[Page 1]
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
| JOINT STOCK COMPANY STATE SAVINGS BANK OF UKRAINE, Petitioner, vs. RUSSIAN FEDERATION, Respondent. | ) CIVIL NO.: ) 23-0764-ACR ) May 7, 2024 ) Washington, D.C. ) 10:55 a.m. |
Transcript of Pre-motion Conference
Before the Honorable Ana C. Reyes
United States District Judge
APPEARANCES:
For the Plaintiff: Dennis H. Hranitzky, Esquire
Debra O'Gorman, Esquire
Yvonne Zhang, Esquire
Quinn Emanuel Urquhart & Sullivan, LLP
51 Madison Avenue
22nd Floor
New York, NY 10010
For the Defendant: Bruce Samuel Marks, Esquire
Maria Grechishkina, Esquire
Thomas C. Sullivan, Esquire
Marks & Sokolov, LLC
1835 Market Street
Suite 1717
Philadelphia, PA 19103
Reported by: Christine T. Asif, RPR, FCRR
Federal Official Court Reporter
333 Constitution Avenue, NW
Washington, D.C. 20001
(202) 354-3247
Proceedings recorded by machine shorthand; transcript produced
by computer-aided transcription
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PROCEEDINGS
THE COURT: Ms. White, could you please call the
case.
THE CLERK: Yes, Your Honor. This is civil action
23-764. Joint Stock Company State Savings Bank of Ukraine
versus Russian Federation.
Will the parties please come forward and identify
themselves for the record, starting with plaintiff's
counsel.
MR. HRANITZKY: Good morning Your Honor, I'm Dennis
Hranitzky from Quinn Emanuel on behalf of the petitioner,
which we refer to as Oschadbank.
THE COURT: What bank? Excuse me.
MR. HRANITZKY: Excuse me?
THE COURT: What bank?
MR. HRANITZKY: Oschadbank.
THE COURT: Oschad.
MR. HRANITZKY: Oschadbank. And I'm joined by my
colleagues Deborah O'Gorman and Yvonne Zhang.
THE COURT: All right. Welcome, everyone.
MR. MARKS: Good morning, Your Honor. I'm Bruce
Marks. I represent the Russian Federation. And I have with
me Thomas Sullivan.
THE COURT: Remind me what firm you're with?
MR. MARKS: I'm with Marks and Sokolov,
[Page 3]
S-o-k-o-l-o-v.
THE COURT: Okay. And so, Mr. Hranitzky, could I
talk to you for a minute? So I'm very familiar with the Spain
cases, having represented Spain in them when I was in private
litigation.
MR. HRANITZKY: Indeed, Your Honor.
THE COURT: I got kicked off of it. But I'm not
quite sure how that's relevant to your case. So I don't
understand the stay. Is it because of an implied arbitration
exception or what -- how is Spain relevant?
MR. HRANITZKY: Well, Your Honor, we're not -- we
didn't make the initial request for a stay. The initial
request for the stay came from the --
THE COURT: No, I know. I have questions for them
on that too.
MR. HRANITZKY: Sure. I mean, it's our position
that this case could proceed without a stay in the interest of
compromise --
THE COURT: Oh --
MR. HRANITZKY: -- we were willing to agree to a
very short stay.
THE COURT: I don't think Spain is going to be
short, I'm telling you right now. It was a six-hour hearing
and I think it's going to be a while before we get anything.
So you don't really want a stay.
[Page 4]
MR. HRANITZKY: Your Honor, we would be -- we would
prefer to proceed. We proposed that in the interest of
compromise.
THE COURT: Okay. That's helpful because I was
confused by your letter yesterday. Okay. So now I want to
talk to you.
MR. MARKS: Here I am.
THE COURT: All right. What is the -- what was the
seat of the arbitration?
MR. MARKS: Paris.
THE COURT: All right. And you have a enforcement
action in Paris, but as I understand it I'm not bound by that
decision; right?
MR. MARKS: It would be rare in your -- you're not
bound by the decision, Your Honor.
THE COURT: Rare, but not unprecedented, because I'm
aware of cases in which a U.S. court has -- I can't remember
if it was upheld or denied, what Paris did and Paris had done
the opposite. So just why am I worried about what France is
doing.
MR. MARKS: Generally -- if I could respond to Your
Honor's question -- generally, if the Courts at the seat of
the arbitration annul the decision, almost all of the cases
that I've seen here in the United States then do not enforce
the award.
[Page 5]
THE COURT: Right. But I'm not bound by that. I
have to do my own independent determination; right? And I
don't give it any deference. I mean, I have to do my own de
novo review.
MR. MARKS: Of what issue, Your Honor?
THE COURT: Of whether or not to annul the award.
MR. MARKS: You're not being -- no. I don't mean to
disagree. Your Honor, doesn't have the auth- -- in my
opinion, Your Honor would not have the authority to annul the
award because Your Honor's not in the rendering jurisdiction.
The authority that Your Honor --
THE COURT: Right. I'm sorry, you're right. I
can't enforce the award for U.S. purposes.
MR. MARKS: For U.S. purposes.
THE COURT: Right.
MR. MARKS: You do have -- in our opinion, Your
Honor, the Court has an independent duty to determine whether
it has jurisdiction under the Foreign Sovereign Immunities
Act.
THE COURT: Yes.
MR. MARKS: That is an independent issue that this
Court decides for itself.
THE COURT: Of course.
MR. MARKS: If Your Honor were to go to the next
stage, which would be under the New York Convention, then
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there's a protocol where Your Honor would be able to decide
whether to recognize and then ultimately enforce the award.
THE COURT: Right, but my question is you want me to
stay pending whatever France does. And I'm saying France is
great, I love visiting Paris, I mean, but I don't -- whatever
they do is not going to prevent me from doing whatever I think
I need to do. If France comes back and says you need to annul
the award for French purposes, I will -- I would obviously
look at that. And I might think, gosh, those guys are really
smart and I agree with them. But I wouldn't have to -- it's
not like abuse of discretion standard, right, I'm just
starting all over with them here.
MR. MARKS: If the award is annulled, Your Honor,
the overwhelming precedent --
THE COURT: I know you're talking to me about
overwhelming precedent. I'm talking to you about what the
actual rules are. I know what the overwhelming precedent is.
I also know that there's cases going the other way because I
teach a class on international arbitration at Yale Law School
and I've taught them.
MR. MARKS: Fine.
THE COURT: So you want a stay and my point is I
don't want to hold this up until whatever happens in France
happens, because then we're just basically wasting years.
MR. MARKS: Well, Your Honor, I wouldn't --
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THE COURT: I mean, if France upholds the award
you're not going to come up here and say, gosh, they're right.
No, you're going to come here and argue it.
MR. MARKS: That would be true, Your Honor.
THE COURT: Okay.
MR. MARKS: But if I might, Your Honor. The Courts
in this district have almost -- and I can cite the cases, I
have them, but we have the CC/Devas case.
THE COURT: Is there a D.C. Circuit opinion that
says if France annuls the award I have to not enforce it? Yes
or no?
MR. MARKS: Not that I know of.
THE COURT: Okay. Well, then whatever France does
is great for France, but it's not going to control what I
do.
MR. MARKS: That may be true, Your Honor --
THE COURT: Okay. In that case what is the basis
for the stay?
MR. MARKS: Well, the basis for the stay, if I
might, Your Honor, I'll just mention the case, but many, many
cases, Your Honor was involved in the Spain case as you would
know many of them, but CC/Devas which is a 2022 case, Judge
Lamberth. The infrastructure -- which was not a Spain case --
Cube Infrastructure, which was a Spain case, 2021, Judge
Sullivan. InfraRed which was I believe a Spain case, Judge
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Bates, there's at least five or six other. The Courts in this
district have almost unanimously stayed proceedings involving
the Foreign Sovereign Immunities Act when obviously the
sovereign is a respondent, if there are set aside proceedings
still pending in the jurisdiction where the award was
rendered. There are --
THE COURT: When is France expected to rule? Where
are you in the proceedings?
MR. MARKS: Your Honor, we are before the Paris
Court of Appeals now the proceeding had been filed in 2019.
The parties -- if I could explain it, the Paris Court of
Appeals ruled on only one issue. It set the award aside.
That happened in 2021.
THE COURT: What was the basis for setting it aside?
MR. MARKS: The Court held that there was no
jurisdiction under Article 12 of the Bilateral Investment
Treaty, because the investments that were made by Oschadbank
were made before the jurisdictional date in the treaty,
January 1st, 1992. There was back and forth between Russia
and Ukraine at the time. And the treaty was designed to
exclude any investments that were made during the Soviet
period. And for that purpose January 1st, 1992 was deemed to
be the effective dissolution date of the Soviet Union.
The Court of Appeals -- and there was another case
just like this in The Netherlands where they ruled the same
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way. They said -- don't forget the Russian Federation didn't
participate in the arbitration, so this is what the tribunal
itself ruled -- the Court of Appeals set that aside because it
said that the award was based on claims that were outside the
jurisdiction of the Bilateral Investment Treaty. About a year
later the Court of Cassation, which is effectively the higher
court or highest, perhaps, court in France set that aside.
They held that Article 12 was not jurisdictional and that was
remanded to the Paris Court of Appeals.
There were four or five --
THE COURT: Are they going to have to defer to the
arbitration, to the tribunal because it's a merits issue.
MR. MARKS: Well, Your Honor, it's a great question.
I can answer it in two ways. There were four other issues, or
maybe five I think, that the Russian Federation raised. These
are similar issues that we did in our short lived motion to
dismiss, which the Paris Court of Appeals didn't rule on.
Okay. Because it said, well, you're out for the one so we're
not going to address the other four or five. Those issues are
still pending before the Paris Court of Appeals, and they've
effectively already been briefed. They would have been
briefed in the first round.
THE COURT: When did it all get back to the Court of
Appeals?
MR. MARKS: It got back to the Court of Appeals in
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2022. And I'll explain, if I might, Your Honor, I'm going to
give you the procedural history, to conclude --
THE COURT: Is this the procedural history? What is
this?
MR. MARKS: Well, that's from them. I didn't know
Your Honor wanted hand-ups. So I have a -- I can give you a
piece of paper, if you want, that has the dates on it.
THE COURT: Whatever you want to give me, I'll look
at.
MR. MARKS: This is my cheat sheet, Your Honor. The
set aside petition was filed by the Russian Federation in
2019, it was granted only on the one issue in 2021, that went
to the Cassation Court. That was -- only on that one issue,
because it was the only issue the Court of Appeals addressed.
It was reversed in 2022. That then has been the term in
French is seized, the Court of Appeals has now been seized to
go back and to address the other five issues. That happened
in March of 2024.
THE COURT: But it took five years from the notice
of the set aside to get back -- we're not waiting on this case
for five years. I'm telling you that right now. We're not
waiting on this case, you know, I'm -- first of all, I'm going
to let you file whatever you want to file.
MR. MARKS: Fine.
THE COURT: But I'm telling you right now I'm not
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staying this until some time immemorial.
MR. MARKS: Well, Your Honor, I don't think it would
be time immemorial, but if I could complete the process.
THE COURT: Yeah, sure. Of course.
MR. MARKS: There was no reason to re -- to begin
again the Court of Appeals, because the Russian Federation had
already -- had also filed what's called a revision application
before the tribunal. They promptly did that in 2019 as
well.
THE COURT: Is that basically a motion for
reconsideration?
