[00:00:00] Speaker 00: The case number 23-7109 et al. [00:00:03] Speaker 00: Elizabeth Regina Marie Gabrielle Von Pesold et al. [00:00:07] Speaker 00: Versus Republic of Zimbabwe et al. [00:00:10] Speaker 00: Mr. Smith for the et al. [00:00:12] Speaker 00: Mr. Paparella for the et al. [00:00:15] Speaker 00: Mr. Cezlowski for the et al. [00:00:17] Speaker 00: Good morning, Mr. Smith. [00:00:21] Speaker 02: Good morning, sir. [00:00:25] Speaker 02: May it please the court. [00:00:27] Speaker 02: My name is Quinn Smith. [00:00:27] Speaker 02: I'm here on behalf of Pellant. [00:00:29] Speaker 02: I would like to make one note. [00:00:31] Speaker 02: I am joined by the attorney general of Zimbabwe, who is here to my right, Ms. [00:00:36] Speaker 02: Mavizo. [00:00:38] Speaker 02: Your honor, this is an appeal about two sets of treaties. [00:00:44] Speaker 02: Their limitations on any waiver of sovereign immunity and the interaction between those sets of treaties and the Foreign Sovereign Immunities Act. [00:00:53] Speaker 02: Now the first set of treaties are the New York Convention and we call the ICSID Convention. [00:00:59] Speaker 02: And they are useful for analyzing the implied waiver in 1605A1. [00:01:04] Speaker 02: That's gonna be the first set of treaties we discussed. [00:01:09] Speaker 02: And the second set of treaties goes to the so-called arbitration exception. [00:01:13] Speaker 02: That's 1605A6. [00:01:15] Speaker 02: So let's look at the first set of treaties. [00:01:20] Speaker 02: The district court erred [00:01:23] Speaker 02: when it found that Zimbabwe's ratification of the exit convention was an implied waiver of its sovereign immunity. [00:01:31] Speaker 04: Why don't you start with the arbitration exception? [00:01:33] Speaker 04: Because if we reach that, we've held that we don't need to reach implied waiver, right? [00:01:39] Speaker 02: You're correct, sir. [00:01:39] Speaker 04: We've got a recent precedent like NextEra. [00:01:42] Speaker 04: Yes, sir. [00:01:43] Speaker 04: Seems that precedent's difficult for you. [00:01:45] Speaker 04: Why don't you tell us why we shouldn't follow that here? [00:01:48] Speaker 02: Absolutely, sir. [00:01:50] Speaker 02: I'll go to the arbitration exception. [00:01:52] Speaker 02: If you'd like to hear about the implied waiver, I have a few new things. [00:01:55] Speaker 02: But on the arbitration exception, we're looking at what the instruments are that created the consent. [00:02:01] Speaker 02: And those are the treaties. [00:02:02] Speaker 02: And these treaties are unique. [00:02:05] Speaker 02: They're different. [00:02:06] Speaker 02: There's language regarding how the award should be enforced. [00:02:09] Speaker 02: And we don't see this kind of language in other sets of treaties. [00:02:12] Speaker 02: We really don't see in other sets of treaties with Zimbabwe. [00:02:16] Speaker 02: perhaps a little bit with Germany, but certainly not in other countries. [00:02:20] Speaker 02: And that language has very exacting terms. [00:02:26] Speaker 02: So for example, if we look at the Swiss Treaty, section 10.6, the award quote, shall be enforceable in accordance with the laws of the contracting party, capital C, capital P, in which the investment is located. [00:02:43] Speaker 02: Shall is mandatory. [00:02:45] Speaker 02: It's not optional. [00:02:46] Speaker 02: It doesn't say maybe. [00:02:48] Speaker 02: In accordance with. [00:02:50] Speaker 02: So it tells the courts how is this going to be enforced. [00:02:55] Speaker 02: And then where, with the laws of the contracting party capitalized, must be either Switzerland or Zimbabwe in which the investment is located. [00:03:06] Speaker 02: Has to be either Switzerland or Zimbabwe. [00:03:10] Speaker 02: And so what we are asking is just to enforce these words as they are written, which say where the award or how this award must be enforced. [00:03:18] Speaker 02: And it is complete. [00:03:20] Speaker 02: So the enforcement of this award must occur in Harare, in Zimbabwe. [00:03:24] Speaker 04: I don't follow. [00:03:25] Speaker 04: It tells you what law we use in accordance with the laws is a choice of law provision. [00:03:35] Speaker 04: It's explicit. [00:03:36] Speaker 04: So it's telling you that it should be done in accordance with the laws of here in Zimbabwe. [00:03:44] Speaker 04: But I don't see anything in your brief that says