[00:00:00] Speaker 00: Case number 23-7077, Valores Mundiales SL and Consorcio NDESL versus Polyvarian Republic of Venezuela, Ministerio del Poder Popular para Relaciones Exteriores. [00:00:13] Speaker 00: Mr. Perla for the appellant, Mr. Lopez-Morastier for the apples. [00:00:32] Speaker 00: Good morning. [00:00:34] Speaker 03: Good morning. [00:00:35] Speaker 03: Juan Perla for the Bolivarian Republic of Venezuela. [00:00:38] Speaker 03: I reserve three minutes for rebuttal. [00:00:39] Speaker 03: May it please the court. [00:00:42] Speaker 03: The primary question in this appeal is whether, as a matter of US law, the federal court may enforce and give full faith and credit to an ICCSA award that was rendered in proceedings where the only US- Can you lift that like you're an officer? [00:01:00] Speaker 03: Yeah. [00:01:00] Speaker 03: I can't hear you. [00:01:06] Speaker 03: Question is whether an exit award that was rendered in proceedings where the only U.S. [00:01:11] Speaker 03: recognized government foreign state respondent was not allowed to defend the state and instead an unrecognized illegitimate government was purportedly allowed to talk and speak and find the foreign state in those proceedings. [00:01:28] Speaker 03: The answer is no. [00:01:30] Speaker 03: because the statute that implements the exit convention commands so. [00:01:35] Speaker 03: And we begin with the statute, we begin with the statute because the exit convention, under the exit convention, the exit awards are not self-executing. [00:01:45] Speaker 03: So they are only enforceable to the extent that Congress required them to be. [00:01:49] Speaker 03: And the text of the statute is clear that you have to treat and enforce and give the same full faith and credit to an exit award as if the award were a judgment of a state court. [00:02:01] Speaker 03: And that is a critical part of the text of the statute, as if the award were. [00:02:08] Speaker 03: That means that you can't look at the exit award like the district court did and say, this has to be enforced because it's special. [00:02:16] Speaker 03: It's different. [00:02:17] Speaker 03: It's exit. [00:02:18] Speaker 03: That cannot be the basis upon which the analysis turns because the question is, if the award were a state court judgment, how would I enforce and give it full faith and credit? [00:02:31] Speaker 03: The Second Circuit in the mobile case has already adopted and ruled that you have to assimilate fixed awards and enforce them as if they were state court judgments. [00:02:41] Speaker 03: Several district courts in this circuit have followed the same approach and said that you have to treat them in a parallel manner. [00:02:49] Speaker 03: That interpretation is consistent with the exit convention. [00:02:53] Speaker 03: The United States drafted a specific provision for itself in Article 54.1. [00:03:00] Speaker 03: And textually, that provision applies to a contracting state with a federal constitution. [00:03:09] Speaker 03: What more obvious way for the United States [00:03:12] Speaker 03: to make its federalism and constitutional concerns understood and adopted into the convention, then using that language and insisting on including that language in Article 54.1 for purposes of enforcement within the United States. [00:03:31] Speaker 03: And when you treat an exit award as if it were a state court judgment, you have to apply the same procedures and substantive standards [00:03:40] Speaker 03: That means you have to bring a plenary action, give full notice of the proceedings to the foreign state, assure yourself of personal and subject matter jurisdiction, validate the authenticity of the award, but then you also have to undertake the ordinary analysis that a federal court would do for whether you can enforce and give full faith and credit to that award as if it were a state court judgment. [00:04:04] Speaker 03: And there are rounds for refusing to enforce and give full faith and credit to a state court judgment, as limited and rare as they may be. [00:04:12] Speaker 03: And there is no dispute that those exceptions exist. [00:04:16] Speaker 03: And in this case, the problem with enforcing this exit award is that if a state court judgment were rendered and the US recognized government [00:04:29] Speaker 03: was not permitted to defend the state and instead an unrecognized illegitimate regime were allowed to come in and purportedly speak. [00:04:39] Speaker 01: This wasn't a state court