[00:00:00] Speaker 04:
Case number 23-7008, Eoin Mekula et al.

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versus Government of Romania at balance.

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Mr. Fine for the at-balance Government of Romania.

[00:00:10] Speaker 04:
Mr. Vasquez for the appellate Eoin Mekula.

[00:00:14] Speaker 03:
Good afternoon.

[00:00:15] Speaker 04:
We'll hear from you, Mr. Fine, whenever you're ready.

[00:00:20] Speaker 04:
Thank you, Your Honor.

[00:00:23] Speaker 01:
May it please the court.

[00:00:25] Speaker 01:
My name is David Fine.

[00:00:26] Speaker 01:
I represent the government of Romania with my co-counsel, Ioana Saljanu.

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Your honor, may I reserve two minutes for rebuttal?

[00:00:34] Speaker 03:
May.

[00:00:35] Speaker 01:
All right.

[00:00:36] Speaker 01:
Although I do recognize the clock has seemed to be fairly flexible this morning and this afternoon.

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Welcome to our court.

[00:00:43] Speaker 01:
I appreciate that.

[00:00:45] Speaker 01:
In order to avoid replowing the field, I'd like for the most part to rely on the argument that the Kingdom of Spain made in the previous two cases.

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particularly with respect to the effect of the January 25, 2022 order of the Grand Chamber of the Court of Justice of the European Union.

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Romania believes that Spain's position is correct.

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I will, however, note just a few points of distinction, things that came up during the course of the argument that may or may not matter to the court, but that I think are important to note before going on to matters that are sort of Romania-specific.

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The first is, of course, that this case involves a bilateral investment treaty, a bit between Romania and Sweden rather than a much broader treaty that involves a great many more parties.

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Second, it was not commercial.

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It was an investment treaty.

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Third,

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the CJEU, that highest court in the EU, has expressly ruled in this case that the arbitration provision, that Romania did not have capacity to consent to arbitrate by the time this proceeding began.

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And finally, I'll note that Romania has actually paid the arbitration award.

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There is some dispute raised by the amiculus about whether Romania has paid the full amount, but Romania believes that it has now paid, in fact, that full amount.

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Now, with the court's permission, I'd like to focus on two regards in which Romania's situation requires further discussion on top of the Kingdom of Spain's position.

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Two points that the district court thought

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were relevant points of distinction.

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The first point was that the district court held that it was material that Romania entered into the bit with Sweden in 2002, that the Mykylos demanded arbitration under that agreement in July of 2005, but that Romania formally exceeded to the European Union in 2007.

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That fact, those sets of facts are immaterial, and they're immaterial for two reasons.

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First, once Romania signed the EU's act of accession, which it did in April of 2005, Romania was bound to follow EU law.

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And that proceeded by several months, Romania, the demand for arbitration by the Miculas.

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And as you've heard in the previous two cases,

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The proper analysis, and we ascribe to this, Romania ascribes to this, is that the bit itself was not an arbitration agreement.

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The bit was an invitation to arbitration, and the Miculas would accept that when they made their demand for arbitration.

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They accepted the demand for arbitration after Romania was bound to follow EU law because it had signed the Act of Accession.

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The other point is that even if the court regards the formal accession of Romania to the EU on January 1st, 2007, as the key date, we know that number one, the arbitration panel said that certain of the damages alleged by the Miculas occurred after that date.

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And we also know that the award

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by the arbitrators was after that date.

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And that award was effectively ultra-virus because there was no properly formed arbitration agreement.

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Mr. Fine, you're arguing as if this were all before us in the first time around.

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But we're viewing this all through the Rule 60 lens.

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And so it would be helpful if you'd focus on the Rule 60 arguments, for example, under Rule

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60 before, is it your argument that the District Court's jurisdictional analysis was wrong from the start or that even if it was correct at the time, it was rendered incorrect by the CJEU's decision in European foods, decisions in European foods?

[00:05:28] Speaker 01:
Thank you, Your Honor.

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The answer is that the decision was wrong ab initio when it was made in 2019.

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and the judgment was entered to enforce the arbitration award.

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It was made particularly clear after the CJEU decisions in January and then later in 2022 in which that body charged with interpreting European law or EU law said that this particular agreement and the language that the court used was

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me while I find it.

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The court held that the system of judicial remedies provided for by the EU and FEU treaties replaced that arbitration procedure and the consent given to that effect by Romania from that time onward.

