and compatible with due process and observed that the record does not establish any improper influence on the moroccan court in this case does your ia makes today the same arguments based on the same record that he made in the prior appeal three and a half years ago about tribunal's safety council and experts he comes with no new evidence he disavowed the need for additional discovery no expert supports any aspect of his due process challenge and as before he relies on speculation and innuendo i would like to discuss you read the prior opinion as allowing additional discovery and evidence is that is that the implication of the prior failure to meet the burden of proof but first the standard of review the prior panel held the standard of review is dunno though it does yuri is brief refers to clear error sixteen times in the prior appeal in the west courtroom a problem in your reliance on that prior appeal for the standard of review there as the panel held in versing the panel said the statute only looked at system wide does more is morocco unfair does it violate due process system wide and to me that's clearly that's a legal question would be to noble review now because of this new statute i know you're challenging the new statute but even if it is going to be decided under the new statute the new statute says there's a new provision that says you can look at whether due process was violated in this particular case things like whether there was counsel and that seems to me to be a fact question what happened in this case you need a fact finder to determine that so so why isn't that a distinction with florida law and what happened in those cases where that chevron and dole stayed in what they thought were grossly unfair proceedings in ecuador and nick robot nicaragua established a robust evidentiary record of their own specific proceeding due process failings and persuaded the courts to find a systemic failure and hedge non recognition that's exactly what is your we have tried to do here as he argued in the two thousand and fifteen appeal quote a system focused analysis must take specific circumstances into account please let judge cost a record of four zero nine two four one one two and forty one fifty nine note five all desirea is writings on that point in addition in the prior appeal joria argued that quote the bulk of the district court judgment is factual findings and those should be reviewed under the clear air standard like a bench trial that's record forty nine ten to twelve the paddle express disagreed and held three seventy nine and no two that the standard of review is to know of that issue disagreed with the other side and said you were systemwide when i was the whole debate wasn't systemwide verse it really wasn't judge the debate there was whether does you where you met his burden of proof as it is here and he used heavily in his specific proceeding or so he called them arguments to try to make out a systemic challenge as in chevron that is he was squarely presented and decide there was no bench trial where there was no evidentiary hearing here society of vs turner how is someone supposed to do this and he isn't whether someone could get a lawyer one of the key with due process failings and one of his arguments is he claims an inability to meet counsel to get counsel i'd like to address that but that is something that this court did three and a half years ago in this court should defer to but could look at again that read does not have the evidence to make out that challenge that's precisely what this court does under the novo review and frankly judge under a clear error because destroyed does not have the evidence to meet his burden of proof i'd like to discuss counsel but first if i could lay the context because in addition to whether disorient meets his burden of proof the counsel question looms large on his waiver under society of lloyd's versus turner where this court held that it quote flatly rejects t due process complaint of a party who was given and waived the opportunity to participate in the foreign proceedings and so the question there's always an answer to that his only answer is he could not participate because he couldn't get coun admitted in the prior argument record forty nine thirteen that he made a strategic decision not to participate in morocco and instead to wait until the judgment came to texas for recognition turner's flat rejection is sensible and fair particularly for a sophisticated litigant like to israel who is a founder and director of a moroccan the oil company who agreed in writing to moroccan law and jurisdiction in morocco courts who forfeited has a heavy burden of proof here the prior panel that page three hundred eighty said that the compatible with due process language sets a quote high bar for non recognition indeed the texas act presumes recognition as the default rule that high bar carries over from the system challenge to the specific proceeding due process challenge indeed the only federal circuit court to entertain such a specific proceeding challenge the ninth circuit in its twenty seventeen decision made brooke flower bulbs versus holland the most exciting dutch tulip case this side of the sixteen hundreds explained that the requiring only fundamental fairness and basic fairness carries forward to the specific proceeding declined to represent him at trial no moroccan lawyers were lawyers anywhere in the world say they would have declined to represent him in two thousand and thirteen fall to novo appeal with new evidence in arguments available to him the prior panel rejected the sure his counsel availability argument page three eighty two ability to retain counsel in morocco's contrast to sharply with his inability to retain counsel in the ayatollah khomeini post hostage crisis iran page three eighty three company skidmore retained tani as counsel at the outset of this dispute page three d three moroccan law expert testified that quote many attorneys would have been willing to represent does ria in the moroccan court lawsuit note nine five out of seven