[00:00:00] Speaker 00:
Case number 25-7007, the fighting consortium on LLC versus Argentine Republic at balance.

[00:00:08] Speaker 00:
Ms.

[00:00:08] Speaker 00:
Roman Murphy, party at balance.

[00:00:10] Speaker 00:
Mr. Miguel, party at balance.

[00:00:13] Speaker 04:
Good morning.

[00:00:14] Speaker 04:
Good morning.

[00:00:15] Speaker 04:
May it please the court, Ruthno Roma Murphy from Cleary Gottlieb for the Republic of Argentina.

[00:00:20] Speaker 04:
The limitations period that should be borrowed in this action is the three-year statute of limitations from the federal or DC arbitration acts.

[00:00:28] Speaker 04:
The district court was incorrect to choose instead the 12-year period covering expiration of a D.C.

[00:00:34] Speaker 04:
judgment under the D.C.

[00:00:35] Speaker 04:
code.

[00:00:37] Speaker 04:
Under a three-year limitations period, Titan's action is time barred and should be dismissed.

[00:00:42] Speaker 04:
So to take a step back, this is an action under Section 1650A, and it's undisputed that Section 1650A does not have its own limitations period, meaning that one needs to be borrowed.

[00:00:54] Speaker 04:
So that means finding a closely analogous cause of action to borrow from.

[00:00:58] Speaker 04:
And the nature of this action is one in which Titan is seeking entry of judgment on an arbitration award.

[00:01:05] Speaker 04:
And the nature of the action is really underscored by the basis for jurisdiction that Titan invokes, which is section 1605A6 of the FICIA, which covers actions to confirm arbitral awards.

[00:01:18] Speaker 04:
Based on that, the closest analogy here is another statute that also provides for confirmation of arbitral awards.

[00:01:24] Speaker 00:
Can I ask a predicate question?

[00:01:26] Speaker 00:
My understanding is that when the, I don't know what you call it, but the appeal or the case was taken to the annulment review process that a provisional stay was entered.

[00:01:39] Speaker 00:
Was a stay ever entered for the balance of the time the matter was pending before the annulment committee or whatever it's called?

[00:01:46] Speaker 04:
No, Your Honor, I believe it was not, and there was no stay that would have prevented Titan from filing its action in a timely manner.

[00:01:53] Speaker 00:
That's not what I'm asking, is whether a stay had been entered during... I thought it was... You know more about this than me.

[00:02:00] Speaker 00:
I thought it was at least not uncommon for their stays to be entered during the annulment proceedings.

[00:02:07] Speaker 00:
Is that wrong?

[00:02:08] Speaker 00:
But one just wasn't entered here.

[00:02:09] Speaker 00:
There was just a provisional stay and then it expired when?

[00:02:12] Speaker 00:
after 30 days?

[00:02:13] Speaker 04:
I can check on that and I'm happy to when I come back on rebuttal, I can address that.

[00:02:19] Speaker 04:
Going back to the idea that we want a close analog here and a closely analogous action would be one that is also about confirmation of an arbitral award.

[00:02:27] Speaker 04:
Under federal law, that takes us to the Federal Arbitration Act, which is section 207.

[00:02:31] Speaker 04:
Under DC law, that takes us to the DC Arbitration Act, which is 164425.

[00:02:36] Speaker 02:
So as sort of your argument so far shows, every one of your arguments flows from the idea that we should look at this like an arbitration award.

[00:02:46] Speaker 02:
And I just want to know what you do with the language in the statute that says, for purposes of enforcement, treat it like a state court judgment.

[00:02:54] Speaker 04:
Sure, so that language about treating an exit award like as if it were a judgment of one of the several states really just means that the court should not look back into the merits and the underlying proceedings there.

[00:03:07] Speaker 04:
So in Valores Mundiales, this court held that that statement is really about preventing re-litigation of issues that were already decided.

[00:03:14] Speaker 02:
That was the issue in that case, but nothing about the actual language in the statute is narrow in any way.

[00:03:20] Speaker 02:
It just tells us.

[00:03:21] Speaker 02:
treat it like a state court judgment.

[00:03:23] Speaker 02:
And so one thing that means is there's no basis to collaterally attack it.

[00:03:28] Speaker 02:
Another thing it means is, you know, if you have to go out and look for a time limit, why don't you look for something that relates to state court judgments, not arbitration awards?

