[00:00:01] Speaker 03:
Base number 23.1723, Farley Container Terminal SA, Republic of Dubuque at balance.

[00:00:08] Speaker 05:
Mr. Madden for the at balance, Ms.

[00:00:10] Speaker 05:
Wolinski for the at balance.

[00:00:14] Speaker 04:
Hi, Council, this is Judge Rodgers.

[00:00:16] Speaker 04:
I am participating orally only as a result of internet problems with Wi-Fi.

[00:00:33] Speaker 03:
Thank you, Judge.

[00:00:36] Speaker 01:
You may please the court Matthew Madden for a Palin for the Republic of Djibouti, which is also the two thirds majority owner of Dorale container terminal essay or DCT, which is the appellee here in the petitioner below.

[00:00:50] Speaker 01:
I would like to reserve three minutes of my time for rebuttal.

[00:00:54] Speaker 01:
Section 207 of the Federal Arbitration Act governs proceedings in the United States to confirm foreign arbitration awards.

[00:01:02] Speaker 01:
That statute says that only a party to the arbitration may petition for an order confirming its award and that it must do so within three years of the award.

[00:01:12] Speaker 01:
In this Section 207 case, the Republic objected that the arbitration awardee, DCT, had not validly authorized the confirmation petition filed in its name.

[00:01:22] Speaker 01:
The Republic was joined in that objection by DCT's own provisional administrator.

[00:01:28] Speaker 01:
who informed the district court that she had exclusive authority to manage DCT's affairs, that she had not authorized the petition.

[00:01:35] Speaker 01:
The council on the petition is no longer authorized to act for DCT and was solely acting for DCT's minority shareholder, DP World Shibuti.

[00:01:46] Speaker 02:
And she asked- The district court did not address this particular issue, yet proceeded with affirming the arbitration award.

[00:01:55] Speaker 02:
and looked at the factors and felt like there were none there.

[00:01:59] Speaker 02:
And then Djibouti couldn't disagree with that.

[00:02:03] Speaker 02:
So I do want to go back to the provision with respect to who was the proper party to represent.

[00:02:10] Speaker 02:
Because if a case goes through, I would think that that would be an issue concerning to make sure that we have all the parties there, particularly when the statute says party to the arbitration.

[00:02:21] Speaker 02:
So can you speak to that and even what authority you would have with respect to

[00:02:25] Speaker 02:
How do we go about making that determination of who is the true represented capacity?

[00:02:32] Speaker 01:
Right.

[00:02:33] Speaker 01:
I agree.

[00:02:33] Speaker 01:
That's exactly the issue here, Your Honor.

[00:02:35] Speaker 01:
The district court denied the Republic any discovery into counsel's authority or the petition's validity in the district court.

[00:02:42] Speaker 01:
And then it held in its opinion that Section 207 actually prevented the court, even considering the Republic's authority objection,

[00:02:50] Speaker 01:
It instead rules that whether or not counsel has authority to act for DCT had quote no bearing the court's decision to confirm the awards.

[00:03:00] Speaker 01:
This court should reverse that decision for either of two grounds.

[00:03:04] Speaker 01:
Section 207's party to the arbitration requirement has to be either a merits issue on which you can deny the petition or a jurisdictional question on which you can dismiss it.

[00:03:15] Speaker 01:
But it can't be neither, which is what the district court held, which would render section 207's party to the arbitration provision mere surplusage.

[00:03:27] Speaker 01:
What the district court did.

[00:03:29] Speaker 04:
Council, another way to look at that is it's not, this is Judge Rogers, that jurisdictional issues as in any civil litigation are available to a party who are proceeding to raise and including whether or not the plaintiff or petitioner

[00:03:57] Speaker 04:
is a proper party.

[00:03:58] Speaker 04:
And if you don't raise it timely, it's too late.

[00:04:04] Speaker 04:
Now, your argument is basically a reversal of that.

[00:04:10] Speaker 04:
Is that my understanding?

[00:04:12] Speaker 01:
No, Your Honor.

[00:04:14] Speaker 01:
Two arguments here.

[00:04:15] Speaker 01:
So we do agree that the parties to the arbitration argument is jurisdictional.

[00:04:20] Speaker 01:
That's how Congress labeled the statute in Section 207.

[00:04:23] Speaker 04:
No, my question did not

[00:04:26] Speaker 04:
assume that.

[00:04:27] Speaker 04:
I was answering, asking the question based on your presentation of it.

[00:04:36] Speaker 04:
In answering my question, do not assume that I am saying that 207 is jurisdictional.

[00:04:46] Speaker 01:
If Section 207 is not jurisdictional, if I'm understanding the question correctly, then it's a merits issue.

