[00:00:00] Speaker 01: All right, good morning and welcome. [00:00:03] Speaker 00: Good morning. [00:00:04] Speaker 01: Good morning. [00:00:05] Speaker 01: Calling the case of Davis Multimedia Private LTD et al versus Antrax Corporation, LTD. [00:00:13] Speaker 01: Why don't we begin with the appellant. [00:00:16] Speaker 01: How much time would you like to reserve for rebuttal? [00:00:23] Speaker 00: Good morning, Your Honor. [00:00:24] Speaker 00: I'd like to reserve two minutes for rebuttal. [00:00:27] Speaker 00: OK. [00:00:29] Speaker 00: Thank you. [00:00:29] Speaker 00: Please proceed. [00:00:31] Speaker 00: Good morning, Your Honors. [00:00:32] Speaker 00: Davis and the intervenors asked this court to do something extraordinary, and that is to affirm enforcement of an arbitral award that has been set aside by the competent foreign court arising from a contract dispute that, as this court correctly found before, has no connection to the United States. [00:00:48] Speaker 00: There are many reasons this court shouldn't do that. [00:00:51] Speaker 00: I will begin with those addressed in the supplemental briefing as follows. [00:00:54] Speaker 00: First, that principles of comity require this court to respect the decisions of the Delhi High Court setting aside the award and the Indian Supreme Court decisions affirming that decision. [00:01:04] Speaker 00: Second, that exercising jurisdiction over a foreign corporation that is engaged in no conduct involving the United States is not consistent with due process under fold. [00:01:13] Speaker 00: Third, that subject matter jurisdiction is lacking because this Indian dispute is not capable of resolution by arbitration under the laws of the United States. [00:01:22] Speaker 00: As time permits, I will also address the other issues that remain before this Court and that must be decided, including that the District Court should have dismissed under the doctrine of forum non-convenience, which it wrongly thought could not be applied to dismiss in favor of a foreign forum. [00:01:37] Speaker 00: The also that the ICC arbitration did not conform to the party's agreement, which called for an ad hoc arbitration with specific procedures. [00:01:44] Speaker 00: And finally, that the district court wrongly allowed the interviewers to register the judgment, even though they have no ownership interest. [00:01:51] Speaker 00: I'd like to begin with this set aside, since that is an insurmountable hurdle to affirming the decision below. [00:01:56] Speaker 00: And I think the easiest ground on which this court can dispose of this appeal. [00:02:00] Speaker 01: Actually, I'd like to start with something else. [00:02:03] Speaker 01: If I look at your motion to dismiss an opposition to petition to confirm foreign arbitral award, you have a statement that acknowledges the FSIA provides an exception to immunity for actions to enforce arbitral awards under the New York Convention. [00:02:19] Speaker 01: You only argue personal jurisdiction under the due process analysis. [00:02:27] Speaker 01: So why shouldn't we consider that a [00:02:31] Speaker 01: a waiver? [00:02:33] Speaker 00: Sure, Your Honor, because subject matter jurisdiction cannot be waived, as the Supreme Court found in Arbaugh versus YNH Corporation in 2006 and has said in many other decisions. [00:02:42] Speaker 00: And Antrix has consistently challenged jurisdiction, including by arguing that there was no waiver of immunity under the FSIA. [00:02:49] Speaker 00: Now, the focus of the jurisdictional and immunity arguments have shifted. [00:02:54] Speaker 01: But the FSIA provides the statutory basis for subject matter jurisdiction over Antrix. [00:03:00] Speaker 01: if antics waves sovereign immunity. [00:03:03] Speaker 01: So I'm not persuaded by your first argument. [00:03:08] Speaker 00: Well, Your Honor, I would point the court to the fact that there is this threshold requirement under the arbitration exception that an action has to be concerned a subject matter capable of settlement by arbitration under the laws of the United States. [00:03:20] Speaker 00: And the Federal Arbitration Act is the law of the United States that defines what types of disputes are subject to arbitration. [00:03:29] Speaker 00: And it also defines commerce as limited to commerce in or among US states or territories. [00:03:34] Speaker 00: It does not include purely foreign commerce. [00:03:37] Speaker 00: And that aligns with the core U.S. [00:03:40] Speaker 00: and international law principle that our domestic law generally only applies in the United States. [00:03:45] Speaker 00: It does not apply extraterritoriality. [00:03:48] Speaker 00: You know, Davis and intervenors responses to this. [00:03:51] Speaker 01: Can you can you explain? [00:03:52] Speaker 01: I wasn't sure from your supplemental brief why it matters what the Federal Arbitration Act limits, because the New York Convention says, including [00:04:07] Speaker 01: It doesn't say limited to agreements under the FAA. [00:04:15] Speaker 00: It's because the FSIA requires that the subject matter has to be capable of settlement by arbitration under the laws of the United States. [00:04:23] Speaker 00: So we have to have some affirmative United States law that provides that basis for resolution of the subject matter, of the dispute, under the laws of the United States. [00:04:33] Speaker 00: That basis, I think, would have to be the FAA. [00:04:35] Speaker 00: I don't know what else it could be. [00:04:37] Speaker 00: Nobody has pointed to anything else. [00:04:39] Speaker 00: And the FAA has this limitation to when it's talking about what conventional disputes. [00:04:43] Speaker 01: What about the New York Convention? [00:04:46] Speaker 00: Well, Your Honor, the New York Convention, this is a treaty. [00:04:49] Speaker 00: It doesn't trump US domestic law, and it's incorporated by reference into it. [00:04:55] Speaker 00: And where it's incorporated by reference is section is part two of the FAA. [00:05:01] Speaker 00: But the FAA has these threshold definitions. [00:05:04] Speaker 00: So when we're applying the New York Convention to say what's capable of resolution under that