no.

[00:35:20] Speaker 01:
Our position is it did happen.

[00:35:23] Speaker 01:
Do you have any proof that the attorney general?

[00:35:24] Speaker 01:
The only thing that didn't happen is they refused to send the paper to confirm it.

[00:35:27] Speaker 05:
Is there any proof that the attorney general has received your papers?

[00:35:32] Speaker 05:
Have you received a certificate?

[00:35:35] Speaker 01:
Well, no, we haven't received a certificate.

[00:35:36] Speaker 05:
All right, so now what do you do?

[00:35:39] Speaker 05:
And I'm interested, A, in this footnote, because I know that both judges had footnotes about Venezuela.

[00:35:49] Speaker 05:
And I'm interested to know why your client will pursue, if you care to say, diplomatic service.

[00:36:03] Speaker 01:
Well, I mean, for one thing, Your Honor, it's just going to reset the clock.

[00:36:06] Speaker 01:
I mean, we've already waited a solid three years to get to this point.

[00:36:11] Speaker 01:
The idea that we can just, you know, go around in circles on a situation where we provided the papers to the Venezuelan government

[00:36:21] Speaker 01:
And by dint of their own refusal to perform the simple administrative act that is their obligation under the Hague Convention, they can thwart this process and just ask us to run around in circles for another two years.

[00:36:37] Speaker 01:
It's just, you know, it's- What do you think you have to do?

[00:36:42] Speaker 05:
What do you have to do to affect diplomatic service?

[00:36:51] Speaker 01:
Diplomatic service is reliant on the United States then transmitting the papers to Venezuela.

[00:36:57] Speaker 01:
And then once again, Venezuela acknowledging service.

[00:37:00] Speaker 01:
As we've already seen, they have zero interest in doing that.

[00:37:03] Speaker 05:
Well, so what is it, a postage stamp to send the papers to the State Department?

[00:37:15] Speaker 01:
Well, no, it's years wasted, Your Honor.

[00:37:20] Speaker 01:
It's not a postage stamp.

[00:37:22] Speaker 01:
It's years wasted in starting this proceeding all over again.

[00:37:27] Speaker 05:
Well, I understand that.

[00:37:28] Speaker 05:
But if you lose here, what do you do?

[00:37:32] Speaker 01:
Well, if we lose here, we'll restart the clock because we have no choice.

[00:37:40] Speaker 01:
But the choice is before you right now as to whether you want to do that or not.

[00:37:45] Speaker 05:
And we're saying... No, really, the choice is...

[00:37:48] Speaker 05:
Strict construction of the convention.

[00:37:51] Speaker 01:
The strict construction of the convention is pursuant to Article 15 that they have received actual notice and therefore it was perfectly appropriate for both district courts to infer that there was actual notice.

[00:38:08] Speaker 02:
It doesn't say actual notice.

[00:38:09] Speaker 02:
It says actual notice in conformity with one of the rules of the convention.

[00:38:14] Speaker 02:
I'm paraphrasing.

[00:38:15] Speaker 01:
Well, yes, and we did conform with the actual, the rules on our part.

[00:38:20] Speaker 01:
We submitted it as well in government.

[00:38:21] Speaker 04:
What rule?

[00:38:24] Speaker 01:
I'm sorry?

[00:38:24] Speaker 04:
What rule?

[00:38:25] Speaker 05:
What rule?

[00:38:27] Speaker 04:
We're totally missing you.

[00:38:28] Speaker 04:
We're reading the same documents.

[00:38:30] Speaker 04:
I mean, that ought to give you a clue.

[00:38:32] Speaker 04:
I mean, wait, we totally don't understand what you're talking about.

[00:38:35] Speaker 04:
There's nothing, when you read the relevant legal papers, there's nothing suggests that you can affect service of process through the central

[00:38:45] Speaker 04:
By merely giving papers to central authority.

[00:38:50] Speaker 04:
There's nothing that says that.

[00:38:52] Speaker 04:
Nothing.

[00:38:54] Speaker 01:
But that's the very purpose of Articles 3 and 5.

