UNITED STATES COURT OF APPEALS 1 FOR THE DISTRICT OF COLUMBIA CIRCUIT 2 ------X 3 : BCB HOLDINGS LIMITED, ET AL., : 4 : 5 Appellee, : : 6 v. : No. 15-7063, et al. : 7 GOVERNMENT OF BELIZE, : : 8 Appellant. : : 9 ------X Tuesday, April 19, 2016 Washington, D.C. 10
11 The above-entitled matter came on for oral argument 12 pursuant to notice.
13 BEFORE: 14 CIRCUIT JUDGES ROGERS, GRIFFITH, AND KAVANAUGH 15
16 APPEARANCES:
17 ON BEHALF OF THE APPELLANT:
18 JUAN C. BASOMBRIO, ESQ.
19
20 ON BEHALF OF THE APPELLEE:
21 LOUIS B. KIMMELMAN, ESQ.
22
23
24
25 Deposition Services, Inc. 12321 Middlebrook Road, Suite 210 Germantown, MD 20874 Tel: (301) 881-3344 Fax: (301) 881-3338 [email protected] www.DepositionServices.com
C O N T E N T S
ORAL ARGUMENT OF: PAGE
Juan C. Basombrio, Esq. On Behalf of the Appellant 3; 36
Louis B. Kimmelman, Esq. On Behalf of the Appellees 12
PLU 3
1 P R O C E E D I N G S
2 THE CLERK: Case No. 15-7063, et al., BCB Holdings
3 Limited, et al. v. Government of Belize, Appellant. Mr.
4 Basombrio for the Appellant; Mr. Kimmelman for the
5 Appellees.
6 JUDGE ROGERS: Good morning.
7 ORAL ARGUMENT OF JUAN C. BASOMBRIO, ESQ.
8 ON BEHALF OF THE APPELLANT
9 MR. BASOMBRIO: Okay. This is another case that
10 represents the problem that Belize is facing, we have
11 companies that don't want to pay their taxes, and they're
12 coming to the United States by slapping our arbitration
13 clause on secret agreements with the Government, and they're
14 hoping that the Courts here ignore all that and just confirm
15 it under the New York Convention.
16 In this case you have the CCJ, the Caribbean Court
17 of Justice, the CCJ was established after the year 2000 by
18 50 nations of the Caribbean to act as their Supreme Court.
19 Before that appeals from the Supreme Court of Belize or the
20 Court of Appeals were taken to the Privy Council in the
21 U.K., the problem with that was that the Privy Council was
22 always biased in favor of the British, which were the former
23 colonists of all of these different countries in the
24 Caribbean, so this county said enough of that, we're going
25 to have our own Supreme Court that's going to make decisions
PLU 4
1 for us.
2 Now, here, the CCJ has looked at the agreement,
3 let's just talk a second about the agreement, what's the
4 agreement in this case? The former Prime Minister of Belize
5 signed a confidential agreement with these companies who are
6 controlled --
7 JUDGE GRIFFITH: Now, am I right that Belize
8 didn't make any of those argument, didn't make this argument
9 at the arbitration agreement, didn't show up at the
10 arbitration agreement, right?
11 MR. BASOMBRIO: Belize did --
12 JUDGE GRIFFITH: At the arbitration?
13 MR. BASOMBRIO: Correct, they did not go.
14 JUDGE GRIFFITH: Why?
15 MR. BASOMBRIO: Because the agreement wasn't
16 authorized.
17 JUDGE GRIFFITH: I mean, if we're going to get
18 into off the record stuff tell me that, why didn't they --
19 MR. BASOMBRIO: I'm sorry?
20 JUDGE GRIFFITH: If we're going to get into things
21 that aren't in the record why don't you tell me why didn't
22 they contest that argument there? Isn't that the place to
23 make the argument?
24 MR. BASOMBRIO: No, it's not the place, because
25 the New York Convention provides the public policy defense,
PLU 5
1 so it can be made in connection with the New York
2 Convention. Also, that was an unauthorized agreement signed
3 by --
4 JUDGE GRIFFITH: And wasn't there a later action
5 in the United Kingdom to enforce the award, and wouldn't
6 that have been a place to make the argument, as well, but
7 didn't make it there? This is, you've had two chances to
8 make this argument, now you're making it here on the third
9 time.
10 MR. BASOMBRIO: We didn't, Belize could not have
11 gone and participated in the arbitration because this was an
12 illegal agreement signed by the Prime Minister of Belize.
13 JUDGE GRIFFITH: Yes, you go to the arbitration
14 and say this is an illegal agreement, right?
15 MR. BASOMBRIO: Well, no, because then you have
16 given effect to the arbitration clause, and you have
17 recognized that sort of tactics. Here you have the Prime
18 Minister of Belize that signs an agreement with a secrecy
19 clause that he's going to guarantee a company owned by his
20 biggest campaign contributor, Lord Ashcroft, the Deputy
21 Chairman of the Conservative Party in the U.K., the
22 Government of Belize is guaranteeing him that he's going to
23 make 50 percent.
24 JUDGE GRIFFITH: According to the New York
25 Convention we're quite limited, aren't we, in terms of the
PLU 6
1 defenses we can consider.
2 MR. BASOMBRIO: Correct.
3 JUDGE GRIFFITH: There are seven defenses, right?
4 MR. BASOMBRIO: Correct.
5 JUDGE GRIFFITH: And the only one that you cited,
6 I think, is the public policy defense, right?
7 MR. BASOMBRIO: Correct.
8 JUDGE GRIFFITH: Okay.
9 MR. BASOMBRIO: Correct. And I think we fit
10 squarely within the public policy defense.
11 JUDGE KAVANAUGH: And why is that?
12 MR. BASOMBRIO: Let me explain why. There are
13 countervailing public policies of the United States that
14 would be violating by giving effect to this award, and
15 giving effect to this agreement, one is the significant
16 public policy against government corruption overseas. The
17 Supreme Court --
18 JUDGE KAVANAUGH: All right. But a lot of -- I
19 guess I'm worried about containing that principle because a
20 lot of contractual agreements are going to be alleged to be
21 corrupt, and how are we supposed to know in deciding whether
22 to enforce an arbitration award how are we supposed to get
23 into that?
