[00:00:00] Speaker 00:
case under 21 71 41 L. C. S. B. C. Stylaks versus the Republic of Moldova balance.

[00:00:09] Speaker 00:
Mr Smith or the balance Mr Bird or the ability.

[00:00:18] Speaker 03:
Mr Smith morning whenever you're learning morning.

[00:00:23] Speaker 02:
Thank you, sports.

[00:00:26] Speaker 02:
Your honor.

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This case is about the effect

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for the pending set-aside application on an arbitration award rendered in France.

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Now, this award was already set aside or annulled once in 2016.

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That was an appeal to the Court of Cassation.

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It was reversed for men back to the Paris Court of Appeals who requested the opinion of the Court of Justice of the European Union, who we will call today the CJEU.

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Now, the CJEU gave its opinion

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And then that opinion is binding as to three questions of law that will direct the Paris Court of Appeals to set aside or annul the award.

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Moldova sought to stay in the district court its enforcement proceedings before the judge was entered that was denied Moldova appeal.

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And that's why we are here today.

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And the issue before this court as framed by Moldova is when there is a binding CJEU ruling

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that is going to instruct the binding on the french courts which are the courts of primary jurisdiction is it an abuse of discretion to refuse to stay depending proceedings that notes the reference to the standard of review is abuse of discretion yes sir now this case has been around a good while there have been a good many other cases involving stays

[00:01:55] Speaker 05:
those days of arbitration orders.

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In prior versions of this case and others, we laid down those six factors that the district judge is supposed to consider.

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And the district judge, you considered all of them.

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As abuse of discretion is standard for what is it that you say is an abuse of discretion?

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Well, the abusive is in two places as to the first factor, right?

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It is the course.

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There is the timeliness of it.

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The amount of time that has passed, but they're also get to consider the court must consider the avoidance of expensive and protracted litigation.

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And that wasn't done.

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It was just the time that passed.

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Well, how do we not know that there's not going to be still more?

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You tell us that they're going to follow the

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according to your justice.

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But this has been up and down a number of times.

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What is that first factor?

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Would you read that whole factor to me, please?

[00:02:57] Speaker 02:
Sure.

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It is the general principle of arbitration, which is the timeliness as well as the avoidance.

[00:03:05] Speaker 05:
That's not the wording.

[00:03:06] Speaker 02:
Read the wording.

[00:03:07] Speaker 02:
I'm sorry, sir.

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You're correct.

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It's not the wording.

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It is the general objective of arbitration is the first one.

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And then the two things that are to be considered are the avoidance of protracted and expensive litigation,

[00:03:20] Speaker 05:
as well as um timeliness and that's not the correct word but that's exactly what the district judge was doing here what's the abuse of discretion well he's trying to cut it off protracted litigation has been protracted enough already within his view and uh in the fourth view and i'm not sure what it is you say is an abuse of discretion well because there are certain facts

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in france that are binding on the french court and when it knows that award never never never mind your view of how the french court should act we know that it's been through the courts in france been back and forth several times but i'm just asking you about this court here we're not reviewing the french correct we're reviewing whether or not we're reviewing one thing that this court did and that's deny the state all right and i'm not sure what it is you say was an abusive discretion in denying that state

[00:04:13] Speaker 05:
Right.

[00:04:14] Speaker 02:
Well, I know that we're not in review of the French courts, but we have to consider the possibility of the set-aside.

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And so we have to look at the French courts.

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And the district court said that this CJEU judgment is binding on the French court as a matter of EU law.

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And that is a fact that must be taken into account and just was not.

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And in reality, what the district court relied on was whether or not there would be an additional legal issue

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Under the under EU law that might arise when that legal issue had already been decided by the CJU So this so the use of discretion is discarding that binding rule

[00:04:55] Speaker 03:
Mr. Smith, um, why isn't our this court's still X one decision, you know, from 2021, isn't that law of the case here?

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I mean, we've already said that it was not an abuse of discretion for the district court not to stay proceedings after, you know, 10 some years and now even more years have elapsed.

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Right.

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So why isn't

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Why isn't it just law of the case?

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Sure.

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Well, the reason it's not is if you look at your prior decision, you talked about there is not a fair possibility that this award will be set aside.

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And things have changed because before then there was no CJEU judgment.

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And now we have that.

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And then that has changed the facts that are underlying the request for a stay.

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And so then

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There must be a new decision on it.

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The CJEU doesn't change the facts, right?

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I mean, doesn't the French court have to apply the law, the CJEU, to the specific facts?

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So the European court, the CJEU, has set out some legal principles that the French court now has to apply to the record before it.

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So I'm not sure.

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Well, how we can be certain what might happen in the French courts.

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Well, you are correct.

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It is impossible to be certain.

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But being certain is not what your car requires.

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Your car talks about the possibility of sense.