[00:03:38] Speaker 02:
Why is that not, it's a pretty simple way of looking at the case and why is that wrong?

[00:03:45] Speaker 04:
So if you think of treat it like a state court judgment as meaning that in all respects and in all aspects of an enforcement action, you should treat it like a state court judgment, that actually creates a jurisdictional problem here.

[00:03:57] Speaker 04:
Because under 1605A6, a court does not have jurisdiction to enforce a judgment related to an arbitral award.

[00:04:04] Speaker 04:
It only has jurisdiction over actions to confirm an arbitral award.

[00:04:08] Speaker 04:
And so basically this gets us to the same place that the Second Circuit was in Mobile Cero Negro, where they were saying to give effect to that statement, I should understand it best as meaning we don't delve into the merits and therefore we're not doing kind of a long involved proceeding, but that doesn't displace any other types of procedural issues or considerations.

[00:04:27] Speaker 04:
So things like making sure that there's jurisdiction, making sure that you still have a plenary action, and in this matter, what the correct statute of limitations to borrow would be.

[00:04:35] Speaker 04:
And of course, section 15.101, which is what Titan and the district court have chosen, really doesn't fare any better under that language about treating it as if it were a judgment of one of the several states for a few different reasons.

[00:04:47] Speaker 04:
Number one, that is just a provision about judgments rendered within DC.

[00:04:51] Speaker 04:
So it doesn't apply to sister state provisions.

[00:04:54] Speaker 04:
And so it doesn't give effect to that part of the statutory language.

[00:04:57] Speaker 04:
the DC provision that is about sister state judgments is unworkable here, as is undisputed.

[00:05:02] Speaker 01:
Why is it necessarily unworkable?

[00:05:09] Speaker 01:
If we say that it's not a DC court judgment, but we treat it as if it's a state court judgment or a foreign court judgment or some other sort of judgment, if you apply the DC statute,

[00:05:29] Speaker 01:
You look at where 12307, you look at where that judgment was rendered.

[00:05:36] Speaker 01:
And we know where it was rendered.

[00:05:39] Speaker 01:
It was rendered in Washington, D.C.

[00:05:42] Speaker 01:
So you can literally apply the act because we know from DC Code 12-307 what to do.

[00:05:55] Speaker 01:
We know where the decision was rendered and it says the action can be brought unless the action would be barred there.

[00:06:06] Speaker 01:
And it's not barred there because we're back at the same place.

[00:06:10] Speaker 01:
It's the 12-year statute of limitations under 15-101.

[00:06:16] Speaker 01:
So it seems like whichever way you go, you end up at the same place, 12 years.

[00:06:26] Speaker 04:
I think there are a couple of differences there, Your Honor.

[00:06:28] Speaker 04:
So one is that

[00:06:30] Speaker 04:
A judgment was not rendered here.

[00:06:32] Speaker 04:
An arbitral award was rendered.

[00:06:33] Speaker 04:
And that is meaningfully different.

[00:06:35] Speaker 04:
So Titan in this action says that it's seeking entry of a judgment as it must.

[00:06:39] Speaker 04:
And again, if it were to characterize this any other way, it would have a jurisdictional problem.

[00:06:44] Speaker 04:
And then beyond that, the fact of an arbitration taking place in DC is not the equivalent of a state, a different forum rendering a judgment through its courts in the way under the DC code that you would then look back to the rendering forum state.

[00:06:59] Speaker 01:
Well, what do we do with the language in, as Judge Garcia mentioned in the statute that says it's supposed to be treated as if the award were a final judgment of a court of jurisdiction of one of the several states?

[00:07:16] Speaker 01:
What work does that do in your view?

[00:07:21] Speaker 04:
In my view, what that text does is it prevents us from re-litigating merits type issues or bringing the variety of challenges that you might bring in this type of proceeding in a different context.

[00:07:34] Speaker 04:
So both in the Valores Mundiales case and also in the legislative history of this provision itself, we see that this statement about treating an award as if it were a judgment of one of the several states

[00:07:46] Speaker 04:
essentially means that the district court is just precluded from inquiring into the merits of the underlying controversy.

[00:07:53] Speaker 04:
That's a very different task than what we're doing here in trying to figure out what the correct statute of limitations to borrow would be.