24 MR. BASOMBRIO: Well, the CCJ has held that it is
25 corrupt, that it violates core constitutional separation of
PLU 7
1 powers principles, that the Prime Minister didn't have that
2 authority, that it violates core principles of democracy
3 throughout the Caribbean. The language of the CCJ decision
4 is extremely strong, so this is not just every case, you
5 have a regional court saying this is a corrupt agreement, we
6 have the Supreme Court of the United States in Pimentel
7 acknowledging the existence of a significant, quote,
8 unquote, policy of combating international corruption. And
9 so, this would be a case where you would hold that the
10 countervailing policy outweighs the policy in favor of
11 arbitration, otherwise, Judge Griffith, what you have is you
12 open the door for corrupt politicians to slap an arbitration
13 clause in the Caribbean, and you're sending it back to
14 England, back to the LCIA where the stack is going to be
15 against the Belizean interests. Other principles that are
16 countervailing policies are, again, separate --
17 JUDGE GRIFFITH: Why do you say it would be
18 against the Belizean interests to be before an arbitrator in
19 London?
20 MR. BASOMBRIO: Because it's being administered by
21 the London Court of International Arbitration, that the
22 forum is in London, that arbitration will be subject to
23 British law, et cetera. Let's think about it if that's
24 something that would have happened in the United States,
25 let's say the head of the EPA entered into, or the IRS
PLU 8
1 entered into some sort of agreement, would the United States
2 want that to be adjudicated in London, or in the United
3 States? We certainly would want to judge the actions of our
4 own government officials in the United States, and that's
5 why there is a public policy defense in the New York
6 Convention.
7 Let me turn to statute of limitations. The
8 Judges, the District Court's decision is internal
9 inconsistent because she says on the one hand only the
10 defenses on Article 5 are available --
11 JUDGE KAVANAUGH: On the corruption point, one
12 more thing --
13 MR. BASOMBRIO: Yes.
14 JUDGE KAVANAUGH: -- are there any other cases
15 that have recognized that as a basis for setting aside an
16 arbitration award?
17 MR. BASOMBRIO: No, there's always a case of first
18 impression. This is a case of first impression. Although I
19 will say that the State Department, if you look at their
20 website, and we cite it in our papers, they recognized that
21 there was corruption in the administration of Prime Minister
22 Moussa.
23 JUDGE KAVANAUGH: Okay.
24 MR. BASOMBRIO: So, turning to statute of
25 limitations, here the basis of the statute of limitations
PLU 9
1 tolling finding is the law, the criminal law related to
2 injunctions overseas, that cannot possibly be the basis
3 because there was no injunction entered against this
4 Defendant. So, that decision was in error.
5 Second, there was no chilling effect, because as
6 you know, Judge, they went to the U.K, and they enforced the
7 award in the U.K., they weren't chilled in the U.K., they
8 could enforce the award in the U.S.
9 And finally, tolling doesn't apply if you follow
10 the reasoning of the District Court because there's not a
11 word about tolling in the Convention. So, we've got to make
12 a decision, are we stuck with the language of the Convention
13 or not? If we are limited to the language of the
14 Convention, the Convention says you've got to file your
15 action in three years, it says nothing about tolling, so we
16 cannot import into the Convention tolling. We also cannot
17 import into the Convention tolling because Section 207, the
18 three years, is a jurisdictional statute. Why? Remember,
19 Belize has sovereign immunity under the FSIA, and what the
20 Judge below --
21 JUDGE GRIFFITH: How about equitable estoppel? I
22 mean, what Belize did here was bring about a statute that
23 whether it had actual chilling effect or not would
24 certainly, the purpose of it was to slow things down, to get
25 them not to bring suit, and now you're relying on the fact
PLU 10
1 that they did precisely what that statute intended to say
2 the statute of limitations was against them, that's not an
3 equitable tolling argument, it's an equitable estoppel
4 argument. Isn't Belize estopped from argument?
5 MR. BASOMBRIO: No, we have that same law in the
6 U.S., if this Court enters an injunction against my client
7 and we violate it, you can hold it civilly liable, you can
8 also hold it in criminal contempt. Belize just followed the
9 same, enacted the same sort of statute.
10 JUDGE GRIFFITH: And what was the point of that
11 statute? It was to get them not to bring suit, right?
12 MR. BASOMBRIO: Not to get --
13 JUDGE GRIFFITH: And they didn't, and so now, but
14 now you're claiming the benefit of that.
15 MR. BASOMBRIO: No, it was not directed at them,
16 it was a general statute that said that if you violate a
17 court injunction in Belize you can be subjected to civil or
18 criminal damages, but there was no court injunction against
19 them, and so, it didn't apply.
20 And that's the last issue I want to point out is
21 res judicata. Here we have the same parties in the CCJ --
22 JUDGE GRIFFITH: I'm sorry, maybe there was an
23 injunction directed at them, but they were subject to the
24 statute, right?
25 MR. BASOMBRIO: If we had sought an injunction
PLU 11
1 them, we didn't. And it didn't stop them. They didn't
2 respect that statute in the U.K., if it didn't stop them in
3 the U.K. it didn't stop them in the U.S.
4 JUDGE GRIFFITH: Okay.
5 MR. BASOMBRIO: With respect to res judicata you
6 have the same parties, the same agreement, the same award,
7 the same cause of action before the CCJ, New York
8 Convention, and you have the same public policy, and that's
9 the last point I want to make. They argue that in the CCJ
10 was the public policy of Belize, here we're talking about
11 the public policy of the U.S., that's incorrect. If you
12 read that decision the CCJ said that separation of powers
13 that a Prime Minister cannot override a legislative
14 enactment of parliament, that's a core constitutional
15 principle of all democracies around the world, so we're
16 talking about the same parallel constitutional principles
17 that we also hold here in this country.
18 JUDGE GRIFFITH: And we normally don't call those
19 corruption, though, right, when there's a --
20 MR. BASOMBRIO: I'm sorry?
21 JUDGE GRIFFITH: When there's a separation of
22 powers issue we don't use the phrase corruption involved,
23 right? I mean, we have these disputes over the extent of
24 the President's power, and the extent of Congress' power.