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Don't you have to show that there was not even an arguable basis or jurisdiction from the original?

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Your Honor, I'm sorry, Your Honor, I didn't mean to interrupt you.

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No, Your Honor, I don't think that I do, although I could.

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The reason I don't think that I need to is because I think that Judge Mehta erred and should have applied the de novo standard of review.

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If you look at this court's opinion and, in fact, Judge Rogers' decision,

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bell helicopter isn't bell helicopter distinguishable because that was a default judgment proceeding so the um country didn't have a chance to to raise any arguments at all which is different here well that that that is a distinction but for our purposes i don't think it's a meaningful distinction because romania agreed that there was jurisdiction the first time around

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I'm sorry.

[00:07:21] Speaker 05:
I thought Romania agreed that there was jurisdiction.

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No Romania when it answered the petition for service issues are finally resolved in the district court in the confirmation proceeding.

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Romania raised the arbitration question under the under the decision.

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No, no, I'm saying the original judgment.

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That's what I'm talking about, your honor.

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On November.

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No.

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No, respectfully, it was not.

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But let me go back to Bell Helicopter.

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You have a look of inquisition on your face.

[00:07:54] Speaker 03:
Many, but we'll have to go back to Bell Helicopter.

[00:07:57] Speaker 01:
Thank you, Your Honor.

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In Bell Helicopter, the court spoke about the... The court said that there is an arguable basis determination and standard of review, but there's an exception when the issue is sovereign immunity.

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And that's Judge Rogers' decision.

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And this is, of course, an issue of sovereign immunity.

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And so therefore, we believe that the court should be applying, the district court should have applied the de novo standard of review and revisited entirely the question of that court's jurisdiction under the FSIA.

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Now, even if there were an arguable basis evaluation, your honor, I think that Romania still has a strong argument.

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But I don't think that we have to go there.

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But haven't we already decided this, this issue?

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I mean, we decided a few years ago in, in Micula three that because remaining didn't, didn't join the EU until after the underlying events, arbitration agreement applied.

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So, so why isn't, I mean, the district court followed that.

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Right.

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What, what, what's, what's giving you the basis under rule 60?

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me under old 60 before the original judgment was void.

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And the reason why this court's earlier, right, go ahead.

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I, I, I know you'd like me to talk about the earlier decision.

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That's, that's what I'll do.

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I promise your honor.

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And that is that at that time there was not a decision in the case of the Miculas and Romania from this JEU that definitively said for purposes of EU law,

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that it was improper state aid, and that Romania did not have capacity to consent to arbitrate with Mykylos.

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That was a new fact that was not before this court, and that had not previously been before the district court.

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And those are, in fact, important points.

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Now, Your Honor, just to go back, the pinpoint site, by the way,

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for Bell Helicopter and the point about sovereign immunity being an exception to the arguable basis point.

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And this was wholly apart from whether the party had or had not appeared.

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Obviously, in Bell Helicopter, the Republic of Iran had not appeared.

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But the language of the court was that the arguable basis standard generally applied if the movement had appeared in the earlier action.

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However, quote, an exception exists

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the issue of the waiver of sovereign immunity is at issue and at issue is my own language.

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I think that this is a different.

[00:10:47] Speaker 03:
You are you said you were going to have the pin site you're at 11.

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1182 your honor in the bell helicopter decision and the bell helicopter decision is also important for another point and that is the bell helicopter tells us

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that judgments in excess of subject matter jurisdiction are not voidable, but simply void.

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And that's 1180 in that opinion.

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And that's exactly the case here.

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The judgment of the court here recall, of course, that the FSIA starts with a presumption of immunity, and you have to overcome it by proving the existence of an exception.

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And here, the only exception relied upon was the arbitration exception.

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And we now know from the CJEU that the arbitration provision was void ab initio.

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And in fact, there was no arbitration agreement formed because Romania did not have capacity to do so.

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It could not give consent by the time the Mykylos began.

[00:11:50] Speaker 05:
Under Bell Helicopter... Sorry, it does appear that...

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Nicola conceded that there was jurisdiction under FSIA when it appealed the prior judgment.

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It's at 8.05 federal appendix at one.

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As Romania now agrees, the district court properly invoked the FSIA exemption for actions to enforce arbitration awards.

[00:12:14] Speaker 05:
So you conceded that.