[00:04:53] Speaker 01:
It would be an element of a claim under Section 207 would be that it had to be brought by a party to the arbitration.

[00:05:00] Speaker 01:
The district court here held that it was no such thing at all.

[00:05:03] Speaker 01:
It wasn't an element of the statute at all.

[00:05:06] Speaker 01:
and that the court couldn't even consider whether council was authorized by the party to the arbitration.

[00:05:13] Speaker 01:
But just on the merits, that gets section 207 exactly backwards.

[00:05:20] Speaker 01:
The opposition brief, in fact, concedes at page 25 that properly understood section 207 implicates who has a valid cause of action, a party to the arbitration.

[00:05:32] Speaker 01:
This, the opposition brief says, is a merits issue.

[00:05:36] Speaker 01:
But the district court held otherwise and said, Section 207 prevented it from considering whether it had a proper party before it on the merits, and that it wouldn't even consider that question which had no bearing on the merits of the case before it.

[00:05:51] Speaker 01:
As we point out in our brief, that's an implausible way to read the statute because it also contains a three-year statute of limitations.

[00:06:00] Speaker 01:
The three-year statute of limitations in Section 207 is not a New York Convention substantive defense to the validity of the award.

[00:06:08] Speaker 01:
It's a rule imposed by Congress on how arbitration proceedings can be filed and proceed.

[00:06:14] Speaker 03:
If we were to agree that that the court needed to decide the question of authority, is that a question that the district court would decide or would that have to then go back to arbitration?

[00:06:26] Speaker 01:
It would be a question of the district court would decide if this court doesn't decide it on the record.

[00:06:31] Speaker 01:
So because the provisional administrator of DCT filed declaration in the record below saying she did not authorize counsel to file the petition, we believe the court can reverse on the current record.

[00:06:45] Speaker 01:
But if not, it would go back to the district court for fact-finding.

[00:06:48] Speaker 03:
And that's important because- And with the district court then

[00:06:51] Speaker 03:
send it back to arbitration?

[00:06:53] Speaker 01:
No, that's what's important here, and I think the district court got this importantly wrong.

[00:06:58] Speaker 01:
Our challenge is not a challenge to the underlying validity of the awards.

[00:07:01] Speaker 01:
The awards of the awards, they're done.

[00:07:03] Speaker 01:
They were decided by the London Tribunal, and we bring a challenge to the validity of the awards themselves.

[00:07:10] Speaker 01:
Our challenge is solely the Section 207 challenge to the validity of the confirmation proceeding itself in federal court.

[00:07:17] Speaker 03:
I was very committed to not challenge the

[00:07:20] Speaker 03:
but make it unenforceable.

[00:07:23] Speaker 01:
If the proper party brings the petition, if DCT's provisional administrator were to decide that that's the approach she wants to take on behalf of the arbitration awardee, then that's her prerogative.

[00:07:35] Speaker 01:
And for sure then there would be effectively no other defenses left to confirmation and the case could proceed.

[00:07:42] Speaker 01:
But what's happened here is that she's decided otherwise and asked the court to dismiss the petition.

[00:07:48] Speaker 03:
So there's some suggestion in the district court opinion that she forfeited that argument.

[00:07:53] Speaker 03:
in arbitration, right?

[00:07:54] Speaker 03:
There was no question.

[00:07:55] Speaker 03:
The arbitrator didn't decide the question of authority and it wasn't presented to the arbitrator.

[00:08:01] Speaker 03:
So why should any of the courts consider that issue?

[00:08:04] Speaker 01:
Yeah, that's twice wrong.

[00:08:06] Speaker 01:
So for one thing, this issue could not have been forfeited during the arbitration because Section 207 doesn't apply.

[00:08:14] Speaker 01:
No confirmation petition had yet been filed.

[00:08:18] Speaker 01:
So there are different questions that have to be addressed by different courts.

[00:08:21] Speaker 01:
You can't object to the later enforcement of an award before the award's even been granted by the arbitrators.

[00:08:27] Speaker 03:
The question about who has authority is a question that could have been raised in arbitration.

[00:08:31] Speaker 01:
And it was.

[00:08:32] Speaker 01:
In fact, the issue was first raised by the Republic Council in his November 14, 2018 email to both the provisional administrator and the tribunal, in which he said that DP World and its council at Quinn Emmanuel were, quote, no longer mandated to act for DCT.

[00:08:53] Speaker 01:
And that by continuing to do so, it, quote, clearly disregards the powers entrusted to the, end quote, provisional administrator to manage DCT's affairs.

