my name is yvonne home and i because arbitration as a matter of contract parties are entitled to bargain for and mutually agree on the procedures that will govern their arbitration proceedings and when the arbitrator's fail to comply with those bargain for procedures they exceed their powers under the  arbitration proceedings and then when the dispute arose the parties then engage in an extensive negotiation process and during that process they chose which specific individuals they wanted are as arbitrators twenty sixteen engagement letter that's correct a tournament is the relevant sentence here at the bottom of the first page and i'm reading it it's under the section called scope of dispute says the determination will be a joint determine the terminator decision yes so so if i look at the letter that was sent on october fifth two thousand and sixteen that's that's what that says re coal and determination of the disputed amounts that's of the decision that is the determination yes that's a decision so i mean i guess the argument would be well then you've got what you bargained for right you got a determination by those two partners and what's wrong that we receive partly what we bargain for we haven't finished up the problem and this comes up in aaa arbitrations where something wasn't anticipated it wasn't anticipated that ms manaul might leave and therefore it wasn't addressed i mean if there was a provision that said if miss mina leaves then we have to all start over again or something that would be a different case but in that circumstance normally you defer to the sort of arbitration entity normally it's a aaa or somebody like that here it's the k p m g so why wouldn't we defer to them to handle the situation that was not addressed in the contract but what we did specifically address is exactly which to arbitrators we wanted for the entire game and is only to those two individuals that's no longer possible so what i'm saying is the your contract doesn't say we start over at that point so k p m g did something logical and rational they picked another k p m g person to finish out the last little bit about this the issue of whether the addition and calculation was proper why isn't that exactly what aaa does all the time in arbitrations all the time when something comes up that wasn't complicated in the arbitration agreement and they resolve it well because this court's own precedent shows that even if the parties  for a process that is completely unworkable that process must be followed and what the poor records will raise a great example because they're the party has expressly bargained for the arbitrator to be chosen by the end will in b w i director of insurance well it turns out there was no such person and so the request got sent to some other when will an official who purely rationally said well i'm just going to doesn't arbitrator because i'm probably the closest thing to the director of insurance and yet the district the district isn't because even if it's unworkable it still doesn't justify an arbitrator straying from the terms of the contract and there's an easy remedy for this what should happen is that k p and upon determinants departure and if she is just a simple contract modification but you didn't bargain for that process that you just articulated did you well we specifically bargained for these individuals and as a result is to replace them in the event of an unforseen circumstance you that's right we process does that mean revisiting the five day rewriting or visiting the entire thing no we didn't pick up exactly where ms menow left off she we don't dispute that she issued that determination we have issues we have we had problems with a determination in its failure to disclose sufficient reasoning but there was a determination issued what we need to do is to go back and pick a substitute arbitrator assuming manana is not available just for the five day just fourth to finish up this process because under the party's mutual agreement unless and until those pows determination objections are properly resolved the award by definition is not final and binding and so we need to pick up where the determination leaves off h objections curious what is your client care i mean if all this is is you're not going to undo the entire determination all you're doing is appointing somebody else to determine whether or not there was a pavement first place and the parties spent a lot of time delivering over who they wanted as our arbitrator's we had no idea that major amount was going to just punch out altogether and in fact you know at one time she notified the parties that she was going to be leaving k might be a different outcome or you would be here i mean i don't know why you want to say that we don't know we have different outcomes and this is just a complete waste of everybody's time and money and i can't believe that that is what you would be here for i just i mean in the poor a case we saw a trivial departure selection method of arbitrators may not work make it or even if there's no chance of a different there wasn't a trivial departure to have a different account to deal with the closer to clean up at the back end well certainly by mutual agreement this is not trivial because the process itself needs to be properly completed otherwise by definition there is no final and binding determination that could ever be confirmed is the term engagement defined anywhere in the agreement you know and so it's given under it's not a logic in its plain meaning and the word shall be responsible riposte the engagement and a determination just being involved in determination is a not because i did not conclude the engagement because we specifically established and usually agreed to a post determination process for ribs all the objections and so ultimately we a little different from poor a in a sense that you have this underlying arbitration contract that's got k p m g involved in the first case the isn't that a piece that allows for the process that occurred that's different from just we named a nonexistent entity so we gotta start over no because we didn't allow k p m g we didn't authorize k p m g to override our express choice of which to arbitrators would handle the engagement the chart in the determination anything in the agreement or the require them to give you figures explicitly no i think that's a result of reading the two pertinent provisions of the contract together you did you know bargain for a reason and determination we upon reasoning supporting the termination but then we went on to confer a right to the parties to challenge any paint arithmetical in accuracies in determination so for that challenge process to have any meaning there has to be at least enough information for us to ascertain what numerical inputs the arbitrator's use in arriving at their figures and i think it's significant that actually these figures which are on line sixty six page nine sixty six of the record there are nine categories listed and therefore them that informed these particular and results and it's significant because if you add those up it's over eight million dollars of the nine point eight million are award and so for us to challenge not the arches have to show their members otherwise the ability to challenge in the determination so the reason needs to be sufficient to suspect that when they went back after you raised that that they didn't check the math i mean bleecker was