proceeding. [00:04:41] Speaker 01: It was an exit proceeding. [00:04:43] Speaker 01: And within the rules of exit, there was no problem with the representation. [00:04:50] Speaker 03: Again, Your Honor, once you bring that award to the United States, you have to treat it as if it had been rendered by a state court. [00:04:58] Speaker 03: But that doesn't require an over review. [00:05:01] Speaker 03: No, Your Honor, it doesn't require an over review, but that is not what Venezuela is arguing here. [00:05:06] Speaker 03: We are not saying that there has to be a review of what the ICSID annulment committee did. [00:05:12] Speaker 03: What the court here has to do is undertake its own independent analysis under the U.S. [00:05:18] Speaker 03: implementing statute as to whether this award, if it were a state court judgment, could be enforced and given the same full faith and credit. [00:05:25] Speaker 03: I'd like to point you to the annulment committee's decision. [00:05:27] Speaker 02: I understand we have to undertake a merits analysis? [00:05:30] Speaker 03: an independent analysis under the U.S. [00:05:33] Speaker 03: Implementing Statute as to whether this award, if it were a state court judgment, could be enforced and given the same full faith and credit. [00:05:41] Speaker 01: That is different from what the ICCID- When we do that, we look to whether it would be valid within the state court, and here we look to whether it was due process within the meaning of an ICCID proceeding. [00:05:52] Speaker 01: And so we look to that. [00:05:53] Speaker 01: The ICCID standards are not the same as what would be required in a state. [00:06:01] Speaker 03: Well, Your Honor, a couple of points on that. [00:06:02] Speaker 03: First of all, the Exit Annulment Committee itself at Joint Appendix 512 [00:06:13] Speaker 03: understood its own task, not as making a determination for all purposes. [00:06:19] Speaker 03: It says there is no doubt that the committee cannot decide with effect Berga Omnis, which is Venezuela's legitimate representative. [00:06:26] Speaker 03: Berga Omnis is an international obligation that is binding on all, for all purposes. [00:06:31] Speaker 03: So even the Ixid Annulment Committee understood that it was making a very narrow determination [00:06:36] Speaker 03: If this court were obligated by the exit convention to give effect to that recognition of the Maduro regime, it would effectively put exit above the Supreme Court, above the executive branch. [00:06:50] Speaker 03: It would basically take an international decision and make it a part of the US legal system where a state court decision in the same circumstances would not- They weren't giving recognition to a particular government. [00:07:01] Speaker 04: They made that clear. [00:07:04] Speaker 03: The Excellency Committee was recognizing only the Maduro regime and deciding that the- They were issuing against the Venezuelan state. [00:07:13] Speaker 04: They weren't making determination as to who should be recognized. [00:07:17] Speaker 04: So whatever your argument might be, if it were in a state proceeding, and I understand what you're saying, it's not what they were reporting to do. [00:07:23] Speaker 04: And it was a very fair procedure, at least facially. [00:07:26] Speaker 04: Everyone was given an opportunity to present on the issue, whether the state was adequately represented, and they explained why they did what they did. [00:07:34] Speaker 04: And that seems to me would satisfy due process requirements as we're supposed to enforce them in this kind of a situation. [00:07:42] Speaker 04: It's not the way we'd look at what goes before stated. [00:07:46] Speaker 04: We have to look at what the ICSID procedure was and whether it satisfies due process requirements. [00:07:52] Speaker 04: They did what they were supposed to do. [00:07:55] Speaker 03: I had reserved three minutes, so if I could respond to that. [00:07:58] Speaker 03: What ICSID did as a matter of ICSID is not what we're challenging. [00:08:03] Speaker 03: The lores can take this award under the exit convention to another contracting state that recognizes the Maduro regime, and it may be enforceable there. [00:08:11] Speaker 03: But once you bring that award to the United States, you cannot import the recognition of the interim government and give it legal effect. [00:08:20] Speaker 03: in contravention of and in defiance of the executive branch's recognition that only the interim government is