[00:09:03] Speaker 02:
And so you're referring to an email confirming a statement that you believe that they weren't represented.

[00:09:10] Speaker 02:
But when would you say was the actual revocation of Quinn Emmanuel's power of attorney?

[00:09:15] Speaker 02:
Did you all do something before then?

[00:09:18] Speaker 01:
The Djibouti Court of First Instance had appointed the Provisional Administrator at DCT in September of 2018 in a proceeding that DP World and its Council did not appear at.

[00:09:31] Speaker 01:
That was later confirmed after the hearing on the counterclaims and the arbitration on November 15th, 2018 by the Court of First Instance in a contested proceeding.

[00:09:40] Speaker 01:
And then if you want to play it out, there was actually further appeals brought by

[00:09:45] Speaker 01:
D.P.

[00:09:45] Speaker 01:
World and its counsel in the Djibouti courts all the way up to the Djibouti Supreme Court that were unsuccessful.

[00:09:52] Speaker 01:
So eventually the order appointing the provisional administrator giving her sole and exclusive authority over DCT was affirmed all the way up the levels of Djibouti's courts.

[00:10:03] Speaker 01:
It was in the midst of that process that this issue was based by the republic's counsel in his email to the tribunal into the provisional administrator, the district court doesn't acknowledge that email, and it's a, it's an opinion but it's acknowledged in a page 11 of the opposition brief.

[00:10:20] Speaker 01:
And in a November 26 letter to the tribunal, Quinn Emanuel admitted that the Republic's lawyer had complained that Quinn Emanuel was not authorized to act for DCT.

[00:10:31] Speaker 01:
That's it, JA 422 to 429.

[00:10:34] Speaker 02:
And was this power of attorney governed by English law?

[00:10:37] Speaker 01:
The original power of attorney granted by DCT's board to Quinn Emanuel, which was also DP World, the Minority Shareholders Council.

[00:10:48] Speaker 01:
I believe that that's the 2013 or 14 power of attorney.

[00:10:52] Speaker 01:
I believe that was governed

[00:10:54] Speaker 01:
under its terms by English law.

[00:10:58] Speaker 01:
But DCT is a Djibouti corporation that's its governance is responsible to Djibouti law and all of DP World's claims to the contrary have been rejected by Djibouti's courts.

[00:11:11] Speaker 02:
And earlier you said that you're not objecting to the arbitration award itself, so you don't believe that there were any counts for denial under Article 5.

[00:11:19] Speaker 01:
Right.

[00:11:20] Speaker 01:
To be clear, we had objections under the convention that we pressed in the district court.

[00:11:24] Speaker 01:
Those were denied and we have not raised those on appeal.

[00:11:30] Speaker 03:
It does seem that the parties here and all of their tractual agreements were trying to avoid Djibouti law.

[00:11:36] Speaker 03:
I mean, they're governed by arbitration.

[00:11:37] Speaker 03:
They're governed by UK law.

[00:11:40] Speaker 03:
And so how does that affect the analysis of authority here?

[00:11:43] Speaker 03:
And there was a UK court that I think enjoined Djibouti from appointing a provisional administrator.

[00:11:50] Speaker 01:
Not quite.

[00:11:51] Speaker 01:
There was an injunction that prevented a Djibouti agency from interfering in a separate arbitration, I think is what Your Honor is referring to.

[00:12:01] Speaker 01:
The parties did contracts to have many of their disputes governed by UK law and to be arbitrated.

[00:12:11] Speaker 01:
And many of them were.

[00:12:12] Speaker 01:
In fact, the arbitration was brought in the first instance by the Republic.

[00:12:15] Speaker 01:
We're talking about counterclaims that were brought by DP World and DCT.

[00:12:21] Speaker 01:
But there's no dispute that the entity is a creature of Djibouti law that was enacted by a Djibouti statute.

[00:12:30] Speaker 01:
Its governance has to be governed by Djibouti law, much like a Delaware corporation can't contract out of Delaware law applying to

[00:12:38] Speaker 01:
its establishment in Delaware.

[00:12:40] Speaker 01:
And so once there was a disagreement among the majority of minority shareholders, the two parties here, or really the two parties here, over the governance of that entity and the court held that it had become unable to do its business, the Djibouti court stepped in and appointed what's effectively a corporate trustee.

[00:13:04] Speaker 03:
So why did the provisional administrator here not seek to dismiss the claims in arbitration?

[00:13:11] Speaker 03:
Why did why did she seek only to stay them?

[00:13:14] Speaker 01:
I don't know, among other things, she didn't testify DCT's purported counsel didn't have her appear at the proceeding or or or depose her.

