[00:00:00] Speaker 01:
Case number 23-7160, ANRGSA, a balance versus Republic of Angola adult.

[00:00:08] Speaker 01:
Mr. Levy for the balance, Mr. Aronstein for the ambulance.

[00:00:13] Speaker 01:
Mr. Levy, wait for the courtroom speakers.

[00:00:22] Speaker 01:
All right, good morning.

[00:00:23] Speaker 04:
I believe I can go higher.

[00:00:27] Speaker 04:
May it please the court, Vincent Levy, for the plaintiff energy essay.

[00:00:32] Speaker 04:
This case concerns a was brought in the District of Columbia District Court and seeks repayment of a debt.

[00:00:42] Speaker 04:
The plaintiff had energy contracts with the Republic of Angola and state instrumentalities.

[00:00:49] Speaker 04:
Contracts were terminated and at that time, the plaintiff had performed substantially more work than it was ever paid for.

[00:00:55] Speaker 04:
By this action, the plaintiff seeks repayment of those amounts.

[00:00:59] Speaker 04:
The district court found that it had jurisdiction over the case under the direct effects clause of the commercial activity exception to the FSIA.

[00:01:09] Speaker 04:
It also found that jurisdiction in Angola would be lacking because of a jurisdictional time bar that had now elapsed in Angola.

[00:01:17] Speaker 04:
The court nonetheless dismissed the case on the basis of foreign non-convenience in favor of Angolan Court, principally relying on a decision by the New York federal courts concerning a broader case in which the plaintiff had sought damages and other remedies for the termination of the contracts.

[00:01:38] Speaker 04:
We think in view of the finding that there was jurisdiction here

[00:01:43] Speaker 04:
and no jurisdiction in Angola, that the court's reliance on the New York rulings and its fresh analysis of the four nonconvenience factors was legally erroneous.

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And the court also erred in its FNC analysis in failing to hold the defendants to their burden of proof on each of the factors.

[00:02:04] Speaker 02:
You say there was jurisdiction here and no jurisdiction in Angola, meaning I missed that ladder.

[00:02:10] Speaker 04:
Right.

[00:02:10] Speaker 04:
So below, in our complaint, we allege that our claim was jurisdictionally time barred because there's a 180 day, 180 business day period to bring a claim for damages in Angola.

[00:02:24] Speaker 02:
That is- The district court didn't hold that it was time barred.

[00:02:27] Speaker 04:
The district court credited our assertion that it was time barred.

[00:02:33] Speaker 02:
Assumed without deciding.

[00:02:36] Speaker 04:
Well, so the second circuit assumed it.

[00:02:39] Speaker 04:
The district court here used the word credited, whether that means assumed or found.

[00:02:44] Speaker 04:
Either way, that's at page 127.

[00:02:49] Speaker 04:
We had made the allegation in the complaint that it was time barred.

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That's at paragraph 59 of our complaint.

[00:02:57] Speaker 04:
We substantiated that with legal authority and a declaration.

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The Angolan defendants did not dispute the point in their opening papers.

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They submitted a declaration on reply that we moved to strike as untimely, in which the district court declined to consider.

[00:03:15] Speaker 04:
And in its decision, the court said at A127 that it was crediting the assertion that the claim was subject to a non-wavable time bar in Angola, a mandatory one.

[00:03:30] Speaker 02:
Why didn't energy include the claims, other claims that it brought in SDNY in the case here?

[00:03:40] Speaker 04:
We thought that would be precluded under the Doctrine of Issue Proclusion.

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We thought consistent with cases, well, upon refiling a case that was previously dismissed for FNC,

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the doctrine of issue preclusion, not claim preclusion applies.

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And we thought that if we filed obviously the same claim, that would be the issue of forum not would have been decided.

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And the motion, the prior disposition would have been issue preclusive.

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But cases such as

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I think all the cases we cite, such as the J.C.

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Renfro case, the conflict kinetics case out of the Fourth Circuit, Wright and Miller all say that if there are material distinctions between the forum non-convenience issue

[00:04:28] Speaker 04:
in case two and in case one, then the prior ruling is not issue preclusive.

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I think that standard is common ground.

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And by narrowing our case, which is what the plaintiff did in JC Renfro, we felt that we addressed the concerns of the New York courts.

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And we also felt constrained to file it here, because as the district court found, there is jurisdiction.

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And we could not bring a case for any remedy for the unpaid work claims and then go in court.

[00:05:04] Speaker 02:
So the claims in the Southern District of New York, there were eight claims.

[00:05:09] Speaker 02:
And those were all arising out of the same transaction or occurrence in the sense of there was some activity by your client.

[00:05:20] Speaker 02:
It was not remunerated.

[00:05:22] Speaker 04:
I think that's right.

[00:05:24] Speaker 02:
And so now, when

[00:05:27] Speaker 02:
Energy brings only, as a formal matter, the contract claim.

[00:05:32] Speaker 02:
Isn't the preclusion analysis the same?

[00:05:35] Speaker 02:
Because the question for preclusion purposes is, I mean, the question for forum nonconvenience is, can the subject matter of the case that is filed here, whether in New York or in DC, be brought

[00:05:55] Speaker 02:
in Angola.

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And the transaction or occurrence at issue in New York and the transaction or occurrence at issue here are the same, even though only one legal theory is advanced here.

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And so the question then becomes, can that wrong that your client allegedly suffered find a process that will address its subject matter in Angola?

[00:06:25] Speaker 04:
I think that this court in several decisions, including DeMarion, made clear that in the situation where if a plaintiff would prevail on its claims here and obtain a relief, any relief, in that situation, but if in the other form, were it to prevail and establish the same facts, it would obtain no relief, then there is no basis for subject matter, for a form not convened

[00:06:55] Speaker 04:
dismissal.

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The court, and this is at page, it's 315F, 390.

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Court said, this is a quote, we fail to see how an alternative form in which the plaintiff can recover nothing for a valid claim may also be deemed adequate.

[00:07:11] Speaker 04:
It would be peculiar indeed

[00:07:13] Speaker 04:
to dismiss the plaintiff's claim in the United States District Court, a form in which, assuming the court has jurisdiction, she is certain to be awarded full relief if she wins on the merits of her claim in favor of a form in which she has no certainty of getting any relief for a meritorious claim.