[00:38:59] Speaker 01:
And mind you, we've served this process in this manner in a number of cases.

[00:39:06] Speaker 04:
Well, yeah, because maybe the central authority did what you hoped it would do, which was to serve the attorney general.

[00:39:12] Speaker 01:
Well, not what we hoped it would do, but what it's obligated to do.

[00:39:15] Speaker 04:
OK, it's fine.

[00:39:15] Speaker 04:
But then what happens when they don't do that?

[00:39:18] Speaker 04:
That's the situation you're in.

[00:39:20] Speaker 04:
You have to have something to show that they did it.

[00:39:22] Speaker 04:
There is nothing to show that here.

[00:39:25] Speaker 01:
Well, we have their certificate of receipt of the paper.

[00:39:31] Speaker 04:
I don't know how else to raise my concerns.

[00:39:33] Speaker 04:
I just wanted you to understand.

[00:39:35] Speaker 01:
What is the concern, Your Honor?

[00:39:36] Speaker 04:
I mean, I think the central authority is not how delivering papers to the central authority does not affect service across us.

[00:39:44] Speaker 05:
That's the way I said, do it my way or there's no service.

[00:39:50] Speaker 05:
The fallback is diplomatic service.

[00:39:55] Speaker 01:
But Venezuela doesn't have that authority to say, do it my way.

[00:40:01] Speaker 05:
Yes, it does.

[00:40:02] Speaker 05:
That's the whole point.

[00:40:03] Speaker 05:
These states signed on, and they could come up with schemes of their own.

[00:40:10] Speaker 01:
No, they have to follow the hate convention.

[00:40:13] Speaker 01:
That's an obligation on their part.

[00:40:15] Speaker 05:
Yes.

[00:40:16] Speaker 05:
OK.

[00:40:18] Speaker 05:
So we have no idea of why your client is reluctant other than time.

[00:40:25] Speaker 05:
to pursue diplomatic service.

[00:40:30] Speaker 01:
That's an entirely justifiable reason, Your Honor.

[00:40:34] Speaker 05:
I'm not suggesting it's not a reason, but I'm saying that is your reason.

[00:40:40] Speaker 01:
I wouldn't say that there's any other.

[00:40:42] Speaker 01:
I mean, other than also just the fact that the Hay Convention is being thwarted.

[00:40:49] Speaker 01:
The Venezuelan state has obligations.

[00:40:51] Speaker 01:
A treaty has multiple parties and there are implicit obligations on the part.

[00:40:57] Speaker 01:
So when a state appoints a central authority or designates a central authority, they're saying that this central authority will do its job, right?

[00:41:05] Speaker 01:
So essentially what Venezuela did here by not doing its job is a violation of the hate convention.

[00:41:14] Speaker 05:
No, but what we're trying to get you to focus on, and I understand you don't want to, is that

[00:41:19] Speaker 05:
you know, these foreign sovereigns signed on, but they just didn't open themselves to service willy-nilly.

[00:41:29] Speaker 05:
And they gave you a format.

[00:41:32] Speaker 04:
It has to be consistent with the law of the national state.

[00:41:36] Speaker 04:
When you read the conventions, that's what it says.

[00:41:39] Speaker 04:
And consistent with the law of the national state, there's nothing to indicate that Venezuela has agreed

[00:41:46] Speaker 04:
that delivery to the central authority is effective service and process.

[00:41:50] Speaker 04:
I don't know how you missed that.

[00:41:51] Speaker 04:
I mean, it's just not there.

[00:41:54] Speaker 04:
It's not there.

[00:41:55] Speaker 04:
It says it has to go to the attorney general.

[00:41:57] Speaker 04:
That's consistent with the law of the state of Venezuela.

[00:42:02] Speaker 04:
And that's what the conventions say.

[00:42:04] Speaker 04:
When you read all of what's before us, the

[00:42:08] Speaker 04:
of relevant law before us, you have to be consistent with it.

[00:42:11] Speaker 04:
And you may run into problems.