25 MR. BASOMBRIO: Yes, but the President --
PLU 12
1 JUDGE GRIFFITH: Had a big one yesterday in front
2 of the Supreme Court, I don't remember anyone using the
3 phrase corruption.
4 MR. BASOMBRIO: Yes, but President Obama is not
5 giving tax breaks to companies owned by his biggest
6 contributors. That's the difference.
7 JUDGE ROGERS: All right. Thank you. Counsel for
8 Appellee.
9 ORAL ARGUMENT OF LOUIS B. KIMMELMAN, ESQ.
10 ON BEHALF OF THE APPELLEES
11 MR. KIMMELMAN: Good morning, Your Honors, Louis
12 Kimmelman representing the Appellees here, BCB Holdings and
13 the Belize Bank.
14 If I may, I'd like to address the two issues as I
15 understand them that have been presented, the tolling issue,
16 I'd like to do that first, if I may, and then --
17 JUDGE ROGERS: Good.
18 MR. KIMMELMAN: -- go to the public policy
19 issue --
20 JUDGE ROGERS: Yes.
21 MR. KIMMELMAN: -- thereafter, if that's
22 convenient?
23 JUDGE ROGERS: You agree you went to England,
24 right?
25 MR. KIMMELMAN: I'm sorry, Your Honor?
PLU 13
1 JUDGE ROGERS: You agree you went to England,
2 right, after this statute was in effect?
3 MR. KIMMELMAN: Yes, Your Honor, and I can explain
4 exactly why, but --
5 JUDGE ROGERS: No, point is you went.
6 MR. KIMMELMAN: Yes, and -- well, we did go, and
7 in fact we needed to go in order to protect ourselves.
8 JUDGE ROGERS: I understand you wanted to take
9 whatever legal action you can, but why the statute of
10 limitations? What about that?
11 MR. KIMMELMAN: The proceeding in England is a
12 proceeding based on the New York Convention that is without
13 notice to the other party. On the day we filed our papers
14 the Court issued an order and a judgment. Now, under U.K.
15 law that order and judgment are not enforceable for six
16 months so that service can then be made on the opposing
17 party, and it has the opportunity come in and challenge the
18 order and the judgment. So, we took a step, as this Court
19 recognized in the Commissions case there are alternative
20 ways to in fact enforce an award, through the New York
21 Convention, or in fact through securing a judgment, and in
22 order to protect ourselves because our award had not been
23 enforced in Belize at that time by the Court of Appeal, and
24 because the time was running to get a judgment in the U.K.
25 we took that step, and the reason that we were not chilled
PLU 14
1 in doing that is because in one day without notice to the
2 Government we could obtain the order and judgments that we
3 were entitled to under the New York Convention, and they
4 never went into the U.K. Court to challenge the award or the
5 order or judgments.
6 JUDGE KAVANAUGH: Why is the chill different? Why
7 is the chill different in doing that than in doing this?
8 MR. KIMMELMAN: Your Honor, the difference is
9 this, and we had experience at that point in time, remember,
10 we went into London in February of 2013, as Your Honor will
11 recall we were before this Court in the fall of 2011, as I
12 recall, because BSDL , which the Government has alleged from
13 the beginning is related to Lord Ashcroft, was the assignee
14 of an LCIA award that it received in 2009. We commenced
15 proceedings in the District Court to enforce that award
16 under the New York Convention. And as the Court may recall,
17 six months into that case the Government enacted the
18 criminal statute, it was our position from the day we filed
19 that proceeding that the Belize Court did not have
20 jurisdiction over BSDL because service had not been made on
21 our client. However, once the criminal statute was enacted
22 at the end of March, 2010 we were in the position where the
23 Government had filed a motion to dismiss, and an opposition
24 to our confirmation papers, exactly the same papers that
25 were filed in this case were filed in the BSDL case, and we
PLU 15
1 needed to respond to their papers, to respond to their
2 papers we needed the cooperation and the input from Belize
3 Counsel. We sought that input from Counsel, and in our
4 papers we've submitted to this Court Belize Counsel has
5 testified, and it's uncontroverted that he refused to
6 provide support for us, and would not provide an affidavit
7 that we needed because he was in jeopardy of violating the
8 Belize criminal statute if he provided us with papers that
9 we would then file.
10 JUDGE KAVANAUGH: But how does that affect, I'm
11 still trying to figure out how that affects why you couldn't
12 file in this case.
13 MR. KIMMELMAN: Well, the reason we couldn't file
14 in this case was after Belize Counsel was unable to assist
15 us we made a motion in the District Court, Your Honor may
16 recall, we made a motion to suspend the scheduling order,
17 and for a status conference, because my firm at the time
18 concluded that because of the breadth of the criminal
19 statute, the fact that it applied to those who, quote, aid
20 and abet, and it included providing counsel and assistance,
21 directly or indirectly, and that it had what we call group
22 liability, that if a group were found liable every partner
23 would be found liable, as well, unless the partner could
24 prove that he or she was not aware of what had gone on, it's
25 the reverse --
PLU 16
1 JUDGE ROGERS: But going to England, how does that
2 avoid potential liability?
3 MR. KIMMELMAN: Well, the reason was that the
4 proceeding in this Court is a proceeding on notice that is
5 in the nature of a motion, a motion practice. We knew from
6 the BSDL case that --
7 JUDGE ROGERS: So, you went to England and gave no
8 notice to the Government of Belize, right?
9 MR. KIMMELMAN: As the U.K. statute provides.
10 JUDGE ROGERS: I understand. But I'm just saying
11 you didn't think the statute prevented you from doing that,
12 that's aiding, isn't it, arguably?
13 MR. KIMMELMAN: Well, the Government had not
14 sought an injunction against us.
15 JUDGE ROGERS: Precisely.
16 MR. KIMMELMAN: Correct. But we knew, we knew
17 from the preceding year, which is a different kind of
18 proceeding, it's a proceeding A) on notice that requires the
19 filing of papers, we knew --
20 JUDGE ROGERS: You agree, do you not, that the
21 Belize statute reached action, potentially reached action
22 taken in London?
23 MR. KIMMELMAN: It could, yes, Your Honor.
24 JUDGE ROGERS: But you nevertheless went ahead and
25 did it.