[00:07:32] Speaker 04:
The subject matter of this case

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The one we filed in the District of Columbia District Court is about whether A Energy was fully paid for the work it performed.

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That was a very small subset of the matters at issue in New York.

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The SDNY and the Second Circuit made clear in their decision that the case was about whether the determination was proper

[00:07:57] Speaker 04:
and whether it had been wrongfully procured through fraud by General Electric through torts.

[00:08:03] Speaker 04:
Those were the issues that the Second Circuit and the New York and the federal court and the SDNY focused on.

[00:08:10] Speaker 00:
How does it factor in about claims you could have brought in any one of the jurisdictions?

[00:08:17] Speaker 00:
Because some of the discussion essentially criticizes strategy and forum shopping, et cetera.

[00:08:27] Speaker 00:
in that you all are not pursuing the same actions or claims that could have been brought in the first instance in Angola.

[00:08:36] Speaker 00:
We are now just coming to this hearing left with this one page order or actually an excerpt from the order that is 222 pages and in Portuguese.

[00:08:51] Speaker 00:
And so we don't have a way of knowing what actually happened without this translation

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And that particular translation and order was also not before the district court.

[00:09:02] Speaker 00:
So two questions there.

[00:09:03] Speaker 00:
One is about the what you could have brought.

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You know, in terms of you bringing different things in different forms, but what you could have brought in Angola.

[00:09:12] Speaker 00:
And then secondly, how do you feel like we are able to proceed here now that we do have something from the Angola Court?

[00:09:19] Speaker 04:
So a couple of responses.

[00:09:23] Speaker 04:
One, there are decisions from this court and the Supreme Court that make clear

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that form non-convenience is an opposite if there's no other form.

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And it follows also that the reason why the other form is unavailable is not relevant.

[00:09:38] Speaker 04:
And Norax makes that clear.

[00:09:40] Speaker 00:
OK.

[00:09:40] Speaker 00:
And that could be two things.

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One is not available because the remedy is not available.

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Or it could be not available in this instance that they've already ruled.

[00:09:53] Speaker 00:
And so the case is over.

[00:09:54] Speaker 00:
So you can't go back and reopen the file, if you will.

[00:09:58] Speaker 04:
That's right.

[00:09:58] Speaker 00:
So help me along those lines.

[00:10:00] Speaker 04:
And I think that was the situation in Norax where

[00:10:03] Speaker 04:
If I remember correctly, there was a prior decision, I believe in Russia, the Second Circuit case, and the court said if the prior disposition has a bearing on the case, on the new case, it would be potentially as a matter of issue preclusion or some other claim preclusion defense on the merits, but not as a threshold abstention type dismissal.

[00:10:25] Speaker 04:
So that's one point.

[00:10:27] Speaker 04:
I will go into, I think Judge Childs, you mentioned, of course, this new development that, apologies for not providing the full translation, I obtained a copy last week.

[00:10:39] Speaker 04:
Needless to say, 200 pages is long to translate in one week.

[00:10:43] Speaker 04:
The point, though, is now that the case is over, that case in Angola, the basis for the district court's disposition

[00:10:52] Speaker 04:
can no longer stand because the entire adequacy ruling rested on the fact that a case could be brought in Angola, namely one that was proceeding.

[00:11:03] Speaker 04:
And so, for example, at A125, the court notes that the Second Circuit hinged its ruling on the reinstatement.

[00:11:13] Speaker 04:
That's at A125.

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And the court did so again at A127.

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And with that case now over, our view is

[00:11:20] Speaker 04:
Because of the unavailability for jurisdictional reasons of any claim in Angola, reversal is in order because there is no forum in Angola.

[00:11:31] Speaker 04:
where this claim could proceed, or any claim for relief for unpaid work.

[00:11:36] Speaker 04:
But at a minimum, there ought to be a vacator and remand because of the development.

[00:11:41] Speaker 04:
And if the court isn't prepared to reverse, and it should because the issue of adequacy will just come right back up, at a minimum, it should vacate for consideration of the effect of this new development.

[00:11:55] Speaker 02:
So the claim in New York was a claim for unpaid work.

[00:11:59] Speaker 04:
There was a breach of contract claim which alleged a breach of contract.

[00:12:04] Speaker 04:
There were multiple paragraphs in the cause of action.

[00:12:07] Speaker 02:
The way the court understood it and you pleaded in New York as the claim for unpaid work, no?

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

[00:12:13] Speaker 04:
The primary remedy that we were seeking was for lost profits on account of future work that wasn't performed.

[00:12:19] Speaker 04:
We had, I believe, three or four lines in the cause of action for breach of contract that also said we also

[00:12:27] Speaker 04:
that we weren't paid for.

[00:12:30] Speaker 04:
But the primary remedy that we sought in terms of damages was for lost profits for the taking of property by Angola, namely turbines, that were worth $100 million.

[00:12:45] Speaker 04:
So I think we estimated the damages in the prior case at $500 million or so.

[00:12:50] Speaker 04:
I believe the unpaid work is in excess of $100 million.

[00:12:53] Speaker 04:
So most of the damage

[00:12:55] Speaker 04:
Damages were for lost profits, as far as I can remember.

[00:12:59] Speaker 04:
And that's certainly what the court analyzed.

[00:13:01] Speaker 04:
And the Second Circuit, as the district court here said, the adequacy ruling hinged on the fact that a reinstatement remedy was being sought.

[00:13:10] Speaker 04:
That is a remedy for termination of a contract, not for work that was done and not paid for.

[00:13:18] Speaker 04:
The termination order itself said that it was without prejudice to the settlement of account, meaning that whether the termination was valid or not, there would be a settlement of account.

[00:13:30] Speaker 04:
In the first instance, our client, my client, sought to exercise its remedies under Angolan administrative law, similar to the fur case the court just heard, to have that order reversed.

[00:13:41] Speaker 04:
That's a process, a streamlined process, to have an administrative law claim heard.

[00:13:46] Speaker 04:
Typically, when this court hears administrative law claims, it doesn't get damages actions at the same time for lost profits.

[00:13:53] Speaker 04:
That's the same in my understanding in Angolan court.

