repugnant to fundamental notions of decency and justice in the united states this is one of those unusual cases that satisfies the high standard that the court established and pemex into highly irregular huge quantities of oil to which in a piece he was not entitled and does causes billions of dollars in damage but then the court held that we could not recover any compensation for our injur in essence the nigerian courts have held that we win on everything except getting paid by it in the sea and n n p c loses on everything except having to pay us for the oil beside a basic process and thereby offended fundamental notions of justice in the united states on those facts or honors we submit that we satisfy the next standard there are four powerful considerations here that supported decision by this court to deny comedy in the nigerian decisions they're not exactly the same consideration that and that but they satisfy the ten x standard because the let's assume and trust me this is just an assumption but let's assume that we would agree with you that the district court misapplied panics and didn't get it treated almost as though a statute setting forth question then is what do we do if we do and i ask that partly and in relation to your brief which mentions it once or twice the notion of the possibility of a reversal or re for how do we instruct the district court again assuming all this your honor the the possibility of reversal in every man is certainly one of the things  we are seeking in the alternative of course we think that that the court can enforce the award and deny comedy to the nigerian decision based on the substantial record that we provided to the district court which  because our armed our cases is all about issues that arose outside of the our virtual record and so therefore evidence need to be provided to establish our burden of ary proceedings where you make a motion and it seems like you know in the d c circuit at least there's been the practice of considering affidavits and similar submissions that were filed so i guess i'm wondering why given that you know these are summary proceedings when you've already submitted a bunch of affidavits and materials what authority do you have for the idea that there should be further discovery well i would point to  the st the of the district court had told us in the parties were the understanding that we would really be able to get the discovery on the merits so we could attempt to establish to the court satisfaction that that th nigeria against foreign companies we'd like to cross examine their expert who has who has said publicly in various forums in nigeria that because european courts surrender their judicial which jurisdiction we succeeded in establishing your section on multiple on two theories and we would have expected that the next stage would have been to set a schedule for discovery but somehow that just fell out of the equation without any we are and you are entitled to simply disregard the nigerian court's current decision but if we were to look and try to take what could be taken from that decision which seemed to be as i read it anyway acknowledging that a portion of the dispute related to tax matters as to which the orbital panel did not have to or a stiction but another portion  million between those two elements that is already established i read your papers now to urge that the district court exercising you know in the name of justice court but if we were to follow the nigerian court's lead on this and validate the contractual findings of the panel is there any basis in a relatively summary proceeding nothing kind of position that you should have to benefit of the full our patrol award of one billion eight hundred million as amplified over the years with interest and so on but i'm interested in knowing whether  and maybe documents that are in the record that i missed in the record the award was calculated in such a way as to identify a portion that is tied to contractual damages as opposed to t damages is there something like that that gets a dollar figure in the record there is your honor i think it is not divided between contractual and and other or not or  give it without any without basis in the contract and the nigerian courts did not distinguish at all between tax on oil royalties oil which was one of the others and cost of oil which was swoop which we believe is not only a regular but it helps to have to confirm that this was not a normal judicial decision that red flags should should be flying when when fair minded  judges read those opinions because they don't make sense they're designed to find i submit a priori being result that an n p c will not have to pay damages if the decision by the but by the so i'm sorry are discussions of figures of the arbor to award but they are all tied to contractual damages and so you can't really point to anything that would be enforceable by the district court if we were to you know try to divide record perfect record in in cases for the enforcement of our ritual awards for money damages before the nigerian group when there are other cases like this one involving the oil international oil companies those are not all oil company cases that i just referred to but there are there are other oil company cases that are if this is a clear follow up what i'm getting at is how come just two of those cases are before the two of those plaintiffs that michelle and sell the shell plaintiffs and the exxon plaintiffs are before us what happened to the others did was their follow up litigation follow up attempts tax returns and to the allocation of oil drunk forward so let's say that that award is you know funding you have the judgment already of the nigerian courts can you take that and you know get an injunction on a going forward basis about how how oil has taken taken out on a forward looking basis or what can you do with that check forcing us to provide them more oil than that is provided by the contract but they have ignored that that order ever since the order was issued so that's going on that's almost ten years now so they the order to no effect whatever essentially in nigeria's an n p c rather as ignored it and two we believe all of the evidence that we've submitted to the district court and as described in the brief in our priest establishes that we are not going to get a fair hearing in nigeria there is no