that enforcing it pursuant to what filing in US District Court in DC is contrary to the laws of Zimbabwe. [00:04:05] Speaker 04: for enforcing an arbitral war? [00:04:09] Speaker 02: Sure. [00:04:10] Speaker 02: In a sense, you're right that there isn't an analysis of Zimbabwean law and how that would get to the US. [00:04:19] Speaker 02: Neither party made that analysis. [00:04:21] Speaker 02: Instead, what we're saying is it has to be enforced in accordance with the laws of Zimbabwe. [00:04:27] Speaker 02: And that's just not being done. [00:04:28] Speaker 02: It's the laws of the United States. [00:04:30] Speaker 02: And so what we are arguing in the brief is just [00:04:33] Speaker 02: a stray interpretation of what the words say. [00:04:36] Speaker 04: Well, U.S. [00:04:38] Speaker 04: court can apply international law. [00:04:41] Speaker 04: U.S. [00:04:41] Speaker 04: court can apply New York law or Zimbabwean law or any other law, right? [00:04:50] Speaker 02: Done every day. [00:04:51] Speaker 02: It is true that it can. [00:04:53] Speaker 02: Now, I think the thing with this text, and I think what you'd be referring to perhaps a New York law clause, a lot of times those are specifically found in [00:05:03] Speaker 02: And in contracts, we're looking at substantive law. [00:05:07] Speaker 02: In this context, it's everything in accordance with the laws of the contracting party, not the substantive laws. [00:05:14] Speaker 02: It doesn't exclude a conflicts of laws provision, which we often see in contracts. [00:05:19] Speaker 02: It's everything. [00:05:20] Speaker 02: And there was never an application of Zimbabwean law as it applies to the enforcement of this award, much more so in the German treaty. [00:05:30] Speaker 02: which says that it shall be enforced in accordance with the domestic law of the contracting party in the territory of which the investment in question is situated. [00:05:39] Speaker 04: You're quoting there from 11.3, right? [00:05:42] Speaker 04: Yes, sir. [00:05:42] Speaker 04: The same language as in 11.2, right? [00:05:45] Speaker 04: Yes, sir. [00:05:47] Speaker 04: and isn't that language in 11-2 a choice of law provision or it's talking about the source of substantive law because it's in the last sentence of 11-2 and it talks about what the arbitral tribunal is supposed to use and it says it's supposed to base its decision on [00:06:10] Speaker 04: Disagreement, any treaties, international law, and the domestic law of the contracting party and the territory of which the investment in question is situated. [00:06:22] Speaker 02: Yes, sir. [00:06:22] Speaker 04: The exact same. [00:06:23] Speaker 02: So, well, but there is a key difference because that's what the tribunal is going to do and this is what the court is going to do. [00:06:31] Speaker 02: And in the context of these kinds of arbitrations. [00:06:33] Speaker 04: Why is the phrase going to mean the same thing in 11-2 that it means in 11-3? [00:06:42] Speaker 02: Well, because in 11.2, you would get to Zimbabwean law. [00:06:46] Speaker 02: It's a process from the treaty to international law to Zimbabwean law, because there can be issues of Zimbabwean law that are specifically relevant to the treaty, such as the creation of a company, whether the company existed or not, whether a person is an investor because they have a passport or not. [00:07:02] Speaker 02: Can dual nationals bring a claim? [00:07:04] Speaker 02: Those things will come sort of subsidiarily after the treaty international law and Zimbabwean law. [00:07:10] Speaker 02: But when you get to enforcement, [00:07:12] Speaker 02: All that stuff is done, right? [00:07:16] Speaker 02: Especially in an exit case, because there's no annulment. [00:07:20] Speaker 02: The court's not going to come around and kill the award. [00:07:23] Speaker 02: All it can do is look at the award and say, well, here's how we're going to enforce it. [00:07:27] Speaker 02: There's a US statute to enforce a six-year convention award. [00:07:31] Speaker 02: But in this context, strangely, no one knows why, there is specific language in the instrument of consent as to how it must be enforced. [00:07:40] Speaker 02: And that would be as involving in law. [00:07:44] Speaker 02: So see, I'm not connecting. [00:07:47] Speaker 02: I guess the point is that this is an enforcement context, which has a limited set of issues, as opposed