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case number 24-7053.

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Metropolitan municipality of Lima at balance versus Ruta de Lima as base.

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Mr. Lane for the balance, Mr. Haley for the appellee.

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Good morning.

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May it please the court.

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I'd like to focus on the public policy issue in hopes of bringing some clarity to the substantive and procedural framework for evaluating

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The district court committed a straightforward legal error.

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The court refused to even engage with Lima's bribery claim, reasoning that the claim was to be determined exclusively by the arbitrators because it focuses on the underlying contract rather than the arbitration award itself.

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That conclusion

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is foreclosed by Supreme Court and circuit precedent, including Enron Nigeria, which held that a court's, quote, analysis of the public policy issue extends to the underlying contract.

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But that error alone is enough to vacate and remand.

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But it raises the critical question of what happens next, given that the tribunals found that Lima had not proved the bribery

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and courts ordinarily defer to arbitrators factual findings.

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Enron provides substantive guidance, and this court's decision in the Termo Rio case provides procedural guidance.

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Federal courts cannot turn a blind eye to evidence showing that the underlying contract was procured through bribery.

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As Enron declared, the question of whether enforcement of the award should be denied on public policy grounds

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is a question for the courts to answer.

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And that independent judgment acquires special force and scope where the underlying contract's origin is criminal.

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Did Enron give dispositive weight to the arbitrators' national findings?

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I don't think it did.

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It said that the findings would be due significant weight, but it would not doom the challenge if there were evidence to the contrary that the claim in Enron ultimately failed because they didn't have the facts of the fraud.

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We have the facts.

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I think it's critical that Enron

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It emphasizes the long-standing fundamental need of the federal courts to protect their own integrity by ensuring that they do not enforce a contract obtained through bribery or fraud, lest they be made party to the criminal act and allow a party to profit by its own fraud or crime.

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So that's why Enron sets up this idea of we will give significant weight, but we're going to look at the evidence.

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And that has to include not only the evidence in the arbitral record,

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but also any new evidence because as Enron also emphasized, and I'm quoting, courts may not elevate the party's contractual choices above the fundamental need of courts to protect their own integrity.

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So ultimately the courts have to make sure for themselves that they are not enforcing a contract that was procured through bribery.

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I met page 290 of Enron and

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It says ICC declined, ICC noted, ICC's determination, ICC credited, ICC found, ICC found, ICC found, ICC was unpersuaded.

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It just seems like maybe they're not completely deferring 100% to the arbitrator, but boy, I mean, it seems like

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they're giving a ton of weight to the arbitrator's findings.

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Well, to be sure, a court is going to start with what the arbitrator found, what the record was before the arbitrator, how the arbitrator reasoned through it.

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In Enron, the arbitrator- Just to be clear, I wasn't quoting from the fact section.

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This is the final analysis section of the- I understand.

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In Enron, the court is explaining that the analysis of the arbitrators

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was supported by the evidence.

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And there's no evidence to the contrary.

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I don't have the page, but the court says at one point, the ICC's findings to which an enforcing court owes substantial deference doom Nigeria's public policy defense in the absence of evidence or equities warranting the piercing of Enron's corporate veil.

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It would have allowed a different result if the evidence supported a different result.

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But where in the opinion does it re-examine even a single factual finding?

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Well, I think that's what it's doing.

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In the parts that you're reading, I think that's what it's actually doing.

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But it's saying, in effect, these are good findings.

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The evidence is there.

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The analysis is there.

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We don't see a problem with it.

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We don't have evidence to disagree with it.

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Whereas here, in our case, we have substantial evidence

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To the contrary, in fact, I would say overwhelming evidence that Rutas and his parent, Oderbrecht, secured, expanded, and preserved the concession contract through bribery.

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Rutas doesn't deny that Oderbrecht's bribe department made secret illegal payments to Viron's campaigns while the base contract and the addendum were being negotiated.

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Both the arbitrators and the district court disagreed with that.

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They did.

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Well, I'm not sure I'm following your argument.

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What's impermissible about the arbitrator saying, we don't see any evidence to support your claim of violation of public policy or bribery or whatever you're calling it.

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And the court says, in great length, I've gone through all of those findings, and they seem correct to me.

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The district court did not do that.