of the defendants were absolved even though none appeared or had counsel page three eighty nine the prior panel held quote  have litigated entirely through counsel without returning to morocco now does your way in the magistrate or dismissive of that saying that's just personal jurisdiction personal jurisdiction is a fundamental due process issue as t in norway's gunner murder a decisive letter and nervous declaration express concern about people going to and entering morocco they say nothing about the rock in brick and gave her documents to deliver to court appointed expert or dollar benbrika herself to the court and to expert card ali i represent skidmore record forty eight seventy five and forty eight seventy nine important and i'd like to direct the court to record thirty five forty four to forty six where we discussed that in some detail because there the evidence is so thin and hearsay based on the arabic language on live paper eloff running some story about a voluntary suspension record fifteen zero zero eight of this newspaper because it's an ethical violations of journalistic integrity by reporting a story that was found to be utterly lacking in support record fifteen zero eight that's the basis for judge nolan's state and it is utterly inconsistent with what this prior panel found in the nine that notwithstanding the peripheral that's a finding of the previous time it's really not judge because what that is is the jury uses the term fact finding please look at that page twenty six to twenty seven of these so called about the findings those are conclusion judge i'm sorry judge that for that to be a friendly question to you i appreciate the friendship i'll take it when i can get it and i'm sorry i didn't embrace it right off the front end i brace it now but i want to address your counsel point just a little bit more and that is where is the evidence that moroccan lawyers in the seven year trial from two thousand to two thousand and nine refused he's a billionaire with unlimited resources his company filed a parallel texas case claiming this was a three billion dollar dispute he had lawyers in london the predecessor to denton's in the a france in norway in the us where are the declarations from any of them that they tried to hire coun was not being able to go to morocco himself and three was an impartial tribunal i know you disagree obviously with all three of those but do you agree with them that only one of them is necessary to show a due process violation i do not judge a couple things first on the personal appearance death threat story based on hearsay this is an evidence and if we look at corail versus bar last week's decision of this court were threats that are exaggerated nonspecific and lacking in immediacy or insufficient that's what this area has here with his to be upheld to win i don't judge i don't you're making the burden having your own yourself then otherwise would be no shit i'm not the burden is squarely and heavily on does your way of it he can't meet those challenges could i just answer that point though if i could and that is in the personal appearance story even the magistrate acknowledged that appearance can be in person or through counsel it devolves to counsel and as to the expert story even the magistrate acknowledged that in isolation it's not trouble we'll talk more if you money impartiality you you've got the newspaper story judge jolly mentioned you've also got these findings about the experts and out you know you know that whole story that you don't respond to the  district court finding the experts they just they just kept going to they could find an expert who would agree i do briefly thank you and that is that the judge did not need in morocco to appoint experts to award damages look at record forty constitutional issue if there is some other ground upon which the case may be disposed of and we think society avoids versus turner waiver and on the merits his failure to meet the burden of proof does that but yes we are deeply concerned about that judge it is an issue in the case that it's challeng there was quote a heavy presumption against retroactive laws in the few cases where retroactivity has been up held the courts have identified a crisis that required attention a legal pursuing now based on the same arguments and record we think it still fails the second and third factors are similar the nature and impairment of rights the old act protected due process rights in texas and around the better his lot here after he lost in two thousand and fifteen this is not some procedural change there is a procedural change in the statute that is how you actually file for recognition at thirty six point zero zero four one this is said he couldn't identify any cases that might be affected this was targeted at this case we are not quarrelling with the texas legislature as adoption of the two thousand and five uniform act were quarrelling with the retroactive something no other state has done and the uniform act itself says you don't do thank you for the two minutes all right you get your four minutes for a bottle like history so you're splitting the argument you want the extra two minutes whether the district court properly refused to recognize the judgment under the updated act mr and it will address the constitutional challenge of the act as well as any other points i don't get to turning first of all to the standard of review as judge p questions i believe indicated in the previous to jory opinion the court stated that standard of review was the no vote because it was reviewing there the ultimate legal question of whether mr de joria had proved his case for non recognition and in that case a purely legal question drove the outcome whether the moroccan inquiry was systemwide or specific to mr de joria and mr harrison says that we argued that case pacific finding should be relevant to system wipe question but this court squarely rejected that argument and said we will not parse the particular judgment we will look at the system as a whole and the only question before the court was