PLU 17
1 MR. KIMMELMAN: Yes, Your Honor, and in fact, we
2 tried --
3 JUDGE GRIFFITH: Is it that you thought you could
4 sneak it by them so they wouldn't know, is that the idea?
5 JUDGE ROGERS: Yes.
6 MR. KIMMELMAN: No, no, no, because we served them
7 with the papers.
8 JUDGE ROGERS: No, you just told us you went to
9 England without notice to them, got this the same day that
10 you filed, and the only thing that kept you from moving
11 further was under English law you had to wait six months.
12 MR. KIMMELMAN: Well, we couldn't -- we received
13 the full enforcement, we served the papers, and there's no
14 dispute about that, on the Government, the Government never
15 appeared to contest the enforcement of the order, because it
16 has --
17 JUDGE ROGERS: That's after --
18 MR. KIMMELMAN: -- no defenses.
19 JUDGE ROGERS: That's after you got the order from
20 England?
21 MR. KIMMELMAN: Correct.
22 JUDGE ROGERS: All right. Let's be clear about
23 that, there was no notice to the Government of Belize when
24 you went to England.
25 MR. KIMMELMAN: Because the procedure in the U.K.
PLU 18
1 is without notice, that's how they do it in the U.K.
2 JUDGE ROGERS: I understand that, Counsel, and you
3 took advantage of that, I understand, but the Belizean
4 statute potentially applied to your going to England, didn't
5 it?
6 MR. KIMMELMAN: If the Government sought an
7 injunction --
8 JUDGE ROGERS: Right.
9 MR. KIMMELMAN: -- yes, it would, but they didn't.
10 JUDGE ROGERS: But you --
11 JUDGE KAVANAUGH: Right, but why does that matter?
12 The point is --
13 JUDGE ROGERS: Yes.
14 JUDGE KAVANAUGH: -- that you felt that statute
15 could have applied, as you said to Judge Rogers, you
16 nonetheless went.
17 MR. KIMMELMAN: Correct.
18 JUDGE KAVANAUGH: The statute could have applied
19 here, and you say it chilled you from going?
20 MR. KIMMELMAN: Correct, and the --
21 JUDGE KAVANAUGH: And so what's -- that's the
22 issue.
23 MR. KIMMELMAN: The difference is this, because we
24 had a case that actually was before this Court that showed
25 us exactly what the Government would do if we filed another
PLU 19
1 proceeding --
2 JUDGE KAVANAUGH: And the timing of --
3 MR. KIMMELMAN: -- in the U.S.
4 JUDGE KAVANAUGH: And the timing of that was after
5 you had gone to England?
6 MR. KIMMELMAN: No, the timing of the case in this
7 Court was before we had gone to the U.K.
8 JUDGE KAVANAUGH: Right. But so, that warning
9 about what could happen you had at the time you went to the
10 U.K., and yet you still went, am I missing something there?
11 In other words, it didn't chill you from going to the U.K.,
12 that's the bottom line.
13 MR. KIMMELMAN: Well, it didn't. No, it didn't,
14 because the procedure was different than the procedure here.
15 We knew under the procedure here exactly what the Government
16 would do because we had multiple cases in which they did the
17 very same thing.
18 JUDGE ROGERS: So, what do you think they would
19 have done, it would have done?
20 MR. KIMMELMAN: They would have sought an ex-parte
21 injunction, as they did in every other case, and they always
22 received it. And our Belize Counsel would again be
23 unwilling to provide a witness statement on Belize law,
24 which we needed, and my firm --
25 JUDGE ROGERS: Well, you're assuming that the
PLU 20
1 District Courts here all act the same, all right? An
2 injunction was issued by one District Court, doesn't
3 necessarily mean another District Court is going to issue an
4 injunction.
5 MR. KIMMELMAN: Every Judge in Belize that was
6 asked by the Government to provide an ex-parte injunction
7 granted it.
8 JUDGE ROGERS: No, I just asked you, Counsel --
9 MR. KIMMELMAN: Yes?
10 JUDGE ROGERS: -- if you had come here what would
11 have happened, and you said well, the Government of Belize
12 would have sought an injunction.
13 MR. KIMMELMAN: From the Belize Courts, as they
14 had in every other case.
15 JUDGE KAVANAUGH: In the Belize Courts?
16 JUDGE ROGERS: And then --
17 MR. KIMMELMAN: Yes, from the Belize Courts.
18 JUDGE ROGERS: That's right. And then what would
19 have happened?
20 MR. KIMMELMAN: Then our Belize Counsel would
21 again, as they had in BSDL , and it's in the record, would
22 have refused to assist us. And again --
23 JUDGE ROGERS: What did they have to do when you
24 say assist you? What does assist you mean?
25 MR. KIMMELMAN: The Government's papers in the
PLU 21
1 record in the Court below, as in BSDL , had witness
2 statements from experts on, Government experts on Belize
3 law, and they testified about the Belize law that they
4 claimed was relevant to the underlying contract.
5 JUDGE ROGERS: So, you wanted discovery?
6 MR. KIMMELMAN: No, Your Honor, we wanted to be
7 able to respond to what they said. And I needed --
8 JUDGE ROGERS: I don't understand that where
9 you're suggesting the Government Counsel had a duty to
10 assist you?
11 MR. KIMMELMAN: No, Your Honor, I'm sorry. What
12 I'm saying is that the Government's papers in opposition to
13 our enforcement proceeding in every single case we filed in
14 this Court has included --
15 JUDGE ROGERS: In which Court?
16 MR. KIMMELMAN: In the District Court in D.C.
17 JUDGE ROGERS: In the United States District
18 Court?
19 MR. KIMMELMAN: Correct. Has included witness
20 statements from lawyers in Belize as to Belize law, and as
21 to arguments they've made as to why Belize law forecloses
22 the enforcement of the LCIA award at issue in each case.
23 JUDGE ROGERS: So, you already had that from these
24 other cases.
25 MR. KIMMELMAN: Their witness statements, yes, and
PLU 22
1 I needed to be able to respond on behalf of my client.
2 JUDGE ROGERS: So, you knew what the Government
3 was going to say because you had discovered, quote, unquote,
4 these statements about its interpretation of Belizean law,
5 right?
