court under the foreign sovereign immunity is act a sovereign is not immune for its commercial activity in the united states because the question is whether the sovereign is new immunity necessarily turns on the sovereigns condoms to determine if the claim is based upon u s commercial activity by the sovereign or upon some other conduct by the sovereign the court identifies the grab them end of the claim against the defendant and that really asked a simple question which is why is this plaintiff suing this defendant and here plaintiffs sued the i s c for its own tortious conduct it provided the keystone alone that allowed this project to go forward and among other things  approved all of the design of this plant that harm the plant that and it did so knowing that the design it approved and that the plant going forward pollute the air that it would destroy the fisheries and it would commit as cause a series of other harms to plaintiffs communities that continue to plague plaintiffs to these day to this day and i see committed all of these acts at its headquarters in washington d c so i see is not in me now instead of looking for the grab a man of the claim against i have said the district court created a new requirement that said odds with the statutes history purpose and president which is that regardless of the x you know it seems like the court was just doing what sax directs it incents make the claim they don't use because you know the news with them but they claimed that the plane is claimed that the government there was a sale the ticket without any warning here you claim that it's i have ceased decision making and then the court said there is nothing wrong about the sale of the europe has standing room without the existence of the unsafe boarding conditions and ins book there would have been nothing to the twenty one dollars sex about then it seems that the same thing applies here without the unsafe construction and operation of the plant in the home there's nothing wrong feel about it i have ceased decision it just seems like this case is totally controlled by sex not true of this case because what i have see did directly cause that they approved design of this plant and b the problem with this plant is largely about its design so for example this plant puts out a river of heated and this destroyed the fishery that isn't because the plant was constructed wrong or operated wrong that's because it was designed that way and i see i see approved that design so it would be as if the public who heard it i have see was the construction design already in place when i f c came on board deconstruction design isn't in place until i have c approved it because they had final  seeing that being alleged what i can't answer that question because we don't have the other the other loan agreements we only have i have c's loan great so you can't make any representation like the one you just made that they had the final approval i'm sorry approving the design dispersing each individual tranche of a loan knowing that the design was faulty and that it you the would or as the project went forward was causing harm to plaintiffs refusing to or declining to enforce each of the provisions of the loan that would have allowed see to enforce the standards in the loan that says you you you can't do this to these communities all of those things were decisions that i have seen made and actions i  plate of can recap recast his claim but if you look at for example the st circuits opinion and leni one when you're bringing that the claim that you have you're not recasting your client so that concern of to supervise me and i don't see the difference in terms of it i just don't see a material difference between those two and the outcome of the case i mean if sanction improperly worn she might not about the ticket so so like the this this project would not have had the problems it had if i have see didn't affirmatively produce approve the design that's that's different from what  happened in sacks because all they did was the the failure to warn did not cause the problem at the platform and that's just not true here i see was part and parcel of the design here that caused the problem  the sounds like you're arguing a different a different subject there's two separate subjects here one is what is that your lawsuit based on and the other is that assuming there is no sovereign immunity is is there c libel you're arguing about liability legal liability rather than that rather than the based on analysis the supreme court required i would say just the opposite your honor  act approach that that i have see advocates is actually a limit on liability and this because under the last harmful act approach you can never have a sovereign is always immune and can never be liable for d it in abetting conspiracy any joint tortfeasor clean where it's not the last act and the problem with that is that the supreme court in st national citibank has expressly held at the same liability rules and the the problem with their approach is that it is not having the same liability rules their plaintiffs defendants would be liable in this case under ordinary tort princip start where you started judge table with respect to the applicability of sax we believe that this case is controlled by sachs as your honor noted the plaintiffs are cold pleading here is to try and move up the acts to determine whether those acts had a direct effect in the united states that is a different situation and a different part of the statute that we're concerned about your impose cases your honor court who did the act and it was the act commercial or not so course when they look at whether the act was commercial or not they look at only the acts of the saddam in those cases no one would contend your honor that if the question were whether i have seized x or commercial or not and we submit in