opportunity for meaningful hearing in nigeria because of the because of the importance of an n p c which is which provides you know seventy percent of the countr revenues and and the fact that courts don't rule against nigeria and n p c when it comes to requests for money damages they've had i think fifty you know eighty i don't have a they have they have lost a total of seven hundred and eighty thousand dollars over twenty years so their their exposure for litigation perspective before the nigerian courts is about fifty thousand dollars a year co an n p c ever applied or not in another one of the other cases there were no money damages ordered in that service and in peace he did not pay any money damages for many years until ordered by i believe a french court to pay money damages but again the nigerian court did not have forced an award presented so they're there their cases that's the best they can do and they have access to everything in nigeria it seems to me that makes it that powerfully supports our have very important that we have we have the dispute pending before the tax for you know because that's where tax disputes between the government and taxpayers are heard not in not in arbitration we didn't try to get our tax liability decided in arbitration that was just our contractual right to decide how much oil that niger but and it b c got so that but the tax part of the actual tax has been  legislation has been passed retroactively to close the doors to all the courthouses and methods of judicial relief in mexico where things are still open and you're saying that probably you know what the results going  all that hasn't happened yet why hasn't your honor analysis you know you're right it has in your honor we you know we did try to bring a separate action as but as directed by the high court of nigeria in the courts directly to recover damages and that was thrown out as an abuse of process the evidence is very strong that there is just no basis for believing that we will get a fair hearing with respect to damages from any court nigeria i appreciate that that is a that is a a a significant assertion to make but the evidence from the u s state department and the u n from practitioners and professors in nigeria and even as i mentioned from from and he's own expert in this case although not of the declaration he filed there was another statement he's made in nigeria we are just not going to we're not going to get a i heard counsel refer to an award of damages by a court but not the ability to act without having the ability to collect owes them a just and that but i hear that no you are the court ordered appeal order that our little be liability portion of the arbitration would be reinstated but because it said the payment of the district court for four years it's understandable that that court was keen to dispose of it on the merits rather than on special procedural requirements and the district court decision on the merits with starro and well reasoned but in reaching the merits of the district court a fail to apply the clear requirement of nd circuit precedent to two threshold issues st on forums on convenience nigeria's compelling interest in interpreting and applying its own laws concerning the assessment of taxes and the resolution of tax disputes is indistinguishable from peru's interest in applying the cap statute that was it issue in this court's decision versus peru well the district court recognized that nigeria is an adequate alternative for um it abused its discretion when it ignored figure eight of directive that when litigation requires interpretation of a foreign law intimately involved with a sovereign prerogative the public interest factor of ascertaining the meaning of another jurisdiction's law from the only tribunals empowered to speak definitively on it tips the balance decisively in favor of dismissal on forum not on grounds the district court also failed to follow the clear requirements of both supreme court and nd circuit precedent on personal jurisdiction on alter ego the district court this regarded the holdings of the supreme court in bonn check and this court in e m that the threshold for overcoming the str presumption of separate status and binding a government instrumentality to be the alter ego of a sovereign owner is significant and repeated control of day to day operation no evidence in the record supports such a finding and the district court didn't even make one an n p c is a diversified independent modern oil company that operates multiple business units and incorporated the areas under independent professional management rather than apply the mandatory day to day control test the district court relied on gather connections between the government and an n p c and on its conclusion that the government the decision with respect to the issues in dispute here the record chronology doesn't support the court's factual finding on influence but even if it were factually correct influence is not the court relied on one or two early pre marketing visits that night your ia or an n p c made to the united states and several other contacts that were incidental to the contract unrelated to the dispute that support its minimum contact finding burger king makes clear that that kind of random fortuitous or attenuated contact cannot support personal jurisdiction about the appeal on the cross appeal so your friend on the other side says this is not a properly prevented cross appeal because you are not aggrieved by the decision below and then in your reply i'm not sure you disagree with the agree its principle in general but you seem to say you can reach this ground and i think it's kind of an alternative basis for affirming or tell me what you think that basis for reaching these grounds would be are you agrees by the decision below and if you're not what's what's the basis for deciding this the issues are so i think looking at the great american audio corp case from the nd circuit it's clear that even if you're not quote unquote aggrieved the the district court's decision either on or i'm not convenient or on personal jurisdiction but ok but can i just ask if i'm right about if that's if that's what the theory is that it's that alternate ground for burning the decision below and then i'm not sure i agree with you about the order of operations here then i don't think it's the case that one needs to look st before