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The district court did do that.

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No.

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I just read the opinion again last night.

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The district court went through and said the arbitrators found, and I don't disagree with it, the arbitrators found is those claims are not supported.

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The district court said when it addressed the public policy defense at JA 1241,

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No, I understand that the district court said that's a determination for the arbitrators.

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But the district court along the way has to satisfy herself that there's nothing here that would warrant her tossing this out.

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And the district court did, in fact, put the public policy question however she stated it.

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and whether it's right or wrong, it doesn't matter.

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The point for me is that this record went through both panels, the determinations, and explained how one affected the other, in effect to say, I don't find support for the claim.

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that is being made here with respect to a violation of public policy.

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She was saying that.

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I don't know how else you read her opinion to say.

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What do you think she would say?

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She agreed?

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What was she saying?

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I don't know.

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I think there's a problem here, but I have to defer to their judgment.

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I don't think she did that at all.

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That's what she did.

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No, because I think that what she to the extent that she discussed the facts at all, she did it in the context of the fraud claim.

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And what she said was, she said there are problems.

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She perceived problems with the evidence as a matter of, for example, hearsay or incomplete transcripts.

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in that nature.

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She said, I am not going to, this is called a ramshackle record, which I think is an overstated criticism, but she said, I'm not going to allow evidentiary proceedings to try to address evidentiary concerns because I can't do that given that I am not allowed to review an arbitrator's termination as to bribery.

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The court never actually assessed, even on the arbitrator's own records, whether they were sound decisions.

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I mean, the second tribunal, for example, it makes certain criticisms.

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Like, it doesn't believe there was any motive to bribe to get the contract after the contract had been awarded.

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It doesn't believe there was a motive to get the addendum because it was contemplated by the original proposal.

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But the evidence before the tribunal... Do you think the district court was struggling with those findings?

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I don't think the district court actually considered those findings.

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I don't think that's the only opinion.

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You must have read two different things.

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The district court went through all of it and said no, and then said no, took it all the way through and said, I'm not seeing it.

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The district court addressed many, it means a long opinion, addresses a lot of different claims.

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When it comes to the findings of bribery, all it says is, I have concerns about the evidence,

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I can't conduct proceedings to address those concerns because this is exclusively for the arbitrators.

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It's half a page, and that's the totality of the analysis.

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And I think that even if the court is going to limit itself to the arbitral's record, it has to actually examine whether the arbitrator's findings are actually supported by the record.

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And we don't think that's true for the reasons we stated in our brief.

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I would like to turn very quickly to our final argument that the second tribunal erred in excluding the annex.

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And I would just like to emphasize that I think the key question is whether Lima actually requested that the annex be included.

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The best evidence to see that it did is the tribunal's own order.

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which says that it refused to open a new stage for the production of documents, plural, which certainly goes beyond the indictment, and it authorized Lima to submit only certain parts of the indictment, quote, without additional annexes.

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And Rudis's final opposition to the request

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Similarly said that Lima's request quote implicates submitting the complete prosecutorial file with all its annexes.

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The real don't think there's a basis to say that the tribunal that had made the request.

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It's a little odd that your evidence.

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That Lima requested more does not include anything Lima said right.

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Well, Lima, I mean, we go over this in the briefs, but Lima says it wants to submit all the documents that it's received from the prosecutor.

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The district court didn't buy that.

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No, but this is a paper record.

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I mean, I'm wondering what you're reading.

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The district court, that's an example of something.

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The district court specifically went through that and said, no, that's not the way it played out.

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Lima's wrong.

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And we disagree with the district court because... That's a different question.

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Well, the evidence here- You're suggesting that the district court didn't do anything.

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On that issue, no, I agree.

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The district court did address that issue.

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I'm saying as to the facts about bribery, the district court did not address that.

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On this issue, the district court did, but the record is right there in the documents, and I think the district court got it wrong.

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What's your best quote of something Lima said at the second arbitration that shows that they requested to submit the annex rather than just the indictment?

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Let me give you one second.

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Well, I don't have the citations, but they're in our brief.

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But Lima multiple times used the word documents in its request for reconsideration of the denial.

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It spoke of introducing new evidence

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Instead, it had obtained the documents it wishes to incorporate.

