[00:00:00] Speaker 04: Based on the 25th of 1730, Mohammed Gilmina Sifan partners, owner of the Cray Name Crafts Worldwide Corp, a valent, versus Republic of Iraq and Ministry of Industry and Minerals of the Republic of Iraq. [00:00:15] Speaker 04: Ms. [00:00:15] Speaker 04: Artiga Gomez for the valent, Mr. Zubiri for the ablites. [00:00:20] Speaker 00: Good morning. [00:00:20] Speaker 00: Good morning. [00:00:21] Speaker 00: May it please the court. [00:00:23] Speaker 00: The Lord Court [00:00:25] Speaker 00: aired with respect to the Iraq's explicit waiver of sovereign immunity because it broadened the plaintiff's burn of production and it shifted the burn of persuasion to the plaintiff. [00:00:36] Speaker 00: Now, the court acknowledged that Nassif's proof consisted of declarations that paraphrased discussions between high ranking Iraqi government officials and Nassif and partners. [00:00:48] Speaker 00: But even with that acknowledgement that the declarations did not contain quotes from what these officials said, the court still attempted to analyze the words that were used by the Iraqi officials according to the declarations. [00:01:01] Speaker 00: And that led to the court failing to do what it was supposed to do under the FSIA, which is to determine the sovereign's intent. [00:01:10] Speaker 00: Now, if we look at the content of the declarations, these high-ranking government officials in these discussions with Nasib and partner were assuring Nasib and partners that it needed to sue in order to collect and that when it sued, Iraq was not going to defend and it was not going to object. [00:01:29] Speaker 01: So perhaps these statements could be suggestive in one sense of. [00:01:35] Speaker 01: some type of waiver of sovereign immunity, perhaps. [00:01:39] Speaker 01: But it seems there are other plausible interpretations as well. [00:01:45] Speaker 01: And so the standard is really difficult because the Supreme Court and this court has repeatedly said that any ambiguity has to be construed in favor of sovereign immunity. [00:01:56] Speaker 01: So how do you overcome that high hurdle? [00:01:58] Speaker 01: So it's not enough that the statements could be read as a waiver. [00:02:02] Speaker 01: If there's any other plausible interpretation, [00:02:06] Speaker 01: then this court's required to rule in favor of sovereign immunity. [00:02:09] Speaker 00: Your Honor, I would posit that there is no other reasonable interpretation given the context in which the statements were made. [00:02:17] Speaker 00: These were not statements that were made at a time when the parties were negotiating the letter agreement. [00:02:23] Speaker 00: These statements are made when that letter agreement has already been breached. [00:02:26] Speaker 00: And the discussion is about, what are we going to do in order for Iraq to pay? [00:02:31] Speaker 00: So the discussion is, what are we doing considering that the letter agreement has already been breached? [00:02:37] Speaker 00: So all of the discussions that are taking place are contemplating a lawsuit. [00:02:41] Speaker 00: Because Iraq is saying, to collect, you're going to have to go get a judgment. [00:02:45] Speaker 00: And when you bring us a judgment, we'll pay it. [00:02:47] Speaker 00: But don't worry, because we're not going to raise any objections, and we're not going to defend. [00:02:52] Speaker 01: So maybe that means they're not going to raise any objections on the merits. [00:02:57] Speaker 01: There's no claim in the declaration that they said that they waive their sovereign immunity or that they won't raise immunity. [00:03:03] Speaker 01: The immunity and the merits are arguably distinguishable. [00:03:08] Speaker 00: There's no requirement in the law that the word sovereign immunity be used in order to explicitly waive it. [00:03:13] Speaker 01: That's true. [00:03:14] Speaker 00: And in this case, the same, we're not going to raise any defense. [00:03:18] Speaker 00: I mean, what greater defense, what more obvious defense does a sovereign have other than sovereign immunity? [00:03:25] Speaker 00: So a reference to we are not going to defend is a reference to we are waiving our sovereign immunity. [00:03:31] Speaker 00: And that really is the only reasonable interpretation that can be given to these statements in the context of a letter agreement that's already been breached and the parties are discussing, how are we going to collect on that breached letter [00:03:43] Speaker 00: it's going to be through a lawsuit, because that is an encouragement to sue. [00:03:47] Speaker 00: Iraq says to collect, you go sue. [00:03:49] Speaker 00: That's an encouragement to sue. [00:03:51] Speaker 00: How do you encourage a party to go sue, couple it with assurances that you're not going to defend, you're not going to object, and then turn around and say, oh, no, but we are actually asserting our sovereign immunity? [00:04:03] Speaker 00: That's inconsistent. [00:04:03] Speaker 00: They're irreconcilable. [00:04:05] Speaker 00: And we know what the court then did is it focused, because it was trying to read the exact words that were in the declaration, even knowing that those were not the exact words that were uttered by the Iraqi officials. [00:04:18] Speaker 00: It then said, well, it's our fault with our proof. [00:04:20] Speaker 00: It said, well, the proof is just too ambiguous. [00:04:23] Speaker 00: It lends itself to ambiguity. [00:04:25] Speaker 00: and says, we can't precisely determine whether there was an intent to waive. [00:04:31] Speaker 00: But this precision requirement that the court discusses is not found anywhere in the law. [00:04:36] Speaker 00: It was found in Iraqi's brief. [00:04:37] Speaker 00: If you look at the district court's decision, the citation is to Iraq's brief when it discusses precision. [00:04:42] Speaker 05: And we know that the law doesn't require- You're saying it's just another way of saying an absence of ambiguity. [00:04:47] Speaker 05: Yes, Your Honor, but- Okay, so we have to have an absence of ambiguity. [00:04:50] Speaker 05: You agree with that, right? [00:04:51] Speaker 05: Yes, I do, Your Honor. [00:04:54] Speaker 05: You've quoted some of the language, but none of the language is quotations from government officials. [00:05:03] Speaker 05: It's paraphrases. [00:05:04] Speaker 05: Here's what I remember them saying. [00:05:07] Speaker 05: Isn't that itself a source of ambiguity? [00:05:14] Speaker 05: By the way, I assume this has all been translated as well. [00:05:18] Speaker 