[00:08:00] Speaker 04:
So that statement does have effect.

[00:08:01] Speaker 04:
It does have meaning.

[00:08:02] Speaker 04:
It means there are various challenges to what happened during the arbitration proceedings that we could not bring at this stage, and that's correct.

[00:08:09] Speaker 04:
But it doesn't change the analysis that the court needs to do in terms of statute of limitations to borrow.

[00:08:17] Speaker 04:
And so here, if we're looking for something that is really closely analogous, we could get either to the D.C.

[00:08:23] Speaker 04:
Arbitration Act or to the Federal Arbitration Act.

[00:08:26] Speaker 04:
Both of those get us to the same place because they both carry a three year statute of limitations.

[00:08:31] Speaker 04:
And the federal here is particularly closely analogous because as the court recognized in its next era decision,

[00:08:38] Speaker 04:
Section 1650A is about enforcing, i.e.

[00:08:42] Speaker 04:
confirming exit awards and Section 207, quote, likewise is about doing the same under the New York Convention.

[00:08:49] Speaker 00:
So, we have... Chandra said, Federal Arbitration Act shall not apply full stop.

[00:08:56] Speaker 00:
So, that seems pretty direct.

[00:08:59] Speaker 00:
We don't often get in that direct.

[00:09:01] Speaker 04:
So a couple of things about that.

[00:09:03] Speaker 04:
So first, we're not talking about applying.

[00:09:05] Speaker 04:
We're only talking about borrowing.

[00:09:06] Speaker 04:
And Justice Scalia and his agency, Holdings Concurrence, really made clear that there's a meaningful difference there.

[00:09:12] Speaker 00:
So if we were talking about concurrence.

[00:09:14] Speaker 00:
But I've got a statute that says it doesn't apply.

[00:09:17] Speaker 00:
And what you want to say is that, in fact, provides the governing statute of limitations.

[00:09:24] Speaker 04:
Right.

[00:09:25] Speaker 04:
There's no question here about whether that statute applies.

[00:09:28] Speaker 00:
Can you borrow something without saying that we are applying that statute?

[00:09:32] Speaker 00:
We are applying that statute of limitations?

[00:09:36] Speaker 04:
Yes, Your Honor.

[00:09:36] Speaker 04:
I think you can.

[00:09:37] Speaker 04:
You can borrow a statute of limitations.

[00:09:39] Speaker 04:
What do you do after you borrow it?

[00:09:40] Speaker 04:
You apply it.

[00:09:43] Speaker 04:
After you borrow it, you analyze the claim under that statute of limitations.

[00:09:46] Speaker 00:
And I do that by applying that statute of limitations.

[00:09:51] Speaker 00:
I just don't mentally know how

[00:09:55] Speaker 00:
I don't do that.

[00:09:55] Speaker 00:
And it just seems quite odd that Congress would say FAA off limits here and then expect us to use that statute of limitations.

[00:10:08] Speaker 00:
It seems kind of, and we'll go, well, we're just borrowing it.

[00:10:11] Speaker 00:
We're not really using it or applying it.

[00:10:14] Speaker 00:
Of course we are.

[00:10:17] Speaker 04:
Well, Congress didn't say FAA off limits here.

[00:10:21] Speaker 04:
Congress made a specific statement about the FAA not applying.

[00:10:24] Speaker 04:
We again have legislative history about that exact statement, which says that the scope of that statement was really about the grounds for vacatur in Chapter 1 of the FAA.

[00:10:34] Speaker 04:
It explicitly links that statement to those grounds for vacatur.

[00:10:38] Speaker 04:
That's in the Joint Appendix.

[00:10:39] Speaker 00:
Is there something ambiguous about the text that has me looking at legislative history?

[00:10:44] Speaker 04:
I think the text is not ambiguous.

[00:10:45] Speaker 04:
I think there is a distinction between borrow and apply textually speaking.

[00:10:49] Speaker 04:
If we're then getting into the next level question of, well, what does it really mean to borrow?

[00:10:54] Speaker 04:
What does it really mean to apply?

[00:10:55] Speaker 00:
If I borrow a lawnmower from my neighbor and just let it sit in my garage,

[00:11:04] Speaker 00:
That's fine.

[00:11:04] Speaker 00:
But if I use it, I have to then use it.