whether the moroccan system was dysfunctional de joria was unable to obtain counsel did not personally appear and suffered additional aspects of the impartial tribe you know violation by the cycling through of the experts and i think both sides agreed that record was sufficient if this court has any questions unfairness of the lack of due process other than the things we talked about counsel thanks for that so i think we've put on our case with respect to the absence of counsel and the inability to appear in the impartial tribunal i'm simply saying that if the court had some question of some additional proof it needed to be made on one side or the other that could be a deuced below but we think under the clear air review that applies to factual findings by a district court this on the reply and says that the court did not decide the standard of review what the court does did not decide was whether the ultimate question of recognition was reviewed in novo or abuse of discretion but as we quote in our brief the court squarely said regardless of what standard of review applies to the ultimate question we deferentially review factual findings of the district court and that deferential standard of review is consistent with texas case law dating back to the landmark case frankly i mean i have a lot of problems with the fact that you say you could not get counsel and i have a lot of problems with frank so i mean these statements about physical safety seem very nag there was no real effort to do it experts testified in their strongly and that counsel was available and i don't think you put on any expert to say that it was not available so let me walk through the evidence there and direct strongly disagree that the evidence is as lacking here first of all the district court looked at all this for example when in you challenge the when you challenge the expert testimony i mean the the five the fifth district court to say look i mean this is the evidence that we have that this expert testimony is totally unsupportable an indication that he was part of the rig process claiming it was  strong evidence on that point is the fact that you had three experts who were appointed and they make the judgment says they were not able to reach in a firm opinion on the question we don't know what in the full that's correct in the fourth expert is appointed and he's dismissed we have no idea why and then finally the fifth expert is appointed but he's not able to get evidence from both sides we're not allowed we don't have counsel we're not able to appear to present that evidence folder the fact that you didn't try to get counsel made any real effort to get counsel so let me strongly disagree with that and try to walk through briefly some of the evidence and as we all read the briefs this time yes and i think the court can go back and read the district court's opinion on this point because i think it does walk through the evidence very carefully which i'll do briefly but first of all i think we start with the district court's factual finding which is to jory of was in fact unable to obtain counsel to represent him due to the fact that he was a defendant in a case of great political interest to the king and his interests were adverse to the king now here's the sufficient evidence that supports that is directly contrary to what you heard this morning which was a re argument of the district court case mr de joria reached out to multiple moroccan counsel mr de joria or skidmore colleagues he reached out to multiple foreign counsel who were licensed and morocco and all of them rebuffed him and that these are not reached out but even reached he asked him to represent them in the litigation and i would point out a couple of warned on more than one occasion that any appearance by skidmore or any personal representative of skidmore in the moroccan lawsuit would be dangerous he asked her yes ask her to ever all of them and i think it goes to this your honour's previous question that you did have counsel before the litigation started mr khatami said sure i'll represent you in your shareholder dealings but once the litigation started he's received a mysterious package of documents that conflicted about the case misprint bricked was willing to review documents in the case but she specifically was unwilling to enter an appearance in the court or the attorney who conflicted out  am conflicted out and i would be glad to assist you in finding any other counsel of did their work and will represent you and there was no effort as i understand made to proceed from there to find other counsel there is substantial effort throughout the course of the litigation what you're referring to is way back in two thousand and one before there was even a lawsuit we have evidence from two thousand and three two thousand and five two thousand and seven program not the one that conflict around yes that was in two thousand and one before there was even a lawsuit and mr de joria goes back in two thousand and three and tries to find multiple counsel in two thousand and five he goes out in two thousand and seven there are multiple if i find that in the record then you've answered the question i just  circumstances miss his partner mr gusting was reaching out on behalf of skidmore into joria and the letters that are in the record say it would be unwise and unsafe for anyone to go to morocco to represent mr  mr gustin or skidmore so all of that evidence goes to joria and it's very specific in saying it's unsafe unwise to go and that's why the district court of looked at all this evidence found on that point and if the court reviews the district court's findings there are they're all supported by citations i can give you the evidence with respect to another moroccan lawyer mr manny skidmore's repeatedly reaching out to mr manning and saying will you represent us and he never responds they send again will you re present us you never response that's a forty eight eighty three eighty seven from there's a french attorney's license to maracas thanks i might not be saying that right