phatic leave that they are not for one of the reasons that mr earth pointed out that we would look at i f c actions but that's a threshold question that the remaining question is the one we're dealing with here and that is where is to grab him and the graben it is the particular conduct that injured the plaintiffs i guess let me just be clear as to your understanding of the law so yes the engineers are the construction company on the site but there is also evidence that the design itself on its face called for something that would create damage to the players you know other words insufficient consideration of irrigation except causing pollution of the screens and all that is evident well in the face of the plants and yet the defendant here agrees to participate by lending money is it that there is no way to get at the defendant's actions or that the plaintiffs have simply pursued the wrong sciri of their case respectfully your honor there would be there would be no way i asked he has munity in this in this and even in that situation because that's simply dividing claims the supreme court said no we end judge bates said and the united states said no we're going to look at the case as a whole we're going to look at the essential of the case and the assessment and i was trying to pose a hypothetical where there was a question that it was a low was in connection with commercial activity the defendant was acting in that respect i take your point about unity but the question in my mind is have played it was properly play and i think  apply something like it might apply if we look at whether the form nine convenience test applies or something like that but the grab them and test if you need for i f c the plaintiff don't deny that the problem and test applies here and alleged foreign injuries so even if judge rogers we've moved further down the causal chain with respect i ses actions but for causation it's still not enough it's just different in court it's not who caused it's what happened so i also would like to address the narrative here because my colleague mr hurst pointed out many times in his presentation that i s c approved the design of the  didn't address those modifications you didn't do what your own c e o said you should do which was address those modifications but that is just the same as just failed you pointed out that that is identical to a failure to warn claim and i would recommend to the court and there was a failure warplane the nelson too and ed rogers i would point out that if you look at the facts and nelson in nelson the the saudi arabian government advertised in the united states through agents they recruited mr nelson in the united states through agents they negotiated and find an agreement in the united states or nelson they orient me to saudi arabia they oriented mr and i would also like to address your honor with respect to the fact the plainest claims that this court should look at individual claims or should look at individual elements of claims of planning reading of sack and less and less there is insufficient private capital available on reasonable terms so what does that mean that means that kind of seed does think mercial banks don't private actor might be liable in these circumstances and that's exactly our point that's exactly that if the court can't impose a different liability can't be that can't be a test because wrongly decided if somebody torture somebody and and holds them kidnap them they'd be liable but not us i mean doesn't mean that the sovereign immunity is is not there liability unless you commit the last harmful acts it wasn't commercial you can't beat serious about that i mean recruiting and hiring is not a commercial activity that is a commercial activity us know what the supreme court said in nelson is that the recruiting and hiring wasn't the the basis of the claim the torture was but the point i'm making is that when you figure of the claim is not when you figure out its character when you figure out what the grommet is you you can't adopt a rule that cuts off liability because the supreme court specifically said in st national citibank that the act was not intended to affect the substantive law determining the liability of a foreign state and their last harmful act is a liability it says you can never have it in a batting and various other kinds of liability and that's inconsistent their position is inconsistent with this court's opinion in trans america where with this court held that you know there were there were two government entities one was liable for aiding and abetting the other and one was not immune for aiding and abetting and if you take their approach the embassy in that case would have been immune because all it did was aid and abet the other entities torts there's no way to reconcile their position  i'm sorry i hurt your honor would you respond to mr green's response to your rd party argument yes i mean i think wherever you look whether you look at this court's precedent in cases like trans america i think if you look to the tax it's very clear that that what what the i have seen i'm tired that what congress was trying to do was a stablish a geographic limit so once a party is in gauge a commercial activity it's not immune and what congress for its conduct and so then the question becomes where can you sue it it's very clear that what congress intended was this to be something akin to a to a long arm statute and personal jurisdiction never looks to a rd party that it circuits including this one have either indicator or held d in this court held that you look to the acts of the of the party itself and once you once you do that it's all  in that case it was d o j which committed the last harmful act and and in fact so that approach was as was the fiserv get adopted that approach of looking to the sovereign defendants act in kalat and the supreme court