[00:11:08] Speaker 00:
That's the whole point of borrowing it is so that you then use it.

[00:11:11] Speaker 00:
And I don't know how using it isn't applying that statute of limitations.

[00:11:18] Speaker 04:
Right.

[00:11:18] Speaker 04:
I would think of it as you borrow the lawnmower from your neighbor, and then you use it on your grass.

[00:11:22] Speaker 00:
Right.

[00:11:22] Speaker 00:
So I'm going to use the statute of limitations.

[00:11:25] Speaker 00:
But you're not applying it necessarily.

[00:11:27] Speaker 00:
I don't know what you mean by applying.

[00:11:28] Speaker 00:
It's not a federal arbitration act case.

[00:11:31] Speaker 00:
But you are applying it.

[00:11:34] Speaker 00:
You're saying that's what governs here.

[00:11:36] Speaker 00:
That's what you want us to say.

[00:11:37] Speaker 00:
You want us to say that statute of limitations will be applied in every case under 1650A.

[00:11:45] Speaker 00:
And it will govern and it will control.

[00:11:47] Speaker 00:
I don't know what it means to sort of wink and go, we just borrowed it.

[00:11:52] Speaker 04:
Sure, even putting that aside, if we were to assume that there is not a distinction between the terms here, there's also the point that at that time that the statement was written, all we had was chapter one of the FAA.

[00:12:04] Speaker 00:
So the only thing Congress could have been- No, I don't think that's truly the only thing could have meant because Congress came along later and added more things to the FAA, but did not at the same time amend that provision.

[00:12:20] Speaker 00:
That's correct, Your Honor.

[00:12:22] Speaker 00:
So we can't simply go, so they only meant it to apply.

[00:12:25] Speaker 00:
So this time-limited thing, it only applies to the old FAA and not the new FAA.

[00:12:31] Speaker 00:
I mean, we assume from congressional inaction a choice, don't we?

[00:12:36] Speaker 04:
That's right.

[00:12:37] Speaker 04:
And in some sense, this point ends up being academic because this is only the question of whether you can actually get to a federal statute or not.

[00:12:44] Speaker 04:
And here, even if you look past that, the fundamental point that should drive the entire analysis here is the fact that we have to find something analogous, whether we're on the federal side or the state side.

[00:12:55] Speaker 04:
And on the state side, the most closely analogous provision, again, gets us to a three-year statute of limitations.

[00:12:59] Speaker 00:
Well, I mean, you're talking about 1644-25.

[00:13:03] Speaker 00:
Yes.

[00:13:06] Speaker 00:
Do you have any case where someone has borrowed a non-statute of limitations in this context?

[00:13:15] Speaker 00:
I mean, the problem is the DC code provision does not have the statute of limitations.

[00:13:21] Speaker 00:
So it seems very strange to say that the most analogous statute of limitations is a general catch-all that applies to, I don't know, is it a dozen or so different subject matter areas, 99% of which have nothing to do with this area.

[00:13:41] Speaker 00:
Right.

[00:13:41] Speaker 00:
I've just never seen someone, every time we borrow statute of limitations, we're going to another statute of limitations provision.

[00:13:48] Speaker 00:
But your argument is go to this provision that has no statute of limitations, then borrow what it presumably is subject to.

[00:14:00] Speaker 04:
Right.

[00:14:00] Speaker 04:
So this is not a matter of going straight to a catch-all.

[00:14:03] Speaker 04:
We're not saying the catch-all itself is the thing that is most closely analogous.

[00:14:07] Speaker 04:
We're saying,

[00:14:07] Speaker 04:
164425 is the thing that's closely analogous.

[00:14:10] Speaker 00:
And the statute of limitations.

[00:14:13] Speaker 00:
We're supposed to borrow the most analogous enforcement provision.

[00:14:19] Speaker 00:
And the whole point of it, why are we borrowing it?

[00:14:21] Speaker 00:
Because we need a statute of limitations.

[00:14:24] Speaker 00:
That's the only reason we're borrowing anything, right?

[00:14:26] Speaker 00:
That's right.

[00:14:27] Speaker 00:
We need a statute of limitations.

[00:14:29] Speaker 00:
Are you aware of any case in any context where don't have to be 1650 a where a court said we need to borrow a state statute of limitations and so we're going to invoke this provision that contains no statute of limitations and then chase down what we think

[00:14:51] Speaker 00:
the statute of limitations under state law should be for that action.