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That's a 349 to 50 in the JA.

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It's talking about the documents it received from the prosecutor.

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It didn't fully explain what all these documents were.

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It comes down to using the plural, is that it?

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In Lima's papers, it uses the plural in the context of talking about the material, the package of materials that are received from the prosecutors.

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I think you get more explication that that includes the annex from Brutus' opposition and the tribunal's order.

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Lima's paper submissions don't actually use the word annex, I don't believe.

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And what was accepted?

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Only the indictment or what we call the information.

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A portion of it was allowed to be submitted, but not the underlying evidence.

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I understand that.

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You're saying one document?

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Part of one document.

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Part of one document.

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Yes.

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Uh, portions relating to a specific topic were allowed to be introduced.

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But then the problems that the tribunal then said, well, we can't believe that because we don't have the underlying evidence to corroborate.

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And this is just the prosecutor's allegations.

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We need the documents.

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We need the transcripts that they're relying on.

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That's what was in the annex that the tribunal had excluded.

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Did the indictment contain the key excerpts from the annex?

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The indictment

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Yes, I mean, it either quoted or reproduced evidence in the annex, which the tribunal reviewed but said, we can't rely on this because just as a court could not take the prosecutor's word for it, we have to see the evidence.

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I thought that the annex would have still been just more of the prosecutor's word.

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In other words, if the problem with the 500 pages of excerpts from the indictment is that the 500 pages were one-sided, I'm not sure you solved that problem by submitting even more pages that are one-sided.

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Well, I don't think the tribunal said the problem is it's one sided.

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And the tribunal was saying the problem is it's just a characterization by the prosecutor.

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If we had the documents.

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They're quite specific about a number of problems, though, right?

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That they were elaborating on being just a characterization, that they were not sworn, that they were not subject to cross-examination, two or three other observations like that.

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It was an informal, essentially, document, not a court-approved document.

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I think those are actually more the district court's concerns, the tribunal.

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Well, there's a little bit of a difference.

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The tribunal focuses on the fact that the witness statements were not what's called corroborated.

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So they're sort of proffers of, you know, there's sort of a statement and to get, it's a formal process in Peru.

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As cooperating witnesses, they make a statement.

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They get benefits as a defendant if their statement is corroborated by the prosecutors.

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And at that time of the arbitration, those statements hadn't been corroborated by the prosecutors, but they did actually corroborate each other.

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And there actually were papered documents that corroborated the testimony.

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So if you step outside that formalistic process in Peru and look at the actual evidence, there was corroboration.

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That corroboration was in the annex.

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And that's what the tribunal excluded.

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That's why it's a problem.

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But it would have actually addressed the tribunal's concerns about the lack of

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uh, corroboration documents.

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I don't think the tribunal raised... The tribunal itself would have had to make its determination based on the annex that the allegations were corroborate.

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Yes, which it was basically saying it was going to do.

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It was saying we have to make these evaluations, factual evaluations for ourselves.

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We need the evidence to do that.

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Um, MML tried to give the evidence, it rejected the evidence, and then it said, and then it said, well, we can't rule.

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Okay, now we've seen the evidence.

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It didn't affect them.

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The tribunal never actually looked at the evidence.

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They never saw the annex.

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They only had the indictment.

[00:15:58] Speaker 02:
Okay, so none of this was available to the first tribunal.

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Correct.

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It didn't come up until late in the second process, right?

[00:16:07] Speaker 04:
After the close of the discovery in the second tribunal.

[00:16:14] Speaker 01:
Thank you.

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Give you a couple minutes on the button.

[00:16:18] Speaker 03:
Thank you.

[00:16:25] Speaker 03:
Good morning.

[00:16:26] Speaker 03:
David Hilly for Rutas to Lima.

[00:16:27] Speaker 03:
May it please the court?

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Let me pick up where we left off, if I may, with respect to the annex.

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First, there is no question that the annex was never requested to be submitted by Lima.

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Lima's request is set forth at JA 347 through 352.

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There's not a mention of an annex, an exhibit, supplement, nothing.

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They refer to the prosecutorial indictment only.

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They're the ones that had it.

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Nobody else had it.