05: Yes. [00:05:19] Speaker 05: Right. [00:05:19] Speaker 05: So it's a translation of someone else's, here's a statement. [00:05:27] Speaker 05: Isn't that itself just a source of ambiguity? [00:05:30] Speaker 05: Because we don't have their words specifically. [00:05:35] Speaker 00: Your honor, there is no specific wording requirement in the FSIA that is a king, that is tantamount to a writing requirement, which the FSIA doesn't have. [00:05:44] Speaker 05: No, I'm not. [00:05:45] Speaker 05: I don't think that's fair to confuse that with a writing requirement. [00:05:48] Speaker 05: What I'm saying is we don't have the Iraqi officials words full stop. [00:05:56] Speaker 05: We don't have their words. [00:05:59] Speaker 05: Isn't the absence of having their words, their own words, make it ambiguity. [00:06:07] Speaker 05: All I've got is someone's recollection of those words. [00:06:11] Speaker 00: And your honor, what I'm explaining is that in this context, where the discussion is solely centered on a breach the letter agreement and a lawsuit, the court can look at the message that is being conveyed by these officials without knowing the exact words. [00:06:26] Speaker 00: The message without the words is an unambiguous waiver. [00:06:31] Speaker 00: when the message is, Sue, we will not defend. [00:06:34] Speaker 00: We're not going to object. [00:06:36] Speaker 00: Yes, Your Honor. [00:06:37] Speaker 00: And we know that the court, the law doesn't require these precision. [00:06:41] Speaker 05: Someone else's statement that they told me they won't defend, they won't object. [00:06:46] Speaker 05: And since what they meant by that, as Judge Rao was pointing out, is really important. [00:06:53] Speaker 05: Yes, Your Honor. [00:06:54] Speaker 05: Then exactly which word they remembered someone saying matters. [00:07:00] Speaker 00: It does matter, Your Honor, but again, in this context where the facts are uncontroverted, we're not dealing with a case where Iraq has come with its own evidence and said we didn't utter those words. [00:07:11] Speaker 00: So in this scenario, what the law requires, according to Owens versus Sudan, which is a DC [00:07:18] Speaker 00: district court case that relies on Simpson, a DC Circuit case, the law just requires that there be sufficient proof and even a meager showing by a plaintiff when the defendant hasn't brought forth its own evidence is sufficient. [00:07:32] Speaker 00: This is a motion to dismiss stage. [00:07:34] Speaker 00: Now, at a later stage, Iraq will have the opportunity to introduce whatever evidence it wants and can raise the issue again, but at this initial stage where- It's a little different. [00:07:43] Speaker 05: This is jurisdictional. [00:07:44] Speaker 05: Yes, Your Honor, but again- Jurisdictional and so courts can actually make some, gather some factual evidence and make some factual findings in this stage. [00:07:53] Speaker 00: Yes. [00:07:53] Speaker 00: And the law allows Iraq at this stage, which is a different, it's very awkward, very unusual at a motion to dismiss stage for a defendant to have the ability to produce its own evidence. [00:08:04] Speaker 00: And yet Iraq didn't do that. [00:08:06] Speaker 00: And so the law says that even a meager showing, and Simpson, this circuit court warned that a defendant who doesn't bring its own evidence risks the denial of a motion to dismiss because even a meager showing by the plaintiff will suffice. [00:08:20] Speaker 00: And here, Your Honor, I would argue that this is a meager showing. [00:08:22] Speaker 01: But then you have to weigh that against the fact that you have to have clear and unambiguous evidence of a waiver of sovereign immunity. [00:08:29] Speaker 01: So how do you [00:08:32] Speaker 00: How do you reconcile those? [00:08:33] Speaker 00: And Your Honor, you reconcile them because, again, the message being conveyed generally is just completely inconsistent with an assertion of sovereign immunity. [00:08:42] Speaker 01: I think it's not enough in this context. [00:08:44] Speaker 01: So even if, I mean, say we think that your interpretation is 90% likely, the fact that it's even plausible that there's another interpretation is sufficient under the case law [00:08:59] Speaker 01: to defeat, to require us to recognize Iraq's sovereign immunity. [00:09:06] Speaker 00: Even if we talk about the plausibility of a different interpretation, as the district court judge did, the district judge said, well, they could have been speaking about the letter agreement, not the lawsuit. [00:09:18] Speaker 00: But again, they weren't speaking about a venue limitation and a letter agreement devoid of the lawsuit. [00:09:23] Speaker 00: You just can't separate those two. [00:09:26] Speaker 00: Because in this context, that letter agreement had already been breached. [00:09:29] Speaker 00: So we are just talking about, what is your remedy to collect on this breached letter agreement? [00:09:37] Speaker 00: And Iraq says to, in whatever words it used explicitly, the message was, go sue. [00:09:46] Speaker 00: we're not going to defend. [00:09:47] Speaker 01: Go sue, but that doesn't mean they won't assert a defense of sovereign immunity. [00:09:51] Speaker 01: Go sue. [00:09:52] Speaker 01: Maybe it's just a delaying tactic. [00:09:54] Speaker 01: I mean, there's nothing in the declarations that it's inconsistent with. [00:09:58] Speaker 01: Maybe you want to say it's bad faith or whatever. [00:10:00] Speaker 01: There's like, yeah, go ahead and sue, but you know, whatever. [00:10:01] Speaker 01: We're going to assert sovereign immunity. [00:10:03] Speaker 01: I mean, that is the nature of sovereign immunity. [00:10:06] Speaker 00: But you're undertaking the declarations in the light of [00:10:09] Speaker 00: know, as true because their own controversial motion to dismiss where the plaintiffs taking those declarations is true. [00:10:15] Speaker 00: They also said, Iraq also said that they were not going to defend on that lawsuit. [00:10:20] Speaker 00: And they said, once you get the judgment, we'll pay on it. [00:10:23] Speaker 00: So under those, your honor, I would submit to this court that given in this unique scenario, there is a clear and an ambiguous waiver and especially considering [00:10:34] Speaker 00: that we just have to have meager evidence. [00:10:37] Speaker 00: I think we have more than that. [00:10:39] Speaker 00: I would like now to turn to the commercial activities exception. [00:10:41] Speaker 05: This is one more question. [00:10:43] Speaker 