involved he's your guy you all agreed on him he goes back and checks the math i mean i understand math errors but typically once you're aware that somebody is challenging your math you go one plus two we put four oh no it should have been three or not right i don't understand i g's the entity or positions did that's just a gap filler so there really isn't a gap to fill if the parties go beyond just saying how we're going to go appoint arbitrators they specify the only two people that are authorized and empowered to resolving age have an entity that they referenced and said they could go to them i mean here the end of the entity they reference didn't exist so that didn't help us of k p m g didn't exist it be analogous well it's been it's been analogous in b p as well take the parties established a process and the district court fairly said well this process doesn't work on how multi party dispute and even in that circumstance this court held the parties to the bargain and said you can't modify what the parties have a stablish as a fundamental procedure for the arbitration here we've chosen those two people by mutual agreement if one of those persons is no longer available then the only solution is for us to ritually agree to a replacement and barring that to seek relief from a district court under of a section five euro difference between sub reasoning and arithmetical computation substantive raising i'm sure could be interpreted different ways but arithmetical seriously is literally about not so unless we know what numbers people out of subtracted there's no ways to know whether the math was correct and some reasoning could be tell me the methodology used right one side watched this type of thing counted the other side says no that's wrong we should use a different formula that seems to concepts i don't mean your methodological reasoning and then we'll tell you later on ok i'm not going to challenge about the logical reasoning but i do doubt a math problem and i don't think that in order for the ability of a challenge not to have any meaning there needs to be at least disclosure i the right otherwise the right to challenge match wouldn't really have any any meaning in the contract ok thank you save time for about  here here we have a situation where it's the unprovided for kids in other words there is no provision that they can point to in any of these contracts meaning the s b a schedule nine or the engagement letter that we violated arbitration that it was designed to be a quick efficient process that we've been deprived of that and and we don't need to go back on anything in addition i would say you're i get that you'd rather not get when i get that but i'm just curious is right in th is this a real burden on you all other than i can say is a few more weeks i can't say that would be a burn your honor but i will also say that there really was nothing more for ms menow on to do even had she been around and the reason for that is that there was never any proper objection lodged so proper objection would have been something outside we think you have your math wrong that was never lodged a they don't even defend it they've never asserted that the objection that they l determine that this is not in alleged paid mathematical arithmetic on accuracy it may be an easy call in this case but somebody does have to make that call i think that someone i k p m g had to look at the letter and decide whether it was a proper or improper objection i agree with that  that's kind of interesting because if it's not a proper objection then we would never get to this whole issue of this other guy but how do you get to this question of whether it's proper or improper if you don't have the other guy so which one card or horse  so would that be true also of the schedule nine section that i read that if there's a doubt about whether that is in play in a situation like this we should defer to the remedy that supports the arbitration result i agree with that your honor but what i i don't think there's any doubt about that provision in schedule nine applying here this is the one provided for case clearly and in both in both in the case of that's different from for that is different of course and that's a that's very clear that the recent opinion is somewhere between a simple determination which says this is the result and findings of fact he proposes a law which are very very detailed  and the case law says that the courts give great deference and don't require much more than a simple determination to find that as a reason determination but importantly this is another situation where it was and provided for there was not in there the court that i'm reading from six seventy four f third four seventy four courts as i stated in green of conoco wanted a more thorough discussion of why the decision making authority to tell us what happens you're argument is it's only the five day that needs to be redone the determination is what it is so if we were to accept your argument and send it back and then you all are so your argument would be you have to agree on a replacement for the now that's right ok what if you can't but if you do they just say yeah we don't like him how about her oh i don't like her have at him and ya just went on and on and on and on and never picked anybody then one well there's the f a a says that there is an breakdown in the process then we go to court so there is clear avenue under the case law and under federal law that allows for appointment to be made so this is not an in an insurmountable hurdle to getting a final determination or we need a determination as well we bargain address the precise issue of when there's been a breakdown the process and there's a significant footnote in the poor a case where it says obviously the court recognized it was impossible to abide by the parties agreement and so the solution was for the parties either to mutually agree but it's discernment not the person that we contemplated having resolve or disputed but it would have no grounds to argue that right i mean the court could do that we don't know what the court will do i mean we could mutually agree to someone else entirely  in this litigation but that's a ultimately both that the decision is to be mutually made about who should step in and announce place and then ultimately only those duly chosen arbitrator's in conformance with agreement can resolve or to actually i mean this may be sort of a infer from the record but i think she contacted us on october fourth and said i think is a generic email saying hey by the way i'm leaving k b m g and we immediately went whoa whoa whoa whoa whoa you know this is a problem for us and then she made a response a no i'm going to stay involved engagement and then the determination wasn't sent to the parties until november but it was it was pre dated october fifth which was what she indicated was her last day she and so we didn't know that she was that had really punched out because she told us she would stay on and i guess she just moved on and went by the time we had the determination our hands and an opportunity to object to it she was no longer and they sort of mounted a formal objection but they thought well we'll just write it out and see what happens and so in that case they decided to forego their ability to challenge that the improper does a nation if it were indeed i'm right i'm suggesting that probably no thank you very much i don't think the