fight thousand miles away from the nearest u s shore the supreme court correctly hell that they thought was not committed in the united states and therefore the exception was not a political let's talk about let's talk about this exception which is either the expropriation exception of the taking exception whatever you wish to call it and it seems to me one of the hard issues in this case is that your clients are not just italian citizens right the she i agree with she doesn't have she never became a venezuelan citizen she's been there thirty four years correct always the nexus that we're looking for here that seems to be relying on is in that second clause that the agency or instrumentality is engaged in a commercial activity in the united states or it because if it weren't for that then you wouldn't have any citizens and you don't get the compensation you think you're entitled to that violates international law i believe so i believe that he's firmly rooted of prin to consist only there with the other thing is that in see them on the nine certainly let me ask you this question you say that the lack of adequate compensation gives you a violation of international law all right yes ok let's assume that in a different case venezuela takes the property of one of its own citizens not a dual national one of its own citizens and pays that national that venezuelan national five million dollars for the property and the national says you know my property is worth six million not five million does that national have a claim fact yet with so every time that every time that a foreign national thinks that he or she has not been adequately compensated for the taking of private property like for example someone has to give up property because of the building of a road or a bridge and they think that their property was worth more than the government gave them they can file suit here as long as the requisite nexus is met as long as the requisite nexus is matt and that's the sort of very limited you have any case that stands for that proposition or even comes close to it well they see that among case of the ninth circuit i think it's right on point in this case because it has been cited in other context regarding i claim against iran where one of the plaintiffs also became a us citizen prior to filing suit and the court said there might be subject matter jurisdiction we don't reach it in this case because the us and iran have a three d to deal with rich because in your brief you cited for the all you have to have is a non frivolous claim since that time it did go to the supreme court and the unanimous opinion by justice briar established a somewhat stricter standard so that is it is it correct that that even if we were to rule in your favor and remain you would have to meet that standard for jurisdiction not that you have a non frivolous claim but that at the venezuela which is the american convention of human rights in article twenty twenty three of that commission specifically deals with that there is also a solution for the general assembly of the united nations dealing with a comic rights i specifically talks about the principle of international entirely i would just like to correct something that the appellant's council may judge williams here after two orders in this case we focus primarily on the second order which is the order of dismissal that order was not with prejudice it's right there in the docket that was a i was in order issued without prejudice and it doesn't seem to be any argument here on appeal that judge william williams was wrong to dismiss the alien torts that you claim in that case there is no reference to  questions the fact that we have a foreign q case such as this case where you have foreign plaintiffs venezuelan and italian plaintiffs were complaining about the expropriation of their venezuelan companies in venezuela by venezuelan sovereign state that  outside the jurisdiction ited states there's just simply no argument about that acid this the first order in the case the other order of peel is the intellect it's very order on the motion for leave to amend it in that situation judge williams did not say the no outright no right to file an amended complaint in this case she simply said not right now we have a pending motion to dismiss less aside that at this moment after joe's williams dismissed the initial complaint without prejudice never filed the motion for leave to med instead they made the strategic toy choice to come to this court and to complain that joe's williams never gave them a rifle leave to mend and then they sought to remove judge williams from the case i think there was i thought there was an a and i think the record is otherwise what it was may have may not have been legally appropriate but it's not like they sat back and never tried to i thought submit some was they were they were beyond the time for automatic amendment that says to the initial amended complaint with a move to leave they follow the pro they filed a motion after the fact and judge william said that's denied ok then judge williams decided to undertake the merits of the initial motion to dismiss and our point here is wrong with the initial complaint with the initial complaint that's right and my point here is your honor is that at that point she denied the motion i'm sorry she granted the motion with out prejudice they had every right to go and tell the court the reasons why this new amended complaint should  be heard but they didn't do that they strategically decided we're not going to try to resolve this case we're going go to the eleventh circuit and complain that our rights were denied because we didn't have well help me here then maybe maybe i'm i'm messing up with the documents i've been working with documents seventy five what it says at the top order granting defendants motion to dismiss and dismissing inclosing case and i didn't see anything about without haven't you may be thinking that because it doesn't say with prejudice what the rule is because it doesn't say with how it is with prejudice the language is not well check that your honor co counsel i got it here to is just   to show why what judge williams did was wrong and they never did that and in fact we briefed before judge williams why they're actually on the foreign sovereign immunity exact was was bart under the f s a because the f s a simply does not have extra territorial effect and the appellant put forth no argument the judge williams as to why that was the case because so go go ahead with your argument why you say the f s a has no extra territorial effect whatsoever that is the for example the part about the the the nexus is that the instrumentalities engaged in a commercial activity and it does that is that not count as territorial as