[00:13:56] Speaker 04:
And so it first sought reinstatement.

[00:13:59] Speaker 04:
And when that failed, my client filed a case in the United States in the SDNY against GE against Angola for lost profits seeking damages for the termination of the contracts as well as the unpaid work.

[00:14:13] Speaker 04:
That was dismissed and we just as if a case is dismissed on a threshold issue like, for example, for lack of diversity.

[00:14:21] Speaker 04:
And because the party's not diverse, you drop a party and make it diverse.

[00:14:24] Speaker 04:
We refiled the case and included only the claim that was not addressed expressly in the prior loss, in the prior disposition.

[00:14:34] Speaker 02:
Was the basis of Energy's claim for unjust enrichment in the Southern District of New York

[00:14:43] Speaker 02:
impact the fact that Angola benefited from and didn't pay for prior work.

[00:14:54] Speaker 04:
off the top of my head, I don't remember.

[00:14:57] Speaker 04:
What I will say is, again, what was briefed, what was argued, what was decided, was all about termination.

[00:15:04] Speaker 04:
I think the defendants, the appellees here, acknowledge that the issue of the unpaid work was not separately addressed in either the briefing or the decision of the Second Circuit.

[00:15:21] Speaker 02:
I'm just looking at the Southern District of New York Plaint.

[00:15:26] Speaker 02:
which alleges that paragraph 242, through the conduct set forth herein, the Angola defendants gained goods and services from plaintiff, empowered generation output and services without providing compensation to plaintiff for said output and services.

[00:15:43] Speaker 02:
So it seems like this is about the, it encompasses this question that is the focus of the case here.

[00:15:55] Speaker 01:
I believe similar to the contract claim.

[00:16:06] Speaker 04:
it would be probably encompassed in the unjust enrichment claim as a mode of relief.

[00:16:12] Speaker 04:
The focus of it, though, again, was the termination and a taking of these turbines that was discussed in the prior case, where we allege that there was a fabrication of documents by a former executive of General Electric, who has been since indicted and is standing trial in the SDNY in November.

[00:16:32] Speaker 04:
that there was a fabrication of documents and that this was used to take turbines.

[00:16:38] Speaker 04:
That was the focus.

[00:16:39] Speaker 04:
I think similar to the Beecher contract claim, a subset of that claim potentially encompassed the unpaid works that we're seeking here.

[00:16:48] Speaker 04:
Again, in terms of what was actually decided and what was briefed in terms of the foreign non-convenience analysis in New York, in the Second Circuit, the focus was on

[00:17:01] Speaker 04:
the termination and the taking of property and the justifications that were made for it.

[00:17:08] Speaker 04:
This is an entirely, again, entirely different case, this case, that seeks a payment for work performed.

[00:17:15] Speaker 04:
We know the amount of money that my client received that's in documents, $644 million.

[00:17:21] Speaker 04:
And the question is whether it received more or less than that amount.

[00:17:26] Speaker 04:
We claim that Angola received more than 644 million.

[00:17:30] Speaker 04:
And that claim could not have been raised in the Angolan Supreme Court, was not raised in the Angolan Supreme Court.

[00:17:35] Speaker 04:
And of course, the Angolan Supreme Court has now ruled.

[00:17:38] Speaker 04:
So there's no pending claim in Angola.

[00:17:41] Speaker 04:
And the court below, again, credited

[00:17:48] Speaker 04:
that the claim was time barred in Angola and that no relief could be sought.

[00:17:53] Speaker 04:
And the district court below acknowledged that the ruling of the Second Circuit hinged on that.

[00:18:04] Speaker 04:
The court said at page 8125,

[00:18:07] Speaker 04:
The Second Circuit relied on A Energy's pursuit of equitable remedies in finding that in colon courts could address the essential subject matter of the dispute.

[00:18:18] Speaker 04:
Equitable remedies reinstating the contracts, and that's what the district court is referring to, citing the Second Circuit, do not address at all whether the subject matter of the dispute here, which was their unpaid work that was not compensated,

[00:18:37] Speaker 04:
And a positive remedy, a positive resolution of the factual disputes will not provide any remedy, just as in the Marion.

[00:18:46] Speaker 02:
So if you were to have to go to Angolan court, like putting aside this case and under the Second Circuit's forum non-convenience,

[00:19:01] Speaker 02:
holding, is it your position that energy could get monetary compensation if it were to win an unjust enrichment claim?

[00:19:11] Speaker 02:
Could it get monetary compensation for the unpaid work?

[00:19:15] Speaker 04:
No, I think at this point, the 180-day time bar lapsed.

[00:19:20] Speaker 04:
It's 180 business days, so it lapsed.

[00:19:24] Speaker 02:
That's for the contract claim, but I'm asking about

[00:19:28] Speaker 02:
unjust enrichment claim.

[00:19:30] Speaker 04:
Right.

[00:19:30] Speaker 04:
The only, as far as I know, and this issue was not addressed below, and the way it was briefed in the Second Circuit, we argued that the only procedural vehicle to obtain any remedy in a contract dispute is under this provision of the law, this procedural vehicle that provides a 180-day period.

[00:19:50] Speaker 04:
And so our view is there is no viable path for any remedy under any theory

[00:19:57] Speaker 04:
for the unpaid work in Angola.

[00:19:59] Speaker 04:
And I think the district court below proceeded on that basis.

[00:20:07] Speaker 02:
That's not how I read the district court proceeding.

[00:20:09] Speaker 02:
I thought it was talking about that it was assuming that the contract claim per se was subject to that.

[00:20:17] Speaker 02:
I thought that was what you argued.

[00:20:18] Speaker 04:
Well, I think at page 8125, and again, 8127, the court relies on the administrative appeals that were filed challenging determination.

[00:20:35] Speaker 04:
And 8125 is the issue of preclusion point, and 8127 is the fresh look.

[00:20:39] Speaker 04:
In both of those points, the court relies on the administrative appeals that challenge determination.

[00:20:53] Speaker 04:
And that's the basis that the court invokes.

[00:20:58] Speaker 04:
The court says, energy submits this claim as barred by a non-waivable limitations period.

[00:21:02] Speaker 04:
That's at A127.

[00:21:04] Speaker 04:
The court credits this allegation.