05: This one. [00:10:45] Speaker 05: There is an argument raised and certainly had some answers to it that these officials didn't have the authority to waive sovereign immunity. [00:10:55] Speaker 05: For something to be clear and ambiguous, do we have to know [00:10:59] Speaker 05: also that it was made by someone who has authority. [00:11:02] Speaker 05: I could give you a clear and ambiguous statement right now. [00:11:05] Speaker 05: I, on behalf of the Republic of Iraq, waive their sovereign immunity from a lawsuit for you. [00:11:11] Speaker 05: That's clear and unambiguous wording, but I don't have the authority. [00:11:17] Speaker 05: It's part of our clear and unambiguous inquiry, whether it's [00:11:21] Speaker 05: We also have to find this a statement made by someone with authority. [00:11:25] Speaker 00: Yes, your honor, but the the magistrate judge analyzed that issue determines that the [00:11:31] Speaker 00: the experts are determined that the evidence that we put forward on those Iraqi officials authority, the experts that we produced were sufficient. [00:11:39] Speaker 00: The district court never commented on that, never commented on that evidence. [00:11:44] Speaker 00: And so I would submit that that is a question that would still require a remand for the district court to consider. [00:11:50] Speaker 05: So we couldn't decide. [00:11:52] Speaker 05: today, whether there was a clear and unambiguous waiver here, the most we could do is decide, if we decide in your favor, is that these statements, if made with authority, would be a clear and unambiguous waiver of sovereign immunity. [00:12:08] Speaker 00: Yes, Your Honor. [00:12:08] Speaker 00: You would be able to decide that, that if those statements made with authority- We still have to remand. [00:12:12] Speaker 05: It still wouldn't be a waiver. [00:12:13] Speaker 05: You'd have to go back and have the district court resolve the authority issue. [00:12:17] Speaker 00: Your honor, that issue was just never, it was waived. [00:12:21] Speaker 00: Sorry. [00:12:22] Speaker 00: That issue just was not addressed by the court, so yes. [00:12:25] Speaker 00: Now in terms of the commercial activities exception, the lower court erred in its analysis because it strayed from the text of the FSIA and it relied on an erroneous interpretation of Supreme Court decisions in Nelson and in Sachs. [00:12:39] Speaker 00: The FSIA allows for three different ways of finding a commercial activity exception. [00:12:44] Speaker 00: Nasib and Partners is proceeding under the third prong. [00:12:48] Speaker 00: In that prong, it says that a foreign state shall not be immune from the jurisdiction of courts of the United States or of the states in any case in which the action is based upon and act outside the territory of the United States in connection with a commercial activity [00:13:02] Speaker 00: of the foreign state elsewhere, and that act causes a direct effect in the United States. [00:13:07] Speaker 00: Now, even prior to Nelson and Sachs, the Second Circuit has been deciding judgment enforcement actions. [00:13:13] Speaker 00: This issue of whether commercial exception applies in judgment enforcement actions simply by relying on the text of the FSIA and has been looking at the facts of the underlying lawsuit that led to the judgment enforcement action. [00:13:28] Speaker 05: That's not enforcement. [00:13:29] Speaker 05: This is a recognition action. [00:13:30] Speaker 00: Or judgment recognition action. [00:13:32] Speaker 05: Those are different things. [00:13:33] Speaker 00: Understood, Your Honor. [00:13:34] Speaker 00: But the Second Circuit has still just been looking at the facts underlying the merits of the case that led to the judgment. [00:13:41] Speaker 05: So we have to have one waiver of sovereign immunity for the so-called the merits litigation, a separate one for enforcement actions. [00:13:53] Speaker 05: Do you know what the rule is for recognition actions? [00:13:56] Speaker 05: Does the merits action one cover that recognition proceeding, or do you need a separate waiver of sovereignty for the recognition proceeding? [00:14:09] Speaker 00: Your Honor, I have not read any case law. [00:14:12] Speaker 00: I don't know that there is any cases that say a recognition action is treated any different from an enforcement action. [00:14:18] Speaker 05: I would submit to the court. [00:14:20] Speaker 05: So you say you need to meet the enforcement action standard for this case. [00:14:24] Speaker 05: I thought you were relying on what I call the merit stage of the explicit waiver provision of the FSIA, which is the merit stage waiver. [00:14:32] Speaker 05: There's just this different section of the FSIA governing enforcement actions. [00:14:38] Speaker 00: Your Honor, I'm sorry. [00:14:39] Speaker 00: Maybe I'm misunderstanding the question. [00:14:40] Speaker 00: We're relying on two separate exceptions. [00:14:42] Speaker 00: We're saying Iraq explicitly waived, and then we're also saying [00:14:47] Speaker 00: there was also a commercial activity exception because the behavior, the conduct of Iraq was a commercial activity, the relevant conduct to this recognition action. [00:14:57] Speaker 00: And so. [00:14:58] Speaker 05: Sorry, I'm just, but the FSIA has section 1610 governs immunity from enforcement actions. [00:15:09] Speaker 05: 1610 is a different test than the explicit waiver language that you're relying on for [00:15:18] Speaker 00: I'm relying on 160582. [00:15:20] Speaker 05: Okay, that doesn't cover enforcement actions. [00:15:25] Speaker 00: Recognition actions. [00:15:28] Speaker 00: Sorry. [00:15:29] Speaker 05: Okay. [00:15:30] Speaker 05: Sorry. [00:15:30] Speaker 05: Yes. [00:15:31] Speaker 05: Well, that's my question to you is does that govern recognition? [00:15:33] Speaker 05: Do we do recognition? [00:15:35] Speaker 05: I thought you said we, I thought your answer to me was we put that in [00:15:39] Speaker 05: the camp of enforcement actions. [00:15:40] Speaker 05: Because I said, is it part of the merits or is it part of the enforcement? [00:15:43] Speaker 05: I thought you said it's enforcement. [00:15:44] Speaker 00: Oh, I'm sorry, Your Honor. [00:15:45] Speaker 00: Maybe I misunderstood my question there. [00:15:47] Speaker 00: What we're saying is this recognition action, the commercial activity exception is governed under A2. [00:15:52] Speaker 00: So recognition action under A2, we could still have an explicit waiver based on a commercial activity. [00:16:00] Speaker 