6 MR. KIMMELMAN: Well, they had, they filed
7 different statements in each case, and I needed to be able
8 to respond to them on behalf of my client. And that's what
9 we tried to do in BSDL , it's in the record here, it's
10 actually on A78, paragraphs 45, 46, Belize Counsel refused
11 because he was chilled by the criminal statement, he had
12 sought the advice of independent counsel, and he could not
13 cooperate.
14 JUDGE KAVANAUGH: So, if you filed here you
15 couldn't proceed in effect because Belize Counsel couldn't
16 help you.
17 MR. KIMMELMAN: Correct. And in addition to that,
18 as in BSDL --
19 JUDGE KAVANAUGH: And so you decided not to file
20 at all?
21 MR. KIMMELMAN: Yes. And in addition, my firm was
22 unable to proceed because we concluded that if we filed
23 opposition papers to the papers that the Government filed we
24 might well be in violation of the criminal statute.
25 JUDGE ROGERS: But you already said you risk that
PLU 23
1 going to London.
2 MR. KIMMELMAN: Well, we knew there was a risk in
3 London, yes --
4 JUDGE ROGERS: Yes.
5 MR. KIMMELMAN: -- but there was no injunction,
6 and nothing happened.
7 JUDGE GRIFFITH: Is the argument that you got away
8 with it in going to London, but later calculations where
9 maybe you weren't going to get away with it because you had
10 to give them notice, and they were aware of what you were
11 doing?
12 MR. KIMMELMAN: I don't think so, Your Honor, I
13 think --
14 JUDGE GRIFFITH: Okay.
15 MR. KIMMELMAN: -- I think that the point really
16 is that the chill, the effect of the campaign that the
17 Government undertook, it felt different --
18 JUDGE GRIFFITH: It was different later than it
19 was in London?
20 MR. KIMMELMAN: Well, it's different, it was
21 different in the U.S. than it was in the U.K., and there
22 could be reasons for that, it could be, and I believe this
23 is true, that there are assets in the United States that the
24 Government wanted to protect, and therefore --
25 JUDGE GRIFFITH: I see.
PLU 24
1 MR. KIMMELMAN: -- to defend aggressively here was
2 far more important than to defend it all in London.
3 JUDGE ROGERS: Well, Counsel offered another
4 theory as to why they set up the CCJ. So, they didn't want
5 people running off to London.
6 MR. KIMMELMAN: Well, but there was one thing
7 Counsel left out, and that is there are 15 members of the
8 CCJ, but only four countries have signed up to the
9 compulsory appellate jurisdiction of that court.
10 JUDGE ROGERS: Maybe so, but 15 agreed to the
11 organization establishment of the CCJ, right?
12 MR. KIMMELMAN: Correct.
13 JUDGE ROGERS: And Counsel's reasons as to why
14 they did that, I'm just trying to understand why you could
15 take this calculated risk as to going to London, but you
16 were unwilling to take it in this country because you
17 thought that Counsel for Belize would not be able to
18 cooperate, and so, your case could not go forward, that's
19 your explanation. But we don't know that, do we?
20 MR. KIMMELMAN: Well, Your Honor, but we do know
21 it from the BSDL case, and from this Court's mandamus
22 decision, we know that we have to file, we weren't, my firm
23 wasn't able to file papers in opposition to their motion to
24 stay.
25 JUDGE ROGERS: So, even though there was no
PLU 25
1 injunction, I just need to understand what you firm's
2 position is, as to all your other clients all you can do is
3 go off and get a midnight order in London?
4 MR. KIMMELMAN: No, Your Honor, we didn't, I
5 didn't, our firm didn't do the enforcement in the U.K.,
6 because we're not U.K. Counsel, obviously. But what
7 happened in BSDL in the District Court in this District --
8 JUDGE ROGERS: Your client.
9 MR. KIMMELMAN: Yes, our client sought that, yes.
10 JUDGE ROGERS: That's -- okay.
11 MR. KIMMELMAN: Yes. But we knew from an
12 experience of an enforcement proceeding in this very
13 District exactly what the Government was going to do, and in
14 that case we as Counsel, and our expert in Belize as Counsel
15 could not assist our client.
16 JUDGE ROGERS: Interestingly, Counsel, I'm not
17 suggesting that what you are saying here is not correct, but
18 none of this is in the District Court opinion. The District
19 Court just says tolling applies, and it doesn't tell us why.
20 MR. KIMMELMAN: With all due respect, Your Honor,
21 we made two arguments to the District Court, both tolling,
22 equitable tolling and equitable estoppel, and the record,
23 which is before this Court, and which the District Court
24 refers to, goes through the entire campaign that the
25 Government of Belize waged against Lord Ashcroft and every
PLU 26
1 single company he was affiliated with, and --
2 JUDGE ROGERS: Right. No, she recites, the
3 District Court recites that history, and, but all of this
4 that you're telling us now I didn't see that anywhere in the
5 District Court opinion. I mean, she says there was this
6 statute that was passed.
7 MR. KIMMELMAN: Right, and the underlying
8 testimony in the record from the Counsel who could not
9 assist when the criminal statute was enforced, explains the
10 exact campaign that took place in Belize, and how it
11 impacted company after company, and individuals, all of whom
12 were in some way related to Lord Ashcroft. And that
13 campaign, we believe, represents actions taken by the
14 Government, which either constitute an estoppel because
15 they're seeking to take advantage of those actions in this
16 Court, and say that the statute of limitations should in
17 fact apply to us when they took steps which were calculated
18 to ensure that we did not file. The whole purpose of the
19 campaign, and the purpose of the criminal statute was to
20 prevent companies like our clients and others from filing
21 claims outside of Belize in neutral fora, either under
22 arbitration clauses or under treaties providing for
23 arbitration, or as in this case to take an international
24 arbitration award covered by the New York Convention and
25 enforce it in any jurisdiction in the world that the New
PLU 27
1 York Convention provides for enforcement. And the purpose
2 of the criminal statute was to deter parties from doing
3 exactly that.
4 JUDGE ROGERS: Okay. So, but your client was not
5 deterred. I want to be clear I'm not talking about the law
6 firms here, we're talking about the parties.