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You just heard Mr. Wayne say they asked for documents, plural, and I can kind of see how you might think of the indictment as one document, so it seems like

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You know, his argument is they had to have been asking for more than the indictment or else the S wouldn't have been on the word document.

[00:17:13] Speaker 03:
But the arbitrators didn't know there was an annex.

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Whether they used the word or plural word documents, I mean, if you look at their request, it says prosecutorial indictment numerous times throughout it.

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That's what they asked for.

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They never used the word annex.

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So when the arbitrators said, you can submit whatever pages you want, just don't give us any extra annexes or writing,

[00:17:35] Speaker 03:
I submit that's because the arbitrators hadn't yet concluded whether they were going to allow the 10-page supplemental brief that they later said that they could do also.

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It had nothing to do with the annexes to the index, to the indictment.

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They didn't know there was an annex to the indictment.

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They could not have been referring to that.

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And let's also not forget the context in which this arose.

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This is seven months after the hearing on the merits

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had been completed.

[00:18:03] Speaker 03:
The arbitrators deliberating, preparing their award, and Lima comes in and says, hey, there's a press report about an indictment, and we want to put that into the record.

[00:18:13] Speaker 03:
The arbitrators who had control over the process of the hearing, what evidence comes in and when, under the answer trial rules, could have said, no, it's too late.

[00:18:21] Speaker 03:
But they didn't.

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And said, give us the index, whatever pages you want.

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They chose 500 pages.

[00:18:27] Speaker 03:
And to go to your question, Judge Walker, they absolutely had excerpts of the testimony, presumably the best ones, that the prosecutor selected in the indictment itself.

[00:18:36] Speaker 03:
So there's just no, and the district court reviewed this thoroughly and concluded that the extra information in the excerpts doesn't change anything.

[00:18:48] Speaker 01:
Let me go back.

[00:18:48] Speaker 01:
Just so you're on the record on the public policy, I understand what the other side is arguing, but I think the district court statement is somewhat confusing here because there's an overlap between vacating on public policy grounds and vacating on statutory grounds.

[00:19:05] Speaker 01:
They're not distinct.

[00:19:07] Speaker 01:
In other words, some of the statutory grounds can be seen to subsume public policy grounds.

[00:19:13] Speaker 01:
You disagree with that?

[00:19:15] Speaker 03:
By the statutory grounds, you're referring to the FAA and the convention?

[00:19:19] Speaker 01:
Yeah.

[00:19:20] Speaker 03:
Well, the convention has the express reference to public policy, so for sure it's included there, Your Honor.

[00:19:28] Speaker 01:
And otherwise?

[00:19:29] Speaker 01:
In other words, I don't see them as it's an interesting legal argument we've developed since the Supreme Court made its

[00:19:37] Speaker 01:
observation about you stick with the statutory grounds and that's it.

[00:19:42] Speaker 01:
But there are public policy grounds that are being stated in the name of statutory grounds here as I read the district was decision.

[00:19:51] Speaker 01:
I'm just curious to see if you want to weigh in on it.

[00:19:53] Speaker 01:
And that's why I read what she said, but then I read all the findings that she is endorsing.

[00:20:00] Speaker 01:
And to me,

[00:20:02] Speaker 01:
I don't know how that can become an error, whatever you may think the Supreme Court meant to say, because to the extent that the nature of the corruption and alleged bribery, et cetera, alleged corruption, alleged bribery.

[00:20:16] Speaker 01:
are there to be considered, she considered it.

[00:20:19] Speaker 01:
And those are public policy type questions, right?

[00:20:23] Speaker 03:
I think I'm following you, Your Honor.

[00:20:25] Speaker 03:
Look, there were claims under the FAA.

[00:20:28] Speaker 03:
There were claims under the New York Convention.

[00:20:30] Speaker 03:
There's a dispute or an open question as to whether, under the FAA, public policy non-expressly stated in the provisions of the FAA, whether it's still a valid basis for vacatur.

[00:20:44] Speaker 03:
We submit that it's not and that it shouldn't be.

[00:20:46] Speaker 03:
We should be limited to the statutory things.

[00:20:48] Speaker 03:
But there's no question that the court and we have to deal with public policy anyway, because it is a basis for non-confirmation under the New York Convention.

[00:20:56] Speaker 03:
So she dealt with it, I think.