[00:13:26] Speaker 01:
I can speculate that it had to do with the fact that the and you can see this, I think, in her letter that proceedings on her appointment weren't yet final.

[00:13:35] Speaker 01:
So she had been appointed in September, as I said in a in a one party proceeding that the other side didn't show up to.

[00:13:42] Speaker 01:
There was an immediate challenge to that filed on October 4.

[00:13:48] Speaker 01:
The counterclaims hearing went forward on November 9th.

[00:13:52] Speaker 01:
Her appointment still wasn't final at that time.

[00:13:55] Speaker 01:
It was only on November 15th that the trial court affirmed her appointment in a contested proceeding.

[00:14:01] Speaker 01:
And yet there were still appeals.

[00:14:02] Speaker 01:
So her letter says, this will still be decided by the Djibouti courts.

[00:14:08] Speaker 01:
It's still an open issue.

[00:14:10] Speaker 01:
And that's why I think she asked the panel to stay the proceedings while those proceedings in Djibouti ran their course.

[00:14:17] Speaker 01:
The tribunal ended up saying, we don't need to stay this because we've already held the hearing.

[00:14:22] Speaker 01:
We don't need anything else from the parties.

[00:14:24] Speaker 01:
And so it no longer matters to us, which the right counsel is for DCT.

[00:14:29] Speaker 01:
We've already heard from them.

[00:14:30] Speaker 01:
We can proceed to file an award without needing anything else from the parties.

[00:14:35] Speaker 01:
Of course, we disagreed with that decision.

[00:14:37] Speaker 01:
But I think that's why it happened on a stay basis instead of a sort of a full challenge to the counterclaims themselves.

[00:14:49] Speaker 04:
Thank you.

[00:14:49] Speaker 04:
Judge Rogers.

[00:14:50] Speaker 04:
Any further questions?

[00:14:52] Speaker 04:
No, I think you've covered what I was concerned about.

[00:14:56] Speaker 04:
Thank you.

[00:14:56] Speaker 06:
Thank you some time on her book.

[00:15:07] Speaker 00:
Good morning.

[00:15:07] Speaker 00:
I please the court.

[00:15:08] Speaker 00:
Dennis Trinitzky from Quinn Emanuel on behalf of the Apple

[00:15:19] Speaker 00:
Judge Hogan's finding that the Republic had forfeit its argument that it's raising in these proceedings that my firm and DCT lacks authority to prosecute these recognition and enforcement proceedings by failing to press that issue in the orbital proceedings.

[00:15:40] Speaker 00:
And I would submit, I mean, I think the colloquy this morning actually demonstrates that the Republic did forfeit

[00:15:48] Speaker 00:
that argument by failing to press it in the arbital proceedings.

[00:15:52] Speaker 00:
The record is clear that the Republic's position is that Ms.

[00:15:56] Speaker 00:
Tatterall took on the authorization to speak for DCT while during the waning days of the counterclaim hearings before the awards which were rendered in these cases in this case in March of 2019 were rendered.

[00:16:13] Speaker 00:
It's clear that the Republic was live to that issue.

[00:16:17] Speaker 00:
That's obvious from the letter that the Republic wrote to Ms.

[00:16:23] Speaker 00:
Satterall and copied the tribunal on November 14th of 2018.

[00:16:28] Speaker 03:
Even if it's the case that they didn't raise the issue in the arbitration, I mean, questions of authority, I mean, there are a number of cases that suggest questions of authority can be raised at any point in a proceeding.

[00:16:39] Speaker 00:
That is correct, Your Honor.

[00:16:41] Speaker 00:
Questions of authority could be raised at any point during the Arbitral Proceedings.

[00:16:47] Speaker 00:
And in fact, the award wasn't rendered until March.

[00:16:49] Speaker 03:
The Republic had five- Not just the Arbitral Proceedings, but say the Provisional Administrator hadn't been appointed during the arbitration, but was appointed.

[00:16:58] Speaker 03:
during the litigation before the district court.

[00:17:01] Speaker 03:
Are you suggesting they could never challenge authority at that stage?

[00:17:05] Speaker 00:
No, I'm not, Your Honor.

[00:17:07] Speaker 00:
Had the Republic not... It's factually distinguishable, however, because the Republic was of the position that my firm and DCT lacked authority to prosecute proceedings while those proceedings were underway, and they failed to press the issue during those proceedings.

[00:17:25] Speaker 00:
And as a consequence of their failure to do so,

[00:17:27] Speaker 00:
even though the tribunal didn't explicitly rule that DCT had authority to go on prosecuting or my firm did, it did so implicitly.