MR. MARKS: Excuse me?
THE COURT: Is that basically a motion for
reconsideration with the tribunal.
MR. MARKS: I don't want to speak over Your Honor.
THE COURT: No, go ahead.
MR. MARKS: The Russian Federation had never
participated in the arbitration.
THE COURT: Well, hold on. Hold on.
MR. MARKS: But --
THE COURT: You did participate. You just didn't
participate fully.
MR. MARKS: We didn't participate.
THE COURT: You issue -- you sent in a letter with a
jurisdictional objection.
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MR. MARKS: We sent a letter that we were not going
to participate and explained why.
THE COURT: Well that's participating. It's not
like it went on without your knowledge and you're like, oh, my
gosh, what has just happened?
MR. MARKS: I didn't say that, Your Honor.
THE COURT: No, I understand. But let's just make
sure we're talking clearly. You chose not to participate.
MR. MARKS: I don't dispute that at all, Your Honor.
The Russian Federation chose not to participate. And that's
how I would -- I would adopt Your Honor's language. So after
that in 2019 timely, the Russian Federation filed what's
called a -- I don't speak French, I speak Russian and that
won't help me here.
THE COURT: I speak Kentucky, so --
MR. MARKS: Well, I'm from West Virginia.
THE COURT: So we're both not going to do well.
MR. MARKS: -- called a revision application. And
the allegation there was that the Oschadbank had committed
fraud by concealing that investments were made before the
beginning date of the BIT.
THE COURT: But he says that, in fact, what you
claim had not been disclosed to the tribunal had been
disclosed to the tribunal.
MR. MARKS: Well, they -- our position was that it
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was not.
THE COURT: I mean, it seems like this is a yes or
no, like either it was or it wasn't. What's the dispute? It
was buried or I mean --
MR. MARKS: They -- yeah, it was. And the tribunal
never found that it was disclosed. The -- it took the
tribunal several years to resolve it. There was no sense to
go back to the Court of Appeals where there was still the
revision application before the tribunal. And the tribunal
denied that, I believe, in December of 2013.
THE COURT: 23.
MR. MARKS: So both set aside actions were then
renewed timely in March of 2024. Both of them are before the
Paris Court of Appeals. And there's no reason why the Paris
Court of Appeals could not rule within a year or a year and a
half. That may not be fast enough for Your Honor, I don't
know.
THE COURT: I mean, maybe they will rule within a
year, a year and a half, it doesn't seem like --
MR. MARKS: Well, let's -- just a second, if we
could remember, Your Honor, again, I don't want to interrupt,
but one of the reasons why it took the tribunal, which of
course is three people, so they -- to get together it's a
little more complicated, because different delays in 2020 and
2021 because of COVID, so that explains, that explains why
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some of these things took longer then than they would take
today. Today, of course, we don't have the same COVID issues.
Plus everybody, sadly enough, as you learn how to use Zoom and
Teams.
So what I was going to get to, we'll file a motion,
Your Honor is giving us an idea what you are thinking,
however, this is exactly what happened and has happened in
many, many cases in this District, that the Courts have
recognized that they should not be deciding recognition
petitions until arbitrations have run their course. This is a
Bilateral Investment Treaty arbitration. Everybody who
practices in this area of the law, and apparently Your Honor
did as well, understands that it's just not a decision of an
arbitration tribunal.
Everybody understands that once there's a decision,
one side or the other are going to file set-aside proceedings.
And depending on the jurisdiction, sometimes those proceedings
are longer or shorter. In France, the proceedings are shorter
than in other jurisdictions. In some jurisdictions, at least
it used to be The Netherlands, you filed before a district
court, it went to a Court of Appeals, and then ultimately you
might go to the Dutch Supreme Court. In England you start
with the English High Court, or whatever you would call it
there. It then goes to the English Court of -- to the
whatever their appellate court is.
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Here in France it's a much more expedited procedure.
In France it goes directly to the Court of Appeals. We would
expect a ruling within a year or so. And then depending on
what happens then it could go to the Cassation Court, we all
know looking at the record here in this case that it took the
Cassation Court, I don't remember, I can look at my cheat
sheet but Your Honor is looking at it too.
THE COURT: A year.
MR. MARKS: I think it took about a year. These
type of -- this type of, you know, takes judges time to decide
cases, particularly when it's an appellate court, you're not
talking about just one judge, but you're talking about three
or five depending on the Court.
THE COURT: That's why it's so much better to be a
district court judge. You can just do whatever you want.
MR. MARKS: I'm sorry.
THE COURT: That's why it's so much better to be a
district court judge. You can just do whatever you want.
Don't have to wait for other people, don't have to rely on
other people.
MR. MARKS: If it only paid better, right, Your
Honor?
THE COURT: Yeah, talking to someone who just took a
massive pay cut, I agree.
MR. MARKS: The issue that I was getting, there's a
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number of issues that CC/Devas and Cube and the other cases
have looked at. There's policy reasons why courts in the
District of Columbia, and particularly these are the Courts
that are most familiar with the Immunity Act, this is the
epicenter of it, as it were. One issue is judicial economy,
that this court ought not -- views that it ought not be
deciding cases if there might be an exactly opposite result in
the other jurisdiction. And in this case the other
jurisdiction -- the only jurisdiction that has the power to
annul the award is looking at it. This proceeding has already
been pending. The Russian Federation, you know, has done what
it was supposed to do to get it moving. That's one reason.
Second, the complications that are involved if Your
Honor recognizes the award and it turns out that in France
they annul the award, then we have this whole -- the judges
all discussed this in the Spain cases -- then you have this
whole mess of what do you do, should you undo, how do you
undo.
THE COURT: But I don't have to undo; right? They
would be allowed to collect on it in the U.S., but not
everywhere else in the world.
MR. MARKS: Well, no, then once it gets undone, then
we would certainly -- there's a lot of cases or at least some
cases like that, Your Honor, where they come and the say, hey,
you shouldn't have recognized it, but you did, but now it's
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been annulled. We have to undo it.
THE COURT: So I do have to do what they do?
MR. MARKS: What?
THE COURT: So I do have to do what they do? If I
enforce it here and then Paris annuls it later, then do I have
to undo the enforcement? Am I bound to do that by law?
MR. MARKS: You don't necessarily have to.
THE COURT: Okay.
MR. MARKS: You don't necessarily have to do it.
THE COURT: So let me just play this out, though.
MR. MARKS: Sure, but I --
THE COURT: Go ahead.
MR. MARKS: So that's one reason. The other reason
of course is the purpose of the Immunities Act is obviously to
protect sovereigns from unnecessary litigation. Why should
the Russian Fed -- and again, lucky me, my client's a
sovereign it's not an investor, why should a sovereign have to
be subjected to litigating the same issues in two different
forums.
THE COURT: Because you signed a BIT.
Congratulations. You get lots of litigation.
MR. MARKS: Well, that may be true, Your Honor, but
a lot of courts just because you sign a bit don't recognize
that that subjects a sovereign to having to litigate in two
different forums. That's why the judges who, three judges
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that I could cite to more, all of those agreed that we wait.
One of the issues, of course, is comity, it's the French
courts that have received or seized with having the first shot
at it, as it were, to decide whether there actually was
jurisdiction over the Russian Federation. And so, therefore,
in the interest of comity because this case was brought in --
was brought in France and well -- don't for- -- it's not like
my clients moved to set aside after the award was brought
here. The case in France, Your Honor, was brought four
years -- four years before the recognition petition was
brought here.
THE COURT: The issues that are in front of the
Paris Court of Appeals now, the other four that they haven't
ruled on yet --
MR. MARKS: If I could just complete one thing, Your
Honor.
THE COURT: Okay.
MR. MARKS: Because you're right about the other
four.
THE COURT: I haven't asked my question yet, but go
ahead.
MR. MARKS: Okay. Under the procedure in France the
Russian Federation can again raise the issue, the
jurisdictional issue of the January 1st, 1992. The French
Court of Appeals is not bound by the Cassation Court ruling,
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and they can --
THE COURT: I'm sorry, what?
MR. MARKS: I know. I know, Your Honor. But
there's -- believe me I was smiling too and trying to figure
out and say, hey, is it just France. This is their procedure
and there's a rationale to it. The Cassation Court can say
no, we don't agree, this was a jurisdictional issue and we're
going to issue the same decision. In France, what that then
means, instead of just the panel as it were at the Cassation
Court, then deciding the issue again, they get a full panoply
of judges that participate in larger Cassation Court issues,
it's like an en banc court.
THE COURT: So it's like the --
MR. MARKS: En banc.
THE COURT: If you got an appeal at the Supreme
Court, the Supreme Court said to the D.C. Circuit panel we
think you got it wrong so go en banc. Then the en banc court
can do what it wants.
MR. MARKS: Well, then that is binding on
everybody.
THE COURT: So it doesn't get appealed again to the
Cassation Court?
MR. MARKS: It goes to the Cassation Court but then
it goes en banc.
THE COURT: And then after -- it goes en banc to the
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Court of Appeals?
MR. MARKS: No, to the Cassation Court.
THE COURT: Oh, okay. All right. So is it going en
banc to the Cassation Court now?
MR. MARKS: No, because their filter, Your Honor,
they don't have a procedure, I'm told. I'm not a French
lawyer. They don't have a procedure in the Cassation Court
where you can ask for reconsideration what they do have as a
procedure is you go back to the Court of Appeals. If the
Court of Appeals again decides the way that it decided
before --
THE COURT: Then it goes to the Cassation en banc.
MR. MARKS: Then it goes en banc. And then instead
of having either three or five judges decide it, then it's a
much larger panel of judges that do it. I'm only saying that,
Your Honor, just I would fully explain, and I know Your Honor
wanted to ask a question. I'm sorry for doing this
piecemeal.
THE COURT: Basically my question is -- you answered
my question as it turns out, is the jurisdictional issue is
still live.
MR. MARKS: That one issue is still live plus the
other four.
THE COURT: Are the other four issues
jurisdictional?
[Page 21]
MR. MARKS: Oh, yeah, and we have significant issues
there, Your Honor, as to whether the BIT applies the Crimea,
because, of course, as we know, Ukraine doesn't recognize that
as Russian sovereign territory. Crimea was not part of the
Russian Federation when the BIT was signed in 1998. That only
changed in 2014. Your Honor, I'm not going to get into the
issue as to between Russia and Ukraine on that issue --
THE COURT: At 2:00 p.m. I have issues between
Israel and Palestine. So I've got quite the day.
MR. MARKS: Well, that is quite the day. But the
point being, Your Honor, we have, as you know, from our --
I'll call it the initial motion to dismiss, our reading of the
Bilateral Investment Treaty is that it doesn't apply to
Crimea. We have different reasons for that. One is the
Doctrice of Contemporanea, that when it was signed by the two
parties Crimea was not considered to be Russian territory.
And where we are now, of course, Ukraine disputes that it's
Russian territory. And we've made a number of arguments.
Those type of arguments, Your Honor, are pending before the
Court of Appeals.
THE COURT: So what's your argument in front of the
Court of Appeals, not that Crimea isn't Russian, it's that
Ukraine doesn't recognize Crimea as Russian?
MR. MARKS: One of the arguments is because Crimea
is disputed territory.
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THE COURT: Russia doesn't think it's disputed
territory. Russia thinks it's Russian; right?
MR. MARKS: Well, we know it's disputed territory
because Ukrane and other countries dispute it.
