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Crystallex International Corporation is a Canadian-based gold company with a successful record of developing and operating gold mines in Venezuela and elsewhere in South America

Message: Venezuela Takes 3rd Circ.'s Crystallex Decision To High Court

The SCOTUS is scheduled to issue its decision to accept or deny de Writ of Certiorari (Cert) by March 25th. If the decision is to accept the Cert petition, the parties will need to file briefs with their analyses on the law, and the government through the Solicitor General may decide to take part in the case in favor of one of the parties.

The SCOTUS decisions on the Cert cases accepted during the current annual term (from the beginning of October though the end of June) are issued generally towards the end of the term.

The SCOTUS receives over seven thousand Cert petitions during each term but accepts to review and decide on less than 100. The Cert petitions accepted are strictly limited to cases where there is Circuit split (i.e. two Circuit Courts arrived at different decisions on the same question of law), the application of a decision by a Circuit Court has transcendental impact on Executive power (e.g. foreign relations), or international comity (decision is contrary to established law in other countries and risks that other countries may ignore U.S. law in return).

The KRY decision by the DE District Court and confirmed by the Third COA appears to be a court split because a decision by the Fifth COA concluded that fraud or injustice must have been perpetrated with the aid of an instrumentality (e.g. PDVSA) for it to be subjected to the collection of a judgement against the debtor (e.g. Venezuela). The DE Circuit and the Third COA concluded that this is not the case when the instrumentality is an alter ego of the debtor.

I say the court decisions "appear" to be a court split because these were not based on quite the same bases, since the underlying cases are not predicated on the same facts and legal analysis. Yet, the PDVSA and Venezuela legal counsel are throwing a Hail Mary pass hoping that the SCOTUS and the U.S. Executive will take the position that foreign relations and comity should prevail over injustice.

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