[00:17:36] Speaker 00:
It's like at the hearing on November 9th on the counterclaims, which the Republic chose not to appear for,

[00:17:45] Speaker 00:
At the very beginning, counsel for my client informed the Tribunal.

[00:17:52] Speaker 00:
Of course, the Tribunal must be satisfied that we are properly before you, before you can continue.

[00:18:01] Speaker 00:
and the tribunal chose to continue with the proceedings, implicitly therefore finding that Quinn-Emanuel and DCT had authority to go on, right?

[00:18:15] Speaker 03:
And- So what did the district court then decide?

[00:18:20] Speaker 03:
Did the district court decide that this issue was forfeited?

[00:18:23] Speaker 03:
I mean, it's a little bit murky, or is it your position that the district court could not even address the question of authority?

[00:18:31] Speaker 00:
Your honor, had the authority, had the facts that the Republic is pointing to transpired following the orbital, the rendering of the decisions that we're seeking to recognize here, the situation would be very different.

[00:18:48] Speaker 00:
And we wouldn't dispute that the Republic would be able to raise the issue of DCD's authority in my term, firm's authority,

[00:18:57] Speaker 00:
in the district court proceedings.

[00:18:59] Speaker 00:
But because all of that happened, while the republic had an opportunity to raise it with the tribunal and chose not to, that issue was forfeit.

[00:19:09] Speaker 00:
And by forfeit, I mean specifically

[00:19:11] Speaker 00:
The rendering of the awards in those proceedings gave rise to race judicata effect, and that issue could not be relitigated in the district court proceedings, absent some intervening change in the facts, which is not present here.

[00:19:30] Speaker 02:
But one thing that still concerns me is that in the order, the district court says Djibouti's authority has no bearing on the court's subject matter jurisdiction.

[00:19:41] Speaker 02:
And there doesn't seem to be a real thorough response with respect to whether or not authority exists or not or by whom.

[00:19:54] Speaker 02:
the district court seems to be more focused on whether to affirm the award.

[00:19:58] Speaker 02:
And I think that's a different statement from whether or not any of these exceptions are met through the authority, which clearly it doesn't anticipate any exceptions.

[00:20:08] Speaker 02:
And so the district court goes on to affirm the award, but really just kind of pushes aside this issue of authority without really addressing it.

[00:20:17] Speaker 00:
But your honor, I would, I agree that the decision is not a model of clarity in terms of separating out what the court meant by finding the argument had been forfeit from what the court meant, but it was clear what the district court meant when the district court ruled that question of authority doesn't go to subject matter jurisdiction or to article three standing for that.

[00:20:43] Speaker 00:
matter and I would submit with all due respect to the Republic's Council that and I don't believe there's really any question about subject matter jurisdiction or standing here.

[00:20:51] Speaker 00:
The real issue is whether the argument of authority was forfeit.

[00:20:57] Speaker 00:
And my understanding of the judge's ruling, where he points out that the Republic had an opportunity to raise these issues in the waning days of the arbitration, being on notice of all of those proceedings, and they're failure to do so.

[00:21:19] Speaker 00:
resulted in forfeiture, which, you know, the meaning of which is race judicata effect on any issues that were actually press for litigated in the proceedings or could have been pressed and should have been pressed and litigated in those proceedings.

[00:21:35] Speaker 02:
So do you just take the position that the argument is forfeited or that Djibouti failed to actually exercise revoking Quinn Emanuel's power of attorney?

[00:21:45] Speaker 00:
Well, I mean, our position is that Quinn Emanuel's power attorney was never revoked.

[00:21:50] Speaker 00:
It's also our position that it wouldn't be Djibouti's.

[00:21:52] Speaker 00:
It wouldn't be up to Djibouti to revoke Quinn Emanuel's power of attorney either.

[00:21:56] Speaker 00:
I mean, the question of whether Quinn Emanuel's power of attorney could be revoked and who has the power to speak to that, right?

[00:22:02] Speaker 00:
That's clearly a question that rests in the competence of an LCI arbitration tribunal.

[00:22:09] Speaker 00:
The arbitration clause in this case is exceptionally broad.

[00:22:15] Speaker 00:
And I don't think that there's any dispute that applies to any dispute among the shareholders in DCT over management issues.

[00:22:25] Speaker 00:
Right.

[00:22:26] Speaker 03:
So if we disagree, you just assuming you disagree that this issue was forfeit in the arbitration, and then with the question of authority be decided by the district court or the district court need to send it back to arbitration to be decided.

[00:22:43] Speaker 00:
Well, if this were remanded to the district court, then our position at district court would be that the issue was adjudicated by, you know, in the Arbitral Tribunal, right?