THE COURT: Right. But if President Putin goes on
television today to talk about Crimea, he's not going to say
Crimea is disputed, he's going to say Crimea is Russian.
MR. MARKS: No doubt about it.
THE COURT: Okay. All right.
MR. MARKS: He may have done it already.
THE COURT: I'm sure he has. But go ahead.
MR. MARKS: Russia's position is that Crimea is
Russia sovereign territory. But our position, and we believe
there's support in international law, we submitted an
international law legal report --
THE COURT: So you be want to have your cake and eat
it to. You want to have your Crimea and eat it too, I
guess.
MR. MARKS: Well, not really. What we think is that
when you interpret the BIT, that there has to be an agreement
on what territory is the territory of the other country. And
it cuts the same way, Your Honor, Ukraine would refuse to
recognize -- if there's a Russia investor in Crimea, an
investor were to invest in Ukraine, Russia would not recognize
that as a covered investment --
[Page 23]
THE COURT: Ukraine would not.
MR. MARKS: Excuse me, Ukraine. I'm sorry about
that. Ukraine would not, because they don't consider Crimea
to be Russian territory.
THE COURT: Well, that's a fair point.
MR. MARKS: And there's complicated issues here.
There are international law issues. And these are issues that
are going -- that have been before the Court of Appeals for
four years, roughly. At least the proceeding was filed in
2019. I might have it off a little bit because I don't recall
exactly when the briefs were filed. But these were all issues
that were timely filed by the Russian Federation. These are
issues that were fully briefed, you know, when the Court of
Appeals initially decided this in 2022. And in the interest
of comity, because the proceedings were filed in France first,
a number of judges in this jurisdiction -- maybe not Your
Honor, I guess we'll see -- but a number of judges have all
found the different arguments that I'm making persuasive.
I'd add another argument, if I might, Your Honor,
okay, because Your Honor's thinking, well, this -- and
obviously Oschadbank is going to say there's delay involved, I
hear what Your Honor is looking at. Let's not forget, and
it's right in their petition, they filed this outside the
three-year period. So it's a little bit like the pot calling
the kettle black.
[Page 24]
THE COURT: In this case of Goose v. Gander.
MR. MARKS: There you go, it's a little bit like
that. There's no dispute that this petition was filed well
outside the three-year period that's provided under the
Federal Arbitration Act. We're not going to argue that. It's
a merits issue, it's not a Sovereign Immunities issue. And
we've learned our lesson from a number of cases, we don't want
to mix chocolate with the peanut butter. The only issues
we're going to raise are going to be issues under the
Immunities Act. But if we're talking, you know, the bigger
issue on delay, they're -- they --
THE COURT: But it would be -- your argument would
be on the pleadings; right?
MR. MARKS: What's that, Your Honor?
THE COURT: Your statute argument would be on the
pleadings?
MR. MARKS: Which statute argument?
THE COURT: That they filed after three years.
MR. MARKS: That would be -- that would not be a
Immunities Act --
THE COURT: No, I know, but it would be a 12(b)(6)
MR. MARKS: It would be, Your Honor, but there's a
lot of case law in this District that cautions sovereigns not
to make arguments outside the Immunities Act or, therefore,
they have to make all of their nonimmunity arguments --
[Page 25]
THE COURT: Well, you already told me six
arguments.
MR. MARKS: No, I don't believe so, Your Honor.
THE COURT: Okay. Well, if I entered an order
saying I want you to brief 12(b)(1) and 12(b)(6) at the same
time, would that protect you?
MR. MARKS: I think that would violate -- with all
due respect, Your Honor, I think that that issue has already
been decided against ordering that in the PIAD case, where the
district court ordered a sovereign, I'm trying to think which
one it was --
THE COURT: Because I've argued a case here where I
argued 12(b)(1) and 12(b)(6) for Paraquay.
MR. MARKS: Your Honor may have chosen to do that.
THE COURT: Right.
MR. MARKS: That would have been Your Honor's
choice.
THE COURT: Oh, I can't force you to do it.
MR. MARKS: That is the purpose.
THE COURT: Got it. Because I can't force you to
get to the merits before I decide jurisdiction.
MR. MARKS: That would be our view.
THE COURT: Yeah. Okay. That makes more sense.
Okay. I got it.
You want to say anything else?
[Page 26]
MR. MARKS: Me?
THE COURT: Yeah.
MR. MARKS: No, Your Honor.
THE COURT: On this stay issue, we're going to go
back to the other issue soon.
MR. MARKS: Yes, sure, Your Honor. But our -- we
complied belatedly with Your Honor's rule to have the
pre-motion conference, and we're happy to talk about the
motion that we would intend to file.
THE COURT: Yeah, I want to do --
MR. MARKS: But on stay, of course, we do -- it's a
nondispositive motion, we would intend to file it and Your
Honor would decide how you choose to. And we do not object to
staying the case until after Blasket is decided. One of the
issues in Blasket there's multiple issues in Blasket but
whether Your Honor gets to it or not, one of the issues in
Blasket is whether merely signing the New York Convention
constitutes waiver. I haven't practiced in this area for a
long time, and it struck me as a very odd position, but
nonetheless it's out there.
THE COURT: I don't think that's how they're going
to win. I think they're going to win some other way, but I
hear you.
MR. MARKS: So that's an issue then, if the Blasket
court decides -- we know the Blasket court -- and again there
[Page 27]
are three cases, but they're interested in it because they
asked the U.S. State Department to file an amicus.
THE COURT: No, I know. I was at that argument and
if I was a betting human being, I would bet that my former
client will be in our court again, but okay.
MR. MARKS: Well, we know you're betting from the
prior case because you were giving 80/20 odds on the motion.
THE COURT: Exactly.
All right. Come on up. I mean, he makes a lot of
good points about, you know, I -- look, do I think France
handled World War II well? No. Like the Maginot Line, we
have this big line no one can cross it and Hitler just went
around it. No, I would not defer to France on military
strategy in World War II. But in terms of being the seat of
the arbitration, it's probably one of the most popular seats
in the world. And they have a very sophisticated legal system
to address arbitration issues. I mean, we're not talking
about Timbuktu. And so why -- he makes a lot of good points,
it's unlikely if France annuls the award I'm going to say that
they got it wrong, so...
MR. HRANITZKY: Well, Your Honor, I guess what I
find confusing or just don't understand about my counterpart's
position, is that, as I understand the sort of mandatory
sequence of taking of issues in this court, this court first
has to satisfy itself that it has subject matter jurisdiction
[Page 28]
before it can reach merits issues. And my understanding of
the law in this circuit, in fact, in the United States, is
that it's settled law that whereas here, the issue of whether
the dispute was arbitrable was vested in the tribunal, which
it was under the UNCITRAL rules. I don't think anybody can
dispute that. And where the tribunal finds that it was seized
of jurisdiction to hear the case, that issue can't be
revisited for purposes of determining whether this court has
subject matter jurisdiction.
THE COURT: Right. Right.
MR. HRANITZKY: -- if it's a merits issue, right.
But our -- to sum up, I guess where we would like to go with
this, we'd just like to get past the issues that aren't really
issues like subject matter jurisdiction. The tribunal has
already determined that this dispute was arbitrable. Per se
that means this case falls within Section 1605(a)(6). This
Court has subject matter jurisdiction. So let's get on to the
merits issues and the statute of limitations issue.
THE COURT: So let me get this straight. So what
you would want is for me to decide the jurisdictional issues.
And if by the time I do that France is still outstanding, then
you're okay with staying the merits until France comes back.
MR. HRANITZKY: Well, Your Honor, I wouldn't say
we're okay with that, I'd say let's take a look at where we
are and what's happened since then. The additional point that
[Page 29]
I would make is that I don't believe that -- I'm sorry, I just
lost my thought. At least on the issue of arbitrability, I
don't believe that what happens in France can ultimately
effect the merits disposition of whether the case was properly
arbitrable, but I will confess that that's not entirely clear
and that's a matter that it would be appropriate to brief.
What we'd really like to avoid is having to go through two
rounds of briefing where the issue of whether this court has
subject matter jurisdiction is already decided by the tribunal
when they found that the dispute was arbitrable.
THE COURT: I'm sorry, so what are the two rounds of
briefing you're trying to avoid? I'm sorry I missed it. He's
right. I can't make them brief 12(b)(1) and 12(b)(6) at the
same time I would prefer that they did that, but I can't make
them do that.
MR. HRANITZKY: I understand that, Your Honor. What
we would like to do is get the subject matter jurisdiction
issues out of the way.
THE COURT: Any reason we can't do that? Like if I
just said let's get the 12(b)(1) decided and then I'll take up
your stay application after that.
MR. MARKS: Your Honor, that's the whole issue
that -- I'm sorry, Your Honor -- that's the whole issue for
why the cases are staying. That's the one --
THE COURT: No, but he's right. France isn't going
[Page 30]
to tell me anything about the FSIA.
MR. MARKS: What France it's reasonably stated in
CC/Devas, recently stated in all the Spain cases, that if
France decides that there was no agreement to arbitrate,
right, and France can do that. That's the whole purpose of
the --
THE COURT: But then he is right that's exactly
what's at point in the Spain cases. Because in the Spain
cases the European court said there's no agreement to
arbitrate. And the very question posed by the Spain cases is
for the purposes of FSIA do we have to defer to that or even
look at it or do we just have our own independent assessment?
And again, I have not talked to anyone, I don't know anything,
but just having listened to the argument, I'm guessing that
the Court -- I want to say this in every way, shape humanly
possible, I do not know what the appellate courts are going to
do. No idea. Haven't talked to anyone. I'm just like
layperson Ana who heard the hearing. And I would just be
shocked if -- I would be surprised if the Court came back and
said that the English -- that the European court's
interpretation of whether or not there was an agreement to
arbitrate binds or even influences our decision of whether or
not there was an agreement to arbitrate under the FSIA.
MR. MARKS: I don't know what the Court's going to
do in Blasket because I wasn't at the arbitration. Excuse me,
[Page 31]
I wasn't at the Court of Appeals. However, we don't disagree
that there may be aspects of Blasket that may influence how
this case is decided. And that is an issue, let's not forget
Judge Leon, right, there were three cases that were
consolidated --
THE COURT: Right. My star associate argued that
case in front of Judge Leon, Ben Graham, he's phenomenal.
Unfortunately, Judge Chutkan went the other way. Not
unfortunately -- unfortunately, for my former client Judge
Chutkan went the other way. As did my good friend Moxie, the
Magistrate Judge, but you know.
MR. MARKS: And there was another judge in the this
district that went the other way too, it's one of the cases
that were consolidated with Blasket.
THE COURT: I can't remember.
MR. MARKS: I can't remember her name. But in any
case, that's -- the issue in Blasket is -- the issue in
Blasket is the -- is whether there was an agreement to
arbitrate.
THE COURT: Well --
MR. MARKS: And we think that if the Courts in
France say there was no agreement to -- there was no
jurisdiction because there is no agreement to arbitrate, that
the BIT is properly interpreted to mean that it doesn't apply
to Crimea, we think then that's going to be something that
[Page 32]
Your Honor or the U.S. courts would look at in determining
under the Foreign Sovereign Immunities Act whether there was
an agreement to arbitrate.
THE COURT: Well, then actually maybe --
MR. MARKS: That's why you typically allow the
jurisdiction where the set-aside proceedings are pending to go
first. That was, again, the rationale in the other Spain
cases.