opposed to extra territorial or what's your argument absolutely your honor to correct the record we do object to cuban and the public do object to the commercial activity next is being met we did that before just williams it is actually an r and r appellant's brief to this court so that's another instance where a second burden your honor and that's to show that the burden against the extraterritorial effect of united states statues outside the united states that that burden has been overcome congress has said that you need clearly expressed intent what they have argued is this nexus component it shows that this is the only requirement to united states but that's not what this court said mr hayne and let me talk about that briefly the appellants have gone through a number of alleged violation international law that they want to l gate under u s treaties issues dealing with their arrests with search warrants with due process but this court of mesmeric mr haines said that we have to limit the we have to limit sort of violations of international law to strictly those listed in the f s i a and the reason why the courts say that is because if we don't do that then we run the risk that cases with little to no nexus to united states will be brought in our courts now if the plaintiffs are right that the only nexus required is probably being a united states or commercial activity then what the eleventh circuit said which is binding precedent is wrong and that's simply not the case what the appellant's want this court to do is to make an inference is to make an inference that s exception which begins a foreign state shall not be amused in any case which seems to be a sort of four corners if you fit within that and i understand you argue that we can get to that if you fit within that language in the statute that's what congress has said well because we have to apply the presumption in others you have to read within that language the idea that congress was concerned with domestic affairs the message conditions and if you look through the legislative history of now three exceptions i'm going to there except that's an excellent question just box and what the supreme court has said though is that congress doesn't need to use those words that congress is presumed to be applying the law as united states conditions what you judge boggs is trying to get you to talk about is the fact that this statute unlike the a t s begins with a foreign entity a foreign country says that they're generally entitled to immunity and then provides exceptions how could that not have been if you meet the exception and i know it's a hard thing to do but if you meet the exception how can you say that congress didn't contemplate bringing in a foreign national or for national entity into the united states  ok let's take venezuela out of this let's use another country ok let's use canada let's say that a french citizen b property in canada and the french and the canadian government decides is going to take the property not provide any compensation and then use the proceeds of that taking to then engage in commercial activity in the united states putting aside the pfizer is that a violation of customary international law that would be your honor yes you're telling me that french citizen in that scenario cannot seek to apply the extra per the expropriation exception of the pfizer to the canadian government here we know your honor and here's why the presumption is that the united states congress is concerned with  basically take on every expropriation that occur throughout the world even if it didn't involve u s citizens involved takings in the united states or anything else and resolve those issues and the presumption against exits or attempt to retaliate says no you don't know how tell me how you that a foreign government is going to take property in the united states well it's happened before in two instances your honor for instance this court's in this course multimedia fission you had the government of cuba that expropriated the assets of a company one of those that's us being a trademark and that trademark was side in the united states so that's one instance another instance is united states v belmont that's not an expropriation the united has an effect in the united states but it's not done in the united states well what i'm saying is idea that united states courts resolve these all these international the speeds and what the supreme court there was hesitant they were hesitant to open up the doors of the united states resolve all the world's problems and they said we don't have an instance where congress has said that they've decided the in the united states but they were concerned about united states citizens and united states investments this is a i know but that the statute doesn't say that at all that's why there's a presumption is that your honor no you're not talking about a citizenship a statute as opposed to a presumption against extra torah to reality and those two things are very different i disagree when i think that again if you look at the morrison case just a brief if you have an american citizen in venezuela whose property is taken isn't that extra territorial will no not in the not in the since course it is it has an effect on the citizen because he or she is a national the united states and in effect but the taking of occurs extraterritorial it doesn't it does but if i can talk about the morrison case because this is an example where the statutes not say so all the conduct doesn't have to happen in the united states that's just a that's not giving so you're talking about two very different statutes i agree you're out of my very different statutes one of which deals exclusively with the immunity given to foreign governments and the other one which says nothing about extra territorial effect you're on of the presumption against exeter a tally does not require that all conduct occur in the us of the next propre it's a u s citizen puts the money in italy would that be a way to avoid in the any jurisdiction anywhere i mean is that does that treaty that he referred to make any difference at all it doesn't you miss carmina the right to bring us in the united states the question is whether the subset of provisions of the yet applied to conduct does not leave the united states and let me tell you the danger here your honour's the danger here with ruling that the united states courts are open for business is that you may have united states companies that are hold over to saudi arabia to to to account for alleged you know violations of international that that occurred in mozambique with citizens of another country and that's the risk that was a concern that the court had and why we said we're going to we're going to apply the presumption