[00:22:55] Speaker 00:
And therefore forfeit and that forfeiture has been issued out of effect.

[00:22:59] Speaker 00:
If the district court didn't agree with that position, which we believe would be sort of a legally sound position, the issue, I'm not certain, but,

[00:23:11] Speaker 00:
The issue might be arbitrable.

[00:23:15] Speaker 00:
If it is, then the proper tribunal for deciding the question would be an LCIA tribunal because the arbitration clause in the relevant agreements is as clear as it could be.

[00:23:27] Speaker 00:
That has to be decided by an LCIA tribunal.

[00:23:31] Speaker 03:
And if the district court, I mean, what are the principles, if we were to remand to the district court, what are the legal principles that you think would be relevant for the district court to consider if it were deciding the question of authority?

[00:23:44] Speaker 00:
I mean, ultimately, I believe that it would turn onto, well, it's a little difficult to answer that question, Your Honor, because I don't, without knowing exactly sort of the procedural posture in which the arguments were presented,

[00:24:00] Speaker 00:
I'm not certain, but I believe it would be relevant.

[00:24:04] Speaker 03:
I think there are a lot of complicated questions if there was an actual determination of authority.

[00:24:11] Speaker 03:
And so I'm just giving you an opportunity to say what relevant factors you think the district court would need to consider.

[00:24:16] Speaker 00:
Well, I believe it would ultimately turn down to a question of common.

[00:24:20] Speaker 00:
Should the district committee, should the district court give effect to a decision from the judicial proceedings which were prosecuted ultra various in violation of the forum selection provision at present in the underlying agreements.

[00:24:38] Speaker 00:
in circumstances where the evidence is quite clear that the provisional administrator who purports to speak for DCT is acting in collusion with the Republic to deprive DCT of the benefit of its only valuable asset.

[00:24:55] Speaker 00:
I mean, if Ms.

[00:24:56] Speaker 00:
Tatterall were actually acting in the interest of DCT, she would be doing everything in her power to enforce this award rather than- So are those questions about whether there would be some exception to the internal affair doctrine?

[00:25:09] Speaker 03:
I mean, with respect to the fact that Djibouti law controls a Djibouti corporation.

[00:25:14] Speaker 00:
Well, Your Honor, we disagree that this is ultimately a question of Djiboutian law, right?

[00:25:19] Speaker 00:
And that comes back to the point that I made a moment ago, which is fundamentally this would boil down to a question of comedy.

[00:25:25] Speaker 00:
should the district court give effect to the decisions of the Djiboutian courts in this context where it would so plainly violate not only the forum selection provision, the fundamental principles of public policy and fairness.

[00:25:45] Speaker 03:
I mean, you say it's a matter of comedy, but normally we, you know, normally courts look at the law of the place of incorporation.

[00:25:54] Speaker 03:
So is it you're suggesting that there's a public policy exception that general rule?

[00:25:59] Speaker 00:
Your honor, our position is that the internal affairs doctrine wouldn't apply in these circumstances because the parties plainly chose LCIA arbitration governed by English law to resolve any questions arising from disputes, management disputes among the parties.

[00:26:18] Speaker 00:
And that's plainly what this was.

[00:26:20] Speaker 00:
I mean, in fact, the republic's own position is that Ms.

[00:26:23] Speaker 00:
Tatterall was appointed as a result of a management dispute among the parties.

[00:26:27] Speaker 00:
And I don't believe that there's any meaningful dispute that management disputes among the parties are subject to the form selection provision, which calls LCIA arbitration.

[00:26:40] Speaker 03:
So who is your client?

[00:26:43] Speaker 06:
My client is DCT.

[00:26:54] Speaker 05:
Further questions?

[00:26:54] Speaker 03:
Judge Rogers, any further questions?

[00:26:57] Speaker 03:
Hi, I'm afraid you're fading in and out.

[00:27:01] Speaker 03:
I was just asking if you had any further questions.

[00:27:06] Speaker 04:
No, I'm talking about before that.

[00:27:09] Speaker 04:
As I understand it, you are asking counsel to, as it were, list the principles that the district court should consider where we send it back.

[00:27:21] Speaker 04:
As I understood it, he was saying comedy.

[00:27:27] Speaker 04:
And that's where the two of you have been circling for a while.

[00:27:31] Speaker 04:
Is that my understanding of?

[00:27:33] Speaker 04:
Yes.

[00:27:34] Speaker 04:
All right.

[00:27:39] Speaker 05:
So.

[00:27:46] Speaker 05:
Council, let me just ask you, you say that whether.