THE COURT: Well, Mr. Hranitzky --
MR. HRANITZKY: May I?
MR. MARKS: Sure. Yes. I'm sorry.
THE COURT: Maybe you were right. Maybe the way to
do this is to stay the case until the Spain is decided. Or, I
mean, I'm happy to let you all brief it now, but based on what
he's just told me it does seem like -- I didn't think that
they were going -- I didn't think the Spain case was going to
matter, but now I actually might.
MR. HRANITZKY: Your Honor, I don't believe that the
Spain case is dispositive. We, again, we proposed that in the
interest of compromise to see if maybe we can take an issue
off of Your Honor's desk and we could move on to other issues
in the case. But Your Honor was correct, I mean, our
preference would be that there be no stay and that we move
forward.
But there's one point, I think this whole colloquy
[Page 33]
has crystallized in my mind, there seems to be a fundamental
disagreement about what the law in the circuit is on a very
fundamental point. My understanding is that after Chevron.
THE COURT: Well, I wouldn't rely too heavily on
Chevron, because if I was a betting person I would also say
that's not going to be around after June, but go ahead.
MR. HRANITZKY: Well, it's around now. And after
Chevron, when the parties agree that the issue of
arbitrability is vested with the tribunal, the question of
whether the --
THE COURT: Oh, you're talking about a different
Chevron.
MR. HRANITZKY: I may be talking about a different
Chevron.
THE COURT: You're talking about a different
Chevron, okay, I was like I don't understand how we got into
administrative agency --
MR. HRANITZKY: That's okay. Oh, no, I'm not
talking about Chevron deference. No, it's not the Justice
Gorsuch Chevron. This is Chevron v. Ecuador.
THE COURT: Yeah. Okay.
MR. HRANITZKY: The law in this circuit since 20 --
THE COURT: That was a crazy case. Did any of you
litigate that case? That was insanity.
MR. HRANITZKY: I'm familiar with it.
[Page 34]
THE COURT: Okay. Go ahead. I'm sorry.
MR. HRANITZKY: We didn't appear in the case. But
under that case, D.C. Circuit said when the parties agree that
the issue of arbitrability is to be decided by the tribunal,
which nobody can dispute under the UNCITRAL rules that's the
case. Then when the tribunal finds that the dispute is
arbitrable, there's no issue under Section 1605(a)(6), that is
clear law in this circuit.
THE COURT: Yeah, but if the BIT doesn't apply, then
there was no agreement to let the arbitrators decide.
MR. HRANITZKY: But then that's a merits issue.
What Chevron says is that that's a merits issue. It's not an
issue whether there's an exception to sovereign immunity.
It's not an issue that goes to whether this court is seized of
jurisdiction. It's a merits issue.
THE COURT: Okay. Can you --
MR. HRANITZKY: I mean the other key case, if I may,
Your Honor, not to interrupt --
THE COURT: No, go ahead.
MR. HRANITZKY: I think there are really two cases
that you could read that, at least from my perspective, put
all of this into crystal clear perspective for the purposes of
whether there was an agreement to arbitrate or not. The first
is Chevron v. Ecuador. And then the second is the Supreme
Court decision in the Schein case.
[Page 35]
THE COURT: In what case?
MR. HRANITZKY: In the Schein case, I have the cite
here. It's Schein v. Archer and White Sales, 139 Supreme
Court 524 and the pincite the 528.
THE COURT: Okay.
MR. HRANITZKY: That's a 2019 decision, I think it
was a Justice Gorsuch decision. And what that case says is
that when the tribunal decides that the dispute is arbitrable,
the U.S. courts can't revisit that even when the finding of
arbitrability was utterly groundless. That is squarely the
holding of the case.
Now, these raise merits issues, I would submit that
we expect that we will win on the merits as well. Right, but
I'm sure that my colleague would disagree with that. All I'm
suggesting is that there really isn't any issue whether this
court has jurisdiction. Let's move on to the merits, rather
than having to go through two rounds.
THE COURT: Well, they're not going to concede that
there's jurisdiction, so we're going to have to brief
jurisdiction. And I can't make them brief 12(b)(6) at the
same time.
MR. HRANITZKY: Understood. I'm just suggesting --
THE COURT: I would greatly prefer they did, but I
can't make them do that.
MR. HRANITZKY: We would just like to get it started
[Page 36]
now.
THE COURT: I hear you.
MR. HRANITZKY: The one other point I'd like to
make, because we've been spending a lot of time talking about
the Spain cases, but there's a whole separate body of cases
that are much more apposite and those are the Russia cases.
And there are a number of them pending in this district.
THE COURT: Oh, yeah, what are the other courts --
MR. HRANITZKY: None of them are stayed.
THE COURT: Have any of them been teed up to be
stayed?
MR. HRANITZKY: There was a stay -- one of those
cases, the Hulley case, which I would submit if Your Honor
views stay rulings as being precedential at all.
THE COURT: I do not, but go ahead.
MR. HRANITZKY: I don't believe they are either, but
perhaps they're instructive. And you know in the Hulley case
it was the only one of the Russia arbitrable award recognition
cases that was stayed.
THE COURT: Who was that?
MR. HRANITZKY: The facts of that case was similar.
There was a set-aside proceeding brought at the seat, in that
case The Netherlands. The Court of Appeal vacated the award,
just like what happened in this case. It went up to the
highest court, it's not called the Court of Cassation in The
[Page 37]
Netherlands, it's called the Supreme Court, I think. But one
way or the other, the Supreme Court reversed the appellate
court, and the matter was remanded to the Court of Appeals.
THE COURT: Uh-huh.
MR. HRANITZKY: Russia asked to extend -- there was
a stay in place they entered early on in the case at the time
that the Court of Appeals vacated the award in the first
instance. That stay remained in effect throughout the
set-aside proceedings up to the point that the Court of -- the
Supreme Court of the Netherlands vacated the decision of the
Court of appeals, vacating the award. At that point Russia
came back to -- or Judge Howell, Judge Howell, and asked her
to extend the stay. And Judge Howell said no, enough is
enough, this case has been stayed for a number of years. Many
of these issues that you're litigating in the Dutch courts
have already been resolved. I understand you when you say
there are other issues --
THE COURT: What is that cite? Do you have that
cite for me?
MR. HRANITZKY: That case is the last Howell case.
Excuse me, Your Honor, I have it in this binder.
THE COURT: What office are you guys from? What
city are you guys from?
MR. HRANITZKY: I was in New York until the pandemic
and now I'm in Salt Lake City. Park City was a nice place to
[Page 38]
spend in 2020.
THE COURT: Are you a skier?
MR. HRANITZKY: I'm sorry?
THE COURT: Are you a skier?
MR. HRANITZKY: Absolutely.
THE COURT: Were you able to ski during COVID?
MR. HRANITZKY: The first year the resort -- so the
lockdown happened at the very end of the 2020 ski season. So
there was no skiing in April. For the 2021 season, most of
the resorts allowed skiing if you wore a mask, which was a
little bit of a buzz kill, but --
THE COURT: Well, I always wear the cover any way.
MR. HRANITZKY: Well, you had to wear a mask.
THE COURT: Over the cover?
MR. HRANITZKY: Yeah.
THE COURT: That's got to be hard to breathe.
MR. HRANITZKY: It wasn't great. But it wasn't a
great snow season anyway.
THE COURT: Where do you ski there?
MR. HRANITZKY: Well, I live right -- during the
pandemic I was right at Deer Valley, so I skied at Deer
Valley.
THE COURT: Awesome. All right.
MR. HRANITZKY: Now I live at Park City. But
anyway --
[Page 39]
THE COURT: Have you ever skied at Sun Valley in
Idaho?
MR. HRANITZKY: Just Once.
THE COURT: It's amazing. No one goes out there
because they think it's hard to get to, but it's the No. 1 ski
resort every year.
MR. HRANITZKY: There's some other well kept secrets
that I'm not going to disclose on a transcript.
THE COURT: All right. You can tell me after.
MR. HRANITZKY: The Hulley case. This is the most
recent of the Hulley cases and the cite is 2022 Westlaw
1102200. And I would submit that this case is as close to on
all fours as you can find.
One of the key distinctions between the Spain cases
and the Russia cases, many of the Courts in the Spain cases
stayed -- granted requests for stays because so many of the
other Spain cases were stayed. And one of the considerations
that they took in -- had in mind --
THE COURT: I drafted the brief --
MR. HRANITZKY: I'm sure you did, Your Honor. In
this case --
THE COURT: I was an idiot. What did I know.
MR. HRANITZKY: In this case it's the opposite, in
this case none of the Russia cases are stayed. So the
concerns that the Courts had with allowing one plaintiff or
[Page 40]
petitioner to get an unfair advantage over the others who were
stayed, we have the converse here. If we're stayed while all
of the other Russia cases are allowed to proceed and are not
stayed, it unfairly prejudices us.
THE COURT: Okay. Well, what's clear to me is I'm
going to need briefing on this. So you guys get together with
a briefing schedule for a motion to stay. Then I want to
talk -- but come on up because I want to talk to you about
your jurisdictional arguments.
MR. MARKS: Sure. I just, Your Honor, when you read
the Schein case, you'll see that it is not the way that it was
described. That case went --
THE COURT: Shocking that I often get lawyers
arguing the same language to me in wildly different ways.
Don't worry, I look at the cases all myself.
MR. MARKS: The case never went to arbitration. The
issue there was the district courts, whether it could order
arbitration if it found that the argument was wholly
groundless. And it went to the Court of Appeals. And then
the Supreme Court said that you cannot challenge an
arbitrable -- a finding of arbitrability even if it's wholly
groundless.
THE COURT: Okay. All right.
MR. MARKS: That's what happened there.
On the Hulley case, the other two cases related to
[Page 41]
1 Ukraine which are in this district, Your Honor, the reason
2 it's a stay -- I'm not counsel in those -- but there's the
3 Stabil case and there's the Naftogaz case. The reason that a
4 stay wasn't sought, Your Honor, is because the set-aside
5 proceedings had concluded in those cases.
6 THE COURT: Okay. Well, that seems like a major
7 distinction.
8 MR. MARKS: That might be a distinction.
9 THE COURT: Okay. Well, you guys fight it out on
10 the papers. You guys come up with a briefing schedule. Do
11 not make my decide the briefing schedule. You guys figure it
12 out. Okay.
13 MR. MARKS: If I might, Your Honor, just -- there
14 was this compromise which was their idea, is Your Honor
15 intending to stay the case pending the resolution of
16 Blasket.
17 THE COURT: I don't know.
18 MR. MARKS: You don't know.
19 THE COURT: I really need to see the briefing.
20 MR. MARKS: Okay.
21 THE COURT: I will tell you that my inclination is
22 to move my cases forward quickly.
23 MR. MARKS: Right.
24 THE COURT: I don't like the idea of staying this
25 case, but you've made some excellent points. You've earned
[Page 42]
1 your keep today. So I want to see some briefing.
2 MR. MARKS: Fine. Why don't we get together with
3 opposing counsel -- one of the things, by the way, Your Honor,
4 is that I think it's great that we have these in-person
5 things, because it gives you a chance to meet with opposing
6 counsel that you don't otherwise see. So after now or shortly
7 after we'll confer on the briefing schedule and we'll submit
8 something. I'm sure we'll agree and we can submit something
9 to Your Honor. And then Your Honor will decide the stay
10 before we -- I'm sorry, you wanted to ask me something?