[00:14:55] Speaker 04:
Your honor, I believe the Crocker case, which has been cited in the briefing in this action, did exactly this and ended up borrowing this exact catch-all statute of limitations.

[00:15:03] Speaker 04:
I can confirm that point, but I believe that does happen.

[00:15:07] Speaker 04:
And it makes sense because we have other case laws showing that under DC 16-4425,

[00:15:13] Speaker 04:
the three-year catch-all statute of limitations does govern the actions brought under there.

[00:15:18] Speaker 04:
So the in-ray console rail case, for example, is one where that provision and action brought under 16-4425 was governed by that same three-year statute of limitations.

[00:15:28] Speaker 04:
So I take the point that the three-year statute of limitations is not in 16-4425 itself, but the two operate together in a way that the court would not be prevented from referring to 16-4425 as the most analogous provision and taking the statute of limitations accordingly.

[00:15:46] Speaker 00:
Thank you.

[00:15:49] Speaker 00:
Thank you.

[00:15:50] Speaker 00:
We'll give you some time on rebuttal.

[00:16:06] Speaker 03:
Good morning, Your Honours and May it please the Court.

[00:16:09] Speaker 03:
Matthew McGill of King & Spaulding for Titan Consortium.

[00:16:13] Speaker 03:
The judgment of the district court should be affirmed.

[00:16:17] Speaker 03:
At two levels, the text of section 1650A defeats Argentina's argument here.

[00:16:23] Speaker 03:
First, section 1650A directs courts to give exit awards full faith and credit as if they were state court judgments.

[00:16:33] Speaker 03:
That full faith and credit language is critical because it means a federal court must treat an exit award as a state court or a DC court would treat one of its own judgments.

[00:16:48] Speaker 03:
That points directly to DC code section 15-101 and its 12 year period for enforcement of DC judgments.

[00:16:59] Speaker 03:
Second, there is the Federal Arbitration Act shall not apply.

[00:17:05] Speaker 03:
And even if you took Argentina's view of what that means and doesn't mean, it does mean for sure that the Federal Arbitration Act's grounds for vacatur are unavailable in Ixid cases.

[00:17:20] Speaker 03:
It also is a very clear textual signal that Congress did not think that exit actions were in any way analogous to FAA actions.

[00:17:31] Speaker 03:
And the New York Convention confirmation proceedings are not analogous for the same reason.

[00:17:38] Speaker 03:
They allow litigation of FAA type defenses that the exit convention expressly forbids.

[00:17:48] Speaker 03:
Stepping back,

[00:17:50] Speaker 03:
Approaching this is a question of statutory construction, asking what did Congress intend by its silence?

[00:17:58] Speaker 03:
Congress could not possibly have intended in 1966 to borrow a statute of limitations that had not yet been drafted pertaining to a treaty to which the United States had not yet exceeded.

[00:18:13] Speaker 03:
It's also utterly implausible to think that Congress intended by its silence to borrow any aspect of the one part of the United States code that Congress said shall not apply.

[00:18:28] Speaker 03:
The court should be especially skeptical of inferring from Congress' silence in intent to borrow a statute of limitations that is so short as to regularly collide with ICCID's own appellate process.

[00:18:43] Speaker 03:
And finally, this three-year statute of limitations would risk putting the United States in violation of its own treaty obligations under Article 54 to enforce an exit award as if it were a final judgment, because no state in the union or territory has a statute of limitations or a period for judgment enforcement as short as the three-year period that Argentina is urging here.

[00:19:14] Speaker 03:
So for all of those reasons, we think that you should just follow the North Star methodology.

[00:19:22] Speaker 03:
Start with the strong presumption that we look to state law.

[00:19:27] Speaker 03:
Here, there is the exit statute and the exit convention itself points directly to state law.

[00:19:35] Speaker 03:
The Argentina discusses or raises concerns about the uniformity problems that would arise if we applied state law, give statutes of limitations, but that is baked into the exit convention itself.

[00:19:52] Speaker 03:
Article 54 at the United States is urging, includes a sentence that says, if you have a federal constitution, you may treat the exit awards as if they were

[00:20:06] Speaker 03:
a final judgment of a constituent state.