[00:27:51] Speaker 04:
Your firm had authority to proceed.

[00:27:56] Speaker 04:
comes within the ambit of the language in the arbitral proceeding about any management dispute.

[00:28:09] Speaker 04:
I'm not savvy to that phrase being as broad as you suggest, but you may be right.

[00:28:20] Speaker 04:
But a management dispute, it seems to me, is somewhat different than a jurisdictional.

[00:28:25] Speaker 04:
Dispute.

[00:28:28] Speaker 04:
Is that not correct.

[00:28:30] Speaker 00:
Yes, your honor, I do agree that management dispute is distinct from a jurisdictional dispute, although I would submit that there's really not any question about whether the US courts have jurisdiction.

[00:28:41] Speaker 00:
over these enforcement and recognition proceedings.

[00:28:44] Speaker 00:
The real question is whether there is an eye of issue with respect to DCT's authority to prosecute them and my firm's authority to appear on behalf of DCT.

[00:28:59] Speaker 04:
I don't disagree with your description, but management disputes, it seems to me, are operational disputes as distinct from whether or not

[00:29:13] Speaker 04:
there is a proper party and that party is properly represented.

[00:29:22] Speaker 00:
Your Honor, when I made the reference to management disputes, I was referring specifically to the fact that Ms.

[00:29:28] Speaker 00:
Tatterall's appointment as provisional administrator

[00:29:32] Speaker 00:
refers to the fact that she was appointed as a result of a dispute, a management dispute within DCT.

[00:29:44] Speaker 00:
And under the forum selection provision in the concession agreement underlying this dispute,

[00:29:53] Speaker 00:
It's as clear as it could be that disputes relating to the management of DTT are vested in the exclusive jurisdiction of LCIA arbitration.

[00:30:04] Speaker 00:
And it was improper, it was therefore our position that it was improper

[00:30:08] Speaker 00:
for the Republic to commence the proceedings in the Djiboutian courts to have Ms.

[00:30:16] Speaker 00:
Tatterall appointed.

[00:30:18] Speaker 00:
But I was specifically, that's the point I was addressing when Judge Rao asked me the question, what are the legal principles that would govern the question of who has authority to speak for DCT?

[00:30:32] Speaker 00:
if this case were remanded to the district court.

[00:30:36] Speaker 00:
And I said that ultimately, I believe one of the relevant principles would be comedy.

[00:30:41] Speaker 00:
That is, should the US courts give comedy to a decision of the Djiboutian courts, and it was rendered in ultra-various proceedings and in the context of facts where it's so plain that there's a conflict of interest between Ms.

[00:30:57] Speaker 00:
Tadderall and the Republic that the two are colluding,

[00:31:00] Speaker 00:
and that if Ms.

[00:31:01] Speaker 00:
Hattaraw were actually acting in the interest of DCT, then she would be doing everything that she could to enforce these awards, which are really the only valuable asset that DCT has at this time, rather than doing everything she can to prevent these awards from being enforced.

[00:31:19] Speaker 00:
I would submit that, you know, if that question were decided as a matter of comedy, there's no question in my mind that giving effect to the Djiboutian appointment of Ms.

[00:31:27] Speaker 00:
Tatarov would violate the public policy of the United States and her appointment shouldn't be given recognition.

[00:31:34] Speaker 00:
But I don't believe that we need to get there because in the fundamental point, which I believe the judge, the district court found,

[00:31:42] Speaker 00:
albeit he didn't elucidate, was that the Republic had an opportunity to litigate the issue of whether my firm and DCT could go on prosecuting the arbitration and all foreseeable consequences, including seeking recognition and enforcement of any resulting award.

[00:32:01] Speaker 00:
They had an opportunity to do that.

[00:32:07] Speaker 00:
They chose not to, even though they had the opportunity to do so.

[00:32:10] Speaker 00:
And as a consequence,

[00:32:12] Speaker 00:
they forfeit the issue with race judicata effect.

[00:32:18] Speaker 04:
Any further questions?

[00:32:20] Speaker 04:
Well, I just want to comment to say that counsel's response to my question defines his earlier reference to comedy a lot more broadly than I had anticipated, because I thought the argument was that, well, in response to Judge Rao's question,

[00:32:43] Speaker 04:
were we to remand this matter to the district court, then it was counsel's position that the district court should give comity to what he had earlier argued was an implicit decision as to her authority.

[00:33:05] Speaker 04:
But I guess we need not pursue this further at this point.

[00:33:09] Speaker 00:
If I could just sort of make one clarifying point and then I'll stand.