11 THE COURT: Yeah, I -- just give me sort of the
12 elevator speech version of your -- let's say I don't grant the
13 stay and I say you guys are going to sort of move forward with
14 your jurisdictional briefing, what's the elevator speech
15 version of your brief?
16 MR. MARKS: The elevator speech is that under the
17 Sovereign Immunities Act, Your Honor has an independent duty
18 to determine whether there's jurisdiction. Therefore, Your
19 Honor has an independent duty to determine whether the Russian
20 Federation made an offer to arbitrate this dispute with
21 Oschadbank. And we have seven reasons in the original motion
22 to dismiss why that's not the case.
23 And I'll just highlight a couple of them, if I
24 might. The first argument that we made was the continuity
25 argument -- Contemporanea argument, that when you go to
[Page 43]
1 interpret a treaty, you rely on the principles of interpreting
2 contracts, right. And at the time that the BIT was signed,
3 Crimea was not Russian territory. And, therefore, the BIT
4 would not apply to investments that -- you could not make
5 claims under the BIT for investments that were made in Crimea
6 because it was not considered to be Russian territory under
7 the BIT when it was signed.
8 THE COURT: It's a really fascinating geopolitical
9 issue. Geopolitical issues come before Courts, it's probably
10 one of the more interesting ones.
11 MR. MARKS: Well, this is your second one today,
12 right?
13 The second issue, Your Honor, was the temporal issue
14 that, again, that's not finally decided in France. The BIT
15 says that it only applies to investments made after January
16 1st of 1992.
17 THE COURT: But that they start after 1992? Because
18 I assume the investment was continuing -- I mean, there might
19 be a damages cut-off point. But even if it began after 1992,
20 wasn't the investment continuing after 1992?
21 MR. MARKS: They would not be able to recover under
22 the BIT for the value of whatever was invested by Oschadbank
23 before January 1st, 1992.
24 THE COURT: But I imagine the damages in the case
25 involved money after 1992 as well, no?
[Page 44]
1 MR. MARKS: They may be, Your Honor. But Your Honor
2 wouldn't be able to recognize this award, because the award
3 didn't differentiate the investment before January 1st, 1992,
4 and that which was made after. Therefore, the tribunal --
5 THE COURT: But aren't they just going to argue, no,
6 if we had jurisdiction for some of it the arbitration tribunal
7 had jurisdiction. Now they may have gotten the damages wrong,
8 but that's, you know, bad tribunal.
9 MR. MARKS: I don't think that they had jurisdiction
10 to decide investments that were made before January 1st, 1992.
11 They would have to go back and they would have to then
12 properly arbitrate this based on whatever they claim the
13 damages are.
14 THE COURT: So your argument is let's -- I just want
15 to make sure I -- one of the reasons I have these conferences
16 is so you guys know what I'm thinking when you brief things.
17 So your argument is there was pre-1992 investments -- and
18 let's just hypothetical, there are pre-1992 investments that
19 were there in Crimea and then they continued and there was
20 additional investments after 1992. And your view is the
21 tribunal could not take jurisdiction -- because the tribunal
22 didn't have jurisdiction over some of it, it didn't have
23 jurisdiction over any of it. And he's going to come and tell
24 me because the tribunal had jurisdiction over some of it, they
25 had jurisdiction over all of it. Or maybe they didn't have it
[Page 45]
1 over all of it, but I can't do anything to touch the damages,
2 because if they had jurisdiction I have to defer to it.
3 Now, as you guys brief this, I just suggest that --
4 I mean, it just seems like that's one of the issues you're
5 going to have.
6 MR. MARKS: Fair enough, Your Honor. And we will
7 look at it. I can tell you that the practice in what I'll
8 call the arbitrable award world that I know of, because this
9 exact same issue occurred in The Netherlands involving an
10 investment in Crimea, the Dutch court vacated the award and
11 remanded it back to the tribunal to reconsider. Your Honor --
12 THE COURT: Was that under the New York Convention
13 or was that under The Netherlands law?
14 MR. MARKS: Well, I believe The Netherlands law,
15 similar to France, essentially, has -- incorporates the New
16 York Convention.
17 THE COURT: Okay.
18 MR. MARKS: I think they're -- I think they're
19 parallel. Similar to Section 2 of the Federal Arbitration
20 Act. The gloss, of course, which is important we have here is
21 the Sovereign Immunities Act is above that, because of the
22 unique nature of this. So we'll look at that, Your Honor,
23 because I have to think about it, because I haven't thought
24 about it.
25 The third argument that we have is the territory,
[Page 46]
1 that it would only -- the BIT would only apply to territory
2 that is -- which is agreed by the parties is the sovereign
3 territory, whichever country where the investment is made and
4 there's no agreement on that.
5 THE COURT: But what about his argument that, I
6 mean -- what's the response to his argument that I don't get
7 to decide whether the arbitration tribunal had jurisdiction, I
8 have to defer to what the tribunal said.
9 MR. MARKS: That's completely meritless. I mean, we
10 all --
11 THE COURT: A lot of Supreme Court case law that
12 says it's not.
13 MR. MARKS: The Supreme Court case law -- and I'm
14 familiar with it too, and Schein isn't one of them. But the
15 Supreme Court case law says that would only be the case where
16 there's clear and unmistakable evidence that the parties
17 exclusively -- bold, underlined, italics -- exclusively
18 delegated the decision on arbitrability to the tribunal. And
19 that's not what happened here.
20 THE COURT: Right. But once the tribunal makes the
21 decision that's what it did, I can't -- I mean, you have a
22 chicken/egg problem. But as I understand the Supreme Court,
23 like when it's the chicken/egg problem, the tribunal wins.
24 MR. MARKS: No. There has to be exclusive
25 delegation, Your Honor. And that's why it's so important and
[Page 47]
1 it will have to be briefed, and it wasn't mentioned here, but
2 Your Honor might be familiar there's a doctrine called
3 Competence-Competence, it's not that well known in the United
4 States, but it's absolutely well known in Europe. And under
5 the doctrine of Competence-Competence, all you're saying is,
6 listen, we're going to let the tribunal look at it first, but
7 that's without prejudice, either side to file a set-aside --
8 THE COURT: Yeah, but that's not the law in the U.S.
9 It's just not. I mean, I've taught the doctrine. Literally,
10 I can see the -- I have a PowerPoint on the doctrine in my
11 class. That's not consistent necessarily or parallel exactly
12 with U.S. law. It just isn't.
13 MR. MARKS: Your Honor, I believe that the U.S. law
14 and we have -- we didn't brief this yet, right, because that
15 would be an argument they would have to make in their
16 response, but there's case --
17 THE COURT: I'm just alerting you to the issues.
18 MR. MARKS: I appreciate that, Your Honor. And
19 we'll -- it's not something that we would, I think, address in
20 our opening brief, because it's their argument that there was
21 exclusive -- I think their argument has to be, Your Honor,
22 that the delegation is exclusive. And that I have -- and that
23 I think then you have to look at the particular case.
24 But let me just say this to Your Honor and I wasn't
25 here to argue it, but this is all help -- I will say one
[Page 48]
1 thing, it's always helpful to know what a judge thinks,
2 because then it helps us prepare what we're going to provide
3 to the judge and then the judge will make the decision. Is
4 that's -- to me it wouldn't seem to be the case, because if
5 that was the case that the tribunal's decision on jurisdiction
6 was final, how could you have all of these courts in the seats
7 of arbitration entertaining set-aside applications.
8 THE COURT: Because they're not in the U.S. There
9 are very few set asides of international tribunal decisions in
10 the U.S.
11 MR. MARKS: Well, Your Honor, I don't know that
12 this -- where this argument has been made and if it has been
13 properly made, I know it wasn't properly made in Chevron,
14 okay. Our dispute's not governed by U.S. law. Our dispute is
15 governed by the law of the Bilateral Investment Treaty. And
16 the choice of law is a very important issue. Your Honor might
17 say, hey, if you have a dispute between a union and a member,
18 you know, under the Labor Act, that we don't have
19 Competence-Competence. And that's a dispute that's going to
20 be governed by U.S. law. But if we're here enforcing an award
21 under an international treaty and the treaty provides that
22 it's governed by international law --
23 THE COURT: What international law is it governed
24 by? Is it -- I mean, it's the seat of the arbitration, but
25 that's not going to be the merits law. So what's the law on
[Page 49]
1 the BIT?
2 MR. MARKS: No. You would look to international
3 law. And one of the things you do, and this is in the
4 Professor Nouvel report, Your Honor, is that you look to
5 either decisions under the BIT itself or under, I believe,
6 it's Vienna Law, VCLT Vienna Convention on the Law of
7 Treaties.
8 THE COURT: The BIT doesn't have a choice of law
9 provision?
10 MR. MARKS: International law.
11 THE COURT: It just says international law, because
12 there's no thing as international law.
13 MR. MARKS: Well no, I think when you look --
14 there's people here in D.C., I think, who would disagree with
15 that. But, Your Honor, I think when you're looking and
16 interpreting --
17 THE COURT: I should say, of course, there's
18 international law, I litigated international law. What I mean
19 is there's no -- I can't go to like Westlaw international law,
20 you know, as opposed to D.C. Circuit and then, you know, type
21 something in and then I have these things. It's a little bit
22 more -- I just I have never seen a choice of law that just
23 says international law.
24 MR. MARKS: If -- it's in the ECT, which was the
25 Spain case.
[Page 50]
1 THE COURT: Uh-huh.
2 MR. MARKS: You look at principles of international
3 law, I know for sure because I recently looked at that
4 provision there. I would be certain something similar would
5 be in this BIT. I have it with me. But you've heard there's
6 a -- it's the international equivalent of Lexus, it's called
7 Jus Mundi.
8 THE COURT: Right, but that's --
9 MR. MARKS: Just one second. So what you look at
10 you look at sources of international law. And one of the
11 sources of international law are decisions under either this
12 BIT or similar BITS.
13 THE COURT: No, I understand.
14 MR. MARKS: And you look to see the precedent that's
15 built by the tribunals. You look at the precedent of
16 set-aside decisions.
17 THE COURT: Well, it's -- this was actually one of
18 the Judge Pan's questions during the hearing. And it is --
19 people who practice in the area understand the precedence of
20 formal arbitrable tribunals, but American lawyers and judges
21 don't. I mean, it's not precedent in the way that we consider
22 precedent.
23 MR. MARKS: It's a source of -- it's --
24 THE COURT: It's a source of information. It's like
25 a district court decision, basically.
[Page 51]
1 MR. MARKS: It's -- but if -- when you have
2 tribunals -- even in this case, of course, you know, we didn't
3 participate, but there were, you know, extended decision by
4 the tribunal, the tribunal looks to other decisions by
5 tribunals, it looks to commentaries. It looks to --
6 THE COURT: No, I know.
7 MR. MARKS: It doesn't decide it by flipping a coin.
8 It looks to what it would consider to be reliable sources that
9 could guide it in making a decision.
10 THE COURT: No, I hear you. I understand. All
11 right. Let me ask you this, I am going to obviously -- well,
12 first of all, for these pre-motion conferences it's never
13 to -- I'm always going to let someone file if they want the
14 file. I do these because, as you saw earlier, sometimes we
15 can get rid of things without filings. It's obviously not
16 going to happen here. So you guys decide the motion to stay.