[00:20:58] Speaker 03:
The district court dealt with it, recognizing that it had to deal with it one way or another.

[00:21:02] Speaker 03:
And I think dealt with it extremely thoroughly.

[00:21:06] Speaker 03:
And so on the public policy issue, Your Honor, so I want to be very clear here.

[00:21:13] Speaker 03:
The deference given to arbitrators in the context of public policy when what the arbitrators actually considered evidence on and ruled on is extreme, if not absolutely complete.

[00:21:25] Speaker 03:
Judge Walker, I was focused on the same exact page of the Enron decision as you highlighted, 290, which showed all the ways in which they defer to the ICC arbitration.

[00:21:35] Speaker 03:
And on page 291,

[00:21:37] Speaker 03:
This court said the question before the enforcing court is limited, quote, the district court had no choice.

[00:21:45] Speaker 03:
And that's really true.

[00:21:47] Speaker 03:
That's the way arbitration works in the context of public policy.

[00:21:51] Speaker 03:
When the arbitrators have been seized with the question of here whether corruption exists or whatever the public policy may be, and they make the decision, that is what

[00:22:04] Speaker 03:
the courts rely on, they don't go behind it.

[00:22:06] Speaker 03:
In fact, the U.S.

[00:22:07] Speaker 03:
Supreme Court, in the United Paperworkers case, where the Fifth Circuit had declined to confirm an award, it was an employee at a paper manufacturing facility who had been caught smoking marijuana on the grounds, the arbitrator said, well, I don't think he should have been fired because it wasn't clear.

[00:22:27] Speaker 03:
The Fifth Circuit said, no,

[00:22:29] Speaker 03:
against the public policy of operating dangerous equipment while under the influence of drugs.

[00:22:34] Speaker 03:
The US Supreme Court said, the parties did not bargain for the facts to be found by a court, but by an arbitrator chosen by them who had more opportunity to observe Cooper, that was the employee, and to be familiar with the plant and its problems.

[00:22:50] Speaker 03:
Nor does the fact that it is inquiring into a possible violation of public policy excuse a court

[00:22:57] Speaker 03:
for doing the arbitrator's task.

[00:23:00] Speaker 03:
And here, there's no question that the arbitrators considered all the evidence and gave a detailed analysis in the first arbitration award.

[00:23:09] Speaker 03:
Over 20 pages are dedicated to the corruption question.

[00:23:13] Speaker 03:
That's JA 445 to 465.

[00:23:15] Speaker 03:
In the second award, 63 pages.

[00:23:19] Speaker 03:
That's JA 141 to 204.

[00:23:22] Speaker 03:
And both tribunals came to the same conclusion.

[00:23:27] Speaker 03:
that there was no connection between any payments that may have been made and the concession contract here.

[00:23:34] Speaker 03:
And that was, they spelled out their logic, the difficulties with the timing that made no sense when these alleged payments were made.

[00:23:40] Speaker 03:
The contract had already been awarded.

[00:23:42] Speaker 03:
Why would somebody pay for a contract, a project that had already been awarded and for the subsequent contracts like the bankability addendum?

[00:23:51] Speaker 03:
and the memorandums of agreement, those documents simply carried forward what was already in the concession contract.

[00:23:59] Speaker 03:
There was no new benefits that came with those.

[00:24:02] Speaker 03:
So again, why would anybody make payments to get something they were already entitled to?

[00:24:07] Speaker 01:
Everything that was allegedly within the compass of violating public policy presented by the other side was considered by the arbitration panels.

[00:24:19] Speaker 01:
And the district court confirmed, even though the district court said, I'm not going to decide public policy.

[00:24:26] Speaker 01:
District court was confirming the findings of the arbitration, right?

[00:24:30] Speaker 03:
That's absolutely right, Your Honor.

[00:24:32] Speaker 01:
That's why I think there's confusion as to how she wrote it.

[00:24:35] Speaker 01:
I understand the claim being made.

[00:24:37] Speaker 01:
But it seemed to me on this record, everything within the compass of public policy, arguably, was considered and resolved.

[00:24:44] Speaker 03:
It was, Your Honor.

[00:24:45] Speaker 03:
And in the proceedings below,

[00:24:49] Speaker 03:
Lima was much more focused on a fraud-based argument.