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What makes you different from Bell Holography, for sure.

[00:12:18] Speaker 01:
Well, it is a different circumstance.

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And there are two answers I would give to that, Your Honor.

[00:12:23] Speaker 05:
It's also in your brief.

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J.A.

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1828, the district court adds subject matter jurisdiction over Micula's petition to confirm the arbitration.

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I understand that, Your Honor.

[00:12:35] Speaker 05:
1605A6.

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I understand that.

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Of course, it's subject matter jurisdiction.

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And subject matter jurisdiction cannot be waived.

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There were, to be candid with the court, certain political considerations.

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that underlay the determination not to pursue that particular issue.

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But the bottom line is that Romania raised the issue of FSIA immunity and the failure of the arbitration provision before the district court in that original proceeding.

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It's docket number 51 and its response to the MICULAS petition for enforcement.

[00:13:12] Speaker 05:
I just think that this does distinguish you from Bell Helicopter.

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conceded that there was jurisdiction on the field.

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And we're in a rule 60 B situation here.

[00:13:22] Speaker 01:
I understand that your honor.

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And again, I don't think that a party can concede subject matter jurisdiction in the federal courts.

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But it affects the standard of review that distinguishes us from bell.

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Well, you have to show well basis.

[00:13:37] Speaker 01:
Your honor, I don't think on that regard, it does in fact distinguish Bell helicopter and your honor may go ahead.

[00:13:42] Speaker 01:
I'm sorry.

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I know I'm talking over the clock here.

[00:13:45] Speaker 03:
I want to say back on the question about, you know, why our prior decision isn't binding.

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You mentioned the subsequent CJU decision.

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So that's that's what you're relying on.

[00:13:56] Speaker 01:
Yes, sir.

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All right.

[00:13:58] Speaker 01:
And I'm sorry.

[00:13:59] Speaker 01:
May I answer Judge Pans?

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Yes.

[00:14:01] Speaker 01:
I don't mean to interrupt.

[00:14:01] Speaker 01:
I just want to make sure.

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not to leave judge pants question unanswered.

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The answer to that question, your honor, is that in bell helicopter, the only thing the court said was it's arguable basis unless it deals with sovereign immunity didn't say anything about conceding any.

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And as it deals with with sovereign immunity, it's a de novo standard of review.

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It's not arguable basis.

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So you'd have to read something more into Bell Helicopter to find that anything that Romania said in its appeal document somehow changes that review or purposes of Rule 60 before.

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I'm sorry, Judge Heller, did you have?

[00:14:40] Speaker 03:
I was just going to say in the

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Under EU law, it seems like your key premise of your argument is that the arbitration agreement became void the moment that Romania is ceded to the EU.

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But looking at the Court of Justice of the EU opinion, it's said that Romania's standing offer to arbitrate was void and that the arbitral award is invalid and unenforceable.

[00:15:13] Speaker 03:
But does that mean that the already completed arbitration agreement became void?

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I don't see that in the Court of Justice opinion.

[00:15:27] Speaker 01:
Your Honor, I think you've misunderstood our position, and perhaps I've not explained it well.

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So I'll take a run at it from a little different direction to see if I can offer some clarity.

[00:15:37] Speaker 01:
The point is this, the bit in this case, like we heard about other treaties earlier in the day, did not, in fact, say we agreed to arbitrate.

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What it said was there's sort of an outstanding offer to arbitrate and the way you can accept as an investor.

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And it makes sense, right?

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Because the bit is between Romania and Sweden.

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So to create the arbitration agreement, the investor, the Mykulas here,

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had to come forward and demand arbitration.

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That's the acceptance of arbitration.

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That's the formation of the arbitration agreement.

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That occurred in the summer of 2005.

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But earlier in 2005, Romania had signed the Act of Accession as part of the process of joining the EU and agreed to follow EU law, which meant, according to the CJEU in its decision two years ago,

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That meant that from that point forward, from when Romania signed the Act of Excession, it did not have the capacity to consent to arbitration.

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So there was never an agreement form.

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And that's the issue for our present purposes.

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It's a formation question, which is for the courts.

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And when you say for the courts, that really means it's for the European courts, for the EU's highest court.

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And in this case, that's, of course, the CJEU.

[00:17:05] Speaker 02:
Well, wasn't there a point about when the events at issue took place as well?