17 If -- I take it since you've already -- since basically your
18 motion to dismiss is done, it wouldn't be too much work for
19 you all to refile the motion; right?
20 MR. MARKS: I want to take into consideration what
21 Your Honor said today.
22 THE COURT: Yeah, no, I'll let you make changes, but
23 we're not talking you're starting from scratch on a motion to
24 dismiss.
25 MR. MARKS: No, I wouldn't -- no I wouldn't, we know
[Page 52]
1 that there's now changes -- we deleted the service argument as
2 Your Honor knows, we filed the notice on that, because the
3 U.S. Department of State served the Russian Federation. So we
4 have a couple more pages. So --
5 THE COURT: Okay. All right.
6 MR. MARKS: But the answer is we would be able to
7 file it without a tremendous amount of additional work.
8 THE COURT: Okay. So let me ask you a question.
9 Come on up. Obviously, I'm going to let them file their
10 motion to stay. Now, we can proceed one of two ways and I'm
11 going to let you -- dealer's choice, choose your own
12 adventure.
13 MR. HRANITZKY: I think I know what Your Honor's
14 going to ask. Our preference would be that the briefing
15 happen concurrent.
16 THE COURT: Okay. All right. So that's what I'm
17 going to order. You guys come up with a briefing for a motion
18 to stay. And then you come up with a separate briefing for
19 the motion to dismiss on -- for the 12(b)(1) motion. If I
20 stay I won't decide the 12(b)(1). If I don't stay, I will
21 decide the 12(b)(1). Okay. And then we might just have a
22 joint hearing on the two. I know that's not your ideal, but
23 you're doing better than you were coming in.
24 MR. MARKS: Thank you.
25 THE COURT: All right. So you guys work out a
[Page 53]
1 schedule. I'll leave you all to work out whatever you want to
2 work out. Just don't make me decide it. And then after you
3 figure out what your final date is for the replies, email
4 Chashawn to set up an argument. I would give it -- I would
5 make it at least a four-hour argument. And for two to three
6 weeks after the briefing is finalized, okay.
7 MR. HRANITZKY: Your Honor, I have one
8 administrative question.
9 THE COURT: Sure. Come on up.
10 MR. HRANITZKY: Because most of my colleagues on
11 this team are located in Paris and London.
12 (Discussion off the record.)
13 MR. HRANITZKY: That's actually the point I was
14 trying to address. Nearly all of my colleagues other than
15 Ms. O'Gorman and Ms. Zhang are located in London and Paris.
16 THE COURT: Lucky them. Let's have the hearing in
17 London. Quinn can pay. You guys are rich.
18 (Laughter.)
19 MR. HRANITZKY: But they can't dial a toll free
20 number in the United States from abroad.
21 THE COURT: Oh, we can use Zoom, no?
22 MR. HRANITZKY: So we had asked if it was possible,
23 in addition to the toll free number for these dial-ins if
24 there would be a -- if there could be circulated a nontoll
25 free --
[Page 54]
1 THE COURT: Well, we can do it by zoom, no? For the
2 people abroad, not for you all.
3 THE CLERK: For parties, yes.
4 THE COURT: They're members of your team; right?
5 MR. HRANITZKY: Yes.
6 THE COURT: Okay.
7 MR. HRANITZKY: And I believe Mr. Marks may have the
8 same issue, because he has a client --
9 THE COURT: I apologize. I didn't realize that was
10 an issue for today or we would have fixed it for today.
11 MR. HRANITZKY: We figured it out. But it would
12 be -- ideally if there was a way they could participate
13 directly. My London and Paris colleagues have had to
14 participate by relay. One of my Salt Lake associates had to
15 conference them from the toll free number.
16 THE COURT: Okay. For the people in Paris, if you
17 will for me tonight somebody, please have a banana Nutella
18 crepe for me, that would be awesome. Think of me while you do
19 that. For the people in London, don't eat London food for me
20 tonight. Just work with Chashawn. We'll do whatever you all
21 need to do.
22 MR. HRANITZKY: Thank you.
23 THE COURT: Did you have anything else?
24 MR. MARKS: No, just thank you.
25 THE COURT: All right. Thank you.
[Page 55]
(The proceedings were concluded at 11:57 a.m.)
I, Christine Asif, RPR, FCRR, do hereby certify that
the foregoing is a correct transcript from the stenographic
record of proceedings in the above-entitled matter.
/s/
Christine T. Asif
Official Court Reporter
[Page 56]
< Dates >.
2019 decision,
35:6.
December
13:10.
January 1st
43:15.
January 1st,
1992 8:22,
43:23.
January 1st,
1992,
44:3.
January 1st,
1992. 8:19,
18:24,
44:10.
June, 33:6.
March 10:18,
13:13.
May 32:10.
May 7, 2024
1:12.
.
.
< 0 >.
00 21:8.
.
< 1 >.
1 39:5.
10 1:14.
10010 1:29.
11 55:1.
1102200
39:12.
12 8:16, 9:8.
12(b)(1 25:5,
25:13, 29:13,
29:20, 52:19,
52:20,
52:21.
12(b)(6 24:21,
25:5, 25:13,
29:13,
35:20.
139 35:3.
1605(a)(6
28:16,
34:7.
1717 1:36.
1835 1:35.
19103 1:37.
1992 43:16,
43:17, 43:19,
43:20, 43:25,
44:20.
1998 21:5.
.
< 2 >.
2 21:8,
45:19.
20 33:22.
20001 1:44.
2013 13:10.
2014 21:6.
2019 8:10,
10:12, 11:8,
12:12,
23:10.
202 1:45.
2020 13:24,
38:1, 38:8.
2021 7:24,
8:13, 10:12,
13:25,
38:9.
2022 7:22,
10:1, 10:15,
23:14,
39:11.
2024 10:18,
13:13.
22nd 1:28.
23 13:11.
23-0764-ACR
1:6.
23-764 2:5.
.
< 3 >.
333 1:43.
354-3247
1:45.
.
< 5 >.
51 1:27.
524 35:4.
528 35:4.
55 1:14.
57 55:1.
.
< 8 >.
80/20 27:7.
/s/
55:7.
.
< A >.
a.m. 1:14,
55:1.
able 6:1, 38:6,
43:21, 44:2,
52:6.
above 45:21.
above-entitled
55:5.
abroad 53:20,
54:2.
Absolutely
38:5, 47:4.
abuse 6:11.
Act 5:19, 8:3,
16:4, 17:14,
24:5, 24:10,
24:20, 24:24,
32:2, 42:17,
45:20, 45:21,
48:18.
action 2:4,
4:12.
actions
13:12.
actual 6:17.
actually 18:4,
32:4, 32:17,
50:17,
53:13.
add 23:19.
addition
53:23.
additional
28:25, 44:20,
52:7.
address 9:19,
10:17, 27:17,
47:19,
53:14.
addressed
10:14.
administrative
33:17,
53:8.
adopt 12:11.
advantage
40:1.
adventure
52:12.
agency 33:17.
agree 3:20,
6:10, 15:24,
19:7, 33:8,
34:3, 42:8.
agreed 18:1,
46:2.
agreement
22:20, 30:4,
30:9, 30:21,
30:23, 31:18,
31:22, 31:23,
32:3, 34:10,
34:23,
46:4.
ahead 11:16,
17:12, 18:21,
22:11, 33:6,
34:1, 34:19,
36:15.
alerting
47:17.
allegation
12:19.
allow 32:5.
allowed 16:20,
38:10,
40:3.
allowing
39:25.
almost 4:23,
7:7, 8:2.
already 9:21,
11:7, 16:10,
22:10, 25:1,
25:8, 28:15,
29:9, 37:16,
51:17.
[Page 57]
amazing 39:4.
American
50:20.
amicus 27:2.
amount 52:7.
Ana 1:18,
30:18.
annul 4:23,
5:6, 5:9,
6:7, 16:10,
16:15.
annulled 6:13,
17:1.
annuls 7:10,
17:5,
27:19.
answer 9:14,
52:6.
answered
20:19.
anybody 28:5.
anyway 38:18,
38:25.
apologize
54:9.
apparently
14:12.
Appeal 19:15,
36:23.
appealed
19:21.
appear 34:2.
APPEARANCES
1:21.
appellate
14:25, 15:11,
30:16,
37:2.
application
11:7, 12:18,
13:9,
29:21.
applications
48:7.
applies 21:2,
43:15.
apply 21:13,
31:24, 34:9,
43:4, 46:1.
apposite
36:6.
appreciate
47:18.
appropriate
29:6.
April 38:9.
arbitrability
29:2, 33:9,
34:4, 35:10,
40:21,
46:18.
arbitrable
28:4, 28:15,
29:5, 29:10,
34:7, 35:8,
36:18, 40:21,
45:8,
50:20.
arbitrate 30:4,
30:10, 30:22,
30:23, 31:19,
31:23, 32:3,
34:23, 42:20,
44:12.
Arbitration
3:9, 4:9,
4:23, 6:19,
9:2, 9:12,
11:18, 14:11,
14:14, 24:5,
27:15, 27:17,
30:25, 40:16,
40:18, 44:6,
45:19, 46:7,
48:7,
48:24.
arbitrations
14:10.
arbitrators
34:10.
Archer 35:3.
area 14:12,
26:18,
50:19.
argue 7:3,
24:5, 44:5,
47:25.
argued 25:12,
25:13,
31:6.
arguing
40:14.
argument 21:21,
23:19, 24:12,
24:15, 24:17,
27:3, 30:14,
40:18, 42:24,
42:25, 44:14,
44:17, 45:25,
46:5, 46:6,
47:15, 47:20,
47:21, 48:12,
52:1, 53:4,
53:5.
arguments
21:18, 21:19,
21:24, 23:18,
24:24, 24:25,
25:2, 40:9.
around 27:13,
33:6, 33:7.
Article 8:16,
9:8.
aside 8:4,
8:12, 8:14,
9:3, 9:7,
10:11, 10:20,
13:12,
18:8.
asides 48:9.
Asif 1:41,
55:3, 55:8.
aspects 31:2.
assessment
30:12.
associate
31:6.
associates
54:14.
assume 43:18.
auth- 5:8.
authority 5:9,
5:11.
Avenue 1:27,
1:43.
avoid 29:7,
29:12.
award 4:25,
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5:13, 6:2,
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7:1, 7:10,
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9:4, 16:10,
16:14, 16:15,
18:8, 27:19,
36:18, 36:23,
37:7, 37:11,
44:2, 45:8,
45:10,
48:20.
aware 4:17.
Awesome 38:23,
54:18.
.
< B >.
back 6:7, 8:19,
9:23, 9:25,
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45:11.
bad 44:8.
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banc 19:12,
19:14, 19:17,
19:24, 19:25,
20:4, 20:12,
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Bank 1:6, 2:5,
2:13, 2:15.
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32:14,
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Basically 6:24,
11:10, 11:13,
20:19, 50:25,
51:17.
basis 7:17,
7:19, 8:14.
Bates 8:1.
began 43:19.
begin 11:5.
beginning
12:21.
behalf 2:11.
belatedly
[Page 58]
26:7.
believe 7:25,
13:10, 19:4,
22:13, 25:3,
29:1, 29:3,
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45:14, 47:13,
49:5, 54:7.
Ben 31:7.
bet 27:4.
better 15:14,
15:17, 15:21,
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betting 27:4,
27:6, 33:5.
big 27:12.
bigger 24:10.