convention and under US law, I think we have to look to those definitions. [00:05:14] Speaker 01: but your honor we recognize but you know i'm looking at the fsia a6 and it says you know an agreement or word governed by treaty enforced for the united states so why doesn't that control here and your connection suffices as that treaty [00:05:36] Speaker 00: Because it still has that threshold requirement about the subject matter capable of settlement by arbitration under the laws of the United States. [00:05:43] Speaker 00: So again, we think there has to be some affirmative U.S. [00:05:46] Speaker 00: law that says this kind of dispute can be resolved by arbitration under the laws of the United States. [00:05:52] Speaker 04: And you think that when it says capable of settlement by arbitration under the laws of the United States, that means only the domestic laws of the United States and doesn't include treaties to which the United States is a party? [00:06:05] Speaker 00: I think it includes laws of the United States, so yes, there would have to be an act of Congress which could enforce a treaty. [00:06:13] Speaker 00: But again, the language in both the Panama Convention and the New York Convention carves out a lot of, you know, carves out the ability of courts to apply their own domestic laws. [00:06:23] Speaker 00: For example, that's why this court and others have held that forum non-convenience remains available even in cases brought under the New York Convention. [00:06:30] Speaker 00: The law of the forum still applies. [00:06:33] Speaker 01: I guess, you know, I still am a little bit confused because 6A6 does say concerning a subject matter capable of settlement by arbitration under the laws of the United States if and then B says the agreement award is or may be governed by a treaty or other international agreement enforced for the United States calling for the recognition enforcement of our patrol awards. [00:07:00] Speaker 01: So I still don't see why the FSIA and the New York Convention here [00:07:10] Speaker 00: So your honor, our view is that those are two separate requirements, the profitory language and the exceptions. [00:07:16] Speaker 00: But your honor, I did want to, you know, with the limited time here, turn the court to some of the other very important grounds and that we this court has to recognize that the decision, the arbitral awarded issue has been overturned. [00:07:28] Speaker 00: And so it doesn't exist to be enforced. [00:07:30] Speaker 00: And we don't think that this court can affirm an enforcement. [00:07:33] Speaker 00: Yes, your honor. [00:07:33] Speaker 04: Why do we have to recognize that? [00:07:36] Speaker 04: I mean, [00:07:36] Speaker 04: It's not part of, I mean, normally we review the record that was before the district court. [00:07:41] Speaker 04: That was the thing that happened after the district court ruled. [00:07:44] Speaker 04: So why is the appropriate mechanism for you to raise that argument, this appeal, when it would be reversing the district court for having not done something that it didn't know about, and why is it not more appropriate for that to be raised in a Rule 60B motion? [00:08:04] Speaker 00: Sure, Your Honor. [00:08:05] Speaker 00: So as the court may remember, we had moved for limited remand on this issue when we think it is still well within the court's authority to issue that limited remand. [00:08:13] Speaker 00: This court has authority under 28 USC 2106 to do that. [00:08:16] Speaker 00: We don't think that any particular procedural motion or mechanism has to be used. [00:08:22] Speaker 00: But there are a couple of things that make this court recognizing the fact of the set aside and its import particularly appropriate. [00:08:29] Speaker 00: To begin, Davis, the award holder itself, has not actually argued that the set-aside shouldn't be honored. [00:08:36] Speaker 00: They haven't argued that it's repugnant to fundamental notions of what is decent and just. [00:08:41] Speaker 00: And also, it was Davis that, in the court below, told the district court that, look, if this set-aside proceeding goes forward and the decision is set aside, [00:08:51] Speaker 00: It's okay, because at that point, they said, if the ultimate decision in India is that the award is rescinded, then money is returned. [00:09:00] Speaker 00: So we think Davis should be a stop from arguing that now that they can just avoid that set-aside decision. [00:09:07] Speaker 00: And they're the ones that argued also that, sorry, go ahead. [00:09:12] Speaker 04: I think you have a compelling argument that there should be some way of giving effect to the set-aside, but what would be wrong with saying that [00:09:20] Speaker 04: you should do it in a 60B motion. [00:09:23] Speaker 04: Would you be prejudiced in some way if that's the mechanism that we say you should? [00:09:29] Speaker 00: Sure, Your Honor. [00:09:30] Speaker 00: So one concern we had, which is why we filed the motion for a limited remand and we were following sort of the direction given by the Second Circuit in the Jacobson case, was that there have been cases finding that if you proceed with the motion under 60 or an indicative ruling motion under 62, you can lose your right, you can be found to have waived the other jurisdictional arguments, and we certainly don't want that to be the case here. [00:09:53] Speaker 00: So we did think that a motion for limited remand was an appropriate mechanism. [00:09:57] Speaker 00: And this court always has the authority to say that, hey, this is a limited issue that should be addressed by the district court in the first instance. [00:10:04] Speaker 00: But we do think that there's nothing in the supplemental briefing here that comes close to suggesting that that high bar for not recognizing this foreign judgment under basic principles of comity has been met. [00:10:16] Speaker 00: You know, Davis says nothing. [00:10:18] Speaker 00: Interveners try to throw mud at various Indian court decisions related to Davis, mostly focused on an ancillary liquidation proceeding. [00:10:26] Speaker 00: But these are exactly the sort of arguments that this court has recognized should