[00:17:13] Speaker 01:
I'm sorry, Judge Rogers, I didn't quite hear you.

[00:17:16] Speaker 01:
I apologize.

[00:17:17] Speaker 02:
Wasn't there also the distinction about when the events at issue took place?

[00:17:26] Speaker 01:
Well, Your Honor, I don't know what it would be in distinction from, but I do know that the CJ- In other words, before Romania had joined the EU.

[00:17:36] Speaker 01:
No, Your Honor, only some of the events occurred prior to Romania's joining the EU.

[00:17:42] Speaker 01:
That's not the point.

[00:17:44] Speaker 01:
Well, I said only some.

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The CJAU held that there were some actions for which the amicula sought damages that occurred after that date.

[00:17:53] Speaker 01:
So there's both.

[00:17:56] Speaker 01:
And if your honors have no further questions, I'll, so to speak, reserve my time for a bottle.

[00:18:04] Speaker 03:
Thank you.

[00:18:04] Speaker 01:
Thank you, your honors.

[00:18:17] Speaker 03:
Good afternoon, Mr. Vasquez.

[00:18:19] Speaker 00:
Good afternoon.

[00:18:20] Speaker 00:
May it please the court.

[00:18:22] Speaker 00:
I am Frank Vasquez.

[00:18:24] Speaker 00:
I'm here to argue on behalf of the petitioner at police.

[00:18:27] Speaker 00:
I'm here with my colleagues Jackie Chung and Hannah Boskin, also my co-counsel Anthony Ullman.

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In the district court's most recent decision in the first sentence, he characterized this case as a

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Seemingly never ending saga.

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And I think that that kind of summarizes where we are.

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And I think you've already alluded to the fact that we are not in the same kind of posture or position as the other cases that you've been hearing today.

[00:19:02] Speaker 00:
And if you just review the four appeals, this is the fourth.

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The first one, we had the original judgment and as

[00:19:12] Speaker 00:
Judge pan observed Romania did concede jurisdiction during that appeal in its papers and this court observed that and affirmed the decision in the second appeal.

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There was an argument by Romania that it had satisfied the judgment by making a partial payment.

[00:19:35] Speaker 00:
That motion was denied and that this court then affirmed that.

[00:19:39] Speaker 00:
In the meantime, the district court also sanctioned Romania for failing to comply with discovery.

[00:19:45] Speaker 00:
The third appeal, there was the judgment on accrued sanctions was entered and sanctions continue to accrue.

[00:19:53] Speaker 00:
Romania remains in contempt of Judge Mehta at the district court level.

[00:19:58] Speaker 00:
And Romania argued that it should have a stay of discovery.

[00:20:06] Speaker 00:
This court also affirmed that decision.

[00:20:09] Speaker 00:
Romania's motions were rejected.

[00:20:11] Speaker 00:
And now we're here on the fourth appeal where Romania is now attacking the judgment under Rule 60.

[00:20:23] Speaker 00:
In our mind, and Judge Pan, you alluded to this, this is kind of like Spain saying, we don't want to pay.

[00:20:30] Speaker 00:
And that's our position is that all of this litigation, which has been going on for

[00:20:37] Speaker 00:
10 years that I've been involved with it has been going on much longer than that, that Romania does not want to pay.

[00:20:42] Speaker 00:
One of the other things that happened though more recently that also goes to Romania's concession of jurisdiction is that Romania went back to exit.

[00:20:56] Speaker 00:
Romania went back to exit on a request for an interpretation of the award.

[00:21:02] Speaker 00:
And in doing so, Romania submitted to the jurisdiction of a reconstituted tribunal.

[00:21:08] Speaker 00:
We had that hearing last May.

[00:21:11] Speaker 00:
That decision was rendered in our favor

[00:21:13] Speaker 00:
in December and we filed it as a supplemental authority on January 2nd.

[00:21:19] Speaker 00:
So that is further evidence that Romania has in fact conceded that the exit tribunal had jurisdiction over it to decide and issue the award that then needs to be enforced under the exit statute and

[00:21:38] Speaker 03:
I'm interested in your rule 60 arguments.

[00:21:45] Speaker 03:
Rule 60B, you say that Romania's motion is time barred under Kemp versus United States because it's based on a judge's error of law.

[00:21:55] Speaker 03:
But doesn't that reading of Kemp swallow the rule?