7 MR. KIMMELMAN: Our client was deterred from going
8 into the United States, but was not deterred from seeking
9 relief in the High Court in London. Correct.
10 JUDGE GRIFFITH: And obviously, that troubles at
11 least me, the distinction between the two.
12 MR. KIMMELMAN: Well, and -- well, I understand
13 that, Your Honor --
14 JUDGE GRIFFITH: Yes.
15 MR. KIMMELMAN: -- but the --
16 JUDGE GRIFFITH: And so then your fallback
17 position is equitable estoppel, right? Which --
18 MR. KIMMELMAN: Well, yes, Your Honor, but even
19 beyond that there's an explanation for why the calculation
20 was right. Remember, this agreement has an international
21 arbitration clause --
22 JUDGE ROGERS: But let me say, Counsel, using the
23 word right in this context is a little bit, what,
24 questionable.
25 MR. KIMMELMAN: I'm --
PLU 28
1 JUDGE ROGERS: I mean, your client was dealing
2 with this allegedly corrupt Prime Minister that the State
3 Department has acknowledged the Government was corrupt, he's
4 benefitting from arguably an unlawful act by a Prime
5 Minister who gave him all these tax breaks, so the notion
6 that somebody is right in this case is just troubling.
7 MR. KIMMELMAN: Well, Your Honor, with all due
8 respect, I know my colleague has raised the public policy of
9 corruption, but what I can tell you, and I've looked through
10 the record very carefully, there's no evidence in this
11 record of corruption, there's no evidence, and --
12 JUDGE ROGERS: Did the Prime Minister have
13 authority to give your client a tax abatement?
14 MR. KIMMELMAN: Your Honor, I can tell you that a
15 tribunal of three arbitrators in London --
16 JUDGE ROGERS: In London, all right.
17 MR. KIMMELMAN: Yes.
18 JUDGE ROGERS: I'm talking about in Belize.
19 That's the whole point here, Counsel.
20 MR. KIMMELMAN: No, Your Honor, that's not the
21 point. I know that's what the Government wants the point to
22 be --
23 JUDGE ROGERS: No, no, it is the point, all right?
24 You have this Court that says your client owes these taxes,
25 and we're not getting into that. The only question I had
PLU 29
1 was was it error to apply equitable tolling since your
2 client was not deterred from going to England, all right?
3 MR. KIMMELMAN: It was not error, and just to be
4 clear, the arbitration that we're talking about, that the
5 parties agreed to in a contract was, and the award is in the
6 record, the award considers whether the agreement is legal,
7 whether the Prime Minister had authority, it considers every
8 conceivable issue that you can imagine, and it concludes
9 that the agreement was legal.
10 JUDGE ROGERS: It was issued the same day you
11 filed your papers.
12 MR. KIMMELMAN: No.
13 JUDGE ROGERS: That's what you told me.
14 MR. KIMMELMAN: No, no, no, no. I'm sorry, Your
15 Honor, I'm talking --
16 JUDGE ROGERS: You went to England --
17 MR. KIMMELMAN: -- about the arbitration award.
18 The arbitration --
19 JUDGE ROGERS: Oh, that --
20 MR. KIMMELMAN: -- award was rendered and issued
21 in August of 2009.
22 JUDGE ROGERS: Who rendered that?
23 MR. KIMMELMAN: Three arbitrators in London,
24 each --
25 JUDGE ROGERS: That's my point, all right?
PLU 30
1 MR. KIMMELMAN: No, but Your Honor, it's what's in
2 the parties' contract under the New York Convention, that's
3 what they agreed to. And if the Government ever had a
4 problem with the arbitration clause they could have
5 challenged it, but they never did, not in the arbitration,
6 because as you know they never showed up; not in the
7 District Court where we sought to enforce the award, they
8 didn't challenge the arbitration clause, so --
9 JUDGE ROGERS: So, they had to figure out a way to
10 appear but not appear before the arbitration panel?
11 MR. KIMMELMAN: They could have, they could have
12 appeared subject to our claim of lack of jurisdiction, but
13 they didn't. They just ignored it.
14 JUDGE KAVANAUGH: You can show up and claim that
15 it's not arbitral.
16 JUDGE ROGERS: Right.
17 MR. KIMMELMAN: Absolutely, Your Honor, and it's
18 done all the time.
19 JUDGE KAVANAUGH: Yes.
20 MR. KIMMELMAN: And in fact, tribunals --
21 JUDGE GRIFFITH: That's most of the experiences,
22 at least that I've had with arbitrations, whether it is
23 arbitral in --
24 JUDGE ROGERS: Right.
25 JUDGE GRIFFITH: -- the first instance.
PLU 31
1 MR. KIMMELMAN: And as the Court knows, that issue
2 can be raised either with a Court, or it can be raised with
3 a tribunal, or it can be raised both, depending on the
4 sequence. So, Your Honor, all these issues about these
5 claims about the contracts are legal, there was no
6 authority, all of that was vetted by the tribunal, that's
7 the place where it was supposed to be decided, and it wasn't
8 decided.
9 JUDGE ROGERS: Okay. So, you say there's no merit
10 to the statute of limitations argument because you were
11 entitled to equitable tolling.
12 MR. KIMMELMAN: Yes, Your Honor, we --
13 JUDGE ROGERS: Because of this campaign.
14 MR. KIMMELMAN: Yes, Your Honor, this campaign,
15 which was based upon the Government getting ex-parte TROs at
16 the drop of a hat, and always getting them from a Belizean
17 Judge, and never not getting it, coupled with a statute, and
18 Your Honors, you know what the statute says --
19 JUDGE ROGERS: So, your client goes to London, or
20 has attorneys in London file and get this midnight judgment,
21 and now where are we?