[00:42:12] Speaker 04:
There's no question about it.

[00:42:13] Speaker 04:
And that's why you sometimes may have to use the US to affect service for you through diplomatic means.

[00:42:24] Speaker 04:
But in any event, I think it's important what we're trying to say is important for us that you understand our concerns because the concerns leaped out for all of us in the same way.

[00:42:36] Speaker 01:
Well, I have significant concerns with the idea that we want to allow states to designate authorities and then have them not do their job.

[00:42:45] Speaker 01:
Even though this central authority is the very same person, the foreign ministry is the state.

[00:42:51] Speaker 01:
The attorney general is the state.

[00:42:52] Speaker 01:
They're not separate persons.

[00:42:53] Speaker 01:
There's one person.

[00:42:55] Speaker 01:
It's Venezuela.

[00:42:56] Speaker 01:
Venezuela is the respondent here.

[00:42:59] Speaker 01:
And all we're saying is that Venezuela wearing one hat, put the documents in its pocket.

[00:43:06] Speaker 01:
and pretended it never happened, and we're going to countenance that.

[00:43:11] Speaker 01:
And I have a serious problem with the judiciary countenancing that kind of conduct.

[00:43:17] Speaker 01:
And I would think that you would as well.

[00:43:21] Speaker 01:
Even if that reason I ask that you affirm.

[00:43:23] Speaker 05:
You signed on to a treaty that allows it.

[00:43:27] Speaker 01:
It does not allow it.

[00:43:28] Speaker 05:
I know, because you want to interpret the terms of the treaty.

[00:43:33] Speaker 05:
And that's what the district courts wanted to do, too.

[00:43:36] Speaker 04:
We can promise you that we're going to follow the law.

[00:43:38] Speaker 04:
We don't do what we prefer to do.

[00:43:40] Speaker 04:
We follow the law.

[00:43:41] Speaker 04:
So we can give you that assurance.

[00:43:44] Speaker 05:
All right.

[00:43:44] Speaker 05:
Anything further, Council?

[00:43:46] Speaker 01:
Not for me.

[00:43:48] Speaker 05:
All right.

[00:43:49] Speaker 05:
Do you want to comment at all about the nature of our order to the district court?

[00:43:57] Speaker 01:
Whatever order you make is, at this point, I mean, whether you remand the case or you dismiss it, the award is already, as I said before, under 22 USC 1650A, a judgment of the highest court of one of the several United States.

[00:44:15] Speaker 01:
If we have to, if you order that the case be remanded and then we refile or we simply refile it, it doesn't change things.

[00:44:26] Speaker 01:
So I don't think that that's a significant distinction.

[00:44:33] Speaker 05:
Okay.

[00:44:33] Speaker 05:
Thank you, Council.

[00:44:39] Speaker 05:
All right.

[00:44:42] Speaker 05:
So Council for Appellant, anything further?

[00:44:45] Speaker 03:
Thank you, Your Honor.

[00:44:46] Speaker 03:
I have three things further.

[00:44:48] Speaker 03:
Number one.

[00:44:53] Speaker 03:
Okay, so first of all, I want to clarify or really correct my statement to Judge Walker.

[00:45:00] Speaker 03:
Judge Walker had asked about the no default situation, whether we had argued that to the district court.

[00:45:09] Speaker 03:
And while we were listening to the other parties, I looked and in fact, we did not raise that.

[00:45:15] Speaker 03:
So I wanted to correct that and apologize for my misremembering.

[00:45:22] Speaker 03:
But as we discussed, it has not been something that was carried through by the appellant, by the appellee.

[00:45:29] Speaker 03:
And for reasons described in footnote two of our reply brief, I think that the issue is fairly encompassed within the issues that we did raise in the district court.

[00:45:42] Speaker 03:
And I would refer the court particularly to the decision in harm and industries about

[00:45:49] Speaker 03:
the scope of what an appellant is permitted to argue.

[00:45:52] Speaker 03:
So that was the first thing.

[00:45:53] Speaker 03:
The second thing is I wanted to come back to Judge Edwards question about what the decretal provision should look like.