to the arbitral tribunal having a much broader set of issues and a much broader mandate. [00:08:02] Speaker 02: And that is the key difference. [00:08:04] Speaker 02: Now, as far as once you look at those two laws, it's still Zimbabwean law, right? [00:08:10] Speaker 02: The tribunals look at Zimbabwean law. [00:08:11] Speaker 02: The enforcement court looks at Zimbabwean law. [00:08:14] Speaker 02: On that, yes, we would be in agreement. [00:08:17] Speaker 02: But it wouldn't be the same as the analysis the tribunal undertakes applying international law and the treaty. [00:08:24] Speaker 03: Yes, sir. [00:08:26] Speaker 03: I understood the argument in your brief to be that the language in 11.3 is not just a choice of law, but also a form selection. [00:08:35] Speaker 03: Yes, sir. [00:08:36] Speaker 03: Yes, sir. [00:08:36] Speaker 03: Today, it sounds like you're making a slightly different argument. [00:08:40] Speaker 03: No. [00:08:40] Speaker 03: That because it's a choice of law clause, [00:08:43] Speaker 02: No, I'm sorry. [00:08:45] Speaker 02: I start with the Swiss treaty, which doesn't have the words in the territory of. [00:08:51] Speaker 02: They're not there. [00:08:52] Speaker 02: It just says contracting party in which the investment is located. [00:08:56] Speaker 02: And the German treaty is the contracting party in the territory of which the investment in question is located. [00:09:01] Speaker 02: And so that's the difference between the two treaties. [00:09:03] Speaker 02: And so we're saying that the words in the territory of, they have to mean something. [00:09:08] Speaker 02: They're not repeating the choice of law. [00:09:11] Speaker 02: They're talking about where it is to be enforced. [00:09:13] Speaker 02: And so that's the difference between the two. [00:09:15] Speaker 03: Here's my question about that. [00:09:16] Speaker 03: If the sentence ended, shall be enforced in accordance with the domestic law of the contracting party, then we'd have a problem because we wouldn't know which contracting party. [00:09:26] Speaker 03: So the rest of the sentence answers that question. [00:09:29] Speaker 03: It's the contracting party in the territory of which the investment in question is situated. [00:09:33] Speaker 03: You need that language to make it [00:09:36] Speaker 03: comprehensible choice of law provision. [00:09:39] Speaker 03: And what I'm having trouble understanding is why it should also be treated as a form selection clause. [00:09:45] Speaker 02: Because in the Swiss treaty, actually, you just have in which the investment is located, and you don't have in the territory of. [00:09:54] Speaker 02: And so there's a difference. [00:09:55] Speaker 02: What's the meaning of the difference? [00:09:57] Speaker 02: And that's how we get to. [00:09:58] Speaker 05: That's a venue question, isn't it? [00:10:02] Speaker 05: As to which venue would be appropriate? [00:10:05] Speaker 05: It seems to me there's two issues in each case. [00:10:08] Speaker 05: And one is common. [00:10:10] Speaker 05: And that is whether the district court had jurisdiction. [00:10:13] Speaker 05: That's dependent upon FASA. [00:10:15] Speaker 05: And that's dependent upon what Judge Wilkins said is the arbitration agreement. [00:10:21] Speaker 05: There are two arbitration agreements that follows that the district court had jurisdiction. [00:10:26] Speaker 05: The question you're arguing is whether venue was proper. [00:10:31] Speaker 02: I think it's a little bit different. [00:10:34] Speaker 02: because of the nature of? [00:10:36] Speaker 05: And the question then is whether that provision in the Swiss treaty and the same provision in the German treaty is a choice of law provision or is a venue provision? [00:10:48] Speaker 05: And the district court held that it was a choice of law provision in both. [00:10:51] Speaker 02: Yes, yes, yes, yes, he did, sir. [00:10:55] Speaker 02: And it wouldn't be a venue in this case. [00:10:59] Speaker 02: because we're talking about a waiver of sovereign immunity, and the waiver comes from the arbitration, the instrument that creates the consent to arbitration. [00:11:09] Speaker 02: And here, by selecting that it shall be enforced in Zimbabwe, then it's more than just a sort of run-of-the-mill venue provision, but rather it's saying- Does the district court have jurisdiction to decide that this could be enforced