22 MR. KIMMELMAN: Well, where we are is a judgment
23 in the U.K. as the New York Convention provides for, because
24 you can enforce awards in any jurisdiction, and London is a
25 particularly appropriate one to enforce because it was the
PLU 32
1 seat of the arbitration, it's the court of primary
2 jurisdiction. And Judge Griffith, what I was trying to tell
3 you before is I think Belize would never go into London, or
4 into England because throughout all of these cases it's
5 tried to ignore the fact that the only jurisdiction with
6 primary jurisdiction over the arbitration awards are the
7 courts in the U.K., and it does not want to be in those
8 courts because then it will have to acknowledge that those
9 are the courts, the only courts in the world that can set
10 aside an award if there are any bases to do so. In
11 contrast, so we have a judgment from the U.K. enforcing this
12 award, we wanted to get a judgment from the United States
13 enforcing the award, as the New York Convention provides
14 for, but in light of the BSDL case we were chilled because
15 we knew what would happen from the BSDL case if we filed.
16 And as I --
17 JUDGE ROGERS: So, tolling was correct, was
18 properly applied is your position?
19 MR. KIMMELMAN: Yes, Your Honor, and --
20 JUDGE ROGERS: And secondly, essentially there is
21 no public policy to overcome what the Government of Belize
22 is claiming is an agreement that is corrupt at its core?
23 MR. KIMMELMAN: That's what Counsel says, but
24 that's not what the CCJ Court said in its opinion, nor is it
25 what Counsel said in the District Court. The argument in
PLU 33
1 the District Court was that enforcing -- and the issue under
2 the New York Convention for this Court is is enforcing the
3 foreign arbitration award rendered in London a violation of
4 U.S. public policy under Article 5(2)(b) of the New York
5 Convention? Now, as this Court knows, the cases in this
6 Circuit and every Circuit say that exception is very, very
7 narrow, it deals only with the most fundamental policies of
8 our society, it is often invoked, it is rarely ever used, I
9 don't know of a single case --
10 JUDGE ROGERS: I was going to ask you, give me an
11 example.
12 MR. KIMMELMAN: Well, I have one, but there's no
13 case --
14 JUDGE ROGERS: On genocide?
15 MR. KIMMELMAN: I'm sorry?
16 JUDGE ROGERS: Genocide? I mean --
17 MR. KIMMELMAN: Well, Your Honor, actually what I
18 was thinking of, Your Honor, is I thought in the United
19 States that if there were an arbitration award that it
20 could, where it could be said that the First Amendment was
21 violated, or another constitutional amendment, maybe with
22 respect to religion, something that goes to the essential
23 values of our society, and I know of no such case, and I
24 know of no award that's been set aside in the U.S., not
25 enforced to the U.S. on public policy grounds, but it has to
PLU 34
1 be of that magnitude.
2 JUDGE ROGERS: Right. None whatsoever, to your
3 knowledge?
4 MR. KIMMELMAN: To my knowledge --
5 JUDGE ROGERS: None.
6 MR. KIMMELMAN: -- none whatsoever. And I've seen
7 it raised in every case, and in the second BSDL case which
8 this Court just decided, and which rehearing en banc was
9 denied on, the same argument was made under --
10 JUDGE ROGERS: Yes.
11 MR. KIMMELMAN: -- public policy, and rejected by
12 this Court properly.
13 JUDGE ROGERS: So, not only are the defenses and
14 the Article 3 provisions to be narrowly construed, the scope
15 of our review is very narrow, as well?
16 MR. KIMMELMAN: It absolutely is, Your Honor, and
17 I believe that had the District Court not concluded that
18 equitable tolling was proper, we argued both equitable
19 estoppel and tolling, and I think this is one of those, this
20 may be one of those unusual cases where the extraordinary
21 circumstances are all the making of the other side. And in
22 such a situation whether one calls it tolling, or whether
23 one calls it estoppel, the fundamental point is the same,
24 they achieved through their criminal statute and their
25 policies what they wanted, we were unable to, we felt unable
PLU 35
1 to file, and we did everything humanly possible, we
2 challenged the criminal statute, we appealed every decision
3 against us, we ultimately convinced, we together with
4 others, ultimately convinced the Caribbean Court of Justice
5 that the key provisions of the criminal statute are
6 unconstitutional, the mandatory fine and imprisonment term,
7 the reversal of the presumption of innocence. And it's
8 after we achieve that, and we had to litigate three separate
9 cases all the way to the CCJ to try to undo the Government's
10 policies. And when we were able to finally get the last
11 step accomplished, which was the criminal statute, we then
12 filed in the District Court, as we had in BSDL , but now I
13 was able to get Belize Counsel to file a witness statement,
14 which is in the record here, and my firm was able to
15 litigate the case because we were not in fear of the
16 criminal statute, and so, we believe that the District Court
17 was right. Whether it's equitable tolling or equitable
18 estoppel this filing is timely.
19 JUDGE ROGERS: Well, Counsel, I appreciate your
20 bearing with me here. Were there any other points you
21 wanted to make?
22 MR. KIMMELMAN: No, Your Honor, the Court has
23 indulged me a great deal in terms of time, so I'm quite
24 grateful, I think we've covered everything else in our
25 papers.
PLU 36
1 JUDGE ROGERS: All right. Thank you.
2 JUDGE GRIFFITH: Thank you.
3 JUDGE ROGERS: Counsel for Appellant?
4 ORAL ARGUMENT OF JUAN C. BASOMBRIO, ESQ.
5 ON BEHALF OF THE APPELLANT
6 MR. BASOMBRIO: My esteemed colleague is raising a
7 lot of smoke. This case has nothing to do with BSDL , he
8 cannot invoke another, an injunction entered against a
9 different company as a basis in this case. Here, there was
10 no injunction against BCB Holdings or Belize Bank. Here,
11 they decided, those companies, to go to the U.K. and file.
12 I don't care if it took him one second to file that paper,
13 if you're going to violate the law you can violate it by
14 filing it.
15 JUDGE GRIFFITH: If there had been an injunction
16 how would it have worked? Let's say that the Belizean
17 Government, let's say they did file in the District Court
18 here and the Belizean Government wanted to enjoin them, what
19 would have happened, what would the process be in Belize?
20 MR. BASOMBRIO: Well, they need to, the Belizean
21 Government would need to bring an action against them in
22 Belize so that they would have an opportunity to respond.
23 JUDGE GRIFFITH: Okay.
24 MR. BASOMBRIO: But here's the point, they were
25 not chilled because they filed --
PLU 37
1 JUDGE KAVANAUGH: But they couldn't because they
2 would have been guilty.