[00:20:09] Speaker 03:
So it's baked into the exit convention itself that there would be some variation of within federal systems like our own.

[00:20:18] Speaker 03:
So there's no uniformity problem other than the ones that 200 and so nations agreed to and that the United States agreed to when it signed the exit convention.

[00:20:29] Speaker 03:
And of course that

[00:20:30] Speaker 03:
Congress must have intended when it used the same full faith and credit language that had a very well established meaning by that time in 1966 because the statute has been unchanged since 1790 and it has always required federal courts to look to state standards to determine the enforceability of judgments.

[00:20:59] Speaker 03:
So, there's no uniformity problem that the district has consistently been treated as a state for this purpose.

[00:21:08] Speaker 03:
Yes, I mean, the full faith and credit act requires it.

[00:21:11] Speaker 03:
Absolutely.

[00:21:13] Speaker 03:
There's no question about that.

[00:21:17] Speaker 02:
Sorry, why is the exit structured this way as compared to the New York Convention?

[00:21:22] Speaker 02:
Do you know?

[00:21:22] Speaker 03:
because it has its own appellate process.

[00:21:26] Speaker 03:
And the New York Convention covers a much broader range of arbitral awards.

[00:21:34] Speaker 03:
The New York Convention covers any commercial international arbitration award

[00:21:40] Speaker 03:
The exit system is limited to investor state arbitrations, investor one side, state on another.

[00:21:49] Speaker 03:
We had practically 200 nations agreed on the framework here.

[00:21:57] Speaker 03:
where the awards are binding when they're issued, they have their own appellate process, and there is no litigation allowed outside of that appellate process, as this court recognized in the Volaris Mundial decision, when an exit award is brought to

[00:22:19] Speaker 03:
is brought to court for enforcement, the only question is whether the exit itself would view the award as valid.

[00:22:32] Speaker 03:
That is the test.

[00:22:35] Speaker 03:
That tells you just how un-analogous an FAA proceeding or a New York Convention proceeding is.

[00:22:43] Speaker 03:
And if you've been involved, as I have in the litigation of the New York Convention proceeding, there's a lot of defenses that are raised.

[00:22:52] Speaker 03:
Article 5 of the New York Convention has practically all of the same defenses that the FAA does.

[00:23:00] Speaker 03:
Incapacity,

[00:23:01] Speaker 03:
Not valid under the law to which the parties have subjected it.

[00:23:04] Speaker 03:
No proper notice.

[00:23:06] Speaker 03:
Due process concerns.

[00:23:08] Speaker 03:
Beyond the scope of the arbitration.

[00:23:10] Speaker 03:
Not in accordance with the procedure agreed to.

[00:23:13] Speaker 03:
Violates public policy.

[00:23:15] Speaker 03:
None of this is allowed.

[00:23:17] Speaker 03:
None.

[00:23:17] Speaker 03:
in an exit case.

[00:23:19] Speaker 03:
So the idea that the same statute of limitations would apply because one is analogous to the other is just flatly contradicted by the nature of those two litigations.

[00:23:31] Speaker 03:
So if we're borrowing a statute of limitations here, we should, as the text here clearly commands, treat it as a state court judgment.

[00:23:42] Speaker 03:
And that points directly, again, to Section 15-101.

[00:23:47] Speaker 03:
That is the most analogous state law.

[00:23:50] Speaker 03:
And I would submit the most analogous period for any statute of limitations that possibly could be borrowed.

[00:24:02] Speaker 00:
Let me just ask you about, so there was no stay during the annulment proceeding?

[00:24:08] Speaker 00:
Is that right?

[00:24:09] Speaker 03:
I'm not aware of there being a stay, Your Honor.

[00:24:11] Speaker 00:
OK, because the record says that there was a provisional stay.

[00:24:14] Speaker 03:
And so the way it works in exit proceedings is when a party applies for annulment, it's automatically stayed by rule.

[00:24:27] Speaker 03:
The award is automatically stayed by rule while the enrollment committee is constituted.

[00:24:33] Speaker 03:
And then the applicant for the stay can apply for a further stay from the enrollment committee.

[00:24:40] Speaker 03:
And I'm not aware that such a stay was granted here.

[00:24:45] Speaker 00:
Argentina would be the one to apply.