only in Zimbabwe? [00:11:26] Speaker 02: Yes, sir. [00:11:27] Speaker 05: Yeah, well, that begs my point. [00:11:31] Speaker 02: But I think that that would come from the fact that it's a federal court that is facing an exit award where they can seek enforcement under 22-1650A. [00:11:41] Speaker 02: So that's where we would see that power to come from. [00:11:43] Speaker 02: And then they get to the clause and say, yes or no. [00:11:46] Speaker 02: I am way over my time. [00:11:47] Speaker 02: I apologize. [00:11:50] Speaker 02: Any further questions? [00:11:54] Speaker 04: All right. [00:11:55] Speaker 04: We'll give you some time on rebuttal. [00:11:57] Speaker 02: Thank you, sir. [00:12:03] Speaker 04: We'll hear from Mr. Papparello. [00:12:05] Speaker 06: Yes, your honor. [00:12:06] Speaker 06: Thank you. [00:12:07] Speaker 06: Chris Papparello from the Steptoe firm for the von Petzold family of Pellies. [00:12:12] Speaker 06: And I'm here with a co-counsel from Baker McKenzie, David Zaslavsky, who represents the border company and border timbers and Hongani, the other appellees here. [00:12:26] Speaker 06: He's with his partner, Graham Cronog, and I'm with my colleagues, Michael Barrett, Justin, then Asher, and Jenny Askew. [00:12:32] Speaker 06: Mr. Zaslawski and I have divided up the 10 minutes you gave us, five minutes apiece. [00:12:38] Speaker 06: I'm going to cover the arbitration exception in the FSIA, and Mr. Zaslawski will cover [00:12:44] Speaker 06: the waiver exception if we get to that. [00:12:48] Speaker 06: I'll keep my remarks brief. [00:12:50] Speaker 06: It's the submission of both sets of appellees that the provisions that are the Zimbabwe relies on in its investment treaties with Germany and Switzerland, our choice of law. [00:13:05] Speaker 06: provisions. [00:13:06] Speaker 06: The phrase in the territory is answering one question and one question only, which territories law applies. [00:13:14] Speaker 06: And this is highlighted by the very similar language that's contained in Germany's investment treaty with India, which Zimbabwe quotes and relies on at page three of its brief. [00:13:29] Speaker 05: The Swiss treaty doesn't have that language, does it? [00:13:32] Speaker 06: The Swiss treaty's language is somewhat different [00:13:35] Speaker 06: than the German treaty, the Swiss treaties language says the laws of the contracting party in which the investment in question is located. [00:13:45] Speaker 06: The German treaty says the domestic law of the contracting party in the territory of which the investment in question is located. [00:13:54] Speaker 06: And the Indian-Germany treaty says in accordance with the national laws of the contracting party where the investment has been made. [00:14:06] Speaker 06: So each of the treaties uses a slightly different verbiage, but all three verbiages [00:14:14] Speaker 06: seek to answer the same question. [00:14:18] Speaker 06: And the question is not where, but whose law? [00:14:22] Speaker 06: Whose law? [00:14:23] Speaker 06: Because you can say the same thing in different ways, and that's all they've done here. [00:14:28] Speaker 06: Our submission is that once you satisfy yourselves, that those provisions are choice of law provisions, your decision in next error a few weeks ago applies here. [00:14:41] Speaker 06: And next error lays out a very simple test. [00:14:46] Speaker 06: Is there an arbitration agreement? [00:14:48] Speaker 06: And that first question has two levels. [00:14:52] Speaker 06: Here you have two investment treaties. [00:14:55] Speaker 06: Do those treaties contain an agreement between two countries to offer arbitration to each other's nationals? [00:15:01] Speaker 06: And the answer here is yes. [00:15:02] Speaker 06: Both treaties contain an offer to arbitration. [00:15:05] Speaker 06: Was that offer accepted by the nation? [00:15:09] Speaker 05: Does the Republic of Zimbabwe even contest that point? [00:15:14] Speaker 06: They don't contest that point, Your Honor. [00:15:16] Speaker 06: They don't contest that point. [00:15:18] Speaker 06: They don't contest that there are arbitration awards. [00:15:20] Speaker 06: They don't contest that those were exit awards. [00:15:22] Speaker 06: These people arbitrated for eight years under exit. [00:15:25] Speaker 06: They had an opportunity to try and nullify the awards. [00:15:28] Speaker 06: And lastly, they don't