[00:00:02] Speaker 04:
Our next case on calendar is Franz Haas versus Winebow 24, sorry, 25-4105.

[00:00:09] Speaker 04:
Each side will have 10 minutes.

[00:00:22] Speaker 03:
May it please the court.

[00:00:23] Speaker 03:
My name is Eric Ambrell and I'm here on behalf of Appellant Winebow.

[00:00:27] Speaker 03:
The appellee had to do four things under Article 4 of the New York Convention.

[00:00:32] Speaker 03:
They accomplished zero of those things.

[00:00:34] Speaker 03:
Everyone agrees that each of those four things was the burden of the appellee.

[00:00:40] Speaker 03:
Your Honor, we have been accused of a couple of things.

[00:00:45] Speaker 03:
And I want to get that, I want to start right there.

[00:00:47] Speaker 03:
And that is we've been accused of grasping at straws, and we've been accused of gotcha.

[00:00:52] Speaker 03:
Your Honors, to be very blunt, we are grasping definitely

[00:00:56] Speaker 03:
at the plain terms of the Article IV, the New York Convention, and nothing more.

[00:01:01] Speaker 03:
We are grasping hard to the opinion by the United States Supreme Court in GE Electric that said specifically that it's the requirements that you, these are requirements, not suggestions.

[00:01:17] Speaker 03:
We are absolutely grasping to Al Karkani, the Ninth Circuit opinion, which stated and characterized Article IV as mandatory.

[00:01:25] Speaker 03:
We are grasping to section 201.

[00:01:27] Speaker 02:
I'm going to lay my cards on the table for you because you've got limited time.

[00:01:31] Speaker 02:
So you need to persuade me that this is not the most frivolous appeal that I have seen in 23 years on the bench between sophisticated parties, because your argument is utterly medieval.

[00:01:41] Speaker 02:
It is form pleading taken to the nth degree.

[00:01:45] Speaker 02:
So I just want to put that out on the table.

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That'll let you sort of decide how to use your time.

[00:01:50] Speaker 03:
Absolutely.

[00:01:51] Speaker 03:
It's a question of, it's the rule of law.

[00:01:55] Speaker 03:
And they are asking, directly, they are asking you to do nothing less than change the terms.

[00:02:04] Speaker 04:
It is... But what terms said it had to be done all at once, can't be amended?

[00:02:09] Speaker 04:
Where is there anything that says normal rules of amendment and letting people fix things don't apply?

[00:02:14] Speaker 03:
Well, you break it down.

[00:02:16] Speaker 03:
And in fact, the directors specifically address this, your honors, because in Article four, the first two requirements are specifically shall at the time of the application.

[00:02:27] Speaker 03:
But when you get to the second to the translations, which are different, they don't make that argument at the time of application.

[00:02:34] Speaker 03:
This district court in Alcarcani specifically equated the petition

[00:02:39] Speaker 03:
uh... to the application and that's what happened that is the application and it makes it actually it makes it

[00:02:49] Speaker 03:
The notion that there's anything other than an action to apply on its face the Article IV requirements, there is not an argument to be made that those were not met on four bases.

[00:03:05] Speaker 02:
Counsel, usually these arguments come to us in a slightly different form.

[00:03:09] Speaker 02:
They usually come to us in sort of an argument about

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excuse me, due process or something else.

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And usually in a due process type analysis, somebody's got to be able to show some kind of prejudice.

[00:03:21] Speaker 02:
I didn't see any argument in your brief about prejudice.

[00:03:23] Speaker 02:
Can you tell us how your client was prejudiced?

[00:03:25] Speaker 03:
I can tell, let me address that directly.

[00:03:28] Speaker 03:
Number one, there is not a prejudice standard.

[00:03:31] Speaker 03:
This is de novo.

[00:03:33] Speaker 03:
Did they or did they not apply to, did they or did they not?

[00:03:39] Speaker 02:
So I understand your argument is we don't have to show prejudice.

[00:03:43] Speaker 02:
I understood that.

[00:03:44] Speaker 02:
Oh, no.

[00:03:44] Speaker 03:
It is that we don't have to show prejudice, but if we delve into that standard, which is not the standard, certainly it is this lawlessness of are we or are we not.

[00:03:57] Speaker 03:
This is opening the door.

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for, by the way, talk about what this would mean.

[00:04:05] Speaker 03:
This court in SETI says, okay, non-signatories can be part of this.

[00:04:11] Speaker 02:
So now let's talk about all the different- I guess you can argue answer, but if you don't wish to answer my question, just go ahead and tell me you're not going to answer it.

[00:04:20] Speaker 02:
Is your client prejudiced?

[00:04:21] Speaker 02:
Tell me how he's prejudiced, other than by the fact that they were allowed to amend after the first pleading.

[00:04:27] Speaker 02:
All sorts of prejudice, Your Honor.

[00:04:29] Speaker 03:
Let's start with... I didn't see anything in the brief, but if you want to give it to us now, I'd love to hear it.

[00:04:33] Speaker 03:
What are we going to do in the future?

