Summary

Respondent's Objection to Motion for Leave to File Amicus Curiae Brief and Brief for Professor George A. Bermann in Support of Petitioners

INTRODUCTION

Prior to seeking Mongolia's consent to submitting the Amicus Brief in the case, Professor Bermann made public statements criticizing the Second Circuit's decision, which demonstrated a fundamental misunderstanding of the case. For that reason, Respondent Mongolia withheld consent and submits this Objection to Motion for Leave to file Amicus Curiae Brief (the "Motion") and Amicus Curiae Brief of Professor George A. Bermann (the "Amicus Brief") in support of Petitioners' petition for writ of certiorari (the "Petition") under United States Supreme Court Rules, § 37.5.

The proposed Amicus Brief, which repeats the public statements made by Professor Bermann following the issuance of the Second Circuit's decision, does not bring to the attention of the Court any matter not brought to its attention by the Petitioners, as required under the Rules of this Court. Rather, the Amicus Brief is structured as a subsidiary piece of advocacy aimed at complementing the Petition--indeed even purporting to engage, albeit incorrectly, with the record of the arbitration. In doing so, however, the Amicus Brief betrays a fundamental misunderstanding of the case as evaluated by the Second Circuit, which may lead the Court in error. This is perhaps not surprising when considering that Professor Bermann is a law professor with no connection to the arbitration underlying the case.

There is no circuit split for this Court to resolve, nor law that remains for this Court to develop. Professor Bermann's attempt to elevate before this Court a case presenting nothing more than a question of application by the Second Circuit of settled law to the facts of the case falls short of the applicable criteria for granting certiorari. This, too, is unsurprising considering Professor Bermann's long-standing interest in having a hand in the development of the law regarding the question of arbitrability (for which he notably submitted an amicus brief in Henry Schein, Inc. v. Archer & White Sales, Inc., 2019 WL 122164). But there is no law to develop here.

The case at hand was decided on the facts of the procedural conduct of the parties during the arbitration of a dispute between Chinese state-owned enterprises and the sovereign state of Mongolia, pursuant to a bilateral treaty concluded in 1991 by the People's Republic of China and the then- Mongolian People's Republic (the "Treaty"). Professor Bermann's views advocated in the Amicus Brief do violence to that Treaty.

At issue in this case is the question of whether the substantive law created by two foreign sovereigns in their Treaty created a protection for investments of the nationals of one of them in the territory of the other (the arbitral tribunal answered that question in the negative). Further, by agreement of the State-parties, to the extent that the Treaty created a substantive protection, a claim that the substantive protection had been violated could be heard and decided by only an ad hoc international arbitral tribunal constituted pursuant to the Treaty (not any U.S. or other foreign national court).

By definition, absent consent, Mongolia is not a subject of Federal or New York law, such that there can be no displacement of jurisdictional questions from the New York courts to an arbitral tribunal. This is why the Petitioners themselves brought the question of arbitrability to the arbitrators and, of course, never challenged the arbitrators' authority to make that determination during arbitral proceedings that spanned over seven years. As the Second Circuit confirmed, such conduct by the Petitioners manifested "clear and unmistakable" evidence of their belief that it was exclusively for the Tribunal to determine whether the Treaty conferred it jurisdiction. If the arbitrators were not competent to make that determination, as Professor Bermann argues, then any dispute with Mongolia regarding its consent to arbitrate would have been brought before its own courts in Mongolia, not those of New York, which was a juridical seat selected later by the Tribunal itself.

As the above foreshadows, and as further explained in this Objection, the proposed Amicus Brief mischaracterizes the case in several respects. As such, the Amicus Brief would burden rather than assist the Court. For that reason, the Motion should be denied.

...