exceed fifteen minutes per side mr cooper for the app morning honors counsel you please the court my name is ben cooper in i represent sky ventures and i'll be reserving three minutes for rebuttal your honour's the district court this court should reverse the district court's opinion and remand the case for two independent reasons the first is comedy the district court failed to conduct a comedy analysis when it should have in the second reason is a stop all the district court also erred in holding that venezuela could not be stopped like the first address the comedy argument in finding against sky the district court adopted a two thousand and seven ruling that was made by venezuela's supreme court that was improper because the two thousand and seven ruling turned on a key factual finding in a district court can't adopt a foreign courts factual finding without conducting a comedy analysis i thought the here didn't treat it as binding in any way but treated it basically as a piece of evidence that bear i don't think so your honor and we see that point to those we see that on pages eighty two and eighty three the district court's opinion that's where the district court explains the venezuelan supreme court ruling specifically notes the factual finding that it turns on that factual finding by the way is that there was no special administrative proceed and then it goes to adopt the result of that two thousand and seven ruling and  adopting the result it necessarily adopts the factual findings that lead to that that result in the district court by the way adopted that result despite its own factual findings to the contrary the two thousand seven ruling says there is no special administrative proceeding on page twenty five of this district court's opinion it says that plaza who was the attorney general at the time initiated or issued the opinion to fulfill the special administrative proceeding and also this court need look no further than the attorney general's opinion itself which on page one says it's being issued in the context of a special administrative proceeding that's that's the article fifty six of the the impact in the case so first of all let me say also that the decision of whether or not to conduct a comedy analysis it's a question of law that this court refused to know them and had that usually triggered though when the court is it in forcing a foreign judgment the so to do the duty to perform a comedy and now that is venezuela's argument and that is not the case your honor and tell us tell us please why not the reason for that is is for in a couple a couple ways first is the case law the hilton vs ngaio case says that comedy is triggered whenever there are quote judicial acts not simply judgments and what is that i mean that's extremely vague i mean these are show acts i mean this i don't get it we have or do something with and she certainly and so are the what what are we obviously there's a judicial act what do we have to do with it what i think this court could say is that foreign courts factual finding is certainly a judicial judicial act but we i mean the federal the united states courts would have to do something with the other courts judicial as correct yes or whose judicial act exactly the the judicial act of another nation and n the way that the dead beautiful act of kind of they certainly are and in what the the problem here is that the district court gave that act that factual finding reclusive effect in this in this case already used a lot of factors didn't it to come to its conclusion i mean it it had there was a legal there was an expert offered there was quite a few factors as i see it that went into the court's decision that factored into the interpretation of venezuelan law according to the court's decision it did not factor into the interpretation or i'm sorry the adoption of that fact that factual finding that there was no special administrative proceeding and you see that as as the whole case turning on that exactly your honor and the problem is is that here we have a party in the case who has secretly initiated a proceeding in a foreign court that is designed to affect a key issue that's actually being litigated in the united states the worry that allowing is that allowing the district court's opinion to stand allows other foreign countries to do the same thing in a situation like that the four no i mean with the foreign instrument it is your honor but with but the suit is in the united states and the issues are being litigated in the united there were suits in both countries correct is that your point there were there was a proceeding in venezuela that was  initiated by the venezuelan attorney general without notice to skye without notice to the district court and if we look at the attorney general petition that initiated that proceeding we see that it was specifically designed in response to the case that's going on in the southern district of ohio the attract that that petition mentions the southern district of ohio it discusses sky's experts and says here's what their experts say we need you supreme court  to tell us it's not that to go the other way because otherwise we're going to be liable and then that's exactly the supreme court did it issued an expedited rule when it reached the result that venezuela had urged it to reach and it took that to the district court in the district court said i don't need to scrutinize this result that scrutiny is the comedy analysis i mean you know judge starr gets i think didn't just sort of mechanically follow this venezuelan's record and by any means i mean he looked expert testimony i think he looked at himself at the text of the venezuelan statute i mean it really does seem like he considered this  enforcing a foreign judgment and i