[00:46:03] Speaker 03:
And I want to commend to the court the decision in a case, I may be mispronouncing the name,

[00:46:11] Speaker 03:
Barrow against the embassy of the Republic of Zambia, which was a decision from 2015.

[00:46:19] Speaker 03:
Actually, Judge Rogers was the author of that decision.

[00:46:22] Speaker 03:
And in the final paragraph, the court held that the service had not been affected correctly.

[00:46:33] Speaker 03:
And the court wrote, we remand the case for the district court to afford borough proceeding in form of Paris, the opportunity to affect service and then well on to give a little bit of guidance.

[00:46:45] Speaker 03:
And I think that would be perfectly appropriate for the court to do in this case.

[00:46:49] Speaker 03:
We're not asking for the case to be dismissed.

[00:46:52] Speaker 03:
It can be remanded that the case should be reversed.

[00:46:56] Speaker 03:
the judgment should be reversed and the case can be remanded for the district court with instructions to exercise its discretion to permit the plaintiff the opportunity to affect service in accordance with the convention.

[00:47:12] Speaker 03:
That's the second thing.

[00:47:13] Speaker 03:
I hope that's helpful to the court.

[00:47:17] Speaker 03:
The third thing is I wanted to be really clear about diplomatic service.

[00:47:25] Speaker 03:
Both the convention and the Foreign Sovereign Immunities Act make diplomatic service purely an act of the State Department itself.

[00:47:37] Speaker 03:
There's no acceptance needed by the receiving state.

[00:47:42] Speaker 03:
Diplomatic service is complete upon

[00:47:46] Speaker 03:
acts by the United States Department of State.

[00:47:49] Speaker 03:
There was a proposal in the Foreign Sovereign Immunities Act to condition the service on acceptance by the receiving state, and that was rejected by Congress.

[00:48:00] Speaker 05:
What that means is a practical matter.

[00:48:03] Speaker 05:
Suppose the Department of State receives these papers in the proper office, et cetera.

[00:48:13] Speaker 05:
And Venezuela,

[00:48:17] Speaker 05:
refuses whatever it normally should do to acknowledge diplomatic service.

[00:48:29] Speaker 05:
Are you suggesting then the State Department somehow becomes subject to the judgment?

[00:48:36] Speaker 03:
No, not at all.

[00:48:40] Speaker 03:
So mechanically what happens is the State Department delivers the papers

[00:48:45] Speaker 03:
through diplomatic channels to the recognized authorities.

[00:48:49] Speaker 03:
The State Department, without waiting for anything to come back from Venezuela or any other foreign sovereign, delivers to the plaintiff a certification that it has affected service through diplomatic channels.

[00:49:06] Speaker 03:
That's a letter.

[00:49:07] Speaker 05:
Just so I'm clear, they serve it on the attorney general or they serve it on anybody the department

[00:49:14] Speaker 05:
chooses beneficial in Venezuela?

[00:49:18] Speaker 03:
In this case, because of the limited nature of the Guaido administration, they are affecting service at this time on, I believe on recognized diplomats sent by President Guaido.

[00:49:34] Speaker 03:
But it's not, who receives service, whether that complies with the internal law of Venezuela is not germane

[00:49:42] Speaker 03:
to the issue of proper service.

[00:49:45] Speaker 03:
If the United States Department of State issues a certification, and I see Mr. Yellen nodding so that gives me comfort that I'm getting it right here.

[00:49:54] Speaker 03:
If the United States Department of State issues a certification to the plaintiff saying, we, the United States Department of State, have affected service through diplomatic channels, that's the end of it.

[00:50:04] Speaker 04:
Service has been affected and the court now... Under the Foreign Servants Immunity Act, that's the end of it and the plaintiff can proceed.

[00:50:11] Speaker 03:
Correct.

[00:50:13] Speaker 03:
Correct.

[00:50:14] Speaker 03:
And that's also under Article IX of the Hague Convention.

[00:50:18] Speaker 03:
The same result obtains under Article IX of the Hague Convention.