05: OK. [00:16:02] Speaker 05: Are there many cases that talk about [00:16:05] Speaker 05: Which of the two waiver routes covers recognition actions? [00:16:09] Speaker 00: Well, your honor, the FSIA just says that if there is an action where there is a commercial activity based on a commercial activity in the United States, then the sovereign is deemed to have waived his immunity. [00:16:21] Speaker 00: So in a recognition action, if the action is based upon commercial activity, then there would be a finding of a [00:16:30] Speaker 00: provided that there's a direct effect in the United States, there would be a finding of explicit waiver. [00:16:35] Speaker 00: And with the issue with the recognition action is that there's already a pre-existing judgment. [00:16:40] Speaker 00: So do we look at the underlying merits? [00:16:42] Speaker 00: Do we look at the underlying facts? [00:16:43] Speaker 00: Or is it just we're looking at the elements of a recognition action? [00:16:47] Speaker 00: what the court did here is just look at the elements of the recognition action and we submit that that is incorrect given what Sachs and Nelson have already explained which is you don't look when you're determining whether commercial activity exception applies you don't look at the elements [00:17:03] Speaker 00: of the case, even though Nelson did do that. [00:17:07] Speaker 00: What Nelson taught is you look at how is the sovereign acting? [00:17:11] Speaker 00: Is he acting as a sovereign or is he acting as a private party? [00:17:15] Speaker 00: And in doing that, Sachs explains what Nelson really did is look at the core of the soup and phrases the question as, what did Saudi Arabia do to injure the plaintiff and Nelson? [00:17:27] Speaker 00: Was it recruiting Nelson to come and work in Saudi Arabia or was it torture? [00:17:32] Speaker 00: And the torture is a sovereign act. [00:17:35] Speaker 00: Sachs then criticizes the Ninth Circuit for having applied a one element test and says, again, that's not what Nelson taught. [00:17:42] Speaker 00: Nelson says we look at the core of the suit. [00:17:44] Speaker 00: What did Saudi Arabia do wrong? [00:17:46] Speaker 00: Here, what did Iraq do wrong? [00:17:48] Speaker 00: If it is failing to pay a judgment, that is commercial activity. [00:17:52] Speaker 00: The failure to pay a debt is commercial activity. [00:17:55] Speaker 00: And sorry. [00:17:56] Speaker 05: I'll let you wrap up here. [00:17:58] Speaker 05: Thank you. [00:18:01] Speaker 00: Did it have a direct effect in the United States? [00:18:03] Speaker 00: It most certainly did, because Iraq was the one who decided that that debt would be paid with urea and sulfur, because the debt was $53 million. [00:18:10] Speaker 00: It required tons and tons of urea and sulfur, and the only available buyer was in the United States. [00:18:16] Speaker 00: And that is in the record at appendix A270. [00:18:19] Speaker 00: Thank you. [00:18:21] Speaker 05: We'll give you a couple minutes on rebuttal. [00:18:23] Speaker 05: Thank you. [00:18:35] Speaker 03: Morning, Your Honors. [00:18:36] Speaker 03: May it please the court, Faisal Zubari, on behalf of the Defendants and Appellees Republic of Iraq and its Ministry of Industry and Minerals. [00:18:44] Speaker 03: This is a lawsuit seeking the enforcement of a Jordanian judgment that the Jordanian Appellate Court itself refused to enforce on sovereign immunity grounds. [00:18:54] Speaker 03: The District Court correctly dismissed for both [00:18:56] Speaker 02: Was that a, I'm really sure of the procedural posture in Jordan, because there's something in the plaintiff's brief that says, was a court of cessation or a cessation affirmed the judgment of the lower Jordanian court? [00:19:19] Speaker 02: And then the next thing I hear is that the court of appeals for Jordan [00:19:27] Speaker 02: decided that sovereign immunity barred the enforcement. [00:19:33] Speaker 02: Can you clear that up for me? [00:19:34] Speaker 02: I don't understand it. [00:19:35] Speaker 03: Yes, that is correct, Your Honor. [00:19:36] Speaker 03: So there was a Jordanian trial court ruling on the breach of contract case. [00:19:41] Speaker 03: That ruling was appealed up to the Court of Cassation, which affirmed that there was a breach of contract and issued a judgment. [00:19:47] Speaker 02: And in neither one of those proceedings was sovereign immunity invoked? [00:19:52] Speaker 03: That's correct. [00:19:53] Speaker 03: And the district court notes in its ruling that the reason they found there was no immunity is because the ministry participated in the case, presumably without asserting immunity in that case. [00:20:06] Speaker 03: However, when they filed a subsequent judgment enforcement action in Jordan, the Court of Appeal in Jordan held that there was no explicit waiver of sovereign immunity. [00:20:18] Speaker 03: Appellants were unsuccessful in seeking to enforce the judgment in Jordan before they came to the United States and are seeking to enforce that same judgment here. [00:20:26] Speaker 02: You're not arguing that there is no judgment to enforce, given the Jordanian Court of Appeals decision. [00:20:33] Speaker 02: I mean, I wonder why. [00:20:34] Speaker 02: But, you know, if the judgment is unenforceable or invalid because of sovereign immunity, then [00:20:44] Speaker 02: Where's the judgment that they're trying to enforce? [00:20:48] Speaker 03: We agree that that ruling should basically be rest judicata and collateral estoppel on this judgment enforcement action under principles of committee. [00:20:57] Speaker 03: And that's one of our alternative arguments for why there's no explicit waiver here. [00:21:01] Speaker 02: I wouldn't put it in those terms, though. [00:21:04] Speaker 02: Not comedy and race judicata, but simply there's no judgment to enforce because the Jordanian courts have held that it's invalid. [00:21:17] Speaker 03: We would not disagree with that characterization. [00:21:20] Speaker 03: The district court here. [00:21:22] Speaker 05: Now I'm more confused. [00:21:24] Speaker 05: So the Court of Cassation found a waiver of immunity [00:21:29] Speaker 05: on commercial activity sounds. [00:21:32] Speaker 05: That's Appendix 107-8-9. [00:21:35] Speaker 05: It was then a different court. [00:21:40] Speaker 05: A different court later see the Amman Court of Appeal Enforcement decision that said you can't enforce it. [00:21:51] Speaker 05: I thought you just told Judge Randolph that the Court of Cassation did not affirm