and here there's nothing at all that touches united states this is a foreign q case last year it's a foreign keep case today it will be a foreign q case tomorrow and lastly they didn't give these argument to judge williams it's unfair to reverse judge williams where they but i think it is important to first start off by recognizing that when we talk about sixty five eighty three you're talking about the stricken amended complaint you're talking about the what the stricken amended complaint the original complaint isn't s complaint so it's part of a part of their argument on appeal is that that complaint should have been stricken yes i understand you are right so we have that issue before us and in the context of that argument you have to look at that stricken complaint i agree with you three there was a bit of a discussion regarding a violation of international law and there was the assertion made that it was merely the lack of compensation that would create a claim we we re quite clear both below and in our brief here and the gaar case is quite clear that it's not just compensation they're used in the first show rights an issue there are no owns things that's not somebody is right now we're talking about a time of property rights that's what i mean it up are you saying property rights are not rights or the corporation has no rights i think they are rights ok but that the plaintiff has to show what those property rights are that actually apply and in this case the only things that have been simpering really managed as judge williams uses under the stewardship of take given are the assets of the company the  no assets they have been administered by back event so the rights an issue it isn't that an argument then that that you can take anything from a corporation and it doesn't take anything from people are you saying they don't really they never owned the corporation that be a different argument saying that they they could have brought a claim for an expiration of shareholder rights for example the shares but the shares weren't taken there has to be a distinction it can't just be whatever might possibly flow up to shareholders there's and then we'd be talking about the nationality of the corporation exactly that there's that where you're trying to go and that would mean that this court has no jurisdiction because of venezuelan company so going to the individuals is a way to sneak out of corporate release now i see the point at least exactly so the rights an issue is important can't just talk merely about compensation so is that just a pleading problem that is they should have said that we as and i'll get to the taken part next but when we talk about the pleading issue there composite exhibit ten is attached the complaint and according the complaint that contains the property that was allegedly taken so this isn't the pleading issue that the points of already said this is what we're complaining about assets of the company so it isn't just pleading it goes to the core of the entire complaint when we move on to difference you can't just sort of guess at that has to actually be taken nothing has been actually taken is in a receivership it is in a receivership proceeding order excuse me where did the initial complaint alleges about the ownership of marvell co at first were the initial complaint that there were four owners correct that is correct and we highlighted that and that's one of the things amongst others many others that led to the stricken amended complaint because there was attempts to move it from four to one even though that was inconsistent with prior proceedings that relate to this matter and inconsistent just with the options of the fact that you have four shareholders in the company it's not complicated to know who owns what shares according to the first amended complaint what was the percentage ownership of the four if you remember so the original complaint is twenty five twenty five twenty five  for correct the stricken amended complaint would have been one hundred percent carmina which is quite convenient because she's the one that claims that she's not actually even a swale and even though she's lived their whole life and it's  reason why these things can't be taken at face value they're not pleading errors they're errors that go to the core of the complaint the district court ever passed a law on this record it was certainly allowed to take out and although the supreme the latest supreme court case says it didn't have to go as far as to figure out who and what the district court never make any findings or reach any conclusions with regard to ownership or it took the first amended complaint at face value the district court m just noted the differences perhaps that inform the district court's decision on striking the amended complaint the fact that things were changing so quickly there playing that the plaintiffs played so fast and loose with the facts well they didn't deman we're here under that amended compliance or somehow we send it back on that amended complaint the bottom line is it's not invite they can't show and bars and i said you've got to show a clear violation of international law undisputed violation of international law this is not a violation of any national law when you guys got that pran when they take it their own  canada expropriate the frenchman's and i pretty i heard him say that yes that would be a violation of customary international law that's on the substance that's not i when i heard the answer that i took that as that that would not give rise to a claim in the united states well that's that's jurisdictional that's the procedural hook i was i was looking to the legal part of it in other words as i heard judge hole saying if you your own nationals that's not a violent act a state doctor is not a violation of international law i heard judge jordan's question and that's why i'm i'm bringing it up was that as a matter of substantive international law it would be a violation for the new use the term customary international law for candidate expropriate the french citizen now whether you can get in the u s courts is a completely different question but with respect to this distinction about it's not even a violation to expropriate your own nationals i was just confirming that we've heard that to explore parade somebody else's nationals would be a violation of that's that's possible that's all i wanted was to make that distinction that we still got to get them into u s courts or they have to get into u s courts and you may you may well keep them out ok but even as well as and quite often  you know if i know that my time is over i if if i'm a judge will you you referenced how merrick and just to be clear on how moronic it is this wasn't the first time to recognize a six you