i'd like to take a look st at the three stages of this case which began over ten years ago st the early stage when this case should have been remained good for a lack of an existing arbitration agreement nd the confirmation stage which we never should have reached but by the time we got there the same defect lack of a valid existing arbitration agreement a ground for non enforcement and rd the dismissal stage where the district court denied you can after the chance to pursue justice by romley concluding that its state law claims were precluded by the arbitration early on ukra nafta argued that there was no arbitration agreement between it and c p c delaware the entity are in the where this this case began you're going after has brought its claims in this case after the arbitration was initiated fifteen months into the arbitration in this litigation this this issue was was signal on the face of the removal petition and it was raised almost immediately in a preliminary injunction motion that you can after brought immediately and then shortly after after that the district court had stated it was raised again and a motion to remain and which the district court struck and did not consider the on the face of the you said the district court there's an existence issue in the district court should have decided the existence issue it seems to me that's a concession that there was a federal court jurisdiction because how do of how does a federal court decide if the arbitration agreement exists if it has no jurisdiction that's a merits ruling  are the court looked at not inexistent challenge but it looked at a challenge to enforceability of the agreement against a particular party and you know it it says that on the pleadings if there are allegations of a non frivolous claim that that an arbitration agreement relates to it that the court can look at that can look at that and also it goes on to say that c delaware cites in its briefing goes on to say that it reads bias or as saying that the court should not initially remand if the face of the pleadings makes a non frivolous frivolous claim but but our challenge i judge jolly is not is that there is not in of course abilities challenge because it is that there is no arbitration agreement when i said them or am your honor i think they're there is a piece of paper with a purported arbitration agreement on it which the district court had before it the that piece of paper was sidelined by a nonexistent and it is there was you know you can after signed it you cannot they existed at the time the other entity that signed it did not exist it was a non a non person but the actual name on the agreement is the name attach is a an english translation of the agreement which does not have any signatures or seals ot the the ukrainian language  version of the agreement is the one that signed and sealed the which c b c delaware chose not to attach to this removal petition now on the face of the removal petition the removal petition of course was required to attach certainly doesn't specify that delaware the you know the the seal on the ukrainian language version and c p c bellaver tries to make a point that oh a seal doesn't matter if it's the wrong seal but but the seal on the ukrainian version is the only thing that really identified which and he was purporting to sign this agreement in an earlier amendment the restated in the body of an c p c capacity petroleum corporation registered in texas usa and that's on page two hundred and forty three of the record is one of the places that appear so the nine hundred and ninety eight by the time you got to the nine hundred and ninety eight amendment you were already following on from previous amendments that were signed also using the c p c texas seal and in at least one of those express least stelling out in the body you know you could after claims in that state law case that the core operative fact is the deception regarding c p c texas ok so if it is an issue for the court and not the swedish arbitrators i mean the born arbitration treatise says it's well settled that an entity that is not execute an arbitration agreement may become a party there too by way of legal succession and actually cite ukrainian cases for that of all things but why isn't that the law the dish that the court should apply if it's an issue well for one thing there was nothing for c p c delaware to succeed to because the nine injunction because at the beginning at the outset of this case c p c delaware was on the verge of being sold to i think kuwait energy which is now the owner and and you could have part of  afters concern an urgency was that its trade secrets were going to be further disseminated so there was a flurry at the beginning of this case where we had a preliminary injunction and argued there was no valid no agreement existed because of this this issue about the parties and then you know the their wrist barnes was moving to stay the court stayed the case it went to meanwhile in sweden there was a sweden not with c p c delaware because we had no we had no agreement with them but the the original and now i'd like to talk a little bit about the primary jurisdiction issue the the nine hundred and ninety five original j of course had a ukrainian arbitration clause and that's you know that's that's the only relevant agreement that there's no dispute here that that was a swedish arbitration clause that same paragraph continues to talk about ukrainian material law applying to disputes and not and i would submit you know we think based on you know based on the arbitration clauses that that talked about ukraine arbitration and also we think that that that's part of what qualifies ukraine as a primary jurisdiction  least recognize that there might in some cases be more than one primary jurisdiction but i would also submit that wall up material law is distinct from arbitration passed in delaware was the contracting party whose president signed this agreement in ninety eight dollars so under buys it that is more than sufficient for federal jurisdiction now there is a separate question which is an issue that as i read their briefs they haven't even raised which is once the district cou it had jurisdiction did it correctly grant a stay of proceedings pending the arbitration in sweden you know that they haven't argued that because that is a merits issue about the stay order it's not anything that has to do with jurisdiction so whatever the district court did with the state it could not have deprived the district court of federal jurisdiction over this case but even if this court were inclined to go beyond what they'd argue and look look into the district court's two thousand and nine stay order they're still not entitled to any will be fine appeal because they can't show any prejudice from that order and the reason is even if the district court was required to conclusively decide whether this ninety eight dollars agreement was a valid existing agreements at the time the time rather than back in two thousand and nine as they claim as the district court found there's two reasons why this ninety eight dollars agreement is a valid arbitration