mounting the unions or personal jurisdiction am i right about that  have to find jurisdiction in order to reach the marriage so it will be there of course the district court had to find personal jurisdiction in order to reach the merits but if you're if you're just offering an alternative grounds for affirming the judgement below there are case law suggesting we have to reach an alternative ground for firming rather than considering the ground relied on by the district work i don't think you have to find an alternative ground but n n p c have taken careful steps to avoid the expense and distraction of being hailed into court and the united states and it did not want to let an incorrect ruling on jurisdiction haunted and or cases and that's the due to have waived our objection to that we thought it important to cross appeal on those to be particularly when the district court ignored ignored the specific direct him of the nd circuit and the supreme court case so going back to the burger king analysis both the very purpose of this business transaction and every fact relevant to this dispute relate exclusively tonight kuria the contract was negotiated and executed in nigeria between nigeria and parties and n p c required its contractual counter parties to incorporate in the age area and the subject matter of the contract exploration and production of oil in nigeria and the dispute related to the allocation of the oil lifted in nigeria and to the payment of taxes there and its puke under the contract were to be resold not only under nigerian substantive law but that arbitration was governed by the nigerian arbitration act and was seated in nigeria back down to the district court for further proceedings on that basis but at the same time form one convenience should have been decided in your favor you would become agreed to have to go through a hear an answer from my at this area as to what the discovery is on the merits that at the end so i actually want but i imagine that that process would be lengthy and that is that summary proceedings on the lengthy declaration submitted by both sides was appropriate but if this court were to write and for him i just ask you about that because i mean your friend on the other side said basically we should have gotten discovery because we were all litigating on the understanding that all we had to do was make it a private issue case and then there would be discovery so i take it that you don't agree with that can you point me to something in the record or what should i look to to to sort that out whether whether the parties were or were not working from the understanding that they would get the opportunity to do discovery make for their submissions so i don't think that it was understood or accepted that i mean one point of evidence on that and that aspect your honor is that consistent specifically asked the district court to affirm the award so it wasn't as though in response excuse me in response to our motion so it wasn't as though they were saying there that you should dismiss and grant us discovery based that means that you said you should deny our motion to dismiss and grant discovery they said you should deny our motion to dismiss and affirm the award so they clearly recognize that this was a summary proceeding similar to all the other summary proceedings relating to the confirmation or not  and i wonder if you agree that the correct reading of the nigerian court of appeal decision both to set aside appeal in the st people is that it was refusing to enforce the  me we don't we don't have to go we don't have to do a micro analysis of the text i just take it that you do not agree that and these are not sexual portions in your view of the a relief that it was granting so directing an n p c to to comply with the obligations with respect to further tax returns and further action in that or hop field those are the district court should have at least affirmed that peace to be arbitrary or not i didn't see an argument against that in your brief do you agree on that point i don't think there's anything to affirm there  declaration of rights and obligations bears yes the parties continue to to the oil from there are hockfield i mean i'm i'm not close to that but there is is there any barton confirming the part of the court order that the parties that all three justices agreed on was a declaration of rights to the district court using its discretion to to imply damages and the implication of damages tied to that prospect of relief would be directly contrary to the decision of the nigerian court of appeal  i think if if if this court were to reach the merits petitioners appeal fails because they are asking us federal courts to sit as the ultimate courts of appeal to review the decisions of the nigerian courts on this specialized issue of nigerian law in good not inconsistent a claim that they have not received you profit in nigeria the district court found that the irregularity in that case instead they're asking this court to rule that the courts of nigeria are not capable of applying their own law but this time they're all going conduct their complaint of the diet denial of due process because they continue to pursue three separate ongoing proceedings in nigeria and while they invoke pemex the only federal court decision to confirm an award making standard is extremely narrow and it requires federal court to defer to the decision of foreign courts interpreting their own law unless a ruling is shown to be repugnant to fundamental notions of what is decent and in this country they criticized the district court's opinion for focusing on what they call the pemex factor but the reality is that the district court's opinion simply tracked petitioners own arguments and rebutted them in turn but it's important to note that this record didn't simply check the pemex boxes it recognized that pemex required it to determine whether the nigerian court decisions offend notions of justice from the point of view of the united states and the district court fully supported it conclusion that the nigerian court's holding you not offend basic standards of justice from the point of view of the united states with its recognition that the nigerian court of appeal apply the relevant statutes and case law its holdings were supported by the nigerian court's interpretation of nigerian law and its conclusion that the nigerian