don't think that is that is what the district court said it was doing but if you read the opinion that is not what it what it was doing your thing he did consider a bunch of expert testimony on this point correct he considered two experts about the content of venezuelan law and that's actually not what we're arguing with here we think the content of venezuelan law supports the position because that two thousand and seven ruling by the venezuelan supreme court it says that some attorney general pinions are not finding some attorney general pinions are binding in ordinary attorney general pinion it's in the not binding category but if an attorney general pinion is issued in the context of a special administrative proceeding by the way this this holding is on appendix page sixteen ninety eight if it's issued in the context of a special administrative proceeding then it is binding and so the supreme court said ok we need to decide whether this attorney general pinion which is it is it is shoot in the context of a special administrative proceeding or not it looked to its files it said we see no evidence that there was a special administrative proceeding it's one sixteen ninety nine it says there's a total and absolute omission of an you can see that i think it's on page eighty two where he says the venezuelan supreme court has addressed the identical issue valving this which is a statement of fact which is correct exactly and he goes through that and he says here's the outcome of that supreme court ruling in therefore i find that it's not that the attorney general pinion is not final and binding and because of that because he's adopting that outcome he's necessarily adopting the factual predicates to that outcome and we're asking this court simply to ask the district court to instruct the district court on remand to conduct a comedy analysis to decide whether that outcome deserves deference not judge donald to your question earlier about would this would this matter if  maw as it exists as it's been told by the venezuelan supreme court the attorney general's opinion is binding that creates an obligation on venezuela and the claim for default would then be based on that that obligation defaulting on that obligation and there's one more issue of venezuelan law that i want to raise with this court on page eighty five of the district court's opinion judge sharga said even if there is a special administrative proceeding in the two thousand and three attorney general opinion is binding that sky nevertheless still loses and he said that that's because the attorney general can change your mind at any time for any reason in your honour's this is simply not true under venezuela law this is an issue of the content of foreign law that this court must review de novo and decide for itself and frankly to be honest it's one that the parties did not provide a lot of briefing about to the district court which is why the both parties submitted rule forty four point one material to this court on appeal in the issue here is that yes the attorney general could change her opinion but she could do so only in limited circumstances none of which are present here so we are asking with respect to venezuelan law that this court do two things the first is to remain and instruct the district court to conduct a comedy analysis and the second is to hold that as a matter of venezuelan law it is not the case that the attorney general can simply change the opinion at any time for any reason that's not the case and how how how best do you think judge should analyze venezuelan law not look at the supreme court opinion or not we which you see the point i mean we are asking a district judge in ohio to do is best with respect to foreign law and he had a fair number of things did he not counsel certainly are and now you'd like this court to do the same thing when you have been briefed it to judge sarkis yes and in there there was a bit of testimony on this issue before the district court but frankly it was not an argument that that either party had raised that the attorney general could change her mind whenever she wanted for any reason and that's why and rule forty four point one says that the content of foreign law that those determinations are to be treated as rulings of legal rulings and so they're reviewed by this court to know them and good morning i mean please the court andrew schwartz for venezuela and the venezuelan ministry of finance the police let me start by addressing this issue of whether a judge targus was required to conduct the comedy analysis that the appellant says was mandatory here he was not required to conduct that type of analysis in this case for precisely the reason that the questions from the bench suggest he was not dealing with a foreign judgment  an attempt to enforce a foreign judgment the hilton case by the way which mr cooper referred to which is sometimes referred to as the seminal case in the area itself involve the foreign judgment and all the cases that sky relies on involve foreign judgments this venezuelan supreme court opinion was not a judgment against sky and importantly the district court did not treat the opinion as a judgment against  regarded the venezuelan supreme court opinion he didn't treat it as a judgment or even dispositive on venezuelan law if he thought it was the spaza given venezuelan law it wouldn't be necessary to have taken extensive expert testimony from three venezuelan last scholars which he carefully considered and yes he looked at the opinion and he looked at this court's opinion from two thousand and ten which had read the venezuelan supreme court opinion correctly and then he weighed the party's competing arguments in the evidence and in that context having done that holistic analysis he