agreement the st is under governing swedish law the swedish courts have this issue and under governing swedish law held that the fact that there may have been a discrepancy over the state of this and it is incorporation at the time the parties entered into that is not a basis for challenging the validity of that agreement as a matter of swedish law now you can after all point out that that was just the st instance district court in sweden and when the court of appeals in sweden looked at the issue it only relied on the corporate to ground but the fact remains that district court's decision is the only evidence in the record under so we dish law about whether this ninety eight agreement is a knowledge or is a valid existing agreements and that sole evidence of swedish law comes down squarely in our favor the nd issue the swe what should you reasonably have known based on reasonable investigation and what the swedish court of appeals quite properly concluded is that having fought all these years they were dealing with a texas company and then having received in the mail in requests for arbitration that says on its face that it is being brought by car pats petroleum corporation delaware united states that should have set up an alarm bell it should have caused them to make a minimal inquiry to see if this was the same entity as the texas company they thought they were dealing with or if it was a different car pass the energy incorporated in delaware and they never did that and that failure to be undertake a reasonable investigation is why the swedish court of appeals reasonably and quite properly concluded that this was simply raised too late under the arbitration rules and stopped on any challenge to the jurisdiction of the arbitrators had to be raised in the statement of defense and they didn't do that here and they didn't have a good excuse for not doing that here because they had in their own hands more than enough evidence that should have inspired them to make a reasonable investigation into whether this company was the same as for patsy texas or different from per pass to texas and they did just never did that and that's what the and so there's no prejudice from whatever the district court did at the time and that's rack up an argument that the ninety eight dollars amendment was a nobody but it did never went into existence is that all depend on the stand because the person who signed it was also the lost very clear and excited in our brains that under delaware law and under swedish law the fact that mr texas was using the wrong stamp to stamp these agreements just doesn't make a difference that's not you know you can look at it from the delaware perspective which says that the step just doesn't matter or you can look at it from the swedish district court's perspective which is that this entire issue about whether it was an entity based in delaware or in texas when he signed the agreement because that is not a substantially significant fact that could a valid basis for challenging the existence of the agreement under swedish law because it's a corporate technicality i mean i this is not an esoteric or foreign principle of swedish law the court relied on what the court said is that what they're complaining about just isn't in significant issue that no how does that affect it doesn't because we're not relying on the swedish district court decision for some sort of precludes effect here just for what the law is just what the law is exactly and it is the only law on the record you know they had ten years to put in expert evidence of swedish law and get some expert to agreement there's also the issue of forfeiture and that also would have come out the same way even if the district court had relied on that back in two thousand and nine what they've claimed in their briefs is that maybe they would have got a different result back then because by not raising th argument in the jurisdiction in the arbitration they claim that only forfeited their rejection with respect to the claims in the arbitration and not the separate state law claims they want to bring here but that's wrong for a couple reasons one is that all the state law they're alleging here arise that in the same change of domicile the arrange at the same theorize that the same contractual relationship between the parties these are all compulsory counterclaims and so these are claims that can and should have been raised in the arbitration along with anything else and if they have four for that there are objection to that tribunals jurisdiction to decide this dispute then absolutely that extends to these state law claims as well but even if the court doesn't agree with that with respect to at least some of the state law claims they were absolutely at issue in the arbitration and just to take one example one of their supposedly distinct state law claims is a claim for declaratory judgment over the invalidity or validity of the ninety eight case that we filed last week as long as some of the claims are subject to arbitration a district court is well within within its authority to enter a state wait for the outcome of the arbitration on the claims that are going to be arbitrated there and then decide at that point whether to confirm the award and whether to whether to rule on the pool reclusive effects of that award with respect to the remaining claims and that's that's exactly what happened here and if that's not enough there is yet another reason your honour's whether simply no the agreement or you can remove based on the award so as soon as even if we get remanded as soon as the word comes down we're back in federal court and then we would have said district court now we have an award we want it confirms and then we want you to decide whether that precludes effects of this award preclude the state law claims or not so even if the court had denied a stay we would have ended up in the exact same place with the district court deciding whether to confirm the award and whether the producer of effects of the award precludes the state law claims once to bring so they you know they they are trying to undo ten years worth of litigation based on something that happened back in two thousand and nine and maybe they're entitled to make that attempt but they aren't allowed to undo ten years worth of litigation unless they can show that something that happened in two thousand and nine actually affected the outcome of the case and they haven't done that and so this entire st stage of the proceedings that they want to challenge just is not relevant to what happened at the end of the day merger and that finding precludes the trade secret and unjust enrichment claims with respect to the st of those rulings the tribunals a finding of no harm was conceivably an alternative holding so this court does need to decide whether its decision and expresses quaker oats should be extended beyond the context of offensive collateral estoppel to the context of defense of collateral estoppel and it should not extend that case and the reason is hicks relied on the special problems of sense of collateral estoppel the possibility of unforseen plaintiffs