not be employed to second guess a foreign judgment, as this court recognized in the Corzo case. [00:10:37] Speaker 00: And I want to note, Your Honor, that in the Corzo case, although that wasn't about a set-aside judgment, this court took up the issue of whether the Peruvian Supreme Courts [00:10:46] Speaker 00: decision overturning a prior judgment should be recognized by the court and given effect in the first instance, that issue had not been addressed by the district court. [00:10:55] Speaker 00: So we think it's equally appropriate for the court to take the issue up here. [00:10:59] Speaker 00: But as I said, if the court wants to remand to the district court to address this issue first, it can. [00:11:04] Speaker 00: And Your Honor, we note that if this issue... Can I ask you a question? [00:11:08] Speaker 01: I wasn't clear. [00:11:09] Speaker 01: Are you arguing that you would be prejudiced because you would somehow be giving up your jurisdictional arguments if you were to file a 60B motion? [00:11:18] Speaker 00: Your honor, we are concerned that that argument would at least be raised based on some other decisions that are out there out of the Second Circuit in particular. [00:11:27] Speaker 00: The Pemex decision, for example. [00:11:30] Speaker 00: In Pemex, when the set-aside decision came down, the Second Circuit immediately vacated the judgment below, remanded to address the set-aside. [00:11:38] Speaker 00: But then when the case went back up on appeal, arguments were raised that jurisdictional issues had been waived, and some of those were given credence. [00:11:46] Speaker 00: So we do think we need to preserve our rights here as fully as we can. [00:11:51] Speaker 00: And so the limited remand is the most appropriate mechanism. [00:11:57] Speaker 00: And Your Honor, I do want to briefly address the due process issues. [00:12:00] Speaker 00: A corporation has separate legal personhood under the law of the Supreme Court in this circuit. [00:12:06] Speaker 00: And that bars the court from exercising jurisdiction here because Antrix has not engaged in any conduct involving the United States. [00:12:14] Speaker 00: There is this presumption that a foreign government-owned corporation is entitled to due process. [00:12:18] Speaker 00: And the district court did not do a veil-piercing analysis to overcome that presumption. [00:12:26] Speaker 00: summary findings and a minute order that antrix was controlled by India, but it did not find either complete day to day control of the corporation by India, or that the corporation was misused for fraudulent purposes. [00:12:38] Speaker 01: But you didn't challenge the district court's decision. [00:12:42] Speaker 01: You know, I'm looking at two opinions here. [00:12:46] Speaker 01: You know, one saying respondent does not dispute that it is an agency or instrumentality of a foreign state, defined under the FSIA as any entity which is a separate legal person, corporate or otherwise. [00:12:55] Speaker 01: You didn't dispute that. [00:12:57] Speaker 01: I'm looking at the minute order, which says the parties do not dispute the personal jurisdiction exists as a matter of statute, but Antrix maintains it is entitled to additional constitutional due process protections. [00:13:09] Speaker 00: So, Your Honor, yes, those are separate questions, whether under the FSIA, Antrix is a, you know, as a foreign government owned corporations, we don't dispute that it's subject to the FSIA, but that does not mean that due process is disregarded. [00:13:24] Speaker 00: That does not mean that the corporate separateness is disregarded for due process purposes. [00:13:29] Speaker 00: Bankec itself, I think, recognizes that as this court's decision and flat out and wholly see. [00:13:35] Speaker 01: And in fact, your honor, but you did you did concede that antriks is an agent or instrumentality of India, correct? [00:13:44] Speaker 00: Your Honor, we conceded only that it counts as such under the FSIA, but being an agent or instrumentality of India, I mean, just a government-owned corporation is not the test under BANCC. [00:13:55] Speaker 00: There has to be complete day-to-day control. [00:13:58] Speaker 00: That was not established here. [00:13:59] Speaker 00: The District Court didn't address the separateness of Antrix's finances, that it was separately controlled, and that it doesn't have to seek Indian government approval for its decisions. [00:14:08] Speaker 00: And the Arbitral Tribunal, Your Honors, I think this is really notable, and this is at E.R. [00:14:12] Speaker 00: 110, paragraph 224, the Arbitral Tribunal found that Antrix was a separate legal entity. [00:14:19] Speaker 00: So we don't think that, you know, that interveners and DEVA should be able to rely on the decision by the Arbitral Tribunal in other regards and ignore that it found that Antrix is separate from the Indian government under those traditional tests. [00:14:33] Speaker 01: But the district court found that Antrix was a wholly owned corporation of the government of India and that it was effectively controlled by India, didn't it? [00:14:44] Speaker 00: Your honor, it said it is controlled and that's it, but government-owned corporations, the fact that it's a government-owned corporation alone is not enough. [00:14:52] Speaker 00: There would be no need to apply a banking analysis. [00:14:56] Speaker 00: The precedents recognized that there has to be more than that, that the government has to so control the entity on a day-to-day basis that it is functionally just the government itself, and that those findings were not made here. [00:15:09] Speaker 00: And, Your Honor, there was no conduct involved in the United States here by Antrigues, and there is no U.S. [00:15:15] Speaker 00: interest in adjudicating this purely Indian dispute, as this Court rightly recognized before. [00:15:19] Speaker 00: And, Your Honor, I know I'm almost out of my time here, and I do want to reserve the rest for rebuttal. [00:15:24] Speaker 00: But again, we want to note that Davis could have, as this Court previously recognized, sought confirmation of the award in India and come to the United States to collect on assets in