credited the venezuelan supreme court's opinion and the testimony  our expert over the testimony of skies experts on that basis he found that the attorney general's october two thousand and three opinion did not have binding precludes of effect necessitating payment on these fraudulent notes and i pause here to digress for just a second to note that the extent of a flood in this case was pervasive and overwhelming and i think should color every issue in the case the point the fought bitterly at the trial court level to try to prove that these fraudulent instruments were legitimate and the district court found as a factual matter by clear and convincing evidence that these were counterfeits the plaintiff has not also completely consistent with how this court read the venezuelan supreme court opinion in its twenty ten decision as judge catholic i'm sure you recall the court there wrote attorney general opinions of the kind issued in two thousand and three and relied upon by sky are not final and binding determinations of the rights of private claimants but are merely consultative opinions incapable of creating substantive rights on the part of private individuals that's what this court said and as for mr cooper's last point about whether attorney general opinions like this could be changed this court addressed that point and ten and it said unequivocally certain attorney general opinions including those issued in two thousand and three in this dispute are not binding on private parties and are subject to change here is an important facet of this case nothing in the venezuelan supreme court opinion as it was written or as it was construed or applied by judge starr gets prevented this  from trying to prove that the notes were real and nothing in the supreme court opinion as it was written or construed replied prevented sky from trying to make out it's equitable stoppel theory by the i don't know this is the supreme court of venezuela the court of last resort equivalent to ours yes this is the constitutional chamber of the supreme court has various chambers but with regard to constitutional interpretation the answer is yes  that indicated that that the court had ruled in favor of the government from twenty one thousand and it never ruled against the government and  of all essentially the same argument was made to this court in two thousand and ten and got no traction then but then at the trial sky tried again same argument essentially the same evidence and judge just consider that evidence but what he focused on correctly was whether there was any evidence whatsoever of irregularity with regard to this particular decision or whether it was any evidence or suggestion that this decision was politically motivated and he found as a matter of fact that it was there was no such evidence that's not clearly erroneous this is not a situation where for example there were twenty press contrary precedents on this precise issue of law and then this case came up and all of a sudden the supreme court reversed course because it was convened this was an issue of first impression remember that the organic law of the attorney general that this guy relies on for this claim was a new law came into effect in two thousand and two as i recall had never previously been construed and if you look at the petitions that were filed by the former attorney general who actually started the proceeding and then the then current attorney general who joined it it's clear that there was uncertainty surrounding the looked at the evidence concerning this particular process and this particular decision and he found nothing untoward and nor did the point this expert on venezuelan law have anything to say about that she was questioned you have any evidence of anything irregular about this particular proceeding answer no it's just words before you run out of time i want to talk to you about whether we even have jurisdiction in this case you'll recall the last time we had this case we said we add jurisdiction that the commercial activity exception to the foreign sovereign immunity act applied because the notes were themselves commercial activity  state at that time we had to assume that the notes were not fraudulent now it's been determined and and we accept on appeal that the notes were fraudulent so i gather you you would actually rather have us say there's no jurisdiction i mean you argue right that we lacked jurisdiction because the commercial act upon which we kind of tentative lee said we had jurisdiction i've had intended to talk about i'm happy to talk about it right now because i think it's an important threshold issue and the case can now and should have been dismissed for no jurisdiction it's activity exception and at that time the disputed factual issue of whether the notes were real or fake hadn't been resolved and the way the matter was handled by the former district judge and the magistrate judge they didn't want to have that resolved early in the case so the matter got through the district court and to this court based on the assumption provisionally that the notes had been issued and then the whole appeal in two thousand and ten involved whether the direct effect criterion of the commercial activity exception have been satisfied that was a controversial subject that split the court two to one the court found that there was a direct effect because the fourth and it turns out were forged notes didn't specify a policeman foresman therefore they could be enforced anywhere it somewhat ironic in retrospect when it turns out that the notes were created by criminals but we can move past that for now and focus on the preliminary issue of whether there was commercial activity by the argus understandably having conducted a five week trial wanted to get