Bilateral 8:16,
9:5, 14:11,
21:13,
48:15.
binder 37:21.
binding
19:19.
binds 30:22.
BIT 12:21,
17:20, 17:23,
21:2, 21:5,
22:20, 23:10,
23:24, 24:2,
31:24, 34:9,
38:11, 43:2,
43:3, 43:5,
43:7, 43:14,
43:22, 46:1,
49:1, 49:5,
49:8, 49:21,
50:5,
50:12.
Bits 50:12.
black 23:25.
Blasket 26:14,
26:15, 26:17,
26:24, 26:25,
30:25, 31:2,
31:14, 31:17,
31:18,
41:16.
body 36:5.
bold 46:17.
bound 4:12,
4:15, 5:1,
17:6,
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breathe
38:16.
brief 25:5,
29:6, 29:13,
32:14, 35:19,
35:20, 39:19,
42:15, 44:16,
45:3, 47:14,
47:20.
briefed 9:21,
9:22, 23:13,
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briefing 29:8,
29:12, 40:6,
40:7, 41:10,
41:11, 41:19,
42:1, 42:7,
42:14, 52:14,
52:17, 52:18,
53:6.
briefs 23:11.
brought 18:6,
18:7, 18:8,
18:9, 18:11,
36:22.
Bruce 1:31,
2:21.
built 50:15.
buried 13:4.
butter 24:8.
buzz 38:11.
.
< C >.
C. 1:13, 1:18,
1:33, 1:44,
7:9, 19:16,
34:3, 49:14,
49:20.
cake 22:16.
call 2:2,
14:23, 21:12,
45:8.
called 11:7,
12:13, 12:18,
36:25, 37:1,
47:2, 50:6.
calling
23:24.
Cassation 9:6,
10:13, 15:4,
15:6, 18:25,
19:6, 19:9,
19:11, 19:22,
19:23, 20:2,
20:4, 20:7,
20:12,
36:25.
cautions
24:23.
Cc/devas 7:8,
7:22, 16:1,
30:3.
certain 50:4.
certainly
16:23.
certify 55:3.
challenge
40:20.
chance 42:5.
changed 21:6.
changes 51:22,
52:1.
Chashawn 53:4,
54:20.
cheat 10:10,
15:6.
Chevron 33:3,
33:5, 33:8,
33:12, 33:14,
33:16, 33:19,
33:20, 34:12,
34:24,
48:13.
chicken/egg
46:22,
46:23.
chocolate
24:8.
choice 25:17,
48:16, 49:8,
49:22,
52:11.
choose 26:13,
52:11.
chose 12:8,
12:10.
chosen 25:14.
Christine 1:41,
55:3, 55:8.
Chutkan 31:8,
31:10.
Circuit 7:9,
19:16, 28:2,
33:2, 33:22,
34:3, 34:8,
49:20.
circulated
53:24.
cite 7:7, 18:1,
35:2, 37:18,
37:19,
39:11.
City 37:23,
37:25,
38:24.
CIVIL 1:5,
2:4.
claim 12:23,
44:12.
claims 9:4,
43:5.
class 6:19,
47:11.
clear 29:5,
34:8, 34:22,
40:5,
46:16.
clearly 12:8.
CLERK 2:4,
54:3.
client 17:16,
27:5, 31:9,
54:8.
clients 18:8.
close 39:12.
coin 51:7.
colleague
35:14.
colleagues
2:19, 53:10,
53:14,
54:13.
collect
16:20.
colloquy
[Page 59]
32:25.
Columbia 1:2,
16:3.
comes 6:7,
28:22.
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comity 18:2,
18:6,
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commentaries
51:5.
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Company 1:5,
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Competence-comp
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complete 11:3,
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completely
46:9.
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13:24,
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complications
16:13.
complied
26:7.
compromise
3:18, 4:3,
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41:14.
computer-aided
1:49.
concealing
12:20.
concede
35:18.
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39:25.
conclude
10:2.
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52:15.
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Conference
1:17, 26:8,
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conferences
44:15,
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confess 29:5.
confused 4:5.
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27:22.
Congratulations
17:21.
consider 23:3,
50:21,
51:8.
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51:20.
considerations
39:17.
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21:16,
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consistent
47:11.
consolidated
31:5,
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26:18.
Constitution
1:43.
Contemporanea
21:15,
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continued
44:19.
continuing
43:18,
43:20.
continuity
42:24.
contracts
43:2.
control 7:14.
Convention
5:25, 26:17,
45:12, 45:16,
49:6.
converse
40:2.
correct 32:22,
55:4.
counsel 2:9,
41:2, 42:3,
42:6.
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27:22.
countries
22:4.
country 22:21,
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couple 42:23,
52:4.
course 5:23,
11:4, 13:23,
14:2, 14:10,
17:14, 18:2,
21:3, 21:17,
26:11, 45:20,
49:17,
51:2.
Courts 4:22,
7:6, 8:1,
14:8, 16:2,
16:3, 17:23,
18:3, 30:16,
31:21, 32:1,
35:9, 36:8,
37:15, 39:15,
39:25, 40:17,
43:9, 48:6.
cover 38:12,
38:14.
covered
22:25.
COVID 13:25,
14:2, 38:6.
crazy 33:23.
crepe 54:18.
Crimea 21:2,
21:4, 21:14,
21:16, 21:22,
21:23, 21:24,
22:6, 22:7,
22:12, 22:17,
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[Page 60]
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[Page 61]
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[Page 62]
.
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[Page 63]
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[Page 64]
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[Page 65]
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23:24,
24:4.
person 33:5.
perspective
34:21,
34:22.
persuasive
23:18.
petition 10:11,
18:10, 23:23,
24:3.
Petitioner 1:8,
2:11, 40:1.
petitions
14:10.
phenomenal
31:7.
Philadelphia
1:37.
PIAD 25:9.
piece 10:7.
piecemeal
20:18.
pincite 35:4.
place 37:6,
37:25.
Plaintiff 1:23,
2:8, 39:25.
play 17:10.
pleadings
24:13,
24:16.
please 2:2,
2:7, 54:17.
Plus 14:3,
20:22.
point 6:22,
21:11, 23:5,
28:25, 30:8,
32:25, 33:3,
36:3, 37:9,
37:11, 43:19,
53:13.
points 27:10,
27:18,
41:25.
policy 16:2.
popular
27:15.
posed 30:10.
position 3:16,
12:25, 22:12,
22:13, 26:19,
27:23.
possible 30:16,
53:22.
pot 23:24.
power 16:9.
Powerpoint
47:10.
practice 45:7,
50:19.
practiced
26:18.
practices
14:12.
pre-1992 44:17,
44:18.
Pre-motion
1:17, 26:8,
51:12.
precedence
50:19.
precedent 6:14,
6:16, 6:17,
50:14, 50:15,
50:21,
50:22.
precedential
36:14.
prefer 4:2,
29:14,
35:23.
preference
32:23,
52:14.
prejudice
47:7.
prejudices
40:4.
prepare 48:2.
[Page 66]
President
22:5.
prevent 6:6.
principles
43:1, 50:2.
prior 27:7.
private 3:4.
probably 27:15,
43:9.
problem 46:22,
46:23.
procedural
10:2, 10:3.
procedure 15:1,
18:22, 19:5,
20:6, 20:7,
20:9.
proceed 3:17,
4:2, 40:3,
52:10.
proceeding
8:10, 16:10,
23:9,
36:22.
Proceedings
1:48, 8:2,
8:4, 8:8,
14:16, 14:17,
14:18, 23:15,
32:6, 37:9,
41:5, 55:1,
55:5.
process 11:3.
produced
1:48.
Professor
49:4.
promptly
11:8.
properly 29:4,
31:24, 44:12,
48:13.
proposed 4:2,
32:19.
protect 17:15,
25:6.
protocol 6:1.
provide 48:2.
provided
24:4.
provides
48:21.
provision 49:9,
50:4.
purpose 8:22,
17:14, 25:19,
30:5.
purposes 5:13,
5:14, 6:8,
28:8, 30:11,
34:22.
put 34:21.
Putin 22:5.
.
< Q >.
question 4:22,
6:3, 9:13,
18:20, 20:17,
20:19, 20:20,
30:10, 33:9,
52:8, 53:8.
questions 3:14,
50:18.
quickly
41:22.
Quinn 1:26,
2:11,
53:17.
quite 3:8,
21:9,
21:10.
.
< R >.
raise 18:23,
24:9,
35:12.
raised 9:15.
Rare 4:14,
4:16.
rather 35:16.
rationale 19:6,
32:7.
re 11:5.
reach 28:1.
read 34:21,
40:10.
reading
21:12.
realize 54:9.
really 3:25,
6:9, 22:19,
28:13, 29:7,
34:20, 35:15,
41:19,
43:8.
reason 11:5,
13:14, 16:12,
17:13, 29:19,
41:1, 41:3.
reasonably
30:2.
reasons 13:22,
16:2, 21:14,
42:21,
44:15.
recall 23:10.
received
18:3.
recent 39:11.
recently 30:3,
50:3.
recognition
14:9, 18:10,
36:18.
recognize 6:2,
17:23, 21:3,
21:23, 22:23,
22:24,
44:2.
recognized
14:9,
16:25.
recognizes
16:14.
reconsider
45:11.
reconsideration
11:11, 11:14,
20:8.
record 2:8,
15:5, 55:5.
record.
53:12.
recorded
1:48.
recover
43:21.
refer 2:12.
refile 51:19.
refuse 22:22.
related
40:25.
relay 54:14.
relevant 3:8,
3:10.
reliable
51:8.
rely 15:19,
33:4, 43:1.
remained
37:8.
remanded 9:9,
37:3,
45:11.
remember 4:17,
13:21, 15:6,
31:15,
31:16.
Remind 2:24.
rendered 8:6.
rendering
5:10.
renewed
13:13.
replies 53:3.
report 22:15,
49:4.
Reported
1:41.
Reporter 1:42,
55:9.
represent
2:22.
represented
3:4.
request 3:12,
3:13.
requests
39:16.
resolution
41:15.
resolve 13:7.
resolved
37:16.
resort 38:7,
39:6.
resorts
38:10.
[Page 67]
respect 25:8.
respond 4:21.
Respondent
1:13, 8:4.
response 46:6,
47:16.
result 16:7.
reversed 10:15,
37:2.
review 5:4.
revision 11:7,
12:18,
13:9.
revisit 35:9.
revisited
28:8.
Reyes 1:18.
rich 53:17.
rid 51:15.
roughly 23:9.
round 9:22.
rounds 29:8,
29:11,
35:17.
RPR 1:41,
55:3.
rule 8:7, 9:17,
13:15, 13:18,
26:7.
ruled 8:12,
8:25, 9:3,
18:14.
rules 6:17,
28:5, 34:5.
ruling 15:3,
18:25.
rulings
36:14.
run 14:10.
Russia 8:19,
21:7, 22:1,
22:2, 22:12,
22:13, 22:23,
22:24, 36:6,
36:18, 37:5,
37:11, 39:15,
39:24,
40:3.
Russian 1:11,
2:6, 2:22,
9:1, 9:15,
10:11, 11:6,
11:17, 12:10,
12:12, 12:13,
16:11, 17:16,
18:5, 18:23,
21:4, 21:5,
21:16, 21:18,
21:22, 21:23,
22:2, 22:7,
23:4, 23:12,
42:19, 43:3,
43:6, 52:3.