Venezuela. [00:08:27] Speaker 03: And that comes directly from Zivotovsky. [00:08:29] Speaker 03: Zivotovsky says that the U.S. [00:08:32] Speaker 03: executive determination of a government is a determination as to who is Venezuela, who is the effective government of Venezuela. [00:08:40] Speaker 01: Here in this court, are you representing the Maduro regime of Venezuela or the interim government of Venezuela? [00:08:50] Speaker 01: We represent your client. [00:08:52] Speaker 03: Our client has been as well as in the interim government. [00:08:55] Speaker 03: That is who we represent and we take instructions from. [00:08:58] Speaker 03: So the interim government, and this is important, and actually this is critical because right now, Velouris is not in the U.S. [00:09:05] Speaker 03: you know, to get an award and to get a judgment. [00:09:08] Speaker 03: And that's all the end of it. [00:09:09] Speaker 03: We're on an expedited procedure here because Valores is rushing to get to Delaware, where they claim they can attach property of Venezuela. [00:09:16] Speaker 03: That is, in which, as a matter of U.S. [00:09:19] Speaker 03: law, the Maduro regime has no recognizable interest. [00:09:23] Speaker 03: They chose to litigate only with the Maduro regime at exit, but they're coming now to the United in contravention of the recognition doctrine. [00:09:30] Speaker 03: But now they're coming to the United States and trying to attach property that they claim belongs to Venezuela, which the United States executive has said only the interim government has any interest in in terms of, uh, the representation of the government. [00:09:45] Speaker 03: This is a problem because the [00:09:50] Speaker 03: What Valores is trying to do here is to take this award and give effect under US law. [00:10:02] Speaker 03: But under US law, the Maduro regime does not represent Venezuela. [00:10:07] Speaker 03: The Maduro regime is not Venezuela. [00:10:09] Speaker 01: Only the interim government has. [00:10:11] Speaker 01: Under US law, you can't really collaterally challenge an Ixid arbitration. [00:10:15] Speaker 01: I mean, the Federal Arbitration Act doesn't apply. [00:10:17] Speaker 01: I mean, it's very... [00:10:19] Speaker 01: very limited grounds for challenging exit. [00:10:22] Speaker 01: And that's by the convention and by the implementing statute. [00:10:27] Speaker 03: And we are here under the implement statute and the implementing statute is what allows this is what requires this court to give no greater deference to an exit award than it would to a state court judgment. [00:10:39] Speaker 03: And again, the analysis cannot turn on how exit is special, not for enforcement purposes. [00:10:45] Speaker 03: Analysis has to turn on what would happen if this were a state court judgment. [00:10:50] Speaker 03: I'll point to the pink decision in the Supreme Court, pink V, there's two pinks, but this is pink V AAA Highway Express. [00:10:58] Speaker 03: And in that case, the New York courts rendered an award against a mutual insurance, it rendered a judgment against a mutual insurance company. [00:11:07] Speaker 03: including members who were Georgia citizens, but the Georgia citizens did not appear in New York. [00:11:13] Speaker 03: And when they went to Georgia to enforce the award, the Georgia court said no, because as a matter of our law, these Georgia citizens never became members of that mutual insurance company. [00:11:24] Speaker 03: Therefore, they're not bound by that judgment. [00:11:27] Speaker 03: And that decision under full faith and credit went up to the US Supreme Court. [00:11:31] Speaker 03: And while the judgment against the mutual insurance company may still be valid and enforceable in New York, as a matter of constitutional full faith and credit, Georgia did not have to give full faith and credit and enforce that judgment against its own citizens in Georgia. [00:11:47] Speaker 03: It undertook that analysis for itself. [00:11:51] Speaker 03: And the Supreme Court upheld it. [00:11:52] Speaker 04: But it didn't involve exit. [00:11:54] Speaker 03: But it doesn't matter, again, because under the implementing statute. [00:11:59] Speaker 04: But under the implementing statute. [00:12:00] Speaker 04: Points don't lead to the conclusion. [00:12:02] Speaker 04: I mean, I may be missing something. [00:12:03] Speaker 04: I'm not seeing. [00:12:04] Speaker 04: I don't see how you get to the conclusion you're advancing in these days. [00:12:08] Speaker 04: Because textually. [00:12:09] Speaker 04: You really want full substantive review. [00:12:12] Speaker 04: What do we think about this? [00:12:14] Speaker 04: That's not what the law requires. [00:12:16] Speaker 04: Not the convention, not the implementing statute, not any of the case law. [00:12:21] Speaker 04: That's not what we're supposed to do. [00:12:22] Speaker 04: We're determined whether exit followed the rules of due process, reason, decision, honest, nothing untoward in the normal sense. [00:12:35] Speaker 04: And that's that. [00:12:37] Speaker 03: Your honor, respectfully, the exit implementing statute does require something more and that is what controls. [00:12:45] Speaker 04: In other words, you keep saying like a state is if this proceeding would have been in a state, it wouldn't have been in a state. [00:12:51] Speaker 04: The only place this would have occurred. [00:12:53] Speaker 04: was where it initially occurred in that arbitration. [00:12:56] Speaker 04: So that's what we look at to see whether due process was followed. [00:13:00] Speaker 04: So it's fanciful to say, well, think about how a state would have litigated this. [00:13:04] Speaker 04: No, that's not where it would have been litigated. [00:13:06] Speaker 04: It would have litigated exactly where it was. [00:13:09] Speaker 04: And the question is whether due process was adhered to. [00:13:12] Speaker 03: Your honor, but the exit implementing statute Congress [00:13:16] Speaker 03: directed the court to engage in what you call this fanciful analysis by saying, treated as if the award were. [00:13:23] Speaker 04: That's what the convention says too. [00:13:26] Speaker 04: Yes, and that is what- But it doesn't have the meaning that you're suggesting. [00:13:30] Speaker 04: It doesn't make it other than the procedure that it was. [00:13:33] Speaker 04: And indeed, Congress was giving recognition to that procedure by adopting the convention and saying, that's okay under our law, just make sure due process is followed because that's what we require of the states. [00:13:45] Speaker 04: We don't second guess the substantive decisions. [00:13:49] Speaker 03: There isn't a second guessing here of the substantive decision because this court cannot say that the Maduro regime and cannot give effect to what the exit annulment committee said the Maduro regime represents. [00:14:01] Speaker 03: They are not Venezuela. [00:14:02] Speaker 03: Venezuela was not defended and represented as a matter of US law at the stages of the annulment proceedings. [00:14:10] Speaker 03: And that is what makes all the difference once you bring the exit award into the US legal system. [00:14:16] Speaker 03: And you try to use that judgment then to go after property of Venezuela, reportedly property of Venezuela, in which the Maduro regime has no cognizable interest. [00:14:25] Speaker 03: It basically, it's like in Cevatosky. [00:14:27] Speaker 03: It's not just about which lawyers come and represent Venezuela in the US courts. [00:14:32] Speaker 03: It's about whether you can put the name Israel on the US passport of a person that is born in Jerusalem. [00:14:37] Speaker 03: If Congress can't tell the executive to do that, how can Ixid tell this court that it must act in defiance of the executive branch when it decides that only the interim government is the effective government of Venezuela? [00:14:52] Speaker 03: The exit implementing statute says that you have to treat it as if the award were, and you can never have. [00:14:59] Speaker 03: It is impossible, and Dolores has not argued, the district court did not accept that a state court judgment that had been rendered against Venezuela in which only the Maduro regime had purportedly acted on behalf of Venezuela could satisfy the recognition doctrine or due process because, and therefore it would not be enforceable and given full faith and credit in a federal court. [00:15:21] Speaker 03: There is no dispute about that. [00:15:23] Speaker 03: And because the statute says as if the award were a state court judgment, you have to treat it the same way. [00:15:29] Speaker 01: I mean, your position really would require us to import all constitutional protections into exit proceedings, which hardly seems to be [00:15:40] Speaker 01: the import of the convention and the statute, because if it's due process and Article Two recognition, it's everything else. [00:15:47] Speaker 01: Why wouldn't it be, you know, the Fourth, Fifth, and Sixth Amendments