[00:24:47] Speaker 03:
Argentina would have been the one to have applied and it would have sought a stay of enforcement from the annulment committee.

[00:24:54] Speaker 03:
And of course, were there a stay that would have raised tolling defenses of the type.

[00:25:00] Speaker 03:
And I would say the other, another issue here would be, well, what is the award?

[00:25:08] Speaker 03:
Is it the award that first emerges, or is it the award that comes after annulment that adds on and tax on the annulment costs?

[00:25:19] Speaker 03:
That would raise a different set of issues, but here I would say... Do we need to know which it is?

[00:25:28] Speaker 00:
If measured from the annulment proceeding, end of the annulment proceeding, I think you're still within three years then.

[00:25:34] Speaker 00:
That would be true, but I would.

[00:25:37] Speaker 00:
That's the relevant award then.

[00:25:41] Speaker 00:
Both sides win.

[00:25:44] Speaker 03:
Well, except that it should definitely should not be a three year statute of limitations.

[00:25:47] Speaker 00:
It would matter to you in this case.

[00:25:49] Speaker 03:
It would not.

[00:25:51] Speaker 03:
Right.

[00:25:52] Speaker 03:
It would not.

[00:25:52] Speaker 00:
So how do we, I had thought the language was focused more on, it sounded like the initial.

[00:26:00] Speaker 00:
Well, I think that there's no case law in this country on when you measure the time from.

[00:26:05] Speaker 03:
I'm not aware of any.

[00:26:07] Speaker 00:
It would be strange to be doing a statute of limitations case without knowing where it ran.

[00:26:12] Speaker 03:
Here is the problem I see, Judge Millett.

[00:26:18] Speaker 03:
Section 1650A says you treat the award, which would be both the first and the second award, but the award as a judgment entitled to full faith and credit.

[00:26:34] Speaker 03:
Most judgment enforcement statutes run from the date in which a judgment is entitled to full faith and credit.

[00:26:45] Speaker 00:
Is that pre-appeal?

[00:26:47] Speaker 03:
Uh, you mean, pre annulment or well, we're talking about the state court judgments, right?

[00:26:55] Speaker 03:
I mean, whenever it would be entitled to whenever that state would accord a. Judgment full faith and credit if a state did not accord a judgment, full faith and credit until after appeal.

[00:27:08] Speaker 03:
I'm not aware of any state that does that, but if that were the case, then that would be the rule.

[00:27:15] Speaker 03:
And there are some states that have race judicata rules that do depend on appellate review.

[00:27:23] Speaker 03:
So but I think that this case could be and should be resolved on the basis that the district court decided it and also on the basis that Judge Walden decided in the rebuilt case that section 15-101 is the most analogous statute here and is the appropriate one to borrow.

[00:27:49] Speaker 00:
It's been around a long time.

[00:27:53] Speaker 00:
And there's no decision anywhere in this country when the statute of limitations starts, whatever one you're borrowing starts to run.

[00:28:03] Speaker 03:
Your honor, I'm not aware of any decision in the world that has rejected

[00:28:10] Speaker 03:
an exit award on statute of limitations grounds.

[00:28:14] Speaker 03:
And I'm only aware of a statute of limitations being raised in the three instances that Argentina has raised it, which would be Blue Ridge we built in this case.

[00:28:27] Speaker 03:
So

[00:28:28] Speaker 03:
It doesn't get litigated a lot, in part because ICSID itself includes no time limitation on the enforcement of its awards.

[00:28:41] Speaker 03:
And it says only that it must be accorded the same treatment as a judgment of a court of general jurisdiction in the contracting state.

[00:28:52] Speaker 03:
Um, and we're the contracting state that applies, uh, these kind of time limitations to, uh, judgments of courts of general jurisdiction.

[00:29:07] Speaker 00:
Questions.

[00:29:09] Speaker 00:
Thank you very much, Council.

[00:29:13] Speaker 00:
Okay.

[00:29:13] Speaker 00:
Okay.

[00:29:13] Speaker 00:
Miss, Miss Martin, we will give you, um, two minutes for rebuttal.

[00:29:17] Speaker 04:
Thank you, your honor.

[00:29:19] Speaker 04:
So just to follow up on a few of the points we discussed, on your question regarding a stay, if you look at the annulment decision, JA572, the procedural history makes no reference to a stay there.