[00:21:06] Speaker 04:
Even so, it does not follow that ENGOLA is an inadequate forum.

[00:21:10] Speaker 04:
Then there's law about providing the plaintiff some remedy.

[00:21:13] Speaker 04:
And it says, the court joins the well-reasoned decisions in New York and goal in court to provide A&RG with a remedy for its contract disputes.

[00:21:24] Speaker 04:
A&RG filed administrative appeals challenging a goal of termination.

[00:21:29] Speaker 04:
And then it goes on to say that we sought reinstatement, which is all true, but it doesn't get to this point, which is,

[00:21:37] Speaker 04:
that a remedy of reinstatement for termination, which, by the way, has now been denied, so it's not available now to the extent it ever was, does not address the dispute we have here, which is for unpaid work, and does not even concern the same subject matter of the dispute.

[00:21:56] Speaker 04:
It's just an entirely different matter whether the administrative agencies, the president of Angola abided by the law in its ruling.

[00:22:05] Speaker 04:
And I think we set forth, we have our petition, which is what the Angolan court relied on.

[00:22:09] Speaker 04:
The court has a translation of that.

[00:22:12] Speaker 04:
That's an entirely different matter as to whether, in a civil suit,

[00:22:16] Speaker 04:
the plaintiff can prove that beyond the $644 million that it received, there's work that's worth more than that.

[00:22:24] Speaker 04:
Those are entirely different matters.

[00:22:26] Speaker 04:
And Angola has not argued otherwise.

[00:22:30] Speaker 04:
Angola has said that the petition in Angolan Supreme Court does include a request for compensation.

[00:22:37] Speaker 04:
As we say in our brief, that's contrary to the position that its lawyers set below under oath.

[00:22:43] Speaker 04:
Angola said that the limitation period does not apply.

[00:22:47] Speaker 04:
Of course, that would be affirming on a different ground because the court below credited that it did apply, that it was non-waivable.

[00:22:56] Speaker 04:
And Angola doesn't substantiate that argument other than pointing to a reply affirmation that the court below disregarded.

[00:23:08] Speaker 04:
So there's really no support for the reasoning of the district court.

[00:23:12] Speaker 04:
And Angola also comes up with this new argument for the first time on appeal that we self-sabotaged our own case because Judge Cronin in New York proposed to conditionally dismiss the case on a waiver by Angola of limitation period.

[00:23:30] Speaker 04:
Given that the court, well, that argument was not made below, so it's improperly raised, but the court would also, this court, if it were to affirm on that ground, would have to reverse, or would have to not adopt the reasoning of the court below, because the court below said that the limitation period was non-waivable.

[00:23:49] Speaker 04:
So a waiver by Angola of a limitation that is non-waivable, it wouldn't have solved anything, and there's no so-called self-sabotage.

[00:23:59] Speaker 02:
Mr. Levy, can you just fill us in a little bit on the role of the exit arbitration?

[00:24:04] Speaker 02:
Ricardo Machado, the owner of your client's owner, has filed a claim against Angola and an exit under the Portuguese Angolan 3D.

[00:24:19] Speaker 02:
What's the status of that?

[00:24:20] Speaker 02:
What's the conduct that's at issue there?

[00:24:23] Speaker 04:
My understanding is that that case concerns the taking of turbines, so there isn't overlap, as far as I'm aware.

[00:24:30] Speaker 04:
In terms of the status, I believe that the two parties have selected arbitrators, and the two arbitrators are in the process of selecting a chair.

[00:24:43] Speaker 04:
And I understand that Angola

[00:24:46] Speaker 04:
in that case is disputing that the treaty applies and that there's jurisdiction under exit.

[00:24:51] Speaker 04:
At least that's what Angola has said in the letters I've seen in which Mr. Machado, who is the shareholder, makes a claim for compensation under the exit treaty.

[00:25:02] Speaker 02:
Although they have nominated an arbitrator.

[00:25:05] Speaker 04:
They have, and they have nominated an arbitrator, and I think the arbitrator would decide the jurisdiction question.

[00:25:10] Speaker 02:
I was so surprised when I first started reading the papers in this case to see that there was an arbitration clause, but that nobody had sought arbitration.

[00:25:18] Speaker 02:
Can you just put that into context for us?

[00:25:21] Speaker 04:
Right.

[00:25:21] Speaker 04:
So we did not seek arbitration.

[00:25:23] Speaker 04:
First of all, there are 13 different arbitration clauses in 13 different contracts going in a number of different directions.

[00:25:33] Speaker 04:
The defendants below and in New York asked for arbitration in the alternative.

[00:25:38] Speaker 04:
We oppose that on the basis that, of numerous reasons, the district court below did not reach the question.

[00:25:47] Speaker 04:
Some of the arbitration clauses point to Portugal.

[00:25:50] Speaker 04:
Others point to Angola.

[00:25:53] Speaker 04:
But even the ones that point to Angola also provides an alternative that the

[00:25:59] Speaker 04:
arbitration could provide elsewhere under certain rules.

[00:26:04] Speaker 04:
I believe that we proposed to resolve this forum fight with my friends in Angola by proposing an arbitration in London, which is a neutral forum where Angola had agreed to arbitrate certain disputes under the credit facility, and that offer was rejected.

[00:26:24] Speaker 02:
This is going ahead where?

[00:26:28] Speaker 04:
I actually don't know where it's going ahead.

[00:26:31] Speaker 04:
The exit arbitration.

[00:26:32] Speaker 04:
I apologize.

[00:26:33] Speaker 04:
I'm not a counsel of record in that proceeding.

[00:26:37] Speaker 04:
I do know that Mr. Machado and other former employees of A Energy do not wish to travel to Angola for fear of their personal safety.

[00:26:47] Speaker 04:
And that would be for court or arbitration proceedings.

[00:26:50] Speaker 04:
There were submissions to that effect below which were credited.

[00:26:55] Speaker 02:
As to the recent Angolan Supreme Court decision, you're not arguing that the fact that you lost has any bearing at all on the analysis in this case?

[00:27:05] Speaker 04:
Well, I think that the fact that that has now been disposed

[00:27:12] Speaker 04:
is an alternative basis for this court to vacate.