[00:06:19] Speaker 05:
Yeah.

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And we're talking about possibilities there.

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So I can we say a district judge abused his discretion by not following a particular possibility.

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The standard here is not de novo.

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We're not supposed to be reviewing this note.

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You know, you're absolutely correct.

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And I'm not understanding why it's abusive discretion for the district judge to recognize that possible.

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That's not even the prime thing.

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The first thing is protective litigation.

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But if we get past the first one and get to the second one, uh, third, whichever that is, uh, it's still not at all occurred to me why you say that's abusive.

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Because the district court kid

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just choose that it's not going to give any comedy or respect or weight to this decision by the CJU.

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I agree with you if it is in a situation where, you know, there are numerous facts to be weighed, but this fact wasn't weighed.

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In reality, it was just rejected.

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Isn't it true that the parties don't agree on the consequences of the CJU decision or the application of the law?

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whether it be international or the EU?

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Yes.

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Well, Your Honor, the parties actually do agree that the CJEU ruling is binding as the questions of EU law on the French court.

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So on that, the parties do agree.

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Now, Simons has raised an argument that it's going to be international law,

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There will be no other legal conclusions that the Paris Court of Appeals will review.

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It will only apply the one thing to the facts that have already been established.

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And the mere fact that Silex raises a potential other outcome doesn't mean that there is no longer any possibility of set aside sufficient to satisfy your car standard.

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Yes, ma'am.

[00:08:10] Speaker 01:
But one party is indicating that there needs to be additional factual development of the record in terms of the definition of investment.

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Yes, there is no support for that in French law.

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That's more of an allegation that was made in the briefing.

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The facts were established a long time ago in France.

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There will be no new fact-taking.

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If there is to be new fact-taking, there hasn't been a presentation of the authority that would even allow that.

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So that's why, to us, that's just an argument.

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And they can make an argument, but that doesn't mean that it's persuasive.

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Okay.

[00:08:47] Speaker 00:
Thank you.

[00:08:48] Speaker 02:
Sorry.

[00:08:48] Speaker 02:
Oh, I'm at a minute and a half.

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I wouldn't have liked to reserve the remainder of my time for rebuttal if you don't mind.

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It was just for the questions.

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We'll give you some more time.

[00:08:57] Speaker 02:
Okay.

[00:08:57] Speaker 02:
Thank you.

[00:08:57] Speaker ?:
Thank you.

[00:09:10] Speaker 04:
Good morning, guys.

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My name is Jim Bird, and I'm here for the APLE LLC SPC Stylix.

[00:09:19] Speaker 04:
May I please the court?

[00:09:21] Speaker 04:
The issue is exactly that.

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The issue is whether, in this proceedings that have been lingering, a rise approved dispute that is 20 years old, that has been lingering in the courts of this circuit for eight years, and other courts all over the world,

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whether enough is enough, and the court needs to pursue the execution of the judgment and allow the judgment to move forward.

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In this case, the standard for review of this court is the abuse of discretion.

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And abuse of discretion is a very extremely broad standard.

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Just recently, in the case of Morrissey versus Mayorkas,

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This court in Judge Rao explained that the Court of Appeals may not substitute its own judgment for that of the trial court.

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The abuse of discretion requires that the judgment court to be overruled if the decision is arbitrary, fanciful, or clearly unreasonable.

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And this standard was detailed in US McWilliams 163 of second 695, and also in US McWilliams as a criminal context case, but also in other cases.

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In the cases, in fact, Morrissey versus Mayorkas was disputed whether the extension should be granted under Rule 4 of the Federal Rules of Civil Procedure.

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The case of Jeffers v. Barr also explains that the review for abuse of discretion does not permit to substitute its judgment for that of the trial court.

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And the question is exactly what your honors raise.

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What exactly was the abuse of discretion?

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And we believe that our position is where there was no abuse of discretion.

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The trial court, the district court, went through the first two factors of the Europe Card Test.

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And not only the first two that are required under the Stylix I decision, the previous decision in this case, but also it went through all six factors.

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and consider the lens of the proceedings that was prior to the decision, but consider the anticipated lens of the proceedings that would be after the decision, as well as the possibility that the decision would be overruled.

[00:11:54] Speaker 03:
Mr. Court, if we agree with Stilix that there has been no abuse of discretion by the district court here, do we have to reach your public policy exception argument?

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because that seems to me to be a bit of a stretch.

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I would say that the public policy argument does not need to be reached in this particular decision.

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It's more a way of illustration of what may be coming if the decision, whatever the decision is.

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But what's important is that even if the decision of the Paris Court of Appeal is set aside, there is still taxation

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The highest court of the land that already ruled that under the international law, the arbitral tribunal correctly issued the award.

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The ECJ ruled under the European law.

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ECJ did not rule under the international law.