the judgment. [00:21:59] Speaker 03: did not address sovereign immunity. [00:22:03] Speaker 03: That's incorrect. [00:22:04] Speaker 03: They found a waiver of immunity, but not because there was an explicit waiver of sovereign immunity. [00:22:08] Speaker 05: But they found it under commercial activity. [00:22:10] Speaker 03: There's a commercial activity between Iraq and Jordan. [00:22:14] Speaker 03: They may have concluded that, but they also noted. [00:22:16] Speaker 03: Wait, wait, wait. [00:22:16] Speaker 03: So there is a judgment. [00:22:18] Speaker 03: There is a judgment on a breach of contract claim, yes. [00:22:20] Speaker 03: There is a judgment. [00:22:21] Speaker 05: And the Court of Cassation, is that the highest court in Jordan? [00:22:24] Speaker 03: I believe so, yeah. [00:22:25] Speaker 05: That's the highest court in Jordan. [00:22:26] Speaker 05: So the highest court in Jordan has said, there's a judgment here. [00:22:30] Speaker 05: And your claims of sovereign immunity are rejected because this was a commercial activity. [00:22:36] Speaker 05: Whatever their test is for that. [00:22:38] Speaker 03: So I think there's two parts in the Court of Cassation. [00:22:41] Speaker 03: And I think the district court recounts this in its ruling as well. [00:22:45] Speaker 03: Number one, there may have been a commercial activity between Iraq and Jordan. [00:22:48] Speaker 03: But number two, I think they also mentioned that because the party participated in the litigation, there was no assertion of sovereign immunity at the trial court level. [00:23:00] Speaker 05: Basically, the, the, the breach of contract action, the normal acts that are subject to the private law, there's no way to use the jurisdictional immunity considering the nature of the commercial dealing. [00:23:10] Speaker 05: Between the plaintiff and the defendants, that's 109. [00:23:18] Speaker 05: So, so that decision. [00:23:21] Speaker 05: from the Amman part was only about enforcement, not about the existence of a valid judgment. [00:23:26] Speaker 03: That is correct. [00:23:27] Speaker 03: It's about the enforcement. [00:23:28] Speaker 05: And this is not an enforcement action. [00:23:30] Speaker 05: This is a recognition action. [00:23:32] Speaker 03: Well, it's a recognition action, but it's seeking to enforce that same Jordanian judgment. [00:23:37] Speaker 05: So if the district court recognized this judgment, would that lead to automatic enforcement, or would they have to file an enforcement action wherever they find assets? [00:23:46] Speaker 03: Yeah, they would have to seek enforcement. [00:23:47] Speaker 05: OK, so this is not an enforcement proceeding. [00:23:50] Speaker 05: I'm just asking, it's not, there has to be a whole other proceeding. [00:23:53] Speaker 05: No enforcement would result from a judgment in this case, recognizing this judgment, correct? [00:23:58] Speaker 03: Correct. [00:23:59] Speaker 03: Okay. [00:24:00] Speaker 03: So the district court in this case, [00:24:04] Speaker 03: correctly concluded that there is no subject matter jurisdiction under the Foreign Sovereign Immunities Act, either under the commercial activity or the explicit waiver exception. [00:24:15] Speaker 03: Appellant all but conceded that the commercial activity exception couldn't apply when it chose not to object to the magistrate judge's original ruling. [00:24:22] Speaker 03: However, since the district court also correctly ruled that there was no explicit waiver, appellant now contends that the third clause of the commercial activity exception should apply to this case. [00:24:31] Speaker 03: There are, however, two insurmountable hurdles to the application of the commercial activity exception, which I'll address quickly before then moving on to the explicit waiver. [00:24:40] Speaker 03: With respect to the commercial activity exception number one, this case is based on a Jordanian judgment. [00:24:47] Speaker 03: For the OBB versus Sachs and Nelson versus Saudi Arabia decisions from the Supreme Court, the based upon analysis focuses on the government of the complaint by reference to the elements that are required to prove up the plaintiff's claims. [00:24:59] Speaker 03: This court in Odhiambo versus Kenya confirmed that the same interpretation of the based upon analysis applies to the second clause of the commercial activity exception because the same phrase and the same statute should be interpreted the same. [00:25:12] Speaker 03: And most recently or even more recent than the Kenya decision in Colombia versus Tanzania, this court affirmed a district court ruling that applied the same interpretation of the based upon language to the third clause of the commercial activity that the appellant is trying to invoke here. [00:25:27] Speaker 03: And it did so in substantially similar circumstances, concluding that the case seeking the recognition of a foreign judgment under the same DC Uniform Money Judgment Recognition Act was based upon a foreign judgment as opposed to any underlying commercial activity. [00:25:44] Speaker 05: So since this is recognition and not enforcement, and it's recognition, I assume, under the DC Uniform Foreign Judgment Act, [00:25:59] Speaker 05: And since the recognition proceeding requires looking at the underlying proceeding. [00:26:07] Speaker 05: I mean, this is just sort of to enter a judgment in this court that is equivalent to the judgment that was entered in Jordan. [00:26:18] Speaker 05: It requires looking at the proceeding, some of the nature of the content and what the dispute was about. [00:26:24] Speaker 05: I don't know that it's enough to say this is based upon that judgment, because that judgment itself, one, is a reflection of a particular dispute, but more importantly, the recognition action itself requires examination of content and procedures of how that judgment came into being. [00:26:47] Speaker 05: So I'm not sure you can say [00:26:50] Speaker 05: It doesn't look at what the nature of the dispute was, what the character of the dispute was, how the procedures were involved, whether the other court had jurisdiction, whether there was fraud, whether there's a conflict with another judgment. [00:27:07] Speaker 05: There's just a lot of factors that you have to consider. [00:27:11] Speaker 05: So it seems to me [00:27:13] Speaker 05: Difficult to divorce it the way you do. [00:27:15] Speaker 05: I'm not talking about an enforcement action. [00:27:17] Speaker 05: I'm talking about a recognition action to pretend that that's totally