Miguel Estrada, KRY’s Legal Counsel, does not really need any helping hand when it comes to U.S. Law. The cases that he has led for KRY as plaintiff or respondent attest to his high professional caliber. I am sure he is also highly knowledgeable about U.S. politics and how nowadays it plays a very important role in legal outcomes, although it should not. The Framers’ intentions in this regard are being set aside and this side-stepping of the Constitution poses a huge risk to the Judiciary as an independent institution and the American democracy.

The trouble is that when politics gets in the middle even the best legal argument comes short against the special political interests involved. Hence, in the SCOTUS case, a primary objective must be to put into question and dismantle the political arguments. The fact that Mr. Estrada requested a 30-day extension to be able to respond to the Solicitor General’s Amici Curiae brief on behalf of the government in his Brief of Opposition (BIO) is a hugely necessary step towards this end.

There is no better defense against special political interest than facts that dismantle the appropriateness and convenience of a political solution. In view of the outstanding legal basis that supports KRY's case, legal Counsel has relied on the dire political and socio-economic situation in Venezuela to try to skew the case against a decision on the legal merits. The main argument here is that CITGO is fundamentally important for the Republic’s economic recovery post Maduro and his scorched-earth regime.  This argument is factually true and cannot be defeated on the merits, given that oil represents over 90% of the Republic’s annual GDP and the American market and CITGO are key in the recovery of the decimated Venezuelan oil industry.

The Achilles’ heel of this argument is the proposal to resolve an economic issue that can and should be resolved by existing economic alternatives, instead of trumping the law. The solution to the problem at hand is to find a way for Venezuela to meet its obligation to KRY for about $1.2 billion on the arbitration award, which, as the argument goes, Venezuela cannot afford to pay under its current situation. The question begged here is: is it true that Venezuela does not have the means to pay its obligation to KRY? The answer to this question is an unequivocal no, since Venezuela has the means to meet its obligation in several ways:

CITGO: Generates about $800 million in annual free cash flow, which it can distribute to PDVSA / Venezuela as dividends or, alternative, use it to pay KRY to avoid the seizure of its shares by KRY and thus keep Venezuela’s 100% ownership in CITGO intact,

VENEZUELA’S FROZEN FUNDS IN THE USA: The U.S. Treasury has billions of dollars frozen in U.S. and international banks for oil sales and corruption seizures that can be released with the U.S. Treasury’s approval,     

U.S. TREASURY LOANS: It would be not the first time in history that the U.S. Treasury lends money to a sovereign to help it resolve conjunctural financial issues. In fact, the U.S. Treasury lent Mexico billions of USD During President Clinton’s government When it faced a financial crisis.

PAYMENT PLAN: Venezuela can always agree to pay over time, which it has agreed to do twice, but failed to honor.

The question here is NOT whether Venezuela can pay, but if it wants to pay.

As the SCOTUS already decided….

“That presumption of separateness may be overcome only in limited circumstances. Applying generally accepted corporate-law principles, Bancec concluded that a foreign-state instrumentality may be held responsible for the acts of the state if the instrumentality is “so extensively controlled by [the state] that a relationship of principal and agent is created” or if recognizing the instrumentality’s separate juridical status would “‘work fraud or injustice.’” 462 U.S. at 629.”

In the present case, the SCOTUS decision is highly likely predicated on the would “‘work fraud or injustice” phrase.