[00:50:22] Speaker 03:
But in both cases,

[00:50:24] Speaker 03:
I mean, in the interest of transparency, I wanted the plaintiff to understand what we viewed as the correct interpretation of the law.

[00:50:32] Speaker 03:
But my client has no discretion to reject State Department service or to say, we don't recognize it or anything like that.

[00:50:40] Speaker 03:
I mean, they can say that, but it wouldn't be binding in court.

[00:50:44] Speaker 03:
I was simply trying to be transparent with the plaintiff about what we were doing.

[00:50:48] Speaker 03:
And in fact,

[00:50:49] Speaker 03:
In other cases where the United States Department of State has affected diplomatic service, there's not been an issue.

[00:50:56] Speaker 03:
We've not challenged it.

[00:50:57] Speaker 03:
We've not criticized it.

[00:50:58] Speaker 03:
We've not complained about it.

[00:51:00] Speaker 03:
And the courts have gone on to enter judgments on behalf of those plaintiffs.

[00:51:06] Speaker 03:
OK, I think.

[00:51:09] Speaker 05:
Just follow through just a moment.

[00:51:12] Speaker 05:
So no discretion not to accept.

[00:51:16] Speaker 05:
service however affected by the Department of State in response to Sango Band's request?

[00:51:24] Speaker 03:
Correct.

[00:51:26] Speaker 03:
Correct.

[00:51:28] Speaker 03:
Correct.

[00:51:29] Speaker 03:
The State Department controls that.

[00:51:31] Speaker 03:
I'm sorry.

[00:51:31] Speaker 05:
Yes, and then Sango Band's motion for enforcement would remain before the District Court?

[00:51:41] Speaker 03:
That is my recommendation.

[00:51:44] Speaker 03:
The court has, this court has discretion to reverse and remand and give St.

[00:51:53] Speaker 03:
Cobain the opportunity to affect service correctly.

[00:52:04] Speaker 03:
Those were the only things that I wanted to clarify.

[00:52:07] Speaker 03:
I think the court has our argument.

[00:52:11] Speaker 03:
If there are other questions about those or other matters, I'm glad to answer them.

[00:52:15] Speaker 05:
And the Department of State has no discretion to reject or to require exhaustion or anything like that?

[00:52:24] Speaker 03:
Yeah, I don't know the answer to that as a legal matter.

[00:52:29] Speaker 03:
I can tell you as a practical matter, the Department of State has been forwarding these requests in due course.

[00:52:41] Speaker 03:
And I don't think I'm speaking out of school to say that it's not just Venezuela.

[00:52:45] Speaker 03:
There are other countries where there has been, for whatever reason, a breakdown in sort of the routine procedures that work well in the ordinary case, even countries where there are no diplomatic relations.

[00:53:01] Speaker 03:
And the State Department seems to find a way to affect service, sometimes through intermediaries.

[00:53:07] Speaker 03:
And that's up to them.

[00:53:09] Speaker 03:
And if there's some

[00:53:11] Speaker 03:
diplomatic reason why they wouldn't do it, I would think the court would take that into account.

[00:53:18] Speaker 03:
But we haven't seen any problem with that in Venezuela or in the case law for many, many years.

[00:53:26] Speaker 03:
I think in the early 1980s, there was a problem with Iran, but that got sorted.

[00:53:31] Speaker 03:
And so I

[00:53:32] Speaker 03:
I understand that the court might be worried about what happens if the fail safe fails.

[00:53:38] Speaker 03:
But I think the thesis of the drafters of the convention and the thesis of Congress in the Foreign Sovereign Immunities Act is that the fail safe is the executive in its conduct of foreign affairs.

[00:53:50] Speaker 03:
And so we would expect the courts to be comfortable relying on the executive in that constitutionally allocated domain.

[00:54:03] Speaker 05:
Any further questions?

[00:54:06] Speaker 05:
Thank you very much, council.

[00:54:08] Speaker 03:
Thank you.

[00:54:08] Speaker 05:
Council, we will thank you and take the case under advisement.