contest that the awards, there's a treaty signed by the United States, Zimbabwe, Germany, and Switzerland that governs these awards, that provides for enforcement. [00:15:40] Speaker 06: That's the exit treaty. [00:15:42] Speaker 06: They don't contest that. [00:15:43] Speaker 06: It's on page one of the reply brief. [00:15:45] Speaker 05: What is the United States' connection with this case? [00:15:49] Speaker 06: The United States' connection with this case is that the appellees are seeking to enforce in the United States. [00:15:56] Speaker 06: And the arbitration was held here. [00:15:59] Speaker 06: It was held at the world at ICCID's office in Washington. [00:16:03] Speaker 05: Zimbabwe seems to contest whether it was really held in the United States because [00:16:12] Speaker 05: The territory of the World Bank is not in the United States. [00:16:15] Speaker 05: Is that the theory? [00:16:16] Speaker 06: The World Bank is not the Vatican, Your Honor. [00:16:18] Speaker 06: The World Bank is located in the United States. [00:16:20] Speaker 06: I know. [00:16:21] Speaker 06: I'm sorry. [00:16:22] Speaker 06: I don't mean to be sarcastic. [00:16:23] Speaker 06: That's their argument. [00:16:25] Speaker 06: We dispute that argument, Your Honor, that there's no dispute between the parties on the agreement of the parties. [00:16:31] Speaker 06: And they could have agreed to hold the hearings someplace else, because it allows them to do that. [00:16:35] Speaker 06: They agreed to hold the hearings and did hold the hearings right here in Washington, DC, in the United States of America. [00:16:42] Speaker 06: And so that's the connection between the United States and the exit convention and this case. [00:16:49] Speaker 04: But the World Bank is like an embassy, right? [00:16:55] Speaker 04: As far as application of international law? [00:16:59] Speaker 06: In terms of taxation, yes. [00:17:02] Speaker 06: I don't know that it's an embassy and they don't argue that it is. [00:17:05] Speaker 05: Employees are not taxed. [00:17:07] Speaker 05: by the federal government of World Bank employees, no matter what their citizenship is. [00:17:12] Speaker 05: But there is questions. [00:17:14] Speaker 05: Matter of fact, we've had cases dealing with what United States laws, for example, Title VII discrimination apply to the World Bank. [00:17:24] Speaker 05: So it's a mixed question. [00:17:27] Speaker 06: I understand that. [00:17:28] Speaker 06: But even if the court were to accept Zimbabwe's argument that holding an arbitration at the World Bank in Washington did not involve holding an arbitration in America, confirmation under the arbitration exception of the Foreign Sovereign Immunities Act would still be proper. [00:17:45] Speaker 06: Because the United States has adopted as a party to the exit convention. [00:17:50] Speaker 06: It has agreed under the exit convention to enforce exit awards. [00:17:55] Speaker 06: from other exit countries. [00:17:57] Speaker 06: Zimbabwe is an exit country, Germany is, and Switzerland is, and so enforcement is proper here. [00:18:04] Speaker 04: So your contention would be that even if the arbitration had occurred, let's just say in Zimbabwe physically, enforcement would still be proper here? [00:18:18] Speaker 04: Absolutely, Your Honor. [00:18:19] Speaker 04: Because there's nothing in the FSIA [00:18:23] Speaker 04: that requires there to be some sort of a connection to the U.S. [00:18:29] Speaker 04: of the dispute or the arbitration or anything else for there to be subject matter jurisdiction of a U.S. [00:18:36] Speaker 04: district court. [00:18:37] Speaker 06: That's correct. [00:18:38] Speaker 06: Nothing in the FSIA, in particular in the arbitration exception in the FSIA, requires that the arbitration itself have a connection with the United States of America. [00:18:51] Speaker 06: In fact, although this did not come up on appeal, but below, Zimbabwe raised the forum non-convenience argument [00:18:59] Speaker 06: And there's a long line of cases that holds that this court and the district courts in D.C. [00:19:03] Speaker 06: have held that forum non-convenience is not an appropriate inquiry when you're seeking to enforce an arbitration award from another country under one of the treaties that the United States' parties do that covers arbitration awards. [00:19:17] Speaker 04: All right. [00:19:18] Speaker 04: There are no other questions. [00:19:20] Speaker 04: We'll hear from your colleague. [00:19:22] Speaker 04: Thank you, Your Honor. [00:19:30] Speaker 01: May it please the court, David Soslowski from Baker McKenzie and has noted I'll be addressing the waiver exception. [00:19:38] Speaker 01: I recognize from what you said that [00:19:41] Speaker 01: based on recent jurisprudence from this court. [00:19:43] Speaker 01: You may not get there if you think the arbitration exception applies, and we certainly think it does. [00:19:48] Speaker 01: But if you do get to the waiver exception, all of the cases before you that have discussed the issue of whether the implicit waiver exception of the FSIA applies when parties seek to enforce an exit award against an exit signatory, they've all held that the implicit waiver [00:20:07] Speaker 01: exception applies. [00:20:09] Speaker 01: Zimbabwe has not put before you one case that goes the other way. [00:20:13] Speaker 04: We've never held that in a reported decision, right? [00:20:16] Speaker 01: You've never held that in the reported decision. [00:20:18] Speaker 01: In Tatneft and Judge Wilkins and Judge Randolph were on that panel. [00:20:25] Speaker 01: I mean, you've held it in an unpublished opinion. [00:20:28] Speaker 01: You said that the Second Circuit, you agreed with what the Second Circuit said and that [00:20:36] Speaker 01: You know, a sovereign, by signing the New York Convention, waives its immunity from arbitration enforcement actions in other signatory states. [00:20:43] Speaker 01: And that was in an unpublished opinion. [00:20:45] Speaker 01: And in Creighton, you indicted that the Second Circuit was correct when it held that foreign sovereigns waive sovereign immunity. [00:20:52] Speaker 01: So you've done everything other than, as you said in, as the court said in Exterra, everything other than formally adopt it. [00:21:00] Speaker 01: And if you get to the waiver exception here for whatever reason, nothing that Zimbabwe has said should lead you to change your reasoning in Creighton or in Tatneft or to disagree with the Second Circuit's reasoning in Blue Ridge or in Mobile Cerro. [00:21:20] Speaker 01: And there's also the recent TIG decision in which this court said there are three scenarios, that was about seven weeks ago, there are three scenarios in which there is an implicit waiver [00:21:30] Speaker 01: by a foreign sovereign, one of them is arbitrating in the United States. [00:21:34] Speaker 01: And getting to the issue we just talked about, our position is that absolutely was an arbitration here in the United States. [00:21:41] Speaker 01: And so you could affirm the waiver exception argument based on the TIG grounds without getting to this other issue that the court has been hesitant to get to. [00:21:52] Speaker 01: But if you do get there, if you do get to the issue of the interaction between the arbitration conventions and the [00:22:00] Speaker 01: and the implicit waiver exception, I said there's no reason to change from what you said. [00:22:10] Speaker 01: argument that they make in their papers is to rely on the amicus brief in the PIND case. [00:22:17] Speaker 01: And in that case, the issue that the court asked DOJ to opine on was whether the United States impliedly waived its immunity in courts of other New York convention countries. [00:22:31] Speaker 01: That's the question that was asked. [00:22:33] Speaker 01: And the government said, we're not answering that question. [00:22:35] Speaker 01: They specifically declined to answer that question. [00:22:38] Speaker 01: What they did then say, their interpretation of the FSIA, that's not entitled to any special deference. [00:22:44] Speaker 01: That's just an interpretation of a statute, not an interpretation of a treaty. [00:22:49] Speaker 01: But even if you do look at what they said about interpreting the FSIA, all they said on pages 12 to 13 of that brief is that there is a way to interpret the waiver exception [00:23:03] Speaker 01: together with the arbitration exceptions, there's a way to interpret it that the two are exclusive. [00:23:10] Speaker 01: But they also noted that your decision in TATNEF rejected that interpretation, that the two of those were exclusive. [00:23:18] Speaker 01: So there is nothing before this court that should lead you to, again, as I said before, any other conclusion than what you laid the