a particular jurisdiction, invoking in-run jurisdiction. [00:15:37] Speaker 00: It did not. [00:15:38] Speaker 00: It has not met the requirements for due process and personal jurisdiction here. [00:15:43] Speaker 01: All right. [00:15:44] Speaker 01: You have like eight minutes left or eight seconds left, but I'll give you two minutes for rebuttal. [00:15:49] Speaker 00: Thank you, Your Honor. [00:15:50] Speaker 00: I appreciate that. [00:15:56] Speaker 01: Okay. [00:15:56] Speaker 01: And how [00:15:59] Speaker 01: How do you plan to split your time? [00:16:03] Speaker 01: Just one of you go first for seven and a half minutes and the other, are you splitting subject matter or how do you proceed? [00:16:10] Speaker 03: That's correct, your honor. [00:16:11] Speaker 03: I will be going first for seven and a half minutes and I will be addressing the jurisdictional and threshold issues and Mr. McGill will be discussing the effect of the Indian set aside ruling and the confirmation merits. [00:16:25] Speaker 01: And who do you represent? [00:16:26] Speaker 01: Can you state your name, please? [00:16:27] Speaker 03: Yes, Christopher Tutunjian from Baker Botts and I represent the APA-LE, Davos Multimedia Private. [00:16:35] Speaker 01: Okay, and you'll do the jurisdictional issues and what else? [00:16:38] Speaker 01: Sorry, my notes are incomplete here. [00:16:40] Speaker 03: Yes, the jurisdictional issues, subject matter and personal jurisdiction and for non-convenience if that arises during your questions. [00:16:51] Speaker 01: Okay, and then Mr. McGill is handling the set-aside and what else? [00:16:58] Speaker 03: He will be handling the set aside as well as the article 5 confirmation issues. [00:17:13] Speaker 01: All right, go ahead, please. [00:17:15] Speaker 03: Thank you. [00:17:15] Speaker 03: The question before this court is the same as it was in 2023. [00:17:20] Speaker 03: Did the district court properly confirm the arbitral award? [00:17:24] Speaker 03: The answer to that question is yes. [00:17:25] Speaker 03: And as Mr. McGill will explain, the Indian set-aside ruling has no effect on the resolution of that question. [00:17:32] Speaker 03: Subject matter jurisdiction is proper because Antrix waived an immunity defense, which creates jurisdiction under section 1605A1. [00:17:41] Speaker 03: Personal jurisdiction is satisfied because Antrix is the alter ego of the foreign state of India, and like India, it has no due process rights. [00:17:50] Speaker 03: Form non-convenience does not apply in an arbitrary confirmation action. [00:17:54] Speaker 03: And as Mr. McGill will discuss, Antrix's Article 5 defenses are meritless. [00:17:59] Speaker 03: This court should affirm confirmation and also reverse the order, allowing the interveners to register the judgment. [00:18:05] Speaker 03: I'd like to turn first. [00:18:06] Speaker 01: You're asking us to hold that Antrix is not a person under the Fifth Amendment's due process clause. [00:18:13] Speaker 01: But why should we do that when the Supreme Court has declined to do so? [00:18:16] Speaker 01: And I know you cite South Carolina versus Katzenbach, but that was 1966. [00:18:22] Speaker 01: And in 1992, the Supreme Court said, well, let's assume without deciding that a foreign government is a per is a person for purposes of the due process clause in the Republic of Argentina versus weltover case. [00:18:35] Speaker 01: So 26 years later, they actually sort of went the other way and said, let's assume it. [00:18:42] Speaker 03: Yes, we believe holding that antics is not a person is the most direct and easiest route to resolving the personal jurisdiction issue. [00:18:50] Speaker 03: Since the Supreme Court's decision weltover, there has been a consensus that foreign states and their wholly controlled instrumentalities are not persons. [00:18:58] Speaker 03: That was something that two members of this panel agreed upon. [00:19:01] Speaker 03: The last time this this case was before this court and [00:19:07] Speaker 03: The district court made a number of findings explaining how antrix is under the plenary control of the state of India, the. [00:19:14] Speaker 03: The government's internal report about antrix, which is at 212 to 26. [00:19:20] Speaker 03: Discusses that in detail and that is what the district court relied on for its. [00:19:24] Speaker 03: Alter ego finding it described the report describes antrix as the corporate front of the Department of space, a virtual corporation housed within the Department of space and an integral part of the Department of space, unlike a typical public sector undertaking. [00:19:38] Speaker 03: So we think that given that there is a consensus here post weltover that alter egos of a foreign state are not a person entitled to do process protections and given the district courts factual findings that are. [00:19:51] Speaker 03: correct and not clearly erroneous, that is the most direct route to dealing with the personal jurisdiction issue. [00:19:56] Speaker 03: Now, if the court wants to look at the Supreme Court's recent decision in fold, that also provides ample ground for holding that personal jurisdiction here is satisfied. [00:20:07] Speaker 03: In that case, the Supreme Court asked if Congress had made a reasonable determination to subject the foreign defendants at issue, [00:20:15] Speaker 03: to suit, and that's the case here. [00:20:17] Speaker 03: Just like the PSJA, VTA in fold, the FSIA reasonably ties the assertion of personal jurisdiction over foreign defendants to conduct implicating the United States interests and over which Congress has made weighty and sensitive decisions concerning foreign affairs and those judgments that are within the prerogative of the political branches. [00:20:43] Speaker 04: What is the conduct? [00:20:45] Speaker 04: affecting the United States here? [00:20:48] Speaker 03: So there are two key interests that are at play for the United States. [00:20:53] Speaker 03: Furthering the U.S. [00:20:54] Speaker 03: interest in complying with treaty obligations under treaties like the New York Convention, as well as facilitating international commerce by encouraging the confirmation