[00:22:00] Speaker 03:
Is there any example of a void judgment that is not the product of an error of law?

[00:22:08] Speaker 00:
No, not that I can point to on that.

[00:22:10] Speaker 00:
We did add that argument as a supplemental argument.

[00:22:13] Speaker 00:
Our principal argument is simply that the arguable basis standard applies and the judge correctly decided in the first case and also decided correctly following that.

[00:22:28] Speaker 00:
One other thing I think that needs to be clarified is we've heard

[00:22:32] Speaker 00:
from the European Commission today and also opposing counsel about the status of the CJEU and General District Court case.

[00:22:43] Speaker 00:
It's still going on.

[00:22:44] Speaker 00:
In fact, the parties will be presenting arguments next week in that case.

[00:22:51] Speaker 00:
That CJEU decision was really just a remand to the General District Court

[00:22:57] Speaker 00:
for further proceedings.

[00:22:59] Speaker 00:
And those are ongoing, and that will be argued next week.

[00:23:03] Speaker 00:
And all of many of these issues are on the table there, including whether this is state aid, including these timing issues about when the damages accrued.

[00:23:14] Speaker 03:
How does that bear on the appeal of the Rule 60 motion denial before us?

[00:23:22] Speaker 00:
The only way it bears on is I think there was a mischaracterization that that was some kind of final pronouncement by the.

[00:23:30] Speaker 00:
the court of justice so to the extent of that that it that any just based on that being a final order it's it's not it's it's still ongoing.

[00:23:43] Speaker 00:
We don't believe it's relevant ultimately simply because as judge made a found originally and and subsequently that the agreement to arbitrate originated before the.

[00:23:58] Speaker 00:
before the Romania ceded to the EU.

[00:24:02] Speaker 00:
The other issue that this case has been going on for so long.

[00:24:07] Speaker 03:
I have another specific question, which is what's the standard of review you say in your brief at one point that for the question whether the judgment was based on

[00:24:24] Speaker 03:
an earlier judgment that was vacated or reversed.

[00:24:26] Speaker 03:
We should review that for a piece of discretion.

[00:24:28] Speaker 03:
I wonder if you have authority for that.

[00:24:30] Speaker 03:
I would have thought that would be a question subject to date of a review under 64 or five to be five.

[00:24:39] Speaker 03:
Um, district court denied the motion to vacate the judgment as based on an earlier judgment that was well, there has not been an earlier judgment that's been reversed or vacated.

[00:24:52] Speaker 03:
But the standard of review, do they know for abuse or abusive discretion?

[00:24:58] Speaker 03:
You say abusive discretion, I'm just not sure.

[00:25:00] Speaker 00:
We think it should be an abusive discretion, but the result would be the same, by the way.

[00:25:06] Speaker 04:
OK.

[00:25:06] Speaker 03:
Any other questions?

[00:25:22] Speaker 00:
So what I was saying about those proceedings ongoing is that they, actually what I was talking about earlier was this case has been going on for so long, it predates the Stilix case.

[00:25:37] Speaker 00:
So the original judgment did not have the benefit of this court's

[00:25:44] Speaker 00:
layout of how that decision should be decided.

[00:25:49] Speaker 00:
In fact, we think the court went beyond what it needed to do originally.

[00:25:54] Speaker 00:
And in terms of establishing jurisdiction, and then as we've heard in earlier arguments today, that would be really established by the ICSID statute itself and the existence of ICSID 28 USC 1650A with those agreements that the court

[00:26:12] Speaker 00:
in fact, did not need to go into the analysis it went into.

[00:26:15] Speaker 00:
It was, I think, convenient for the court to do that.

[00:26:20] Speaker 00:
It was consistent with the arguments that we've been making in the European Union about this, because we're trying to enforce this judgment in multiple jurisdictions.

[00:26:31] Speaker 00:
But in terms of how the court needs to decide this issue, we think the court went above and beyond what it originally needed to do.

[00:26:39] Speaker 03:
You're talking about the district court.

[00:26:40] Speaker 00:
The district court.

[00:26:42] Speaker 00:
And so I just want to make that clear that if this case were to be brought again, there would be additional arguments based on precedent that was not available.

[00:26:54] Speaker 03:
So just to put it on the table, the narrowest ground on which you could prevail in your view that you think would suffice would be?