[00:24:52] Speaker 03:
The public policy argument was not the sharp focus as it is on this appeal.

[00:24:58] Speaker 03:
Now, the judge, of course, dealt with all of it, but she discussed what the arbitrators had found in the context of the fraud claim, which they are now no longer pursuing in this court.

[00:25:07] Speaker 05:
Did the district court reexamine the arbitrators' factual findings about the underlying contract?

[00:25:16] Speaker 03:
I believe that the court examined all of those findings and observed and, to my reading, agreed with the problems of the logic of Lima's claim, the timing of when these payments were made, the fact that no new benefits were given subsequently, something that they weren't already entitled to under the project.

[00:25:37] Speaker 03:
So yes, I believe that the district court did.

[00:25:39] Speaker 03:
review those conclusions, certainly stated no disagreement with them.

[00:25:43] Speaker 03:
And my reading of the decision is that she agreed with them.

[00:25:47] Speaker 01:
Now, the other side, I have it straight in my head, the other side is not, because this becomes crucial in this case, the other side is not disputing the timing.

[00:25:56] Speaker 01:
In other words, the arbitrator's statement of, well, this occurred on this date that couldn't have been fraud when something occurred well after that.

[00:26:06] Speaker 01:
That happened several times, right?

[00:26:09] Speaker 03:
That's right, Your Honor.

[00:26:09] Speaker 01:
The other side is not disputing the conclusion they may not like.

[00:26:14] Speaker 01:
But the district court said, yeah, look, this is what the findings were.

[00:26:17] Speaker 01:
They're not disputed.

[00:26:20] Speaker 01:
Those timing sequences are not disputed.

[00:26:23] Speaker 01:
And she was essentially agreeing, you can't really have

[00:26:26] Speaker 01:
a serious claim of corruption or fraud, if those timing sequences are right, and I think they're right.

[00:26:32] Speaker 03:
That's right, Your Honor.

[00:26:33] Speaker 03:
Now, they try to emphasize to a greater degree on this appeal, alleged payments that were made in 2010, and that was to Lourdes Flores, who was a candidate for mayor.

[00:26:44] Speaker 03:
Now, she wasn't the mayor, she was a candidate.

[00:26:47] Speaker 03:
She didn't win the election, she lost it.

[00:26:49] Speaker 03:
And the suggestion is that somehow a payment to a mayoral candidate in 2010

[00:26:54] Speaker 03:
had some impact on the municipal council in 2012 in approving.

[00:26:59] Speaker 03:
But the arbitrators said, look, that's just they assess this as well.

[00:27:04] Speaker 03:
And they just said, look, there's no way for us to link that.

[00:27:07] Speaker 03:
There's never been any investigation of anybody on the municipal council.

[00:27:10] Speaker 03:
This just doesn't make sense.

[00:27:11] Speaker 03:
So the timing didn't work throughout for the arbitrators.

[00:27:16] Speaker 03:
The district court reviewed it.

[00:27:17] Speaker 03:
didn't express any disagreement with that analysis.

[00:27:20] Speaker 03:
And what Lima is doing is asking this court to give it yet another do-over.

[00:27:26] Speaker 03:
And they're just not entitled to that under the law of enforcing arbitration awards in the United States and the strong public policy in favor of finality and enforcement of foreign arbitration awards.

[00:27:38] Speaker 03:
I can touch very quickly on the document request issue if the court would like me to.

[00:27:45] Speaker 05:
Do you have any more questions?

[00:27:46] Speaker 05:
Any more questions?

[00:27:49] Speaker 05:
No, I think we're good.

[00:27:50] Speaker 05:
Thank you.

[00:27:50] Speaker 05:
Thank you.

[00:27:53] Speaker 05:
Maybe we'll do three minutes, please.

[00:28:03] Speaker 04:
A few brief points.

[00:28:05] Speaker 04:
First, to Judge Edwards, I reviewed the opinion while I was sitting there.

[00:28:10] Speaker 04:
I would refer you to pages 1230 to 34 of the JA.

[00:28:15] Speaker 04:
This is where the judge addresses the fraud claim.

[00:28:19] Speaker 04:
And in that context, she talks about a mulligan or the new evidence, what the findings were on the bribery claim.