of arbitral awards in the United States. [00:21:06] Speaker 03: There is also the United States interest in securing reciprocal treatment from foreign states. [00:21:12] Speaker 03: If we open up our courts to the confirmation of arbitral awards, then our citizens and businesses will be able to go to foreign states and confirm their awards elsewhere. [00:21:22] Speaker 03: So the Congress and the president, the political branches made judgments concerning foreign policy and foreign affairs, and that is the sort of decision that deserves deference and respect from the judiciary. [00:21:36] Speaker 01: In addition, the FSIA's provision... This would be general policy interests of the United States, but if Verlinden requires some form of substantial contact with the United States by this arbitration agreement, I don't see how that's met. [00:21:54] Speaker 03: Your honor, the court in Verlinden said that the original exceptions to the FSIA either require some form of contact with the United States or a waiver or consent. [00:22:06] Speaker 03: And the arbitration exception builds off of that original pattern to the FSIA because the arbitration exception is built on principles of consent to personal jurisdiction. [00:22:19] Speaker 03: When a state agrees to arbitrate under terms that satisfy the convention, [00:22:23] Speaker 03: it consents to personal jurisdiction in the signatory states where the New York Convention is applied. [00:22:31] Speaker 03: And so it's fully consistent with the pattern articulated in Verlinden. [00:22:36] Speaker 01: In addition, after the Supreme Court's decision in this case... Indian and Mauritian entities, the events took place in India. [00:22:44] Speaker 01: It's an arbitration award issued by an Indian tribunal sitting in India applying Indian law. [00:22:52] Speaker 03: Yes, so the question under fold is whether Congress made a reasonable determination in the statute and enacted and here Congress's decision to subject foreign states that have entered into arbitral agreements to personal just jurisdiction is an eminently reasonable one. [00:23:09] Speaker 01: Let's talk about the FSIA arbitration exception to sovereign immunity and not talk about fifth amendment due process. [00:23:16] Speaker 01: What like [00:23:18] Speaker 01: If there's a presumption that the FSIA applies only to conduct that has a connection to the US, what is that here with all these foreign entities, foreign events, foreign law, foreign tribunal? [00:23:31] Speaker 01: Where is that here? [00:23:33] Speaker 03: So, first thing I'd like to point out is the District of Columbia just last month issued a decision where they rejected Antrix's reading of the arbitration exception and the subject matter proviso that Sigma Constructores, the Republic of Guatemala, and the site for that is 2026 Westlaw, [00:23:52] Speaker 03: And in that case, as we've explained in our briefing here, the subject matter proviso refers to categories of disputes that U.S. [00:24:04] Speaker 03: law deems non-arbitrable. [00:24:06] Speaker 03: The Supreme Court in Mitsubishi Motors explained that the provision from the New York convention that the subject matter proviso is [00:24:16] Speaker 03: is copied from, that the provision contemplates exceptions to arbitrability grounded in domestic law. [00:24:23] Speaker 03: And here we have no US law deeming this dispute non-arbitrable. [00:24:27] Speaker 03: This is a bread and butter commercial dispute, breach of contract, and these are the types of disputes that are presumptively arbitrable. [00:24:35] Speaker 03: There is no federal legislation expressly declaring this dispute to be non-arbitrable. [00:24:43] Speaker 03: In addition, the DC circuits decision in the. [00:24:46] Speaker 03: The least social development case explains that so long as the relationship. [00:24:51] Speaker 03: Has a connection with commerce, whether or not that commerce has a nexus with the United States, the New York convention governs the award and it's confirmation. [00:24:59] Speaker 03: And so we believe that. [00:25:01] Speaker 03: The subject matter per visa argument is is Marilis. [00:25:05] Speaker 03: If I may say just a quick word about the registration appeal, just this court should affirm the confirmation. [00:25:13] Speaker 01: Your time is up and we have to focus on the supplemental briefing. [00:25:17] Speaker 01: Unless you want to hear about issues that were argued in 2023, I think your time is up. [00:25:23] Speaker 01: But let me see if my colleagues want to argue any 2023 issues. [00:25:28] Speaker 01: No, thank you very much. [00:25:29] Speaker 03: Thank you. [00:25:34] Speaker 01: Go ahead, please. [00:25:36] Speaker 02: Thank you, Judge Koh, and may it please the court. [00:25:39] Speaker 02: Three years ago, Judge Miller, you asked counsel for Antrix why a Rule 60B5 motion was not the most appropriate way to address the set-aside decisions of the courts of India. [00:25:51] Speaker 02: Antrix's motion for limited remand, filed now almost four years ago, acknowledged Rule 60 was available to it, but in all the time since, it has conspicuously declined to seek that relief from the district court. [00:26:05] Speaker 02: Now, Antrix is here arguing that this Indian set-aside decisions must be honored, quote, as a matter of law. [00:26:14] Speaker 01: That contradicts Antrix's own- So let's talk about your position before the district court. [00:26:21] Speaker 01: I'm just quoting here from the transcript of October 14th, 2020. [00:26:25] Speaker 01: This is Mr. Nelson. [00:26:33] Speaker 01: I'm just going to quote it and it was said by the Ninth Circuit that this ground applies only when confirmation or enforcement of a foreign arbitration award would violate the forum states and that's the United States most basic notions of morality and justice. [00:26:45] Speaker 01: So it's not surprising your honor that public policy arguments is in the setting almost always fail as they did in the case I have just referred to. [00:26:53] Speaker 01: So this was talking about [00:26:54] Speaker 01: What would happen if the Indian court actually set aside the arbitration award? [00:27:00] Speaker 01: And this is further what Mr. Nelson said. [00:27:03] Speaker 01: If the ultimate result in India is that the award is affirmed, then no prejudice whatsoever is had. [00:27:08] Speaker 01: If the ultimate decision in India is that the award is somehow rescinded, then money is returned. [00:27:14] Speaker 01: So I'm concerned that you led the district court and our court to do all this work on the representation that you would honor whatever the Indian courts did. [00:27:25] Speaker 01: And I would just note that you're the one that chose the Delhi High Court as your forum. [00:27:31] Speaker 01: That issue went all the way up to the Indian Supreme Court. [00:27:33] Speaker 01: The Indian Supreme Court agreed with you that the Delhi High Court was the [00:27:37] Speaker 01: was the proper form for your dispute. [00:27:41] Speaker 01: And now that you've gotten all, as you said, years and years of work by the district court and this panel and the Supreme Court. [00:27:48] Speaker 01: And now I feel like it's a bit of a bait and switch. [00:27:51] Speaker 01: I got you to do all this work because I'm gonna abide by the Indian courts ruling. [00:27:56] Speaker 01: And now you're here saying, well, now that I've gotten all this litigation, now I wanna fight that. [00:28:01] Speaker 01: I find that problematic. [00:28:05] Speaker 01: Why don't you address that? [00:28:06] Speaker 01: I mean, if you had said to the district court, do all this work, but I'm going to fight tooth and nail if the Indian Supreme Court disagrees with me. [00:28:14] Speaker 01: What do you think they would have said or done at that point? [00:28:17] Speaker 01: And do they feel somewhat misled? [00:28:21] Speaker 02: Your honor, I'm happy to address that. [00:28:25] Speaker 02: That statement was made by Mr. Nelson in October of 2020. [00:28:30] Speaker 02: which is about three months before Antrix initiated its highly unusual liquidation proceeding in the National Company of All Tribunal in Bangalore. [00:28:42] Speaker 02: I don't think Mr. Nelson had possibly within his contemplation the idea that Antrix would put its award creditor, Davos, [00:28:54] Speaker 02: within 24 hours. [00:28:56] Speaker 01: I don't understand how that's an answer to my question. [00:28:59] Speaker 01: Whether Davis is going to honor the decision of the Indian courts. [00:29:06] Speaker 01: It was represented to the district court that you would. [00:29:08] Speaker 01: And now you're not. [00:29:10] Speaker 01: So that's really my question. [00:29:12] Speaker 01: I know you want to go to the liquidation proceeding, but I'm saying what is before us is a representation that you would honor that court's decision, and I'm not seeing that in your conduct. [00:29:23] Speaker 02: Yeah, just co I think the what Mr Nelson was undoubtedly contemplating was that normal due process. [00:29:35] Speaker 02: rights would be observed within the courts of India. [00:29:38] Speaker 02: He was not assuming what happened actually in India in the course of 2021 and 2022. [00:29:45] Speaker 01: But you won before the Indian Supreme Court on the issue of jurisdiction, whether it should be the high court of Karnataka or the high court of Delhi. [00:29:57] Speaker 01: The Indian Supreme Court agreed with Devas, gave you your chosen forum for this dispute, [00:30:04] Speaker 01: Now you're saying okay when we won, we were willing to say it's not a kangaroo court but now that the Delhi High Court issued an 87 page opinion against us and the appellate panel Delhi High Court issued 132 page opinion against us now it's a kangaroo court that we're not getting our fair shake in. [00:30:23] Speaker 02: Your honor, the Delhi High Court's set-aside decision relies extensively on the liquidation decision. [00:30:31] Speaker 02: It holds that the liquidation findings were raised judicata. [00:30:35] Speaker 02: So they are inextricably intertwined. [00:30:38] Speaker 02: Mr. Nelson, when he made that statement three months before the liquidation proceedings began, was envisioning the normal due process that historically has been afforded to litigants within the courts of India. [00:30:52] Speaker 02: do not feel like he was misleading the district court. [00:30:55] Speaker 02: The district court did not view itself as having been misled when we returned to the district court and for emergency relief after those liquidation proceedings began. [00:31:06] Speaker 01: So I'm looking at the Delhi High Court's opinion concluded that the Arbitral Tribunal [00:31:12] Speaker 01: Incorrectly excluded relevant evidence that the arbitral tribunal made contradictory findings, that the award contravened the fundamental public policy of India because the, quote, very seeds of the commercial relationship between Antrix and Davis were a product of fraud perpetrated by Davis, end quote. [00:31:30] Speaker 01: And then the appellate panel of the Delhi High Court emphasized the third conclusion that the arbitration award contravened public policy because of Davis's fraud. [00:31:39] Speaker 01: So it does seem like they had [00:31:43] Speaker 01: pretty extensive findings. [00:31:48] Speaker 02: Your honor, all of those findings were based on the liquidation court findings. [00:31:53] Speaker 02: It held them to be raised judicata and that we were basically prohibited from disputing them. [00:32:01] Speaker 02: That was the finding of the Delhi High Court. [00:32:04] Speaker 02: That is why the pay court of appeal found that the due process deficiencies in the liquidation ruling meant that the set-aside proceeding could not be recognized. [00:32:15] Speaker 02: And that's from our most recent 28-J letter. [00:32:19] Speaker 01: We're, we're just saying that I read the antics brief and they say, well, the Hague proceeding is different because there's no treaty with India that the Netherlands has to enforce a foreign judgment and that the Hague proceeding applied Dutch law to Indian liquidation proceedings, which would not be applicable here. [00:32:39] Speaker 01: Now I, I don't know. [00:32:40] Speaker 01: I haven't looked into that, but at least that was the response that I read in their brief. [00:32:45] Speaker 02: Your