.
< S >.
S-o-k-o-l-o-v
3:1.
S. 4:17, 5:13,
5:14, 16:20,
27:2, 32:1,
35:9, 47:8,
47:12, 47:13,
48:8, 48:10,
48:14, 48:20,
52:3.
sadly 14:3.
Sales 35:3.
Salt 37:25,
54:14.
Samuel 1:31.
satisfy
27:25.
Savings 1:6,
2:5.
saw 51:14.
saying 6:4,
20:15, 25:5,
47:5.
says 6:7, 7:10,
12:22, 34:12,
35:7, 43:15,
46:12, 46:15,
49:11,
49:23.
schedule 40:7,
41:10, 41:11,
42:7, 53:1.
Schein 34:25,
35:2, 35:3,
40:11,
46:14.
School 6:19.
scratch
51:23.
se 28:15.
season 38:8,
38:9,
38:18.
seat 4:9, 4:22,
27:14, 36:22,
48:24.
seats 27:15,
48:6.
Second 13:20,
16:13, 34:24,
43:11, 43:13,
50:9.
secrets 39:7.
Section 28:16,
34:7,
45:19.
seem 13:19,
32:15,
48:4.
seems 13:2,
33:1, 41:6,
45:4.
seen 4:24,
49:22.
seized 10:16,
18:3, 28:6,
34:14.
sense 13:7,
25:23.
sent 11:24,
12:1.
separate 36:5,
52:18.
sequence
27:24.
served 52:3.
service 52:1.
set 8:4, 8:12,
9:3, 9:7,
10:11, 10:20,
13:12, 18:8,
48:9, 53:4.
set-aside
14:16, 32:6,
36:22, 37:9,
41:4, 47:7,
48:7,
50:16.
setting 8:14.
settled 28:3.
seven 42:21.
several 13:7.
shape 30:15.
sheet 10:10,
15:7.
shocked
30:19.
Shocking
40:13.
short 3:21,
3:23, 9:16.
shorter
14:18.
shorthand
1:48.
shortly 42:6.
shot 18:3.
shouldn't
16:25.
side 14:16,
47:7.
sign 17:23.
signed 17:20,
21:5, 21:15,
43:2, 43:7.
significant
21:1.
signing
26:17.
Similar 9:16,
36:21, 45:15,
45:19, 50:4,
50:12.
six 8:1,
25:1.
six-hour
3:23.
ski 38:6, 38:8,
38:19,
39:5.
skied 38:21,
39:1.
skier 38:2,
38:4.
[Page 68]
skiing 38:9,
38:10.
smart 6:10.
smiling 19:4.
snow 38:18.
Sokolov 1:34,
2:25.
somebody
54:17.
someone 15:23,
51:13.
sometimes
14:17,
51:14.
soon 26:5.
sophisticated
27:16.
sorry 5:12,
15:16, 19:2,
20:17, 23:2,
29:1, 29:11,
29:12, 29:23,
32:11, 34:1,
38:3,
42:10.
sort 27:23,
42:11,
42:13.
sought 41:4.
source 50:23,
50:24.
sources 50:10,
50:11,
51:8.
Sovereign 5:18,
8:3, 8:4,
17:17, 17:24,
21:4, 22:13,
24:6, 25:10,
32:2, 34:13,
42:17, 45:21,
46:2.
sovereigns
17:15,
24:23.
Soviet 8:21,
8:23.
Spain 3:3, 3:4,
3:10, 3:22,
7:21, 7:23,
7:24, 7:25,
16:16, 30:3,
30:8, 30:10,
32:7, 32:13,
32:16, 32:19,
36:5, 39:14,
39:15, 39:17,
49:25.
speech 42:12,
42:14,
42:16.
spend 38:1.
spending
36:4.
squarely
35:10.
Stabil 41:3.
stage 5:25.
standard
6:11.
star 31:6.
start 14:22,
43:17.
started
35:25.
starting 2:8,
6:12,
51:23.
State 1:5, 2:5,
27:2, 52:3.
stated 30:2,
30:3.
States 1:1,
1:19, 4:24,
28:2, 47:4,
53:20.
statute 24:15,
24:17,
28:18.
stay 3:9, 3:12,
3:13, 3:17,
3:21, 3:25,
6:4, 6:22,
7:18, 7:19,
26:4, 26:11,
29:21, 32:13,
32:23, 36:12,
36:14, 37:6,
37:8, 37:13,
40:7, 41:2,
41:4, 41:15,
42:9, 42:13,
51:16, 52:10,
52:18,
52:20.
stayed 8:2,
36:9, 36:11,
36:19, 37:14,
39:16, 39:17,
39:24, 40:2,
40:4.
staying 11:1,
26:14, 28:22,
29:24,
41:24.
stays 39:16.
stenographic
55:4.
Stock 1:5,
2:5.
straight
28:19.
strategy
27:14.
Street 1:35.
struck 26:19.
subject 27:25,
28:9, 28:14,
28:17, 29:9,
29:17.
subjected
17:18.
subjects
17:24.
submit 35:12,
36:13, 39:12,
42:7, 42:8.
submitted
22:14.
suggest 45:3.
suggesting
35:15,
35:22.
Suite 1:36.
Sullivan 1:26,
1:33, 2:23,
7:25.
sum 28:12.
Sun 39:1.
support
22:14.
supposed
16:12.
Supreme 14:22,
19:15, 19:16,
34:24, 35:3,
37:1, 37:2,
37:10, 40:20,
46:11, 46:13,
46:15,
46:22.
surprised
30:19.
system 27:16.
.
< T >.
T. 1:41,
55:8.
talked 30:13,
30:17.
taught 6:20,
47:9.
teach 6:19.
team 53:11,
54:4.
Teams 14:4.
teed 36:10.
television
22:6.
temporal
43:13.
term 10:15.
terms 27:14.
territory 21:4,
21:16, 21:18,
21:25, 22:2,
22:3, 22:13,
22:21, 23:4,
43:3, 43:6,
45:25, 46:1,
46:3.
themselves
2:8.
they've 9:20.
thinking 14:6,
23:20,
44:16.
thinks 22:2,
48:1.
[Page 69]
third 45:25.
Thomas 1:33,
2:23.
though 17:10.
three 13:23,
15:12, 17:25,
20:14, 24:18,
27:1, 31:4,
53:5.
three-year
23:24,
24:4.
throughout
37:8.
Timbuktu
27:18.
timely 12:12,
13:13,
23:12.
Today 14:2,
22:6, 42:1,
43:11, 51:21,
54:10.
together 13:23,
40:6, 42:2.
toll 53:19,
53:23,
54:15.
tonight 54:17,
54:20.
took 10:19,
13:6, 13:22,
14:1, 15:5,
15:9, 15:23,
39:18.
touch 45:1.
Transcript
1:17, 1:48,
39:8, 55:4.
transcription
1:49.
Treaties
49:7.
Treaty 8:17,
8:18, 8:20,
9:5, 14:11,
21:13, 43:1,
48:15,
48:21.
tremendous
52:7.
tribunals
50:15, 50:20,
51:2, 51:5.
true 7:4, 7:16,
17:22.
trying 19:4,
25:10, 29:12,
53:14.
turns 16:14,
20:20.
two 9:14,
17:18, 17:24,
21:15, 29:7,
29:11, 34:20,
35:17, 40:25,
52:10, 52:22,
53:5.
type 15:10,
21:19,
49:20.
typically
32:5.
.
< U >.
Ukraine 1:6,
2:5, 8:20,
21:3, 21:7,
21:17, 21:23,
22:22, 22:24,
23:1, 23:2,
23:3, 41:1.
Ukrane 22:4.
ultimately 6:2,
14:21,
29:3.
unanimously
8:2.
UNCITRAL 28:5,
34:5.
underlined
46:17.
understand 3:9,
4:12, 12:7,
27:22, 27:23,
29:16, 33:16,
37:16, 46:22,
50:13, 50:19,
51:10.
understanding
28:1, 33:3.
understands
14:13,
14:15.
Understood
35:22.
undo 16:17,
16:18, 16:19,
17:1, 17:6.
undone 16:22.
unfair 40:1.
unfairly
40:4.
Unfortunately
31:8, 31:9.
Union 8:23,
48:17.
unique 45:22.
United 1:1,
1:19, 4:24,
28:2, 47:3,
53:20.
unlikely
27:19.
unmistakable
46:16.
unnecessary
17:15.
unprecedented
4:16.
until 6:23,
11:1, 14:10,
26:14, 28:22,
32:13,
37:24.
upheld 4:18.
upholds 7:1.
Urquhart
1:26.
utterly
35:10.
.
< V >.
v. 24:1, 33:20,
34:24,
35:3.
vacated 36:23,
37:7, 37:10,
45:10.
vacating
37:11.
Valley 38:21,
38:22,
39:1.
value 43:22.
VCLT 49:6.
version 42:12,
42:15.
versus 2:6.
vested 28:4,
33:9.
Vienna 49:6.
view 25:22,
44:20.
views 16:6,
36:14.
violate 25:7.
Virginia
12:16.
visiting 6:5.
vs 1:9.
.
< W >.
wait 15:19,
18:1.
waiting 10:20,
10:22.
waiver 26:18.
wanted 10:6,
20:17,
42:10.
wants 19:18.
War 27:11,
27:14.
Washington
1:13, 1:44.
wasting 6:24.
ways 9:14,
40:14,
52:10.
wear 38:12,
38:13.
weeks 53:6.
Welcome 2:20.
West 12:16.
Westlaw 39:11,
49:19.
[Page 70]
Whatever 6:4,
6:5, 6:6,
6:23, 7:13,
10:8, 10:23,
14:23, 14:25,
15:15, 15:18,
43:22, 44:12,
53:1,
54:20.
whereas 28:3.
whether 5:6,
5:17, 6:2,
18:4, 21:2,
26:16, 26:17,
28:3, 28:8,
29:4, 29:8,
30:21, 30:22,
31:18, 32:2,
33:10, 34:13,
34:14, 34:23,
35:15, 40:17,
42:18, 42:19,
46:7.
whichever
46:3.
White 2:2,
35:3.
whole 16:15,
16:17, 29:22,
29:23, 30:5,
32:25,
36:5.
wholly 40:18,
40:21.
wildly 40:14.
Will 2:7, 6:8,
13:18, 27:5,
29:5, 35:13,
41:21, 42:9,
45:6, 47:1,
47:25, 48:3,
52:20,
54:17.
willing 3:20.
win 26:22,
35:13.
wins 46:23.
within 13:15,
13:18, 15:3,
28:16.
without 3:17,
12:4, 47:7,
51:15,
52:7.
wore 38:10.
work 51:18,
52:7, 52:25,
53:1, 53:2,
54:20.
World 16:21,
27:11, 27:14,
27:16,
45:8.
worried 4:19.
worry 40:15.
.
< Y >.
Yale 6:19.
year 9:5,
13:15, 13:19,
15:3, 15:8,
15:9, 38:7,
39:6.
years 6:24,
10:19, 10:21,
13:7, 18:10,
23:9, 24:18,
37:14.
yesterday
4:5.
York 1:29,
5:25, 26:17,
37:24, 45:12,
45:16.
Yvonne 1:25,
2:19.
.
.
< Z >.
Zhang 1:25,
2:19,
53:15.
Zoom 14:3,
53:21,
54:1.