and unforseen liabilities which in this court's you raise special concerns about granting precludes the facts to alternative holdings outside that context the rationales for the traditional rule remain compelling it simply doesn't make sense to deny a judgment precludes of the facts just because the parties arguments were so bad that they failed on multiple independent grounds and on this point i would invite question about the preclusion if if in the arbitration issues we were hypothetically to decide that the delaware entity in the texas energy have the same rights and they succeeded to the same agreement there's no material difference basically your view on these or this issue about the whether there's any significance to this morning that apart from preclusion just our one and just our ruling on those issues and most of the state most if not all of the state law claims almost the law of the case or it would it would just appear in other words that they would still have the rights to their trade secrets everything else if we say there's no difference between the delaware in texas and cities little tricky as the motions that were in front of the trial court were motion to confirm the award and so some of these issues might be traversed in that context but they would be under the very limited framework of the new york convention for opposing recognition and then we also move for summary judgment based on the presence of of the effects of the tribunal's findings certainly if if for some reason the court doesn't agree with with those two arguments then there may be issues on remand about whether we're nonetheless entitle to summary judgment just because the underlying evidence plus perhaps any findings this court makes you know precludes them from establishing their their claims just based on the summary judgment record and i'm saying that most of the state law claims hinge on the delaware company not having trade secret rights and things like  that it depends so the fraud and the negligent misrepresentation claims i think go a notch beyond that because there the argument is that you know not just that i jus about what exactly but that you know all the claims again with the possible exception of unjust enrichment do require them to show harm and that's just something the tribunal flatly healthy and didn't suffer and couldn't show and it was an alternative holding but that alternative holdings we submit do have produced effects in the context of defense of collateral estoppel and on that too i just wanted to point out that in earlier this year in wyoming versus herrera at the supreme court justice alito delivered in the penny in that addressed this issue at some length and i think very persuasively so if the court hasn't read that opinion yet i would certainly commend it to the court's attention to looking at claim preclu instead of issue preclusion is it a problem that you know these you're saying they should have brought these as counter claims in the arbitration because you brought the arbitration right and doesn't usually require looking at what the rules are in that tribe you know about compulsory so that's why for example on the issue preclusion thing even though you know i can imagine an argument that some other jurisdictions law should apply to that both parties have just argued on the basis of hexan on the basis of this court's preclusion precedents and so on that in those circumstances th crowded us out it's only later through all these procedural issues that if this issue about the contract in delaware in texas arises even the claim for arbitration your honor was based on the party's rights and obligations under the facts for purposes of clean preclusion and so you know that the court if the court of affirms the district court's findings on the issue for pollution you don't even reach those issues because those the issue preclusion arguments don't depend on whether there's a common nucleus or not but if if the court wants to to go beyond the district court's ruling and look at the claim preclusion arguments instead on this record we think it's very clear that these are claims that can and should have been brought in the arbitration and because they want at this point ten years later is just too thank you your own life to go through here let me let me try to hit these points on the the issue the key issue the issue of whether the stamp is what makes the difference on the agreements number one on the nine one hundred and ninety eight dollars amendment to stay on the seal is the only thing on that agreement that specifies which entity we're talking about and ninety eight agreement also followed the october nine hundred and ninety six purported restated agreement again we don't think that agreement was properly formed because it was in july usa and both of these were signed by the then president of c p c the enviably name to mr texas i don't know but i think i don't think his name is related to the original registration but you know that the mere fact that he happened to be the person authorized to sign for c p c delaware does not change the fact that what's reflected on the document is that he was signing on behalf of c p c texas and this is this is also related to this issue of inquiry notice in the arbitration ok r r objection in arbitration was not merely not simply that it was c p c delaware and we didn't know you were in delaware our contention there as that here is that you can after did not know that these were two separate entities one which had ceased to exist and that throughout the c p c delaware's briefing it entities one of which ceased to exist in july one thousand nine hundred and ninety six and when we talk about inquiry notice that we should have at least bit on inquiry notice earlier among our allegations in our pleadings and we've argued it several times is that in two thousand and six in two thousand and six you can after requested clarity requested clarity on what's the deal with c delaware is what's your corporate stats you know that that would have been the time if they hadn't of done it before done it before which they should of since that's ten years after the fact come clean about the fact that c p c texas ceased to we were prejudiced by the fact that this case was daid ten years ago and we weren't allowed to proceed at the early stage in the case on the merits does that affect any way the dispute the substantive dispute between the parties of the prejudice here from this not being cited earlier is we put on evidence at the outset that under ukrainian law the arbitration agreement didn't exist the swedish district court decision which as we pointed out was not the last word by the swedish courts on the subject that they rely on you know that came years later so they had no evidence that swedish law recognised this arbitration agreement and they still don't really because the swedish court of appeal that had the last word said we're going by this you've conceded by your conduct in arbitration all right thank you mr ward your case is under submission last case for today inclusive communities project incorporated versus department of treasur