[00:27:15] Speaker 04:
And because, again, the analysis of the district court on adequacy, and that's page 8127 and 8125, hinged on the availability of and the proceedings that were going on in Angola at the time of that decision.

[00:27:34] Speaker 04:
Now that those have concluded,

[00:27:37] Speaker 04:
There's no, those do not provide a basis for a forum non-convenience dismissal.

[00:27:43] Speaker 04:
I think Norax makes the point, as I mentioned in response to a question by Judge Childs, that potentially a disposition by a foreign court may be issue preclusive and could give rise to an issue preclusion defense on the merits.

[00:27:59] Speaker 04:
But it would not provide a basis to abstain in favor of another forum.

[00:28:03] Speaker 04:
And similarly, it would not provide a basis for forum non-convenience.

[00:28:07] Speaker 04:
And given that the reasoning of the court here relied on that decision, sorry, relied on the pendency of the Angolan proceeding as a basis to find Angolan court adequate, now that those proceedings are over, the reasoning itself, which is what the court would review.

[00:28:24] Speaker 02:
I'm not seeing.

[00:28:28] Speaker 02:
I may be misremembering a lot of different decisions in this case, but I thought what the court relied on was that you chose to go to the Angolan court for at least part of your disputes.

[00:28:42] Speaker 02:
with Angola but your position is that that's a separatist view and so I'm just not sure that a merits loss what what light it shows just to go there you don't prevail what like does that show on.

[00:28:58] Speaker 02:
either the inclusion issue or the fresh for non convenience analysis that we're being asked to make.

[00:29:03] Speaker 04:
Well, I think our first argument is because putting aside is that in a way that was this was all irrelevant because the proceeding didn't consider concern.

[00:29:13] Speaker 04:
The termination proceeds below so the court should reverse if that's arguments rejected of course where the other arguments we make are rejected.

[00:29:20] Speaker 04:
Our view based on this recent development is that the decision below should be vacated to consider the effect of this decision because there are of course a number of issues were.

[00:29:30] Speaker 04:
tendered for disposition below.

[00:29:33] Speaker 04:
But the adequacy ruling, in part, and that's again, A125, which is the adequacy ruling on the issue preclusion, under issue preclusion, that hinged on the pendency of the reinstatement case.

[00:29:47] Speaker 04:
So in the middle of A125, this is in the context of the issue preclusion discussion, it says the Second Circuit did not consider, it said

[00:29:59] Speaker 04:
it was sufficient for the Second Circuit that A energy was before the Englund Supreme Court seeking reinstatement of the utility contracts.

[00:30:07] Speaker 04:
That's no longer true.

[00:30:09] Speaker 04:
And so that was a key factor for the district court to hold on issue preclusion that Englund Court was adequate.

[00:30:18] Speaker 04:
And then on a fresh look, which starts at A 126, the court comes back to it on A 127.

[00:30:26] Speaker 04:
And that's the passage I pointed the court to earlier.

[00:30:29] Speaker 04:
which references the pending administrative appeals challenging the termination.

[00:30:35] Speaker 04:
And those are ongoing.

[00:30:36] Speaker 04:
And so given that the court, this court, reviews a form of nonconvenience for abusive discretion, if the factual predicate for the decision no longer obtains, I think the proper remedy could be, would be, a vacate or a remand.

[00:30:52] Speaker 04:
But again, given that there's a legal error here in terms of

[00:30:57] Speaker 04:
Inadequacy of the ongoing form, given the non waivable time limitation, we think the court should just reverse as a matter of law, just as in the Marion, which happened there, where there was no remedy abroad for the claim brought here.

[00:31:11] Speaker 04:
There can be no dismissal on foreign non convenience.

[00:31:16] Speaker 04:
The Marion says that the Supreme Court in Gilbert, which sets forth the original standard for forum non-convenience, makes clear that forum non-convenience is about providing a basis for deciding between two forums.

[00:31:31] Speaker 04:
And obviously, when there's only one forum, the doctrine has no application.

[00:31:36] Speaker 04:
It's a venue provision.

[00:31:38] Speaker 04:
It's not a merits-based analysis.

[00:31:45] Speaker 01:
All right, we'll give you a couple minutes in reply.

[00:31:47] Speaker 01:
Let's hear from Mr. Aronstein.

[00:31:54] Speaker 01:
Thank you.

[00:32:06] Speaker 01:
Good morning.

[00:32:06] Speaker 03:
Good morning.

[00:32:07] Speaker 03:
May it please the court.

[00:32:09] Speaker 03:
Mike Aronstein on behalf of the Angolan defendants.

[00:32:13] Speaker 03:
The sole issue really presented

[00:32:16] Speaker 03:
by this family of cases is whether or not the district court in this district or in New York or anywhere in the United States for that matter is the appropriate forum in which to adjudicate this uniquely Angolan dispute.

[00:32:34] Speaker 03:
We have an Angolan plaintiff, we have Angolan defendants, litigating over Angolan contracts, negotiated, executed, performed, terminated, all in Angola.

[00:32:47] Speaker 03:
under Angolan law and all using the Angolan national language of Portuguese.

[00:32:55] Speaker 03:
The answer to the question presented was no in New York in the district court.

[00:33:02] Speaker 03:
It was no in the Second Circuit.

[00:33:06] Speaker 03:
And we submit it should remain no here today.

[00:33:12] Speaker 03:
Now in the district court, in this case,

[00:33:17] Speaker 03:
The plaintiff filed suit, a energy filed suit, saying, I'm owed money because I have not been paid for work that I've performed and services that I've delivered.

[00:33:31] Speaker 03:
And the plaintiff claims, the appellant claims, that that is much different than what had previously been argued in the Southern District of New York and in the Second Circuit.

[00:33:45] Speaker 03:
We respectfully submit that the appellant is wrong.

[00:33:51] Speaker 03:
The case in New York specifically included, although it included other claims and other parties, it absolutely included specific allegations that the appellant had performed work for which it had not been paid and that it had lost

[00:34:14] Speaker 03:
millions and millions of dollars as a result.

[00:34:19] Speaker 03:
Judge Cronin considered that argument and the Second Circuit considered that argument.

[00:34:27] Speaker 03:
And by the way, they considered that argument in the context that is being raised again today and which was raised again before Judge McFadden saying, but we don't have a remedy.