[00:29:32] Speaker 04:
On the question of when the limitations period runs from, the Flatow case and the Africard case, which we both cite in our opening brief, both say that the limitations period runs from the date the award is made or rendered.

[00:29:46] Speaker 04:
And then if we look at the exit convention, Article 49.1, it specifies that that is the date that the certified copies were dispatched.

[00:29:54] Speaker 04:
So it is not correct to say that the limitations period doesn't begin to run until the annulment proceedings.

[00:29:59] Speaker 04:
The limitations period runs when the award itself is made or rendered.

[00:30:04] Speaker 00:
That is by the original exit panel?

[00:30:08] Speaker 00:
By the original.

[00:30:09] Speaker 00:
Not by the annulment.

[00:30:10] Speaker 00:
Correct.

[00:30:10] Speaker 00:
Exactly.

[00:30:11] Speaker 00:
That's right.

[00:30:11] Speaker 00:
And where there are annulment.

[00:30:12] Speaker 00:
But here the annulment proceedings

[00:30:15] Speaker 00:
added more money.

[00:30:17] Speaker 00:
Does that just sort of go back in time or are there two judgments at issue here?

[00:30:23] Speaker 00:
Two annulments, not judgments, two annulments for purposes of our thinking of them as judgments, but two awards rendered.

[00:30:31] Speaker 04:
I would not think of it as two awards rendered.

[00:30:33] Speaker 04:
So if you had a proceeding that was timely brought after an award was made or rendered, and then there were annulment proceedings that may or may not result in additional amounts, the district court at that point has the ability to decide what to do to manage the case there.

[00:30:46] Speaker 04:
So sometimes district court's grant stays in that context on the view that maybe... I'm just asking.

[00:30:52] Speaker 00:
I've got an award.

[00:30:55] Speaker 00:
from an exit panel and I take it to court and say, please enforce this award.

[00:31:04] Speaker 00:
And then two years later, the annulment committee or whatever it's called, the panel says, not only are you right, you get that one, but you get another three million.

[00:31:16] Speaker 00:
Why then take the decision of the annulment proceeding and go district court and say, hey, guess what?

[00:31:21] Speaker 00:
Got another one, enforce this too, for the $3 million.

[00:31:25] Speaker 00:
No, you would not say got another one.

[00:31:28] Speaker 04:
That might be a basis to modify or change a judgment that was entered on the award.

[00:31:33] Speaker 04:
But it's not its own separate new award that deserves its own separate new judgment.

[00:31:38] Speaker 04:
It's just a basis to possibly modify what already exists in the proceeding.

[00:31:42] Speaker 04:
And that's why it makes sense that the limitations period is running from when the original award is actually entered.

[00:31:48] Speaker 04:
On the question about the catch-all statute of limitations.

[00:31:52] Speaker 04:
It's the Crocker v. Piedmont case from the D.C.

[00:31:54] Speaker 04:
Circuit, 49 F.3D 736.

[00:31:57] Speaker 04:
And at 744, the court says that it's easy to disparage this limitations period as a mere catch-all.

[00:32:03] Speaker 04:
But since that provision does in fact embrace the claims that are at issue and there it was personal injury claims.

[00:32:09] Speaker 04:
that it would be the most analogous that applies.

[00:32:13] Speaker 04:
And that makes sense also because when we're doing this analysis, you're trying to figure out what cause of action is the closest analog.

[00:32:19] Speaker 04:
And then the second question is, all right, what is the statute of limitations accordingly?

[00:32:23] Speaker 04:
So the fact of it being a catch-all shouldn't change that analysis.

[00:32:27] Speaker 04:
And ultimately, what this comes down to is really just about the nature of the action and finding something that is closely analogous.

[00:32:34] Speaker 04:
As we've said, confirmation of an award is the nature of the action here.

[00:32:37] Speaker 04:
And there's a real consequence to making sure that we think of the action as having that nature instead of having judgment enforcement.

[00:32:44] Speaker 04:
Because again, it would create a problem under the FSAA.

[00:32:47] Speaker 04:
You'd have an issue where you don't have jurisdiction under 1605A6.

[00:32:51] Speaker 04:
And that reading and that consequence would undercut what 1650A is trying to do overall.

[00:32:57] Speaker 00:
Thank you very much, counsel.

[00:32:58] Speaker 00:
Thank you.