3 MR. BASOMBRIO: They would not -- I'm sorry?
4 JUDGE KAVANAUGH: Wouldn't they have been --
5 JUDGE GRIFFITH: They would have lost. Yes.
6 JUDGE KAVANAUGH: Wouldn't they have lost?
7 MR. BASOMBRIO: But let me make these two points
8 to respond to your question. Number one, there was no
9 injunction, they had not violated any law. The Government
10 cannot prosecute you because --
11 JUDGE KAVANAUGH: Well, because they didn't file
12 here.
13 MR. BASOMBRIO: No, but the Government cannot
14 prosecute you because they think you're going to kill
15 someone. There was no injunction, there was nothing
16 pending, nothing to chilling, and evidence of that --
17 JUDGE KAVANAUGH: No, there was a law -- correct
18 me if I'm wrong.
19 MR. BASOMBRIO: Right.
20 JUDGE KAVANAUGH: There was a law that if they
21 filed they reasonably thought, so they say, then there would
22 be action brought against them in --
23 MR. BASOMBRIO: No.
24 JUDGE KAVANAUGH: -- in Belize?
25 MR. BASOMBRIO: The law permits according to
PLU 38
1 Belize to issue an injunction, if you then violate that
2 injunction then you violate the law.
3 JUDGE GRIFFITH: No, but here, so here's the
4 sequence --
5 JUDGE KAVANAUGH: Yes.
6 JUDGE GRIFFITH: -- they file in the District --
7 JUDGE KAVANAUGH: Yes.
8 JUDGE GRIFFITH: -- Court here --
9 MR. BASOMBRIO: Right.
10 JUDGE GRIFFITH: -- then what -- and then Belize
11 decides they want to invoke that statute, what happens then?
12 MR. BASOMBRIO: Then they would have to go get an
13 injunction, and that would freeze --
14 JUDGE GRIFFITH: So, the Belizean Government would
15 go to the Court in Belize.
16 MR. BASOMBRIO: In Belize, get an injunction.
17 JUDGE KAVANAUGH: And then after that they
18 couldn't do anything?
19 MR. BASOMBRIO: Then they cannot do anything, but
20 what has happened, they have stopped the running of the
21 statute in the U.S. because they filed, they didn't do that,
22 so they didn't stop the running of the statute. There was
23 nothing to prevent them to come here, like they went to the
24 U.K. and stopped the running of the statute.
25 JUDGE GRIFFITH: Then go back, I wasn't quite
PLU 39
1 finished yet. So, they get, the Government of Belize gets
2 the injunction because they have filed here.
3 MR. BASOMBRIO: Correct.
4 JUDGE GRIFFITH: And then they are, are they then
5 criminally liable for what they've done?
6 MR. BASOMBRIO: No, if they continue to --
7 JUDGE GRIFFITH: I mean, because to file here they
8 spoke to Counsel in Belize, he filled out an affidavit, they
9 file here, then the injunction comes, is that lawyer in
10 Belize who helped them criminally liable for what he has
11 done?
12 MR. BASOMBRIO: Absolutely no, because the
13 criminal laws are not retroactive. The injunction would
14 cover, they can file here because there was no existing
15 injunction against them.
16 JUDGE GRIFFITH: So, you're saying just stops,
17 they just can't do anything more after that?
18 MR. BASOMBRIO: They can't do anything more,
19 but --
20 JUDGE GRIFFITH: But there's no criminal liability
21 for what they've already done.
22 MR. BASOMBRIO: Absolutely not, and they have
23 stopped the running of the statute in the United States,
24 which is what they could have done, and that's what they did
25 in Belize, exactly, they went there and they were not
PLU 40
1 chilled from doing so. Let me just make two quick points.
2 JUDGE KAVANAUGH: I don't think the statute is
3 crystal clear that you had to wait for an injunction. You,
4 being Belize, to go after someone who filed an action in
5 contravention of that statute, am I --
6 MR. BASOMBRIO: The statute says you can't violate
7 an injunction of the Supreme Court of Belize, that's a
8 crime. So, obviously, you've got to have an injunction.
9 You can't violate something that doesn't exist, if there's
10 no injunction against these companies you can't violate the
11 law.
12 JUDGE KAVANAUGH: And had the Supreme Court of
13 Belize ordered, what did the Supreme Court of Belize done?
14 MR. BASOMBRIO: Nothing with respect to that
15 statute, with respect to these companies.
16 JUDGE GRIFFITH: How about other companies?
17 MR. BASOMBRIO: In a separate case --
18 JUDGE KAVANAUGH: With respect to other companies
19 what has the Supreme Court of Belize done?
20 MR. BASOMBRIO: With respect to one company, not
21 others, BSDL, the Government of Belize obtained an
22 injunction against BSDL, they filed the case here, we
23 obtained an injunction, and then this case was stopped, and
24 then the Court of Appeals reversed the stay, no one was
25 prosecuted, nothing happened. Remember -- in BSDL -- in
PLU 41
1 this case after they filed in the U.K. the Government of
2 Belize takes no action, we don't prosecute them, we don't
3 try to get an injunction, we do nothing. But even if we had
4 done that it would have stopped the statute of limitations
5 here, and then this case would be stayed.
6 Now, the only other point I want to make is about
7 arbitrability, this is not an issue of arbitrability,
8 whether the subject matter of the claim is subject to
9 arbitration, this, the dispute was that the Prime Minister
10 didn't have authority to sign the arbitration clause in the
11 first place, so you have to decide who do you defer to? Do
12 you defer to the arbitrators, or do you defer to the CCJ?
13 The CCJ is more neutral, and the New York Convention allows
14 you to defer to the CCJ under the public policy defense.
15 Thank you.
16 JUDGE ROGERS: Thank you. We'll take the case
17 under advisement.
18 (Whereupon, at 12:12 p.m., the proceedings were
19 concluded.)
20
21
22
23
24
25
PLU 42
DIGITALLY SIGNED CERTIFICATE
I certify that the foregoing is a correct
transcription of the electronic sound recording of the
proceedings in the above-entitled matter.
______Paula Underwood May 17, 2016 DEPOSITION SERVICES, INC.