divorced from the underlying proceeding. [00:27:22] Speaker 05: It's actually really kind of like just a continuation of the proceeding. [00:27:26] Speaker 03: So in Volumbia, the court dealt with a similar judgment recognition action, not an enforcement action. [00:27:33] Speaker 03: And it concluded that the action was based upon the foreign judgment as opposed to the commercial activity underlying the foreign judgment. [00:27:40] Speaker 03: And I think that's the distinction [00:27:42] Speaker 03: In terms of a judgment recognition action, this court or the district court would have looked at whether the foreign court had jurisdiction, whether the court had due process, whether there's a fully enforceable judgment, but it wouldn't need to look at what was the commercial relationship between the parties or what did the contract require. [00:28:01] Speaker 03: Specifically, like in this court's own Volumbia ruling at page 1143, this court was focused on the judgment itself, concluding that, quote, this case involves no remedy of specific performance or immediate consequence in the US flowing from the Tanzanian judgment. [00:28:16] Speaker 03: So there is no direct effect here. [00:28:19] Speaker 03: Much like the judgment in Volumbia, the judgment in this case, which is on appendix page 860, does not require any performance or payment in or to the US. [00:28:28] Speaker 03: So I would submit that. [00:28:30] Speaker 03: The judgment recognition action, what's relevant are the elements that are required to prove up the plaintiff's claims and those elements are, you know, whether the court had jurisdiction, whether there's due process, whether it was a foreign judgment, but I don't think that the commercial relationship between the parties is however relevant, even assuming that it was relevant. [00:28:48] Speaker 05: What if the defendants, if you guys had in this proceeding, wanted to raise one of the factors recognized by this post at the Uniform Enforcement of Foreign Judgments Act? [00:29:03] Speaker 05: What would say you wanted to raise? [00:29:06] Speaker 05: There's a conflicting decision. [00:29:08] Speaker 05: There was fraud in the proceeding. [00:29:15] Speaker 05: What if you wanted to raise that this was really a tax dispute, not a commercial dispute that you're trying to resolve some tax disputes with them. [00:29:23] Speaker 05: What would happen then? [00:29:26] Speaker 03: I'm not sure we could re-litigate the original judgment. [00:29:30] Speaker 03: I mean, we could argue that it's not enforceable. [00:29:31] Speaker 05: Are you saying you can't? [00:29:33] Speaker 05: This is a standard for recognition under DC law of this judgment. [00:29:37] Speaker 05: Surely, if you thought it was obtained by fraud, if you thought that it was contrary to some agreement, a settlement agreement in the case, if there was insufficient notice, [00:29:56] Speaker 05: two other proceedings going on that this was in conflict with. [00:30:01] Speaker 05: You're saying you couldn't raise those defenses? [00:30:04] Speaker 03: You could raise those defenses, but I don't think they necessarily require an examination of the contractual relationship between the parties, right? [00:30:12] Speaker 05: They're focused on it. [00:30:14] Speaker 05: Certainly some of those categorical exceptions for certain types of civil actions. [00:30:23] Speaker 05: If Iraq's defense was that this wasn't to settle a contract, it was to settle the taxes that they had overpaid to us. [00:30:33] Speaker 05: What would happen then? [00:30:34] Speaker 03: I mean, I don't think we're faced with that scenario, nor have I seen case law addressing it, but the case law I have seen from the circuit. [00:30:41] Speaker 05: You'd have to examine the underlying judgment in order to enforce the judgment. [00:30:46] Speaker 03: You would examine the judgment, but you don't necessarily have to examine the contract that the original judgment was based upon. [00:30:55] Speaker 03: I mean, so like in the Supreme Court in OBB versus Sachs, for example, it was a personal injury lawsuit for someone who purchased a train ticket in the US. [00:31:04] Speaker 03: And the Supreme Court said, for the based upon analysis, we're not going to consider the fact that the train ticket was purchased in the US. [00:31:11] Speaker 03: Rather, what's relevant is that this person was injured while they were traveling abroad. [00:31:16] Speaker 05: I think that's very different from the point that I'm raising. [00:31:19] Speaker 03: I mean, even if we were required to examine the commercial activity underlying the Jordanian judgment here, what we have here is a contract between a Jordanian plaintiff and an Iraqi government entity for the delivery of chemicals in Jordan. [00:31:33] Speaker 03: There was no performance or payment required in the US in this case, so there could still be no commercial [00:31:39] Speaker 03: there could be no direct effect from any commercial conduct that was underlying the Jordanian judgment. [00:31:45] Speaker 03: Even if we had to examine what the Jordanian judgment was based upon, we would submit that there's no direct effect of any conduct in Iraq, any commercial conduct in Iraq between the parties that would have an impact in the U.S. [00:32:00] Speaker 03: In fact, in the Odhiambo versus Kenya decision, this court noted that the rule is that by definition, quote, a breaching a contract that establishes the United States as a place of performance will have a direct effect here, whereas breaching a contract that establishes a different or unspecified place of performance can affect the United States only indirectly as a result of some other intervening event. [00:32:22] Speaker 03: I think Appellant's reply brief acknowledges that there was no requirement to ship on part of Iraq these materials to the U.S. [00:32:30] Speaker 03: Iraq could not agree to do so because it was subject to U.S. [00:32:33] Speaker 03: sanctions at the time. [00:32:34] Speaker 03: The Jordanian judgment itself, the one that they're trying to recognize here, which is at appendix page 849 paragraph 4, notes that this was a contract between a Jordanian plaintiff and an Iraqi government entity for the delivery of chemicals in Jordan by exporting them via the Iraqi Jordanian borders pursuant to the letter of a commitment. [00:32:54] Speaker 05: I know you want to discuss waiver and you've got less than some questions about the explicit waiver here. [00:33:00] Speaker 01: I mean, so Iraq does not dispute the statements