[00:34:40] Speaker 03:
We don't have a remedy because we're time barred in Angola.

[00:34:45] Speaker 03:
Now, we don't agree with that.

[00:34:46] Speaker 03:
And the record shows our experts contend that it's really a 20 year statute of limitations and not 180 day statute of limitations.

[00:34:56] Speaker 03:
But even if you credit

[00:35:01] Speaker 03:
The argument that there is a statute of limitations which bars prosecution of this claim for damages in Angola, that is not the same thing as saying there's absolutely no remedy available, at least for form non-purposes and for purposes of collateral estoppel.

[00:35:22] Speaker 03:
The court specifically

[00:35:24] Speaker 03:
noted that there was a remedy available and that it doesn't have to be the same remedy.

[00:35:30] Speaker 03:
You don't have to have the identical type of claim available, the identical type of damages available.

[00:35:38] Speaker 03:
There was a remedy available and it was being pursued at that time.

[00:35:43] Speaker 02:
Is there any precedent that an alternative forum is adequate when the plaintiff brings a claim for money

[00:35:53] Speaker 02:
for damages and the alternative forum offers only non-monetary equitable relief?

[00:36:03] Speaker 03:
I don't want to misspeak, Your Honor, and say that I know that there is a case that says exactly that if I'm not positive.

[00:36:11] Speaker 03:
But what I can tell you for sure is that the Second Circuit considered it and specifically held that the availability of a remedy

[00:36:22] Speaker 03:
in Angola was sufficient.

[00:36:24] Speaker 03:
And that is because the Angolan case was dealing with exactly the same essential factors that were in dispute.

[00:36:38] Speaker 03:
Which gets us back to Judge Child's question about what, if anything, is really the impact of the recent decision by the Angolan Supreme Court.

[00:36:53] Speaker 03:
That is not of record.

[00:36:55] Speaker 03:
It is not completely translated, and we have one page of a 223 page ruling.

[00:37:03] Speaker 03:
What I have been informed is that that ruling expressly says that although the terminations were proper, the terminations of all of these contracts and rescissions were proper,

[00:37:17] Speaker 03:
and affirmed.

[00:37:19] Speaker 03:
There is a pathway for the for a energy to pursue a claim for damages if it files a separate lawsuit in Angola.

[00:37:31] Speaker 03:
It certainly doesn't say pursue those claims here in the United States.

[00:37:35] Speaker 03:
What we would request and I know it's percept procedurally unusual.

[00:37:42] Speaker 03:
We would like an opportunity to see a translated version of this

[00:37:46] Speaker 03:
Supreme Court ruling, and we would like a few days to highlight for the court the paragraphs which specifically say, yes, you have this claim to go and proceed in Angola for your damages.

[00:38:01] Speaker 00:
And then I'd be curious as to whether or not the claims with respect to damages were ever brought up, you know, like contractual damages or equitable damages in Angola, because just listening to what you just cited to us about being informed that although the terminations were proper, there is a pathway for energy to pursue the damages.

[00:38:29] Speaker 00:
It makes me believe that there was some discussion on the record, at least.

[00:38:34] Speaker 00:
There was.

[00:38:35] Speaker 03:
OK.

[00:38:35] Speaker 03:
If I'm sorry to interrupt.

[00:38:37] Speaker 00:
No, that's what I'm getting at.

[00:38:38] Speaker 03:
Yes, there was, Your Honor.

[00:38:40] Speaker 03:
In fact, in the complaint in the Supreme Court, which is part of the record.

[00:38:45] Speaker 00:
We're talking about the Angola Supreme Court.

[00:38:47] Speaker 00:
Yes, ma'am.

[00:38:47] Speaker 00:
OK, I just want to make sure we're in the right court.

[00:38:49] Speaker 03:
Yes.

[00:38:51] Speaker 03:
In the complaint in the Angolan Supreme Court, which is also a very large document,

[00:38:59] Speaker 03:
There are paragraphs within that complaint in which A Energy specifically alleges, by the way, these terminations have harmed me.

[00:39:12] Speaker 03:
By the way, these terminations have resulted in me, in A Energy, not getting paid for the services it has provided.

[00:39:20] Speaker 03:
And A Energy specifically alleged, we reserve the right to be able to pursue that at a later point in time.

[00:39:28] Speaker 03:
That's in the complaint.

[00:39:31] Speaker 03:
My understanding of the recent ruling is that the Supreme Court of Angola acknowledged that and said, although these terminations are correct, if there has to be an adjustment of the accounts between the parties, because by the way, I think Angola claims that it's due money back from A Energy, that that has to take place in court in Angola in a separate lawsuit.

[00:40:01] Speaker 03:
So to get back to the issue presented, because it is the same case, the same transaction or occurrence as Judge Pillard had been asking about, the same issues, the issue of foreign nonconvenience that was decided by the Southern District of New York and affirmed by the Second Circuit,

[00:40:30] Speaker 03:
does collaterally stop the renewed prosecution of that claim here.

[00:40:36] Speaker 02:
Does the public interest analysis, is it affected?

[00:40:42] Speaker 02:
You say that the balancing of public and private interest is the same in this case as in New York, even though the contract claim before us doesn't allege

[00:40:53] Speaker 02:
a wrongful termination of the contract.

[00:40:56] Speaker 02:
It's really looking at what happened before termination.

[00:40:59] Speaker 02:
And you say, well, the defendants will rest on their justification for terminating the contracts.

[00:41:05] Speaker 02:
And that's the same evidence.

[00:41:07] Speaker 02:
But I don't see how a valid termination would relieve Angola of any obligation it may have to pay energy

[00:41:21] Speaker 02:
for energy, for work that it already had.

[00:41:25] Speaker 03:
I think we agree.

[00:41:27] Speaker 03:
Angola's position or Angolan defendant's position is and has always been, since the date of the termination,

[00:41:38] Speaker 03:
If there's an adjustment of the accounts between the parties that needs to take place, it must take place.

[00:41:44] Speaker 03:
That was in the president's decree, and it was affirmed now by the Supreme Court of Angola saying that that has to take place.

[00:41:53] Speaker 03:
Whether Angola owes money back to a energy for its services and goods that were not paid for, or whether a energy owes money back to Angola for

[00:42:07] Speaker 03:
overcharging for services and goods that Angola never received, that's an issue that has to be adjusted.