or, you know, basically any other constitutional protections? [00:15:57] Speaker 03: Well, Article Two in separation of powers [00:16:01] Speaker 03: Those are particularly important here because this court cannot do something that is reserved to the executive branch. [00:16:10] Speaker 03: An international treaty cannot give this court the power to endorse the view that the Maduro regime is the government of Venezuela in contravention of the executive's constitutional power under Article 2. [00:16:24] Speaker 03: So we're not talking about [00:16:26] Speaker 03: all U.S. [00:16:27] Speaker 03: law. [00:16:27] Speaker 03: And this is a very rare situation. [00:16:29] Speaker 01: It's not going to be... Which is the currently recognized government of Venezuela by the U.S. [00:16:34] Speaker 01: State Department? [00:16:35] Speaker 03: The interim government. [00:16:37] Speaker 01: Are they officially still recognized by the State Department? [00:16:41] Speaker 03: Yes, they are the only recognized government of Venezuela. [00:16:44] Speaker 03: There has been absolutely no derecognition. [00:16:46] Speaker 01: I know that the State Department hasn't recognized the Maduro regime, but does the State Department still recognize the interim government? [00:16:53] Speaker 01: Yes. [00:16:53] Speaker 03: Yes, Your Honor. [00:16:55] Speaker 03: The latest statements from the State Department is that the National Assembly and its leaders, which is what we refer to as the interim government, is the only recognized government of Venezuela. [00:17:08] Speaker 03: Thank you. [00:17:28] Speaker 00: Morning. [00:17:29] Speaker 02: Morning, Your Honors. [00:17:31] Speaker 02: May it please the court? [00:17:33] Speaker 02: I am Miguel Lopez-Foresteed from Covington and Berlin on behalf of Valores Mundiales and Consorcio Andino. [00:17:40] Speaker 02: This court should affirm the district court judgment for two reasons. [00:17:44] Speaker 02: First, under the ICCID convention and implementing statute, U.S. [00:17:48] Speaker 02: courts are required to enforce the pecuniary obligations of ICCID awards without the sort of second guessing that Venezuela seeks here. [00:17:57] Speaker 02: Second, even under Venezuela's reading of section 1650A, there is no basis to deny full faith and credit to the pecuniary obligations of the award here. [00:18:10] Speaker 02: So let me start with the second point. [00:18:13] Speaker 02: Venezuela claimed below that it was deprived to process in the exit proceeding, and that as a result, the award here was not entitled to full faith and credit. [00:18:24] Speaker 02: On appeal, Venezuela has recast this as a separation of powers argument to challenge enforcement of the award. [00:18:33] Speaker 02: Under either analysis, Venezuela's argument fails. [00:18:39] Speaker 02: First, Venezuela is a foreign state, and this court has held that foreign states are not persons entitled to do process under the Heath Amendment. [00:18:50] Speaker 02: Second and more important, the exit proceedings did afford Venezuela sufficient process. [00:18:58] Speaker 02: The essence of the process is the opportunity to be heard. [00:19:03] Speaker 02: And here Venezuela was heard and represented that able council acting on its behalf throughout the entire exit proceeding, arbitration proceeding. [00:19:17] Speaker 02: Venezuela has never argued that its council before exit was incompetent or provided ineffective assistance. [00:19:25] Speaker 02: There is no allegation or evidence of that here. [00:19:30] Speaker 02: And as a practical matter, had the interim government succeeded in displacing Venezuela's longstanding council at the exit, nothing would have changed. [00:19:40] Speaker 02: A different set of lawyers would have argued and advanced the same position Venezuela had already advanced in writing and all the award in whole or in part. [00:19:53] Speaker 02: So Venezuela, the state, suffered no prejudice whatsoever from what happened at the exit. [00:20:00] Speaker 02: And Venezuela here has not alleged, let alone proven otherwise. [00:20:06] Speaker 02: Moreover, the lawyers or the interim government dropped the ball in the enrollment proceeding. [00:20:14] Speaker 02: Having the opportunity to finally reply to show why they were entitled to their representation in that proceeding, they failed to do so. [00:20:24] Speaker 02: So they should not complain now about an alleged lack of due process when they fail to avail themselves of the opportunity