yes who denies representation and then also says you're not going to it's  lawyer from any country to plead against the highness prince and his partners to argue that anyone descending from on the did not keep his word yes so he was not only rebuffed he was told nobody is going to represent you in this case both by moroccan counsel and by the french the considered one of the great benefit of the outset i'm going back even further to have a member of the king's family as part of this kind of glamour or or enterprise wasn't that like it works when think everything's going great but then when the deal apparently counters some problems all of a sudden it's like an immunity you're arguing that it's an immunity from ever having to appear in court in morocco the fact that a member of the king's family is involved isn't isn't that your argument that it's not our argument your honor and i agree completely it was a great idea to have a member of the king's family involved the king himself personally recruited investors the king went on v and touted this five that all shows the king's intense personal interest in this case makes it a very unusual case it's not every time the king has an interest in the case it's every time the king has put his credibility and reputation on the line and been directly involved in this case to the point of shutting down newspapers that disagreed with them and then when there are objective and disha in the record at the king's interest in the case had an effect on the proceedings the cycling through the experts the inability to obtain counsel the there's not that sort of direct link but the district court drew the reasonable inference from the evidence all of the evidence that was presented that that was yet one and one other bullet point or data point that showed the king's influence and the awareness of the judiciary of the king's desired outcome in this case let me turn turn back briefly i think judge shelley had a question about the appeal why didn't they appeal concerning speech yes and first of all i think it's important to set up the legal framework f where the appeal is relevant in this analysis if you look at section c eight of the updated ak it says the due process question applies to the specific proceeding leading up to the judgment that's the trial in the case and then the comment to see eight in the uniform act clarifies that if there's an appeal available and the evidence establishes that the appeal could have been a sufficient way to correct the transgressions at the district court then that will stay that will only be a discretionary factor that the district court can consider in deciding whether to recognise the judgment so even if a court believes the appeal is available which i hope i'll get to briefly that would simply have kicked it to the discretion of the district court who already heard all of the evidence about the appeal and found mr de joria could not have gotten counsel and could not have appeared on the appeal so there was that would be a ground for reversal of any of that but let me touch briefly on the evidence state of the evidence at the time of the appeal there is no evidence in the record whatsoever that anyone was willing to represent mr de joria in morocco at the time of the appeal what he did was retain experts and retain baker and mckenzie to pursue an american lawsuit that is so far different from persist painting in a moroccan proceeding that directly calls into question the king's credibility and interests and i also point to the decide declaration the french attorney in morocco who specifically says in twenty thirteen specific it was simply somebody would have represented them they did not identify a single attorney you would have represented they did not say we would have represented them we were competent to stand on our specific evidence that we reached out to multiple for an american attorneys who not only rebuffed us but said it would be unsafe and unwise to represent you in this case and what i think m p ian m f m is arguing and maybe what your daughter's question is getting at is why did you know the argument seems to be well mr de joria just didn't want to have counsel he made a strategic decision to try to litigate this in the u s and the district court said that just doesn't make sense he has plenty of resources to hire counsel he tried to get counsel and yet nobody entered an appearance for him and the argument that there's some strategic decision i heard that in the opening that is based on a complete misrepresentation of the previous oral argument in this case that's not in the record in the oral argument the previous counsel said mr de joria would not go to morocco in two thousand and thirteen and put his life at risk in a sham proceeding not that he made a s the state laws on comedy so they take commentate into the statute or so we think into the statute by nine hundred eighty one when texas was adopting it the majority of stak systems had got to the uniform laws that with with the new law in the retroactivity challenge one of the robinson factors is the public interest that we look at the public interest generally or the public interest in having the law apply retroactively i think you look at the the the significance of the public interest generally but then you weigh the at against why is it why does it appear to kind of apply it before that it's affecting day so i do think it's a combination of things how important is this public interest and then relative to what harm it causes to whom it applies if it applies before essentially it's affected dobbins and says there's a three factors but it's really retro activities and you look at expectations and then says you look at where the legislature is targeting you know a party or specific parties and it does look here that this was done for one specific case so if you can respond to that concern that it directly implicates that what robinson says the reason the constitution for him it's retroactive legislation well actually there are three cases that it appl that is not the final