honor, we have no treaty with India either. [00:32:48] Speaker 01: But India is a signatory, correct, to the New York Convention? [00:32:54] Speaker 02: To the New York Convention, but that doesn't deal with the United States. [00:32:58] Speaker 01: So are you saying the United States and India don't have, they're not signatories to the New York Convention and just don't share a treaty? [00:33:08] Speaker 02: They are just the same as the Netherlands and India are, your honor. [00:33:10] Speaker 02: I think what my friend on the other side was referring to was [00:33:14] Speaker 02: was a treaty providing for enforcement of judgments, which is not what the New York Convention covers. [00:33:22] Speaker 02: The hate court of appeal of paragraph 6.16 of its- Oh, so they don't have the equivalent of the FSIA. [00:33:29] Speaker 02: That's the argument. [00:33:31] Speaker 02: No, it's that they don't have the equivalent of a bilateral treaty providing for reciprocal enforcement of money judgments. [00:33:41] Speaker 02: And neither does the US and India. [00:33:44] Speaker 02: We have in this country the Uniform Money Judgment Recognition Act that is done on a state-by-state basis. [00:33:52] Speaker 02: The standards for that are more or less the same as the Hague Court of Appeal applied in paragraph 6.16 of its ruling. [00:34:01] Speaker 02: My time has expired. [00:34:02] Speaker 02: I'm happy to address any other questions. [00:34:05] Speaker 04: Yeah, I guess I have sort of maybe the flip side of the question I just asked Ms. [00:34:09] Speaker 04: Berman, which is, [00:34:11] Speaker 04: If we were to say that all these issues should be raised in a 60B motion, would you, and it goes back to the district court and they file a 60B motion, is there anything that you would say to the district court in that context that you wouldn't be able to say to the district court if we were to do what Ms. [00:34:36] Speaker 04: Berman suggests and grant a limited remand? [00:34:38] Speaker 04: In other words, [00:34:40] Speaker 04: Does whether this is a remand or a 60B make any difference to how the district court would evaluate what to do? [00:34:48] Speaker 02: I think it might, Your Honor, but I don't know exactly what Antrix had in mind. [00:34:58] Speaker 02: Their motion for a limited remand requested a remand for a, quote, supplemental opinion addressing the Indian set-aside rulings. [00:35:07] Speaker 02: But now there's a judgment that has been entered. [00:35:10] Speaker 02: So I don't know what that supplemental motion, that supplemental opinion could do other than address a rule 60B5 motion. [00:35:19] Speaker 02: There are, so rule 60 does, however, incorporate two things at least that would be considered, that would not be considered perhaps otherwise, which is one, [00:35:32] Speaker 02: the public interest in the finality of judgments, and that the movement approaches the court with equity. [00:35:40] Speaker 02: The interest in finality of judgments is not an unimportant rationale here. [00:35:46] Speaker 02: It's reflected in Rule 60's requirement that motions be made within a reasonable time, and that here, Antrix has waited 42 months and still has sought no relief in the district court. [00:35:57] Speaker 04: So that is it. [00:35:58] Speaker 04: So I think maybe you've just [00:36:01] Speaker 04: Given the answer to this question, you would take the position if we were to say that this should be brought in a Rule 60B motion, you would take the position that the motion was untimely? [00:36:19] Speaker 02: We perhaps would take the position, Your Honor, [00:36:23] Speaker 02: that Antrix has forfeited its right to seek Rule 60B relief by waiting so long. [00:36:30] Speaker 02: Yes, I think that argument is available to us and I don't want to concede it away as we sit here right now, but the motion hasn't been filed yet and we haven't, you know, it's hard to know what we would say in response to it. [00:36:45] Speaker 02: But I can say for sure that the rule 60 proceedings would contemplate would be exactly the type of factual development that antics itself contemplated in its motion for limited remit. [00:36:57] Speaker 02: The last oral argument before this court antics said that the supplemental opinion was appropriate to allow the district court to quote amplify the record regarding the effect of the set aside. [00:37:09] Speaker 02: That is what we believe needs to happen. [00:37:12] Speaker 02: We believe that there does need to be [00:37:13] Speaker 02: a development of a factual record about what actually took place in India. [00:37:19] Speaker 02: And that the Rule 60B procedure is the appropriate way to do that. [00:37:26] Speaker 02: Reports grant relief based on motions, and that's the appropriate motion given the procedural posture of the case. [00:37:34] Speaker ?: Thank you. [00:37:37] Speaker 02: Any other questions? [00:37:38] Speaker 02: If there are no further questions, [00:37:46] Speaker 01: Thank you. [00:37:48] Speaker 01: We have two minutes. [00:37:50] Speaker 01: Thank you, Your Honor. [00:37:52] Speaker 00: Your honor, there is nothing magic about a Rule 60 motion. [00:37:55] Speaker 00: And this court recognized in the Amelin case in 2005 that it has ample authority just under its authority under 2106 to ask to direct a limited remand to address a discrete issue. [00:38:07] Speaker 00: So that's what we asked this court to do. [00:38:09] Speaker 00: Now, your honor, there are unique reasons why we think this court can and should just address the set aside in the first instance. [00:38:16] Speaker 00: It's because [00:38:17] Speaker 00: We're addressing that issue here on appeal for the first time, because of Davis's and the intervener's conduct because they rushed the district court to judgment despite the pending set aside proceedings, resulting in a judgment that was then overturned by the highest court of India. [00:38:33] Speaker 00: It's because of that specific sequence of events that we're here addressing it before the Court of Appeals so we don't think that should be held against us most certainly. [00:38:42] Speaker 00: I also want to turn briefly back to the jurisdictional