to the merits and i think we can all understand why even though we were telling him he shouldn't so he got to the merits and we're going to win anyway so that may be figured no harm no  in any event what he said was if the plaintiff could somehow establish liability on its alternative theory and it had a whole host of them only some of which would still pressing now then that somehow would convert what was otherwise governmental behavior into commercial activity had no citation for that that's not right basically you had a situation here where to some extent and this is not unusual under the fs i e the jurisdictional issue on the merits issue overlapped and we needed to have a trial to ultimately resolve whether there was subject matter jurisdiction so we had the trial we prove the notes were fake therefore nobody could seriously say there was commercial activity in one thousand nine hundred one when these this imaginary event occurred it was it was done by bob and ellie in his criminal syndicate  so now the question becomes is there anything that happened in two thousand and three in venezuela that would take what wasn't commercial activity and transform it into commercial activity and the answer that question is there is nothing what happened in two thousand and three was that the attorney general issued an interagency opinion to the ministry of finance that was a foreign sovereign ragency opinion as it did and relied on it as it says it did that can't convert the government officials into regency opinion into a commercial activity so when the district court determined that these notes were fake that ends the case of the finding that their faith stands because it was integral to the jurisdictional determination but the case should have been dismissed let me call your attention to a recent supreme court case that was decided on m first of this year after the briefs were filed in this case and conveniently enough venezuela was the petitioner and won the case but that's not really why i'm bringing it to your attention the name of the case is a poll of varian republic of venezuela versus expiration exception the merits and jurisdiction may become intertwined yet actually after twenty three well for twenty three full days there's a twenty three day trial the court said in the at least the expropriation exception context the same is true in the commercial activity context of the merits and jurisdiction can be intertwined nevertheless the district court's got to resolve the jurisdiction issue at the soonest possible opportunity and if that means having to decide some of the merits as judge bryer said justice breyer said so be it the finding the notes were fake eradicated the jurisdictional places for this case which was as fraudulent as the notes themselves my time is and which goes unchallenged here yes a remarkable feature of this appeal after the twenty three day trial in which that was the central issue thank you very much things an act an act that caused a direct effect in the united states by in an x that was taken in connection with commercial activity an act by the foreign sa that act was the refusal to pay notes the venezuela's obligated to pay and so even if what's the commercial activity by the way a lot of commercial activity is venezuela's assessment and investigation of notes that are presented to it for payment so that that refusal to pay is the act looks pretty sovereign what they did have any general opinion no i mean all these ministry reports that looks rather sovereign i mean that is is did the district court commercial activity when it made a review of the evidence and determination of the authenticity as these various ministries did i don't i don't think so your honor and i so different i would point this court to the wealth over  what's the difference between what the district court did or discord might do and what the ministry did assuming again it's trying to be impartial and looking at the evidence for making a determination the difference is that the that the claimant was saying you the ministry of finance are the ones who owes us this money and so the ministry and venezuela through its ministry acted as any commercial player would as any bank would when it was presented with notes for payment and that's exactly what the welts over case councils to actual act is the refusal to pay based on take this the act is the refusal to pay an obligation that is owed to venice will and the obligation could be owed because the notes were issue issues notes in the name of an entity that i guess is later quired by venezuela they're a victim and so now they're engaging in criminal activity when they just investigate the fraud that was perpetrated against them what venezuela did after it seven month investigation into over a billion dollars of notes was concluded that these are real and that there are obligations of venezuela and it knew most if not all the things that the district court said should have raised questions about the notes but would it if it knew that they were fake being dagger notes floating around that was if that that was a a sandcastle you know in hurricane sandy in terms of the permanence of that finding when they very quickly revisit that apparently very good reason that particular opinion of course did not surface until eight months into this litigation no one knew about it whatsoever and as will admits that it was not sent to anyone but what i want to direct this court again to well to over well  says that when a sovereign is regulating a market that's sovereign activity but once participating in the market as venezuela was doing here so that your argument that it's participatory that i think we the court will take the matter under advisement and issue an opinion ready for the next