[00:27:07] Speaker 00:
Well, the narrowest ground would simply be the ground that

[00:27:11] Speaker 00:
that the court articulated originally, which was that Rameen was not a member of the EU, so all of these arguments about EU law applying and having something to

[00:27:27] Speaker 00:
to do with or to obviate or to go against the arbitration agreement or to negate it are just not available because the EU law did not apply.

[00:27:36] Speaker 03:
When you say the ground that we already rule on, you mean this court?

[00:27:39] Speaker 00:
Well, both this court in the first appeal and what the district court did.

[00:27:46] Speaker 00:
in making that determination in this court affirming the new information or CJU decisions did not change that analysis as the court just most recently found.

[00:28:01] Speaker 00:
We think the broader view would simply be that all of those questions are irrelevant and the jurisdiction could have been found simply straight on the statutory authority of the exit statute.

[00:28:15] Speaker 03:
Thank you.

[00:28:16] Speaker 03:
Do my colleagues have further questions?

[00:28:19] Speaker 03:
Thank you, Mr. Vasquez.

[00:28:20] Speaker 03:
Thank you.

[00:28:23] Speaker 03:
Mr. Fine, you have two minutes for rebuttal.

[00:28:27] Speaker 01:
I take that particularly seriously when I see you start to gather your materials.

[00:28:32] Speaker 01:
It's a very subtle hint, Your Honor.

[00:28:34] Speaker 01:
I have four points to make, and of course, I'd love to answer any questions that the court has.

[00:28:38] Speaker 01:
The first is just to remind the panel, Romania has paid

[00:28:42] Speaker 01:
in full what it understands under under the miculus calculations, the award to be so this isn't somebody trying to avoid paying an award, although honestly, Romania doesn't think it should have had to, but it has the second point is that Mr Vasquez refers to Romania going back to exit.

[00:29:01] Speaker 01:
That wasn't consent.

[00:29:02] Speaker 01:
That was because number one, it was instructed to do so.

[00:29:05] Speaker 01:
And number two, Romania was trying to get clarification about what its obligations were under the award.

[00:29:11] Speaker 01:
That doesn't mean that it consents to it any more than it consented to be brought into the district court here.

[00:29:16] Speaker 01:
It had to answer.

[00:29:18] Speaker 01:
The third thing is that

[00:29:21] Speaker 01:
The Kemp case is of no value to the Miculas for what I think is the very reason Judge Pillard, you mentioned, which is that what the Supreme Court said there was that if you're just saying the judgment was void because the judge was mistaken, that falls into be one and that's a mistake and that's got a one year thing.

[00:29:42] Speaker 01:
But here we're talking about something very specific.

[00:29:44] Speaker 01:
The judgment was void because

[00:29:46] Speaker 01:
Under Bell helicopter, the judgment was void.

[00:29:48] Speaker 01:
There was no subject matter jurisdiction.

[00:29:50] Speaker 01:
The specific rules over the general.

[00:29:53] Speaker 01:
The fourth thing is on the standard of review, these are all issues of law for which the court's standard of review is plenary.

[00:30:00] Speaker 01:
And let me finally just note that the situation in which Romania has found itself is candidly intolerable.

[00:30:08] Speaker 01:
Romania is bound by EU law.

[00:30:12] Speaker 01:
It has been ordered

[00:30:14] Speaker 01:
not to make these payments, because the EU, the EEC in particular, regards them as state aid.

[00:30:20] Speaker 01:
It's having orders from the district court in the United States telling it, you must do that.

[00:30:25] Speaker 01:
It's being told by the EEC, don't do it.

[00:30:27] Speaker 01:
And by the way, call back what you've already paid to the Mykylos.

[00:30:31] Speaker 01:
That's not a situation in which Romania should find itself.

[00:30:36] Speaker 01:
And moreover, these are European parties, all of them.

[00:30:42] Speaker 01:
The interests there are European.

[00:30:45] Speaker 01:
They are European member states, and it should be determined according to EU law.

[00:30:50] Speaker 01:
In this dispute, courts of the United States do not have an interest.

[00:30:55] Speaker 01:
We ask that the court vacate the judgment below and remand with instructions for the district court to grant Romania's Rule 60B motion and vacate the judgment of September 11, 2019.

[00:31:08] Speaker 03:
Thank you very much.

[00:31:09] Speaker 01:
And thank you, Your Honors.

[00:31:10] Speaker 03:
The case is submitted.