[00:28:28] Speaker 04:
And she also addresses the public policy defense.

[00:28:31] Speaker 04:
There is not a word in which she says that the findings were well supported.

[00:28:37] Speaker 04:
She makes two points.

[00:28:40] Speaker 04:
One, I cannot consider

[00:28:42] Speaker 04:
public policy defense because it's exclusively for the arbitrators.

[00:28:46] Speaker 04:
Two, I cannot consider the new evidence because I have evidentiary concerns about it.

[00:28:50] Speaker 04:
I can't address those concerns because again, this is exclusively for the arbitrators.

[00:28:57] Speaker 05:
You said she didn't say a single word that the findings were well supported.

[00:29:01] Speaker 05:
Did Enron say a single word that the findings were well-supported?

[00:29:06] Speaker 04:
Enron went through the process of assessing it and found that they were well-supported.

[00:29:10] Speaker 04:
She didn't even do that.

[00:29:11] Speaker 05:
Where do Enron say the findings are well-supported?

[00:29:14] Speaker 04:
I think the passages that you were quoting me earlier are what's doing that.

[00:29:19] Speaker 04:
That's the only way to understand that, I think, in light of the other language in Enron, that it gives a significant weight to the findings unless there's evidence, sorry, in the absence of contrary evidence.

[00:29:29] Speaker 04:
Do you have an independent?

[00:29:30] Speaker 05:
Individually, when we're reviewing

[00:29:32] Speaker 05:
findings from another court or tribunal agency, we would say the agency found X and it's supported, that finding is supported because.

[00:29:48] Speaker 05:
But Enron seems to just say the tribunal found X, period.

[00:29:54] Speaker 05:
Then it says the tribunal found something else, period, on and on and on.

[00:29:59] Speaker 04:
I think that's because it was a clear cut case.

[00:30:02] Speaker 04:
And the only way to square that framing of the discussion with everything that preceded it as Enron set up the analysis, the need to preserve your integrity, you can't elevate the party's contractual choices above that need, and so on.

[00:30:16] Speaker 04:
The only way to square that is to say the court was looking at that record and saying, this looks pretty good.

[00:30:20] Speaker 04:
We really don't have any reason to disagree with this.

[00:30:23] Speaker 04:
United Paperworkers, which the other side just quoted,

[00:30:26] Speaker 04:
Yes, it says we don't do fact-finding in public policy cases, but that did not involve the kind of problem that Enron is talking about, where the underlying contract is criminal.

[00:30:37] Speaker 04:
That creates the fundamental need to investigate, to ensure the integrity of the courts.

[00:30:42] Speaker 04:
That was not implicated in United Paperworkers.

[00:30:45] Speaker 04:
The final point I want to make briefly is about this timing issue.

[00:30:50] Speaker 04:
Timing doesn't matter for bribery.

[00:30:52] Speaker 04:
You can pay before, you can pay after, it doesn't matter.

[00:30:54] Speaker 04:
And here, the evidence is pretty strong that even though the payments came after the contract was awarded, the agreement for the quid pro quo came before the contract was negotiated and signed, before the financing was agreed to, before the addendum was negotiated and signed.

[00:31:16] Speaker 04:
We have testimony from both, from participants in both sides, Castro for MML and I think Barada for Odabresh, saying that Odabresh was afraid it would lose the contract, afraid it might not be signed, afraid it might be terminated.

[00:31:33] Speaker 04:
The city had termination rights in the contract.

[00:31:36] Speaker 04:
There was a real risk and they needed to lock it down.

[00:31:39] Speaker 04:
They needed to lock down MML support for financing and they needed, they wanted to extend the benefits.

[00:31:44] Speaker 04:
That's what the addendum does, which Castro says explicitly was done in exchange for contributions to the Iran's campaign.

[00:31:52] Speaker 04:
So I think this is all in the annex.

[00:31:54] Speaker 04:
A lot of it's in the annex, but actually the second tribunal acknowledged all these points.

[00:32:00] Speaker 04:
It just didn't want to credit them because it didn't have the underlying evidence to back it up.

[00:32:06] Speaker 04:
Thank you.

[00:32:08] Speaker 05:
Thank you.