[00:42:13] Speaker 03:
But for purposes of the Supreme Court decision in Angola, it said the termination was proper.

[00:42:21] Speaker 02:
But you don't think that that difference, that the relative narrowness of the case before us changes the public and private interest balancing

[00:42:37] Speaker 02:
If any, I'm sorry.

[00:42:39] Speaker 02:
That was done in the New York case such that we can't say it's the same issue here were we to be analyzing this under preclusion.

[00:42:51] Speaker 03:
If you look at it under preclusion, I think it has, there's no objective facts that are materially different in terms of the private and public interest.

[00:43:02] Speaker 03:
If you take a fresh look at it,

[00:43:06] Speaker 03:
finding that collateral estoppel does not bar the claim, and you look just at form on convenience separately, the private and public interests are largely the same as in the New York case, but even more so what tilt now more in favor of

[00:43:31] Speaker 03:
the N. Golan defendant's request for form non-convenience dismissal.

[00:43:36] Speaker 03:
And the reason we say that is because in the New York case, there were other parties that did have presence here in the United States.

[00:43:47] Speaker 03:
There were certain witnesses which may have been present here in the United States, and there were documents and related claims that were commingled that were here in the United States.

[00:43:57] Speaker 03:
Here, there is no interest that this court should have or can have in the solely Angolan dispute which is going on here.

[00:44:13] Speaker 02:
Haven't you just argued yourself out of preclusion?

[00:44:15] Speaker 02:
It doesn't matter which way it cuts, but if the issue here is different, then why would we rely on preclusion?

[00:44:23] Speaker 02:
You seem to there be leaning into a fresh,

[00:44:26] Speaker 02:
form non-convenience analysis, but are you thereby abandoning your preclusion analysis?

[00:44:32] Speaker 02:
And I'm excited like you were.

[00:44:34] Speaker 03:
No, I hope that is not the message that I'm delivering.

[00:44:38] Speaker 03:
What I'm saying, Your Honor, is that preclusion applies and bars the claim.

[00:44:46] Speaker 02:
How based on the- Can you just say the public and private balancing is different?

[00:44:51] Speaker 03:
I said, if you take a fresh look at it, if you say that you're going to ignore preclusion and not apply it, then under a fresh analysis, it would be largely the same, but more so in favor of the Angolan defendants.

[00:45:09] Speaker 02:
Under a fresh analysis, it's your burden to provide the district court with sufficient evidence to determine that

[00:45:18] Speaker 02:
an adequate alternative forum exists.

[00:45:22] Speaker 03:
Yes.

[00:45:23] Speaker 02:
What evidence did you provide to the district court in this case?

[00:45:27] Speaker 03:
Well, there was a couple of things.

[00:45:30] Speaker 03:
First, we had incorporated and relied upon the decisions of the New York court.

[00:45:39] Speaker 02:
But you didn't provide the evidence you provided in New York.

[00:45:43] Speaker 02:
to the court here for its own evaluation?

[00:45:46] Speaker 03:
We ultimately did.

[00:45:48] Speaker 03:
We did provide an affidavit or a declaration of Enrique Abacases in support of our motion to dismiss, which spoke about where the witnesses are and where the documents are and the language and the convenience.

[00:46:02] Speaker 02:
That's not about the adequacy of the Angolan.

[00:46:04] Speaker 03:
That's correct.

[00:46:06] Speaker 03:
Yes, Your Honor.

[00:46:07] Speaker 03:
With respect to adequacy,

[00:46:14] Speaker 03:
We, I'm trying to remember, argued.

[00:46:24] Speaker 02:
I'm not aware of you ever having provided any evidence on the adequacy of the Angolan Forum, or even asking the district court to take judicial notice of the factual record.

[00:46:37] Speaker 02:
In the Southern District of New York case, you asked for judicial notice

[00:46:40] Speaker 02:
of legal proceedings in Angola.

[00:46:42] Speaker 03:
Yes.

[00:46:42] Speaker 02:
But I'm not aware of any place, and if you could point me to a place where you did, but I'm not aware of any place where you asked the district court in this jurisdiction to take judicial notice of the factual showing in the Southern District of New York record.

[00:46:56] Speaker 02:
So I'm not sure how we could do a fresh non-convenience analysis here, given your burden.

[00:47:02] Speaker 03:
You were correct that there is no specific

[00:47:06] Speaker 03:
language within our briefing saying, please take judicial notice of the New York case.

[00:47:12] Speaker 03:
We did at the inception of the case, identify the New York case, I'm sorry, the inception of the district court case here, identify the New York case as a related case and highlighted the fact that even the appellant

[00:47:29] Speaker 03:
had indicated that it was substantially related when it filed its motion to stay substantially related, substantially related parties and claims and facts.

[00:47:40] Speaker 03:
So that is the extent of the request for judicial notice.

[00:47:44] Speaker 03:
There wasn't any formal judicial notice request.

[00:47:49] Speaker 03:
However, when we briefed the issue,

[00:47:55] Speaker 03:
in the motion to dismiss, we argued, based on the arbitration clauses that you focused on earlier, that the burden on forum non-convenience and adequacy on everything had been shifted as a result of the Atlantic marine analysis.

[00:48:15] Speaker 03:
When you have a forum selection clause, which we contend that arbitration clauses here are a species

[00:48:22] Speaker 03:
a form selection clause.

[00:48:24] Speaker 02:
But that's only when you've selected the particular form that you're then proceeding in.

[00:48:28] Speaker 02:
That doesn't have any application to a third form.

[00:48:32] Speaker 02:
That would render adequate the arbitration form.

[00:48:38] Speaker 03:
Which we did ask the court.

[00:48:39] Speaker 03:
In the motion to dismiss originally, that was in the motions to dismiss here and in the motions to dismiss in the New York case, we did ask for the court to send the cases to arbitration.

[00:48:52] Speaker 03:
based on the arbitration clause.

[00:48:54] Speaker 02:
I'm sorry, I interrupted you.

[00:48:55] Speaker 02:
You were making this point based on, is it Atlantic Marine?