[00:33:13] Speaker 00:
When I referred to comedy, I specifically, Judge Rogers, I apologize if I wasn't clear, but specifically what I was saying is that our position would be the district court should not and cannot give comedy to the appointment of Ms.

[00:33:27] Speaker 00:
Tatterall in the facts of this case.

[00:33:32] Speaker 05:
Thank you.

[00:33:33] Speaker 06:
Thank you very much.

[00:33:36] Speaker 05:
Give you two minutes on rebuttal.

[00:33:41] Speaker 01:
Thank you and I'll try to be brief.

[00:33:43] Speaker 01:
The real problem in this case is that the district court believed it could not consider any of these questions about authority presented in the case.

[00:33:50] Speaker 01:
And the key passage is at J677 where the court says further after finding it has subject matter jurisdiction to hear the petition, this court cannot consider Djibouti's authority argument as an independent ground on which to dismiss the petition.

[00:34:07] Speaker 01:
The court didn't consider Mr. Dorrell's declaration in which she said she had exclusive authority and revoked any authority held by opposing counsel to represent DCT.

[00:34:18] Speaker 01:
It didn't address these questions.

[00:34:20] Speaker 01:
If the court were to remand, what would the analysis look like, Your Honor asked?

[00:34:24] Speaker 01:
First of all, we should be entitled to the discovery we saw in the district court where we proposed simple interrogatories and document requests to get a sense of who does counsel actually represent, who is directing counsel's work supposedly on behalf of DCT and on what basis.

[00:34:40] Speaker 01:
All of that was denied because the district court believes these questions had already been forfeited in the arbitration and were relevant to the proceeding in federal court in this country.

[00:34:52] Speaker 01:
Second on forfeiture Council said a couple of times that the Republic failed to put the issue that had an opportunity to press the authority question but chose not to.

[00:35:04] Speaker 01:
Again, that's just not what the record shows.

[00:35:07] Speaker 01:
Republic's November 14th email says that Council's continued operation on behalf of DC clearly disregards the powers entrusted to DCT's provisional administrator.

[00:35:20] Speaker 01:
And then in Quinn Emanuel's own November 26th letter, it agreed that the Republic had complained that Quinn Emanuel was not authorized to act for DCT.

[00:35:30] Speaker 01:
That's a quote at 422 to 429.

[00:35:33] Speaker 01:
And then finally, just on jurisdiction.

[00:35:36] Speaker 01:
There's no, there was no argument in the in opposing counsel's opposition brief or today to explain why Congress chose to title section seven.

[00:35:49] Speaker 01:
a jurisdictional provision if it wasn't referencing the three-year requirement or the party to the arbitration requirement.

[00:35:56] Speaker 01:
As we say in a footnote in our reply brief, that can't refer merely to the invocation of jurisdiction elsewhere because other similar provisions in the Federal Arbitration Act aren't titled jurisdiction because they don't have a party to the arbitration requirement.

[00:36:11] Speaker ?:
Thank you.

[00:36:12] Speaker 04:
Well, of course, what the Supreme Court has discussed

[00:36:16] Speaker 04:
titles that refer to jurisdiction and decided a number of cases to try to clarify the limitations of what that titling meant.

[00:36:30] Speaker 04:
So I don't think that's a very strong argument, because it came out not in a way that would favor your position.

[00:36:41] Speaker 04:
Basically, it said that Congress is pretty casual about what it meant.

[00:36:47] Speaker 04:
title.

[00:36:49] Speaker 01:
Yeah, it's not our position, Judge Rogers, that every statute in the US Code that has the word jurisdiction in its title necessarily is a jurisdictional provision.

[00:37:00] Speaker 01:
Statutes, of course, are interpreted in context.

[00:37:03] Speaker 04:
I understand, but it's just a question of now that the Supreme Court has clarified all that, have you met the requirements that the Supreme Court has established?

[00:37:17] Speaker 04:
It imposes a jurisdictional limitation.

[00:37:22] Speaker 01:
I think I understand, and the Supreme Court has certainly said there is a clear statement rule, and it must be clear that that is Congress's intent on the record.

[00:37:31] Speaker 01:
Our argument is that if you look at these different statutes in FAA 201 through 208 in context, the only explanation for the appearance of the word jurisdiction in the title to Section 207 is that it must refer to the additional elements that

[00:37:48] Speaker 01:
statute imposes the three-year requirement and the party to the arbitration requirement.

[00:37:52] Speaker 01:
If those aren't jurisdictional, then it's inexplicable why Congress included that word in the title of that statute in particular.

[00:38:03] Speaker 06:
Thank you.

[00:38:04] Speaker 06:
Thank you.

[00:38:04] Speaker 06:
It's the Senate.