they have to be heard on this very issue. [00:20:37] Speaker 01: question about the annulment proceeding. [00:20:42] Speaker 01: So so in order to add those costs and fees proceeding. [00:20:47] Speaker 01: Um it was for us not required to amend its complaint to add those additional costs and fees. [00:20:56] Speaker 01: From the [00:20:57] Speaker 02: I'm sorry, Your Honor, I couldn't hear the first part of the question. [00:21:00] Speaker 01: Oh, sorry. [00:21:01] Speaker 01: So why wasn't Velouris required to amend its complaint in order to add the costs and fees from the annulment proceeding? [00:21:11] Speaker 02: Yes, Your Honor, thank you. [00:21:12] Speaker 02: Valero was not required to amend the complaint because the complaint already claimed for an award of attorney fees. [00:21:20] Speaker 02: At that stage, the annulment proceeding was pending and ongoing. [00:21:25] Speaker 02: And there was a reference to that fact in the complaint. [00:21:29] Speaker 02: And it was the natural consequence that eventually those fees will be awarded in the annulment proceeding [00:21:36] Speaker 02: and will be part of the requested relief. [00:21:39] Speaker 02: The complaint also sought any other such relief that the court may deem just and proper. [00:21:46] Speaker 02: So it would also be encompassed under that claim for relief. [00:21:50] Speaker 02: So for that reason, there was no need to amend the complaint. [00:21:54] Speaker 02: And when Valores did request the court to award those fees before it issued its memorandum of opinion and before it issued the judgment. [00:22:03] Speaker 01: but not in its first status report after the annulment proceeding? [00:22:07] Speaker 02: That is correct. [00:22:09] Speaker 02: It did not request in the first status report. [00:22:12] Speaker 01: And do we do we review the district court's decision on on those costs and fees under an abuse of discretion standard. [00:22:19] Speaker 02: That is correct, your honor. [00:22:21] Speaker 02: And under that standard, there is no abuse of discretion here. [00:22:25] Speaker 02: First, for the reasons that I just mentioned. [00:22:27] Speaker 02: Second, because rule federal rule of evidence, federal rules of procedure 54C allows a court to grant any relief that a party is entitled to. [00:22:40] Speaker 02: And that is clearly the case here. [00:22:50] Speaker 02: So let me go back to the first issue that we were discussing, which is the third reason why this course should enforce the pecuniary obligations of the exit award. [00:23:06] Speaker 02: The judgment here does not conflict with US recognition principles. [00:23:14] Speaker 02: By enforcing the pecuniary obligations of the exit award, the district court is not endorsing or contradicting the executive's recognition of Venezuela's interim government. [00:23:25] Speaker 02: The judgment enforces the pecuniary obligations of the award, not the annulment committee's decision on the recognition of the interim government. [00:23:39] Speaker 02: or regarding which lawyer should represent Venezuela in that annulment proceeding. [00:23:46] Speaker 02: Venezuela has been represented by the U.S. [00:23:50] Speaker 02: recognized government in U.S. [00:23:52] Speaker 02: court throughout the enforcement case. [00:23:55] Speaker 02: And the arbitration award debtor is the state of Venezuela, not a particular government. [00:24:04] Speaker 02: And in any event, [00:24:07] Speaker 02: The court does not need to reach these questions, since section 1658 does not empower district courts to review exit awards. [00:24:18] Speaker 02: Under the full faith and credit standards, so long as exit would treat the award as binding and thus preclusive, so must the district court. [00:24:29] Speaker 02: There is no question that exit would treat the award here in this way. [00:24:34] Speaker 02: In other words, Section 1650A establishes that exit awards shall have res judicata effect in U.S. [00:24:43] Speaker 02: courts. [00:24:44] Speaker 02: Venezuela's torture reading of the statute eviscerates the provision of its intended effect, since it means that the award effectively has no preclusive effect here in the United States because it cannot be enforced. [00:25:02] Speaker 02: Venezuela's interpretation also conflicts with the ICSI convention and its self-contained review regime. [00:25:10] Speaker 02: U.S. [00:25:10] Speaker 02: statutes must be interpreted consistent with U.S. [00:25:14] Speaker 02: treaty