[00:48:58] Speaker 03:
Yes, because of the burden shifting that occurs when there is a forum selection clause that we did not produce evidence and declarations and refer to the record in the New York case at that time because we felt that our burden was being sustained by law.

[00:49:19] Speaker 03:
Because there was an arbitration clause.

[00:49:22] Speaker 03:
Correct.

[00:49:23] Speaker 02:
And an arbitration clause is a form of foreign selection clause.

[00:49:25] Speaker 02:
Yes, ma'am.

[00:49:27] Speaker 02:
But there was no form selection clause selecting Angola.

[00:49:36] Speaker 03:
There was a form selection clause that was almost identical in all of these contracts.

[00:49:42] Speaker 02:
It didn't select Angola.

[00:49:47] Speaker 03:
Well, it did.

[00:49:49] Speaker 03:
It selected Angolan law, and it gave two different Angolan arbitral procedures that could be followed.

[00:49:59] Speaker 02:
It didn't say venue.

[00:50:00] Speaker 02:
I may be missing something obvious, but you weren't asserting that this case should go to arbitration.

[00:50:07] Speaker 03:
We did.

[00:50:08] Speaker 02:
I mean, I didn't read your brief as saying, oh, put aside whether the Angolan court system would be adequate.

[00:50:17] Speaker 02:
because everybody has to agree based on the arbitration clause that an arbitral form would be adequate.

[00:50:22] Speaker 02:
That's what I hear you to be saying now, but I didn't understand you to be making that argument in your book.

[00:50:29] Speaker 03:
I was not.

[00:50:30] Speaker 03:
So let me try to clarify.

[00:50:33] Speaker 03:
The argument to dismiss and refer the cases to arbitration was made in our motion to dismiss.

[00:50:46] Speaker 03:
The court chose to rule only on the forum non-convenience and collateral estoppel issue.

[00:50:53] Speaker 03:
When it made that choice, we argued that the arbitration clause changed the burden for purposes of forum non-convenience.

[00:51:06] Speaker 03:
And it changed it from us having to bear the burden of demonstrating adequate alternative forum

[00:51:15] Speaker 03:
to the appellant having to bear that burden.

[00:51:20] Speaker 03:
And that in almost every case where there is a valid forum selection clause, that burden is satisfied.

[00:51:32] Speaker 03:
Then afterwards, because you were asking about whether we submitted anything else, after the

[00:51:41] Speaker 03:
plaintiff, after repellent, filed its response to our motion to dismiss and said, yes, but you haven't filed anything.

[00:51:50] Speaker 03:
At that point in our reply, we made reference to all of the declarations that had been filed in New York.

[00:51:57] Speaker 03:
Those declarations were submitted, and A energy moved to strike, saying that this was new argument being raised on reply.

[00:52:12] Speaker 03:
And Judge McFadden never reached that issue.

[00:52:16] Speaker 03:
He said he's denied the motion to strike as moot.

[00:52:22] Speaker 03:
But we did put in record evidence of the adequacy of the forum, as well as the convenience factors.

[00:52:33] Speaker 03:
With respect to the adequacy of the forum, I would point the court to the declarations of Professor Diamvatou

[00:52:42] Speaker 03:
who wrote at length about the statute of limitations and its effect.

[00:52:54] Speaker 01:
All right, if there are no more questions, where is the arbitration being conducted?

[00:52:59] Speaker 03:
I don't know.

[00:52:59] Speaker 03:
I'm not counsel, but it's my understanding that it's going to be conducted here, but I don't know.

[00:53:05] Speaker ?:
Thank you.

[00:53:11] Speaker 03:
I don't want to monopolize your time if you don't have any other questions.

[00:53:16] Speaker 03:
Thank you very much for your attention.

[00:53:20] Speaker 01:
And if you'll give Mr. Levy two minutes.

[00:53:34] Speaker 04:
Thank you.

[00:53:34] Speaker 04:
Thank you, Your Honor.

[00:53:36] Speaker 04:
A few things.

[00:53:38] Speaker 04:
First, I do think there is effectively a concession that issue preclusion does not apply.

[00:53:43] Speaker 04:
And on a fresh look, the court must look to the evidence that was submitted.

[00:53:48] Speaker 04:
There was no evidence on adequacy.

[00:53:51] Speaker 04:
The evidence of the other factors was lacking.

[00:53:53] Speaker 04:
And a mere citation to the findings of the prior court on the assumption that issue preclusion does not apply surely cannot be enough on a fresh look.

[00:54:03] Speaker 04:
Now, my friend says, below and here, he relied on the arbitration clauses.

[00:54:07] Speaker 04:
And he cited in his briefing the Downing case, for example, from this court.

[00:54:13] Speaker 04:
I think it was an unpublished decision.

[00:54:15] Speaker 04:
The court there looked at an arbitration clause through the lens of the form noncommute analysis.

[00:54:21] Speaker 04:
But the motion was to go to arbitration.

[00:54:23] Speaker 04:
And here, the motion is to go to and go in court.

[00:54:26] Speaker 04:
And the court below did not reach the arbitration arguments by the party.

[00:54:31] Speaker 04:
That's at A135 footnote 6.

[00:54:35] Speaker 04:
With respect to the reply evidence that was submitted, we did move to strike it untimely.

[00:54:41] Speaker 04:
And as my friend says, the court did not consider motion to strike.

[00:54:46] Speaker 04:
because the court declined to consider the evidence.

[00:54:49] Speaker 04:
And therefore, so far as the motion record is concerned on a fresh look, there is no evidence.

[00:54:54] Speaker 04:
And under Deb of the Seventh Circuit case that we cite, that's not good enough.

[00:55:00] Speaker 04:
This court's decision in Simon, there was a similar deficiency in Simon versus Hungary that your honor authored.

[00:55:10] Speaker 04:
There was a similar deficiency on some of the factors with respect to some of the evidence.

[00:55:15] Speaker 04:
With respect to the Ngoan Supreme Court decision, we think the court should address the arguments we've raised, as they are stated, and that the timeliness issue was properly tendered, and that a reversal is in order for that reason, and that to the extent the Ngoan Supreme Court decision has further bearings, that could be for remand, if anything.

[00:55:40] Speaker 01:
Thank you.

[00:55:41] Speaker 01:
Thank you.