groundwork for in Creighton and in TATNEF and that the Second Circuit has decided. [00:23:32] Speaker 01: Unless there are any questions, I will leave it there. [00:23:35] Speaker 03: Just very briefly, am I right that a predicate for every version of your implied waiver argument is that there is an arbitration agreement? [00:23:44] Speaker 01: Is that there is an arbitration agreement? [00:23:49] Speaker 03: Is an arbitration agreement an award and a treaty under which it can be enforced? [00:23:54] Speaker 03: I guess I'm trying to understand why our court would ever reach this question. [00:23:59] Speaker 03: Because don't you always already have to win the arbitration exception? [00:24:05] Speaker 03: I admit this is a little academic. [00:24:08] Speaker 01: It is a little academic. [00:24:13] Speaker 01: I haven't thought about, is there an example where one would apply and not? [00:24:17] Speaker 01: But I do note that in TATNAF, this court said, [00:24:23] Speaker 01: And I'm quoting, the waiver exception requires a foreign sovereign to give up its immunity defense intentionally, whereas the arbitration exception does not. [00:24:31] Speaker 01: So while the exceptions partially overlap, each contains its own unique element. [00:24:36] Speaker 01: So this court did consider it. [00:24:38] Speaker 01: In Tatton, it did say that. [00:24:41] Speaker 01: I cannot stand here right now, give you an example where one would apply and the other would not. [00:24:49] Speaker 04: All right. [00:24:49] Speaker 04: Thank you. [00:24:52] Speaker 04: Mr. Smith, we'll give you three minutes on it. [00:25:00] Speaker 02: Thank you, sir. [00:25:01] Speaker 02: On the arbitration exception, we heard that it's about whose law applies. [00:25:06] Speaker 02: There was an argument that Zimbabwe law was applied, which would be a pretty key distinction. [00:25:14] Speaker 02: That's what actually happened. [00:25:16] Speaker 02: We heard arguments about whether the arbitration was held here. [00:25:22] Speaker 02: Quick distinction, this isn't like Crystal X, which this court handled. [00:25:27] Speaker 02: That was an additional facility case. [00:25:29] Speaker 02: The place of arbitration was Washington DC. [00:25:32] Speaker 02: This is an exit case. [00:25:33] Speaker 02: And this court cannot compel arbitration before the exit convention. [00:25:38] Speaker 02: That's mine versus Guinea. [00:25:40] Speaker 02: I mean, it is a different species. [00:25:42] Speaker 02: Whenever you go to exit, you renounce other remedies in other courts. [00:25:46] Speaker 02: It's a different kind of arbitration. [00:25:48] Speaker 02: We've cited authority for that from these scholarly authority. [00:25:51] Speaker 02: And there is no contradiction. [00:25:54] Speaker 02: There was a question about the FSIA and a link to the United States. [00:26:00] Speaker 02: That's not this case. [00:26:02] Speaker 02: It can arise in different kinds of cases. [00:26:05] Speaker 02: We have another case before the DC Circuit on that issue. [00:26:09] Speaker 02: So I don't want to just say it's OK, FSIA [00:26:12] Speaker 02: It doesn't have to have a connection to the United States, but it is out there in different kinds of cases. [00:26:18] Speaker 02: And then the final thing, Judge Garcia, I just wanted to touch on what was suggested to be an academic argument. [00:26:28] Speaker 02: Perhaps that as soon as you have an arbitration agreement, an award, and a treaty, that's it. [00:26:34] Speaker 02: In Next Era, there is that discussion that, well, it's just scope. [00:26:39] Speaker 02: And once there's scope, that's Samaria's decision. [00:26:42] Speaker 02: But that's scope of what is arbitrable, which is a different question than scope as to where it can be enforced and how it should be enforced. [00:26:52] Speaker 02: And that's this case. [00:26:54] Speaker 02: There's not going to be a lot of cases like this. [00:26:56] Speaker 02: There aren't that many trees out there that are like this. [00:26:59] Speaker 02: But these specific words need to be enforced as they were negotiated by the parties. [00:27:04] Speaker 02: And that's why we asked that this court reverse [00:27:07] Speaker 02: and with instructions to dismiss. [00:27:10] Speaker 02: If there are no further questions, then I will end early. [00:27:14] Speaker 04: Thank you. [00:27:14] Speaker 04: Take the matter under advisement.