court of appeal conducted a fulsom analysis to determine whether tax disputes were arbiter of all and whether the dispute at bar was attacked so necessarily the district court explained that petitioners were asking him to review the nigerian court interpretation of nigerian law or the sufficiency of its precedent the district court refused to do that instead it followed this court's clear instruction and come back that u s court quote are in no position to pass upon a foreign court interpretation of foreign body or upon the sufficiency of its precedents but even even if it is even if you buy into their comic factors argument this case is importantly and i think i mentioned before but petitioners access to the nigerian court system is not blocked they claim every door is shut but they received partial relief from the nigerian court of appeal and they continue to pursue  pursue what was that really having trouble throughout this argument understanding what that relief that they received was what it what did they in fact get from them from  legal findings it hinged on legislative intervention that put this case procedurally beyond the pale to put that case procedurally beyond the pale so should you reach the merits the key point is that the ultimate arbiter of nigeria affecting the resolution of tax disputes should be the nigerian supreme court and not united states court thank you very good the stock market who you have several minutes through battle the president of nigeria or ordered a breach of contract in the st place that brings us here and it has no commercial purpose for and b c because all of the extra oil is extorted from us it handed over to the   to explore and to produce oil from two miles under the ocean floor and under the ocean surface rather and to get the capital from exxon which funded the entire exploration process and invested six billion dollars of before a drop of oil was produced that they clearly availed themselves of the privilege of doing business here for the purpose of developing their oil fields and the where where there was the sovereign prerogative that the court identified the reason that tipped the balance in figure eight is because there was nothing on the other side there were no contacts with the united states except the possibility of attaching  a bond offering by peru there was a perfectly good forum in peru in fact that forum didn't rejected cruise effort to the peruvian court rejected for his effort to award a no and peruse paying the the judge simply was paying it in installments because of this cap statute it had but there was nothing else to counterbalance the existence of that the  figuring out how its cap statute worked because there were no contacts to the you know in the united states and critically we do not have a forum in nigeria and that is up at the heart of our merits case which i submit the court really would need to decide in aside all of our all of our damages including ones that have nothing to do with which taxes because as we say not because we want this court to sit as a super court of appeal over the nigerian court system we we we want this court to appreciate that it was an irregular decision in fact there was no precedent for it and there's none has ever been cited so i don't know what my friend was referring to there's none was cited that supported the proposition my apologies are thank you appreciate the warning so what we are asking this court to do is to find that the result of the nigerian court decision which is that we are our very significant contract breaches caused a significant damage but we are denying any remedy any damages payment in one carry of that is inconsistent with or or you your honor i think i have five points to make so i think that mr mark who started talking about findings of control with respect to the alter ego issue but the record doesn't reflect control the district court focused analysis on influence not control and if you look at the controlling cases  they talk about repeated an excessive control over day to day operations there was no repeated and excessive control over day to day operations here and i think even in the case that they have focused on the most throughout that litigation then the captain case which by the way is a d c circuit case but in that case there were findings that the government had forced the pack dairy to disregard its commercial mission and forced the an n p c and the contractors as so and so and so if the interest was ensuring that it was filing accurate tax returns and paying accurate taxes its position was it didn't want to violate the law in not filing accurate tax returns with respect to s those investment in nigeria and the suggestion that because s so invested so much money in nigeria and then people thought those investment in that area that is not a basis or minimum contact s those actions are not a basis for minimum contact and then peace these actions and by making one having one private meeting in houston and several phone calls that's not minimum contact the the record is clear that the key key provisions of the production sharing contract were with respect to his suggestion that payment of oil to bank accounts owned by the nigerian government are a basis for minimum contact it's important to recognize that the production sharing contract has nothing to do with the sale of oil it's a contract about exploration and production of oil in nigeria and the allocation of that oil between the parties so the sale of oil has nothing to do with the contract and it certainly has nothing to do with this dispute on his point about not n n p p's alleged contact with the united states serving as a counterbalance in the analysis st of all i don't i don't think that's the correct analysis i think contacts apply to personal jurisdiction but still here i mean if you're doing a private interests versus public interest balancing the private interest cross examine our nigerian expert he's in nigeria so i think finally mr mark to acknowledge that the only reason they're asking for  confirmation of the prospective release is so that the u s court can then use some form of inherent authority to award the very relief that the nigerian court has that  available because it is seeking a a refund of taxes to do that to use the inherent power would be the same as to deny comedy to the nigerian court of appeal which is not