determination of whether it's right to act and they still would do the balancing what's the interest being protected and what's the ultimate harm going to really address that question that's why the history is important here in two thousand five in two thousand and five the uniform last commission updated the statute why did they update the statute in the commentary it says because there was some confusion in inconsistent court decisions about what the statute was applying to what were the provisions they changed want to as well was as opposed to attach to a a weird cause of action or was it supposed to attest to a judgment that was not rendered in the due course of proceedings and the other one was was the proceeding itself conducted according to the due process of the individual because there was some confusion in the court's on exactly system and exactly on what the judgment they're referring to and now we come forward and we have two thousand and fifteen we have this court's decision which says the texas statute is strictly a system statute we're going to look to see if the rocco could not give a fair trial to anybody at any time and we're going to look at the evidence there is no evidence that morocco could not give fair printing to anybody at any time the legislature says we have the same problem we have our texas citizens who under our statute comedy bringing it forward in the breck proceedings in the system is now saying it only applies to system we want our citizens to have the protections of personal due process the statute it's amended and comes on forward yes they refer to this course decision two thousand fifty because it is doing the very thing that the uniform last commission commented was the problem in the old statute when texas adopted it it was the twenty third state to adopt it it wasn't the first it was the twenty third now there's twenty five states going to the question retroactively cases are legion but we will make it retroactive well let me let me off is the opportunity the fair opportunity to appear and be heard we didn't have that in this case this statute even if it says it affected going forward i would make the argument it's a procedural that we had a statute that was that was not correct on how we serve the individual due process was protected i think the supreme court with in texas when court would be clear under robinson due process open the dealers act it's pending with the supreme court should we wait to see if that flushes out retroactivity analysis and i think ramos will not get any better opinion than robinson on that and i'd just say robinson say the personal the process in the trial southwest livestock diamond offshore this prior panel cited kressley sanchez reading and bates also the courage and cam ship texas law is to know that would you counsel the prior panel hell i gave the cites in my opening presentation addressed the issue and counsel they'll ability and squarely found counsel was available and decision we had could have litigated entirely through counsel without returning to morocco this court held that want to notify you that i represent skidmore energy please enter my appearance on its behalf with permission to allow me to photocopy all documents and the file in order to be able to prepare the defense for my client period and quote look also  record one sixty five i just observed is that she provided documents to expert court as well  say first to say wasn't licensed or didn't practice in morocco that's a mistake and in the findings from judge the magistrate look at the ses declaration twenty nine fourteen and bertram for that matter at twenty eight fifty six neither one say they were licensed to practice or practiced in morocco and asked you to say please do that's why i gave the records a cite cites in the opening as to what they say they don't talk about trying to contact any moroccan lawyer except for i mean a then brick and nerd room says she was willing to do the work didn't work and did say she was appearing publicly holding herself out as representing skidmore as did her boss a colleague your general position i'm in specially given the  can't and you can generally but not in the skins i think you can and does or we could have in this case for sure he could have had a lawyer if he had all these due process procedures available to him in two thousand and thirteen he had the appeal de novo that he didn't take and there's manny who in july and august two thousand and seven a didn't respond to cold call emails from judge from james harvey the g c of skidmore that's their evidence in two thousand and thirteen they have no listeners that does not carry a burden in what they thought was a three billion dollar dispute there's a high bar they have to meet and when they talk about this notion of political influence in the king being opposed the king wasn't involved in this case the public statement from the king was in the year two thousand about finding oil there's no public statement about this case from two thousand and two through two thousand and thirteen there was no statement with the judge in the case about whose fault was it that go like that know it i know the allegations that it was mis accounting or but but they're going to defend it and say with that isn't why we want making money it's because the king wasn't telling the truth when he said this was a gusher that was it with the case was about it is this fiction that they ha bought in at the magistrate level despite this court's footnote nine judge joey foote no nine is a finding of the prior panel of this court and it makes all of that noise because that this court found no influence last point if i could you my god is going to be a long one with a lots of semi colons no i'm not judge cost of in this case if you look at the objective evidence and we lay it out in our reply brief pages twenty one to twenty two and you contrast that to the case where the president of ecuador put his thumb on the scale publicly and repeatedly were nicaragua's government passed the special walk targeting that litigation