issues. [00:38:46] Speaker 00: I think, Your Honor, Judge Coe is very right to say that this court should not be rushing to find that states are not entitled to due process when the Supreme Court hasn't and this court hasn't. [00:38:57] Speaker 00: In the earliest precedents, sovereigns, foreign sovereigns were referred to as persons, and we've cataloged that in our brief. [00:39:03] Speaker 00: We don't think the court should be jumping to conclude otherwise. [00:39:07] Speaker 00: Also, under the intervener's theory of [00:39:10] Speaker 00: of how this analysis should work, every government-owned corporation would not be entitled to its separate legal status. [00:39:17] Speaker 00: They basically say because it is a government-owned corporation that's acting on behalf of the government, doing something specific for the government, it's not entitled to due process. [00:39:26] Speaker 01: Let me ask you a quick question. [00:39:28] Speaker 01: If it was a limited remand just for the issue of determining whether to [00:39:34] Speaker 01: follow the set-aside or not, there would be fact-finding and development of factual record. [00:39:40] Speaker 01: Is that correct or not? [00:39:41] Speaker 00: We think we would, I think our position would be that the most appropriate is to submit the decisions of the Indian courts to the district court. [00:39:48] Speaker 00: I don't think there should be extensive discovery. [00:39:50] Speaker 00: There usually isn't. [00:39:51] Speaker 00: It's usually a paper review, but I think that is what the district court would look at. [00:39:54] Speaker 00: But those things are all before the court here as well. [00:39:57] Speaker 00: And nothing, nothing that interveners have said comes close to that high standard of, you know, judgments that are repugnant is to what is, what is thought as, as decent and just. [00:40:08] Speaker 00: We're nowhere near that standard here. [00:40:10] Speaker 00: Indian courts are well functioning. [00:40:12] Speaker 00: This court routinely defers to them, and Davis promised it would abide by the decision of the Indian courts. [00:40:18] Speaker 01: What are the differences between a limited remand and a 60B motion? [00:40:22] Speaker 01: I apologize if I'm just repeating Judge Miller's question, but I'm a little still. [00:40:26] Speaker 00: not your honor i don't think there actually is any difference necessarily in what the district court would do i understand interveners to be arguing that they would they would try to use the rule 60 mechanism to add additional hurdles to recognition of the set aside for example based on the fact that time has elapsed since the set aside but as as i was saying your honor that is because of their actions [00:40:46] Speaker 00: We're here addressing the issue now and we move for limited remand in this court because of their particular actions leading to a decision from the district court before the set-aside was decided. [00:40:55] Speaker 00: So I don't think there's anything different that the court would be doing and I don't think this court needs any magic words or emotion for it to exercise its authority under 2106 to ask for a limited remand if it thinks that is appropriate. [00:41:08] Speaker 01: And then what? [00:41:09] Speaker 01: Leave to the district court whether it believes it needs any discovery to decide that issue? [00:41:16] Speaker 00: Your honor, our position would be that discovery is not appropriate. [00:41:21] Speaker 00: I think that could be argued before the district court, but we think that the court should direct the district court to examine the decisions and see, noting that the presumption is that you honor the foreign judgment. [00:41:32] Speaker 00: As this court said in Corzo, nothing's more repugnant to principles of comity than to enforce a pruvian judgment when the highest court of Peru is declared at null and void. [00:41:42] Speaker 00: And like here, there were allegations made that there were irregularities in that prevailing Supreme Court decision, and our court said we're not going to sit in judgment of that. [00:41:50] Speaker 00: So we would ask the court to at least instruct the district court that it should be reviewing with that deference to the foreign court. [00:41:58] Speaker 00: One very final note, Your Honor, my friend on the other side did bring up the forum non-convenience issue. [00:42:03] Speaker 00: And I don't want to rehash things discussed in two years prior. [00:42:07] Speaker 00: But there is an error in the district court's decision there. [00:42:09] Speaker 00: The district court thought that forum non-convenience was not available at all here. [00:42:14] Speaker 00: But that is contrary to this court's law. [00:42:17] Speaker 00: This court recognized in the Chuaasán case that you can dismiss in favor of a foreign forum. [00:42:22] Speaker 00: And the Second Circuit has multiple times held in Monogasque and other cases that forum non-convenience isn't available defense [00:42:27] Speaker 01: Your time has expired and this panel did issue a focus order to ask the parties to please focus on the issues in the supplemental briefing and not the issues that were already argued in 2023. [00:42:40] Speaker 01: So unless my colleagues have any more questions, I'm going to thank you and ask you to conclude. [00:42:46] Speaker 01: Any further questions? [00:42:48] Speaker 01: Okay, no further questions. [00:42:49] Speaker 01: I'll give you one sentence to wrap up. [00:42:52] Speaker 00: Sure, Your Honor, we think this court should again reject the Davis and intervener's attempt to bring their purely foreign dispute into the U.S. [00:42:58] Speaker 00: courts. [00:42:59] Speaker 00: No court has ever held that a foreign arbitral award arising out of a contract with no connection to the U.S. [00:43:04] Speaker 00: belongs in U.S. [00:43:05] Speaker 00: courts, and our courts have consistently recognized that we have to honor foreign set-aside judgments. [00:43:10] Speaker 00: Thank you. [00:43:11] Speaker 01: Thank you all for your very helpful arguments, and we're adjourned. [00:43:16] Speaker 01: Thank you. [00:43:18] Speaker 04: This court stands adjourned.