that were made in the declaration. [00:33:06] Speaker 01: Is that correct? [00:33:10] Speaker 01: Or did not blow or does not hear dispute that those statements were made? [00:33:16] Speaker 03: I don't think we don't dispute that they were made, but we didn't see a need to dispute them in the district court because they're insufficient and [00:33:22] Speaker 03: I mean, there are decades old statements. [00:33:25] Speaker 05: Do you dispute their description of the words? [00:33:29] Speaker 03: We're not in a position to dispute or not dispute them because the people who supposedly made them are dead or gone, right? [00:33:35] Speaker 03: That's the practical situation. [00:33:37] Speaker 01: So if you're not disputing them, and then, I mean, why shouldn't we look at that declaration and see that looking at all the statements together, Iraq had an intent to waive its sovereign immunity? [00:33:52] Speaker 03: I mean, number one, they're paraphrased oral hearsay statements that seek to recreate conversations that took place 10 years ago. [00:33:59] Speaker 05: You're not disputing the content because it's a 10-year-old here. [00:34:09] Speaker 05: Excuse me. [00:34:10] Speaker 05: Is 10 year old hearsay? [00:34:11] Speaker 05: I think we both have the same question here. [00:34:13] Speaker 05: But if your taking is given that those are accurate statements as to what was told them, then you need to answer Judge Rose's question. [00:34:23] Speaker 03: Even if we assume that they're accurate statements, they're insufficient to clearly, unequivocally, and unambiguously waive sovereign immunity in this case. [00:34:31] Speaker 03: None of them mention sovereignty, immunity, waiver. [00:34:34] Speaker 03: None of them even discuss those concepts. [00:34:36] Speaker 01: It has to be clear and unambiguous that the court has also said that it's not a magic words requirement. [00:34:43] Speaker 01: There are statements in the declaration like Iraq would not and could not dispute the lawsuit at all. [00:34:49] Speaker 01: Iraq and the ministry would have no defense to any such lawsuit. [00:34:56] Speaker 03: Our position is that even if those statements were made, they would be statements about the merits of the dispute. [00:35:03] Speaker 03: None of them say that Iraq is not going to object to the jurisdiction of the court in the United States. [00:35:09] Speaker 05: Even an implicit way. [00:35:10] Speaker 05: Is sovereign immunity a defense? [00:35:12] Speaker 03: Yes. [00:35:13] Speaker 05: Affirmative defense. [00:35:14] Speaker 03: Yes. [00:35:14] Speaker 03: It's not, yes. [00:35:16] Speaker 05: It's an affirmative defense. [00:35:17] Speaker 03: It's a defense, yep. [00:35:19] Speaker 02: I mean, it's jurisdictional here, so it's more complicated, but it's... What if the statements were, on behalf of the government of Iraq, I hereby waive sovereign immunity. [00:35:32] Speaker 03: That would be clear and unequivocal. [00:35:34] Speaker 02: It would be, but it would be out of court, not sworn. [00:35:39] Speaker 02: And then the next day, the plaintiff comes in and sues, and the counsel for Iraq invokes sovereign immunity. [00:35:49] Speaker 02: I don't see why an oral statement ahead of time would be binding at all. [00:35:57] Speaker 03: I agree with that, right? [00:35:59] Speaker 03: So there's two problems with their waiver argument. [00:36:02] Speaker 03: Number one, the statements are not a clear and unambiguous waiver of sovereign immunity. [00:36:06] Speaker 03: Number two, they're not verbatim and they're not contemporaneous. [00:36:11] Speaker 03: Hang on. [00:36:13] Speaker 05: You said verbatim and contemporaneous are not relevant to you because you're accepting for purpose of this motion that these are [00:36:22] Speaker 05: actual, accurate descriptions of the words? [00:36:25] Speaker 03: If they are, they're insufficient. [00:36:27] Speaker 03: But what we alternatively also argued, that there's no case that allows for an oral waiver of sovereign immunity at all. [00:36:34] Speaker 05: Is there a case that says there can't be? [00:36:36] Speaker 03: There isn't a case that says there can't be. [00:36:38] Speaker 05: Do you have an oral contract? [00:36:41] Speaker 03: No, there's a written contract, a letter of agreement. [00:36:43] Speaker 05: I'm sorry, my question was, can you have oral contracts? [00:36:46] Speaker 05: Yes. [00:36:46] Speaker 05: OK, can sovereigns have oral contracts? [00:36:48] Speaker 03: Yes, but there would have to be consideration. [00:36:52] Speaker 05: Yeah. [00:36:53] Speaker 05: I said there's a contract, all right? [00:36:54] Speaker 05: I'm not here to go through all the elements and form a contract. [00:36:57] Speaker 05: You've agreed that a sovereign could enter into an oral contract. [00:37:02] Speaker 05: Sometimes in contracts, sovereign waives immunity in the contract itself. [00:37:09] Speaker 03: That language is not there in any of the statements. [00:37:12] Speaker 05: I'm going to finish here. [00:37:15] Speaker 05: Sure. [00:37:15] Speaker 05: You just made a very broad statement that it can never be oral. [00:37:19] Speaker 05: If you have an oral contract in which [00:37:22] Speaker 05: The sovereign orally, with full authority, says, as part of this contract, if a dispute arises, the Republic of Iraq hereby waives its sovereign immunity from suit on that contract. [00:37:42] Speaker 05: And you had all the evidence you need. [00:37:44] Speaker 05: An oral contract is found. [00:37:47] Speaker 05: The terms are not disputed as they aren't here. [00:37:50] Speaker 05: Your position is that you can't have an oral waiver of sovereign immunity? [00:37:54] Speaker 03: So I'll explain why I think you should. [00:37:58] Speaker 05: Is that a yes or no question? [00:37:59] Speaker 05: Could that be, is that your position, that that oral waiver of sovereign immunity, undisputed in content, undisputed in authority? [00:38:08] Speaker 03: Contemporaneously recorded and verbatim. [00:38:10] Speaker 05: Again, things you aren't disputing in this case. [00:38:11] Speaker 05: I don't know why you keep repeating that. [00:38:13] Speaker 05: I am giving you the facts as I've given them. [00:38:17] Speaker 05: Would that suffice? [00:38:19] Speaker 03: I mean, you would have to have the context, which we don't hear. [00:38:22] Speaker 05: I told you the context. [00:38:24] Speaker 05: So your position, there could never be an oral. [00:38:26] Speaker 05: I heard you say never be an oral waiver. [00:38:29] Speaker 03: There