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and a judge Charles pointed out to them, but there was, interestingly enough, there was just recently a few weeks ago a copy of the ICSID award, ICSID is the International Center for Disclosed Resolution here in Washington, D.C.

[00:13:11] Speaker 04:
uh was admitted in the case uh nine grand holdings versus spain that's a case 19-cv-01871 uh judge chotkin uh and that award the copy of the award exactly made this distinction it made the distinction between the the uh pcj decision

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that makes a decision in Comstroy on the local, on the EU law and the international law under which Tribunal was constituted.

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So what I contend, Your Honours, is that Judge Cooper correctly pointed out that the Cassation Court has already ruled against Moldova

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France already ruled against Moldova.

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And it's just at this point, it just can't be predicted how it's going to rule.

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Moldova says mere possibility of the award, of the mere possibility that the award will be set aside warrants the state.

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But it just can't be true.

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Anytime that the award is issued and the opposing party, the party that contends the award initiates set aside proceedings,

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Any time that happens, there is a possibility that the word can be set aside.

[00:14:33] Speaker 04:
Does it mean that the court here in the United States, the enforcement court, has to state the proceedings?

[00:14:40] Speaker 04:
Of course not.

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That's why there are European factors.

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That's why there is a discretion of the court here who decides, or the district court who decides, based on the facts and the specifics, facts and circumstances of the case, where the word should be, the enforcement should say.

[00:15:00] Speaker 03:
Do you have any further questions?

[00:15:02] Speaker 03:
No further questions?

[00:15:05] Speaker 03:
No?

[00:15:07] Speaker 03:
Thank you, Your Honor.

[00:15:08] Speaker 04:
And in conclusion, we're asking this Court, of course, to affirm the decision of the District Court and the United States.

[00:15:17] Speaker 01:
Thank you.

[00:15:18] Speaker 01:
I would ask one question.

[00:15:20] Speaker 01:
You seem to refer to hinting factors in your case.

[00:15:24] Speaker 01:
as opposed to the Europa car factors that we've used in the Stalix decision.

[00:15:29] Speaker 01:
So is that applicable here?

[00:15:31] Speaker 04:
Well, the district court decided that they're not because these factors, the heat factors that apply when the judgment already issued and they apply when the defendant or debtor in that case would be.

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seeks to state enforcement of the judgment.

[00:15:56] Speaker 04:
And that was our argument that was denied by the district court.

[00:16:00] Speaker 04:
But so we don't believe that really an issue, and we don't believe that the court needs to go outside of the discretion of the district court.

[00:16:08] Speaker 04:
I'm sorry, the court of appeal does not need to go outside of the district court for the purposes of this decision.

[00:16:16] Speaker 01:
Thank you.

[00:16:18] Speaker 05:
Thank you, Anne.

[00:16:19] Speaker 01:
Thank you, Mr. Berg.

[00:16:28] Speaker 02:
Thank you for the 3rd.

[00:16:31] Speaker 02:
So I wanted to go back to the public policy argument that you mentioned judge route and you know, the fact that that is a sign of what is to come means that this should have been said because if we're going to be back to that same place with the award as a note, well, in 2016, when the word was a note, this case was safe for 2 years.

[00:16:48] Speaker 02:
So that's what we're going to be.

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And that's why the case should be state.

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And if the question is what might happen at the court of cassation, that would be irrelevant because once the award is a no by the Paris Court of Appeals, then the case is staying here.

[00:17:02] Speaker 02:
And so, and that goes to us, part of the standard of review, which is, you know, if the decision rests on either a clearly erroneous factual finding or misconstrued factors exercising the court's exercise of jurisdiction.

[00:17:15] Speaker 02:
And in this case, that is precisely what has happened.

[00:17:17] Speaker 02:
The other thing that I wanted to mention was this exit case.

[00:17:20] Speaker 02:
Look, exit tribunals have nothing to do with this.

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This is about the French courts and how the EU laws interpreted by the French courts.

[00:17:28] Speaker 02:
There is nothing that an international tribunal can say that would be persuasive in this particular context.

[00:17:34] Speaker 02:
Other than that, Your Honor, I missed on the first year part factor.

[00:17:40] Speaker 02:
It is the expeditious resolution of disputes and the avoidance of expensive protected litigation.

[00:17:45] Speaker 02:
So I apologize for that, but I wanted to tie that up.

[00:17:48] Speaker 02:
If there are no further questions, then I will conclude.

[00:17:52] Speaker 02:
Okay.

[00:17:52] Speaker 02:
Thank you, Your Honor.

[00:17:53] Speaker 03:
Any other questions?

[00:17:54] Speaker 03:
Yeah.

[00:17:54] Speaker 03:
Thank you, Mr. Smith.

[00:17:57] Speaker 03:
Thank you.