obligations. [00:25:16] Speaker 02: And there is no evidence that Congress meant to empower U.S. [00:25:20] Speaker 02: courts to second-guess the decisions of ICSI tribunals. [00:25:26] Speaker 02: All the cases that have interpreted the scope of section 1658 have held the opposite is true. [00:25:42] Speaker 02: So. [00:25:45] Speaker 02: US courts give full faith and credit to state court judgments by giving them the same preclusive effect that would apply in the states on courts. [00:25:53] Speaker 02: Because the award is final and binding under the exit convention, it must be given the same preclusive effect in U.S. [00:26:00] Speaker 02: courts. [00:26:07] Speaker 02: For those reasons, Your Honor, I will conclude my argument. [00:26:10] Speaker 02: I think I've covered the second issue with the questions that you raised, but I am happy to address any other questions that you may have. [00:26:18] Speaker 01: Thank you very much, Counselor. [00:26:19] Speaker 02: Thank you, Your Honor. [00:26:30] Speaker 01: Mr. Parlin, we'll give you two minutes on rebuttal. [00:26:40] Speaker 03: The point I want to make right out of the gate is that this is not a recasting of the arguments made in the district court. [00:26:47] Speaker 03: Venezuela made the argument about the recognition doctrine in the summary judgment motion in the objections to the R&R. [00:26:54] Speaker 03: That's docket number 31, 14 to 15, docket number 34, 15 to 16. [00:26:59] Speaker 03: But more importantly, the district court itself understood that this was the recognition doctrine and the violation of the recognition doctrine was a distinct basis for refusing to recognize and enforce the award and its analysis at Joint Appendix 847 to 848, subsection C of the district court's decision. [00:27:15] Speaker 03: So this is not some sort of recasting of an argument. [00:27:18] Speaker 03: What happens is that, [00:27:19] Speaker 03: Once you deny the only recognized government the ability to act on behalf of Venezuela in the exit proceedings, you are no longer litigating with Venezuela as a matter of U.S. [00:27:31] Speaker 03: law. [00:27:31] Speaker 03: And when you bring that judgment, that award to the U.S., the U.S. [00:27:35] Speaker 03: courts have to undertake the analysis to make sure that the exit award, if it were a state court judgment, would be enforced. [00:27:42] Speaker 03: And I want to point out [00:27:43] Speaker 03: the Jimenez case, which is a Delaware state court decision where the Maduro regime came in and tried to exercise interests, shareholder interests over property of a national oil, its national oil company in Venezuela. [00:27:56] Speaker 03: And the Delaware court said, you can't do that. [00:27:58] Speaker 03: We cannot allow you to appoint boards of directors because that would violate the executive's recognition of the interim government. [00:28:05] Speaker 01: It's the representation here inadequate in not [00:28:10] Speaker 01: meeting due process. [00:28:11] Speaker 01: Was it inadequate in any way other than under the recognition doctrine? [00:28:15] Speaker 01: I understand you think the recognition doctrine is itself a kind of due process violation. [00:28:20] Speaker 01: But was there any other due process, you know, way in which the representation was inadequate? [00:28:28] Speaker 03: Yes, the party that [00:28:29] Speaker 03: was bound by the award ultimately was not permitted to participate and defend. [00:28:35] Speaker 03: Venezuela was excluded as a matter of US law. [00:28:38] Speaker 03: Venezuela was excluded from those proceedings. [00:28:41] Speaker 03: So you have now an award that purports to bind the state of Venezuela. [00:28:44] Speaker 01: Is there already argument that the two different governments have different interests for the state of Venezuela with respect to this expropriation claim? [00:28:54] Speaker 03: Well, the exit award [00:28:58] Speaker 03: Under international law, which is not what we apply in the United States for the recognition of government, the executive determination, there may be a decision that there is a decision as to whether each contractor would have to make a decision as to whether they're going to give effect to that award in their territories. [00:29:16] Speaker 03: But in the United States, it is the executive who decides who is the effective government of Venezuela, who is Venezuela. [00:29:23] Speaker 03: And the interim government is the only entity that is Venezuelan. [00:29:27] Speaker 01: Your answer is no. [00:29:29] Speaker 03: Yeah, I'm not answering the question. [00:29:31] Speaker 04: It's something that we judges would be interested in. [00:29:34] Speaker 04: Is there some substantive difference that one side as opposed to the other would be looking for? [00:29:41] Speaker 03: Well, the representation of the state. [00:29:45] Speaker 03: I don't know. [00:29:45] Speaker 04: In the result, let's go bottom line. [00:29:49] Speaker 04: Would one side be looking for something different in how [00:29:52] Speaker 04: The arguments were presented on behalf of Venezuela than the other side. [00:29:58] Speaker 04: Is there something that went on that was just patently offensive from your perspective? [00:30:03] Speaker 04: Because I couldn't figure that out reading the record. [00:30:06] Speaker 04: I'm wondering, what do you add that they didn't try? [00:30:09] Speaker 04: We add the representation of the actual party. [00:30:13] Speaker 04: We understand the word representation. [00:30:15] Speaker 04: I'm trying to get you past that. [00:30:17] Speaker 04: as a matter of substance, is there or were there some points, crucial points that were not being made? [00:30:26] Speaker 02: I'm glad that the priests were already submitted. [00:30:29] Speaker 02: The proceedings were almost concluded, so that's what we're trying to get at. [00:30:32] Speaker 03: Right. [00:30:33] Speaker 03: Well, let me answer it this way. [00:30:34] Speaker 03: Substantially, the same situation played out in this court in the Rusoro case. [00:30:40] Speaker 03: In Rusoro, the Maduro regime, when it was recognized by the US government, represented Venezuela throughout the district court proceedings and the briefing before this court. [00:30:49] Speaker 03: Then the US recognized the interim government. [00:30:51] Speaker 03: The interim government came into this court and said, we are the ones who are, we are Venezuela and we want to argue the appeal and this and the, the same people that were battling it out at exit the attorney general of the mature, the purportedly attorney general of Venezuela under the Maduro regime came in and said, no, no, no, we are Venezuela. [00:31:12] Speaker 03: We are going to continue to represent Venezuela here. [00:31:15] Speaker 03: In this court, in the Rousseau decision said, absolutely not. [00:31:19] Speaker 03: That wasn't an arbitration. [00:31:22] Speaker 01: That was like a direct, that was just organic federal court litigation. [00:31:29] Speaker 03: But under the implementing statute, it makes no difference. [00:31:33] Speaker 04: Is your answer to Judge Raul? [00:31:35] Speaker 04: No, there's nothing in particular. [00:31:38] Speaker 04: Other than it was someone different representing [00:31:41] Speaker 04: So we'll know, Your Honor. [00:31:43] Speaker 04: That's okay. [00:31:43] Speaker 04: If that's your answer, we'll take it under advisement. [00:31:46] Speaker 04: We know all the rest of your arguments, but it, you know, be straight with us. [00:31:49] Speaker 04: If that's it, you can't think of anything, then that's it. [00:31:52] Speaker 03: No, Your Honor, in the counterfactual scenario that you explained, there may have been different things that the interim government could have argued. [00:31:59] Speaker 03: In our district court briefing, we spelled it out. [00:32:01] Speaker 03: I'm happy to get that specific site to you. [00:32:04] Speaker 03: But in the briefing, I believe it's the reply, docket number 31, we explained that there are arguments that the Maduro regime could not advance in the exit proceedings because impaired delicto would have prevented them from being able to make those arguments. [00:32:17] Speaker 03: effectively. [00:32:18] Speaker 03: So there are things that the interim government, which could have argued at that stage that in this counterfactual world that we can't know about because the interim government was not allowed to participate, could have made a difference. [00:32:33] Speaker 03: So that, however, is ultimately immaterial for the fact that [00:32:38] Speaker 03: this government's endorsement of the Maduro regime by giving full faith and credit and enforcing the exit award would be in defiance of the recognition by the executive branch that only the interim government is the government of Venezuela, and that this court cannot do under the implementing statute. [00:32:57] Speaker 01: Thank you. [00:32:58] Speaker 01: Thank you. [00:32:59] Speaker 01: Thank you.