never has been, right? [00:38:30] Speaker 03: There never has been recognized in the case law. [00:38:32] Speaker 03: That's why we need to decide these things. [00:38:34] Speaker 03: And then the legislative history of the FSIA, I think, is relevant to that question. [00:38:39] Speaker 03: So for example, [00:38:40] Speaker 03: This court has found that there can only be an implicit waiver in the three circumstances recited by the legislative. [00:38:46] Speaker 03: What's implicit about an express oral? [00:38:48] Speaker 03: It's not implicit. [00:38:49] Speaker 03: But that same legislative history also recounts only two examples where you can have an explicit waiver. [00:38:56] Speaker 03: Number one, treaty. [00:38:57] Speaker 03: Number two, contract. [00:38:59] Speaker 03: So that's why we submit that ex post facto oral statements that are neither a treaty or neither a contract should not be sufficient to waive oral immunity. [00:39:08] Speaker 05: I'm sorry. [00:39:10] Speaker 05: They brought the former president of Iraq to the stand. [00:39:16] Speaker 05: And he said, yes, on behalf of Iraq, I orally waive sovereign immunity. [00:39:21] Speaker 03: If you were on the stand. [00:39:23] Speaker 03: And he said that it's an oral. [00:39:25] Speaker 03: It's still oral. [00:39:26] Speaker 03: It's still oral, right? [00:39:27] Speaker 03: But the circumstances would be completely different. [00:39:29] Speaker 05: This is not, for example, I'm responding to your argument that there can never be an oral waiver of sovereignty if we don't have a case yet. [00:39:36] Speaker 03: We don't know what's what words were even used here, right? [00:39:39] Speaker 03: So that's part of the difficult words. [00:39:41] Speaker 05: You can't say that we know what words they've told us the words and you're not disputing. [00:39:44] Speaker 03: So even assuming the truth of their words, our position is that they're insufficient to waive sovereign immunity because none of them talk about sovereign immunity. [00:39:54] Speaker 03: None of them talk about jurisdiction. [00:39:56] Speaker 03: They don't use the words, we're not going to object or we're not going to object to the jurisdiction of this court. [00:40:01] Speaker 05: We'll raise no defense. [00:40:03] Speaker 03: Correct. [00:40:03] Speaker 03: And that could be. [00:40:04] Speaker 05: We will raise no defense. [00:40:06] Speaker 05: And you just agreed. [00:40:08] Speaker 05: that sovereign immunity is a defense. [00:40:11] Speaker 03: It would have to be more specific than that. [00:40:13] Speaker 03: The waiver has to be. [00:40:16] Speaker 05: I'm not sure what's ambiguous about. [00:40:21] Speaker 05: We have rights. [00:40:24] Speaker 05: We're aware of those rights. [00:40:26] Speaker 05: We hear by knowingly, intelligently with authority [00:40:30] Speaker 05: represent to you that we will not raise any of those defenses. [00:40:36] Speaker 05: That's not clear and unambiguous. [00:40:38] Speaker 03: I don't think those sentences are that clear and unambiguous and I mean there is a case that we cite in our brief which found an explicit written waiver of sovereign immunity which explicitly said we hereby waive sovereign immunity insufficient because the immediately preceding paragraph said that that agreement was going to be governed by Guyanese law right so [00:40:58] Speaker 03: The problem here is we're completely devoid of the requisite context. [00:41:02] Speaker 03: We don't know what other discussions happened here. [00:41:04] Speaker 05: Do we have any questions? [00:41:10] Speaker 05: You can sum up your sentence and then I think we've heard your argument. [00:41:15] Speaker 03: Sure. [00:41:16] Speaker 03: Our position is that there isn't a specific and clear unambiguous waiver of sovereign immunity here. [00:41:21] Speaker 03: In fact, many of the statements recount that the officials didn't state that there was sovereign immunity. [00:41:28] Speaker 03: Therefore, this court should imply or by implication find some sort of waiver. [00:41:33] Speaker 03: We would submit that the evidence and the statements themselves are entirely insufficient. [00:41:37] Speaker 03: The plaintiff must come forward with something to show that sovereign immunity was waived and they haven't been secured. [00:41:42] Speaker 03: Okay. [00:41:42] Speaker 03: Thank you. [00:41:43] Speaker 03: Thank you. [00:41:45] Speaker 05: Okay, Ms. [00:41:46] Speaker 05: Sartegagomas, we will give you two minutes. [00:41:52] Speaker 00: Your honor, there was a direct effect in the United States as a result of Iraq's failure to deliver the urea and the sulfur. [00:42:00] Speaker 00: And we know that because in the record at A204, the declarant says that the inability to fulfill the New York buyer devastated our company's reputation in the marketplace, materially compromised our access to the commercial department of the U.S. [00:42:14] Speaker 00: embassy in Amman, Jordan, and thwarted our ability to meet financial obligations. [00:42:17] Speaker 00: They essentially got blacklisted. [00:42:20] Speaker 00: Nassib and partners got blacklisted by the commercial department of the U.S. [00:42:24] Speaker 00: embassy in Amman because the urea and sulfur never made it to the United States. [00:42:30] Speaker 00: Now, Odiombo, the court, this court in the high energy fund recognizes that in Odiombo there was a concern over plaintiffs unilaterally creating U.S. [00:42:39] Speaker 00: jurisdiction. [00:42:41] Speaker 00: Because in Odiombo, the plaintiff just moved to the United States and said, well, I live here now, so this is where I'm supposed to get paid the reward money in that case. [00:42:50] Speaker 00: That is not a concern in this case, because it was Iraq who decided to pay the debt using tons and tons of sulfur and urea. [00:42:58] Speaker 00: It was $52 million worth of urea. [00:43:01] Speaker 00: And at that time, our record also shows, at that time, there was no other buyer in existence other than in the United States. [00:43:10] Speaker 00: So Iraq was the one who caused the direct effect, who involved the United States in this lawsuit. [00:43:18] Speaker 00: And we know that this direct effect wasn't trivial because the U.S. [00:43:22] Speaker 00: Embassy in Amman isn't going to just blacklist a person in the marketplace because they failed to deliver a product that they consider to be trivial. [00:43:31] Speaker 00: Thank you. [00:43:34] Speaker 05: Thank you very much, Councilor. [00:43:35] Speaker 05: The paper is submitted.