[00:04:35] Speaker 03:
Existing disputes between the parties regarding the supply agreement.

[00:04:39] Speaker 03:
Future disputes... No, no, no.

[00:04:40] Speaker 04:
The question I think Judge Bybee is asking is, the week that went between, or however long it was, week, month, whatever, between when they first came to the court and when they amended, what prejudice did you have from it delaying a month?

[00:04:55] Speaker 04:
or whatever period of time it was.

[00:04:56] Speaker 03:
That is a single argument of the four.

[00:04:59] Speaker 03:
The time of application has nothing to do with the rules of arbitrariness and talk about prejudice.

[00:05:04] Speaker 03:
I have to walk around with those documents forevermore.

[00:05:08] Speaker 03:
This is how important it is.

[00:05:10] Speaker 03:
It is so important and crucial because now forevermore we have a document

[00:05:15] Speaker 03:
that the imprimatur of the United States, this court, is that it is the rules of arbitrariness.

[00:05:22] Speaker 03:
That's just one.

[00:05:23] Speaker 02:
Counsel, let me try one more time.

[00:05:25] Speaker 02:
Yes.

[00:05:26] Speaker 02:
We're just not communicating here.

[00:05:28] Speaker 02:
How was Winebow, your client, prejudiced between the time that the first application was filed and they filed the corrected application?

[00:05:37] Speaker 02:
What is the prejudice in that time period?

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specifically to the at the time of application regarding that one argument.

[00:05:46] Speaker 03:
I don't have a prejudice argument as to the at the time of application other than your honor that I still will rest on the prejudice that we were not given the legal right or the lawful right to not have an award.

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confirmed without those being met.

[00:06:06] Speaker 03:
That is prejudice, Your Honor.

[00:06:08] Speaker 00:
I take it your answer to my colleague's question is none.

[00:06:15] Speaker 03:
For that particular argument,

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at whether it happens right there or down line.

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Now I can see if all of a sudden at the time of application, that's just going to get erased and that means you can do it at a later time.

[00:06:27] Speaker 03:
You can do it after.

[00:06:28] Speaker 03:
That's changing Article 4.

[00:06:31] Speaker 04:
We are changing Article 4.

[00:06:35] Speaker 04:
delay between the original filing and the amended filing didn't cause you prejudice.

[00:06:40] Speaker 04:
Is there any reason to think that that type of three weeks or whatever would cause anyone else prejudice that would mean that we would think that this convention was written to not allow the three weeks and the fixing?

[00:06:52] Speaker 03:
Well, it wasn't three weeks.

[00:06:53] Speaker 04:
Whatever it was, whatever period you just conceded has no prejudice.

[00:06:56] Speaker 03:
Yes, and that's why not only on this issue, just the single at the time of application, not the translation issues,

[00:07:03] Speaker 03:
that are separate issues and they, we just, we don't know.

[00:07:07] Speaker 04:
The question is, why would we interpret any of these rules to not allow amendment?

[00:07:14] Speaker 04:
Your client didn't face any harm from the delay between the fixing.

[00:07:18] Speaker 04:
You just conceded that.

[00:07:19] Speaker 04:
It doesn't seem like anyone else would either.

[00:07:21] Speaker 04:
So why in the world would anyone write a convention to say you only have one shot to get it perfectly right the first time?

[00:07:27] Speaker 03:
On that particular issue,

[00:07:29] Speaker 03:
The reason you would do it is because we've had a conversation about, can you even have jurisdiction?

[00:07:36] Speaker 04:
There's a reason that they put that- Why would they write the convention to not allow there to be an amendment?

[00:07:42] Speaker 03:
Because they need to know at the fore.

[00:07:44] Speaker 03:
Why?

[00:07:45] Speaker 03:
Because they need to, for the exact reason that they need to know whether or not this is an international arbitration.

[00:07:52] Speaker 03:
201 helps us here.

[00:07:54] Speaker 04:
Well, so if you don't know and you need to wait for amendment, I mean, a lot of times we have, we don't, we say, we can't, we don't think we have jurisdiction on this complaint.

[00:08:02] Speaker 04:
So you get to leave to amend.

[00:08:03] Speaker 04:
And then when you amend, we find out, okay, we now we have jurisdiction.

[00:08:06] Speaker 04:
Why can't it be just like that?

[00:08:09] Speaker 03:
from a practical standpoint because we need to know at the fore to see whether it falls in from a first course.

[00:08:16] Speaker 03:
Does this fit within the parameters?

[00:08:18] Speaker 03:
What are we doing here?

[00:08:19] Speaker 04:
Why?

[00:08:20] Speaker 04:
If they say, okay, right now it doesn't, you don't have what you need, but then you get another chance, and then when you do, if there's no prejudice in the interim,

[00:08:28] Speaker 04:
What's the problem with it?

[00:08:31] Speaker 03:
It's a procedural issue that makes a lot of sense.

[00:08:33] Speaker 03:
Why would we wait until the last possible moment?

[00:08:36] Speaker 03:
We could be at a point of nearing trial, a later amendment.

[00:08:41] Speaker 03:
Now all of a sudden we find out this was all a big waste of time.

[00:08:44] Speaker 03:
We never got into the four corners

[00:08:47] Speaker 03:
of is this even an Article 4?

[00:08:49] Speaker 03:
And that's why there's even been this issue, which Judge Miller said, and Al Karkani in his oral argument, he asked the question, why does it matter whether it's jurisdictional or merits?

[00:09:00] Speaker 03:
But what Al Karkani says, it's a merits issue.

[00:09:03] Speaker 03:
We cannot get around.

[00:09:06] Speaker 03:
We cannot get around the fact that that's what it says and we cannot get around that there is no way around it to say, if we get rid of shall and we say the translations are, you just don't have to have translations.

[00:09:19] Speaker 03:
We can have Italian, we can have Latin, we can not have.

[00:09:22] Speaker 04:
Translation here is very understandable as I read it.

[00:09:27] Speaker 04:
Is there anything that you couldn't understand in this translation?

[00:09:31] Speaker 03:
The answer is I don't understand an entire page

[00:09:35] Speaker 03:
of the alleged translator.

[00:09:36] Speaker 03:
The back is in Italian, allegedly.

[00:09:38] Speaker 03:
I don't have to even know what language.

[00:09:40] Speaker 03:
It is littered with these terms that have not been translated.

[00:09:45] Speaker 03:
It's not inter alia.

[00:09:46] Speaker 03:
It's not lasagna.

[00:09:48] Speaker 03:
It's not something you know.

[00:09:49] Speaker 03:
And if I'm standing here as Cicero, if I'm standing here as Thomas Aquinas speaks Italian and writes in Latin,

[00:09:58] Speaker 03:
It doesn't matter.

[00:09:59] Speaker 03:
The parties have to deal with this in other litigation and other cases forever more.

[00:10:05] Speaker 03:
And your honors, whether I know it or not doesn't matter either because in SETI, all this got expanded to non-signatories, which means now in a future case, I have to walk around with documents and I can't represent you.

[00:10:21] Speaker 04:
You've used up your time.

[00:10:22] Speaker 04:
Let's hear from the other side.

[00:10:26] Speaker 04:
I guess you're the other side.

[00:10:31] Speaker 01:
Good morning, Your Honors.

[00:10:32] Speaker 01:
I'm Janet Gustorf for the appellee, Franz Haus.

[00:10:37] Speaker 01:
I don't want to belabor a point, and I'm open to any questions that might be troubling this Court.

[00:10:44] Speaker 01:
And otherwise, I would just like to remind the Court that Article 3 also has mandatory language of shall.

[00:10:56] Speaker 01:
Each contracting state shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory of the award where the award is relied on.

[00:11:07] Speaker 01:
And so that is also mandatory language that incorporates the federal rules of civil procedure.

[00:11:14] Speaker 01:
And unlike the cases in which Winebow is trying to analogize, here Winebow fully

[00:11:24] Speaker 01:
participated in the arbitration.

[00:11:27] Speaker 01:
There's never been any dispute whatsoever that there was a valid agreement to arbitrate, that there's any issues with the arbitration under the Article 5.

[00:11:40] Speaker 01:
There's no substantive challenge to any translation issue that really could have any possible confusion.

[00:11:49] Speaker 01:
Weinbaum knows that

[00:11:53] Speaker 01:
they weren't proceeding under the ICC rules of arbitrariness.

[00:11:56] Speaker 01:
And it's just an absurdity without any substantive change.

[00:12:05] Speaker 04:
It seems like he's saying it's Italian, but I think it's Latin.

[00:12:11] Speaker 04:
I don't know how to say it, but pactum renovandi, which is a Latin phrase.

[00:12:16] Speaker 04:
We use Latin phrases.

[00:12:17] Speaker 04:
So when he's talking now about a full page of Italian, do you know what he's talking about, or is he just talking about that phrase in Latin?

[00:12:23] Speaker 01:
I am not sure what page he is referring to.

[00:12:28] Speaker 01:
I'm happy to respond if he would.

[00:12:33] Speaker 01:
But the substance has been submitted even with the first petition as well.

[00:12:42] Speaker 01:
Because as we mentioned, not only with the initial petition was the full arbitration award presented with the signatures.

[00:12:53] Speaker 01:
and the translation, the certified translation.

[00:12:55] Speaker 01:
But within that award was also the agreement to arbitrate in paragraph 13.

[00:13:01] Speaker 01:
So even accepting the sort of absurd premise that you get a one-shot deal here, Franz Haas satisfied that.

[00:13:12] Speaker 01:
And the district court reasoned that.

[00:13:18] Speaker 01:
intelligently.

[00:13:18] Speaker 01:
So unless the court has other questions, I'll submit.

[00:13:24] Speaker 04:
Thank you.

[00:13:25] Speaker 04:
Thank you both sides.

[00:13:25] Speaker 04:
This case is submitted.