addressed the issues in arbitration before that we stand on a very strong from dish on all the policy that favors arbitration that any adult that really concerned the school of an  should result in favor of arbitration well then that leads me a very naturally to the order that the court has issued in this case asking counsel to be prepared to discuss because it wasn't really discussed in the there was further recommendations made by the united nations regarding holding courts should interpret article two section two and what the court said and what the united nations said there specifically  and it's attached to the convention itself was it made a recommendation regarding the interpretation of article two section two regarding an agreement in writing and it said the clause we want to promote arbitration because we recognize arbitration is such that it helps resolve disputes quickly without with not a lot of judicial labor it recommended that and i'll read it verbatim it says it recommends that are not exhaustive so what the un and the treaty said in interpretation was that do not just rely upon the agreement in writing signed by the parties because we said specifically in article two that that was one of the options that should include as one of the options but it was not an exhaustive list of hope which is that an arbitration should come before this particular court no this court in the ninth circuit has addressed even a similar issue in a case called baling versus hot in the market it was a case that you actually cited in the question  contract then it wasn't signed by the parties in that particular case the argument was made that because this was a contract an arbitration contract in the philippines the philippines required agent to sign on behalf of the cruise line agent to sign on behalf of the principle and what this court held is because ordinary contract an agency principles apply to arbitration agreements we will taken and defined what these ordinary contract principles are and what the court said in multiple cases and starting with a case called homer vs might might or which is that for thirty six f thirt een ninety eight is that when we're looking at the ordinary contract and agency principles we're looking at five things we're looking at incorporation by reference assumption agency feel piercing and alter ego and equitable  sign the agreement and so therefore wasn't blown by the arbitration clause the problem with that particular argument is this if you look through what the complete in this case says what the therefore we're looking at all those allegations there are multiple cases in the ninth circuit starting off with cases such as on reconsideration and the district court on reconsideration actually addressed the merits of both the alter ego theory and it didn't say theory so it is it is it is very it's a strained argument to then see that those issues were waived because they were dealt with on reconsideration on the case of with the work of her versus executor nine fifty three federal second five ten from the ninth circuit states that if you address those issues adequately in reconsideration it's this court can rule upon those particular issues and in fact there were not only addressed in the opponent's brief to this court but he apparently has no fully addressed those particular arguments and it's probably before this particular court and so again one can't look at that there are three ways to arbitration the three paths that are arbitration for dong on look at this record argument and the arguments that it made it looked at issues too narrowly it didn't look at the complaint appropriately but for an employment contract mr yang would never be on the ves relationship now whether or not you need to have an employment agreement is that is is is is is an issue as to whether or not of course going to fashion what that agreement might be an oral agreement however let me just address that that particular issue in the in order for them to prove they owe those he have to prove an employment agreement under the ocean and general maritime law absolutely the contract a written contract well that's that's that's where that's where i think we definitely it doesn't necessarily have to be a written contract ok it will be a contract has to be an agreement but only thing played in this case dismiss the claim because they failed to allege really necessary element of the claim if if they had alleged just an agreement and not said it was oral or written yet i don't think we could dismiss on that particular ok so then my question going back to those maritime was you say they must have an employment agree or if they don't have an employment agreement there's no calling if they don't if they can't establish an employment agreement an employer employee relationship there is no claim no but again the question is oral or written but in this particular question in this particular case it is in fact written well i know it is in this case but the question is under california law it's depends on what elements of the claim are liquid he was misconduct by your allegations truly implicate the contract in question are they truly inextricable are they truly intertwined and then are the allegations also interdependent and assert the concerted misconduct that's california law and that's exactly what has happened in this particular case there is no separation between don't want to majestic milliners never been a separation that the plaintiff has made between dong wong and majestic blue with respect to its actions with respect to the contract with one or title nine chapter two sections two zero one two two zero eight does not a foregone want the ability to climb over this subject matter jurisdictional hurdle because there is no signed writing between the parties to why the district court was correct to bar the agency and alter ego for waiver and why they shouldn't apply anyway and three why even if they were over the jurisdictional bar and into the substantive analysis why there is no equitable is stoppel which should apply under either the law as applicable in california or and because there are actually no equities in this case require it it is a non signatory to the contract furthermore they have conceded that they are an agent for disclosed principle majestically fisheries being the principal and so under the agency law that they so desperately cling to the ordinary contract principles and agency law and agent for disclose principle is actually not party to the agreement as a matter of law and so not only are they by their own concession non signatory they're also as a matter of agency law not a party and because the convention act different from the f a a requires as he jurisdictional matter a form requirement before we get to the substantive analysis is a jurisdictional matter requires a signed and an agreement in writing which is specifically defined as an agreement in writing signed by the parties don juan cannot get over that jurisdictional threshold to even get into the ecuador will stop all substantive analysis down the road they are by concession a non signatory they are by concession an agent for disclosure principle and therefore not a party so that there can be no writing agreement in writing signed by the parties because their non signator and they're not a party and so i think this case is markedly different from the baling case and also from the garrido case that has been cited in the briefs out in the fourth circuit because in those cases the party that seeking information is the principal who is not in the room who is forced under these filipino labor situation that's going on over there with collective bargaining agreement forced to employ an agent to do the work on its behalf and so that's actually not what's happening here in all those other cases it's principals who are outside the room coming in to assert the right under the contract because their agents signed it in this case don juans in the room they're not outside they're not a principal outside they're in the room as an agent for disclosed principle and so when the contract is signed they say for majestic blue only not us and now they come back in and say wait a second it's for me we're party to this agreement too they had the best opportunity i think often courts ask who had the best opportunity to avoid this mess don juan is in the room at the time the contract is signed and they stand up and say i'm an agent for disclosure principle and so we are not party to this agreement i think as a jurisdictional issue that the court has raised and i think the subject matter jurisdiction is the corners under henderson be shinseki five sixty two u s for twenty eight two thousand and eleven can be raised at any time this is a former acquirement under the convention act it's a form requirement that's jurisdictional that jurisdictional bar cannot be met by don juan who's conceded they did not sign it and by agency principles are not a party and so not part of the act this act which has been codified it last pacifically includes the convention treaty which talks about it shall be a agreement in writing signed by the parties that's how it's defined and my understanding is not only is that defined this way here but that countries and nations across the world are enforcing it in the exact same matter and the only confusion as far as we can tell certain law review articles is streaming from u s courts who are not strictly enforcing that jurisdictional bar and part of the reason is i think many of the courts and many of the cases that we have read at best gloss over the agreement in writing jurisdictional requirement by not taking a look behind the curtains and figuring out how that's defined in the treaty as a writing signed by the parties well you know in the appellate at the circuit level there's  that specifically considered it and found that jurisdictional requirement to be a strict one to be exactly what the plain language of the statute says it is which is a specific definition of an agreement in writing signed by the drakes a little bit different and i think one of the things that's distinguishing factor about the differentiation between the case that is before the court here and many of the other cases that are out there is that in the other cases that we've read that are out there it's always the principle who's not in the room who's raising his hand saying wait a second that's an agreement signed by us because that was our agent but in this case don juan is not the principle outside the room they are the entity inside the room who is raising their hand to the person signing it mystery adding and saying we're just an agent for disclosure principle and so we're not part of this contract and i think that's a hint we may not have to have to get into the application of agency not even if it's weight on this record that is that is true your honor and i think that but i do think that the at the outset when the court is considering the jurisdictional issue of whether you have an agreement signed in writing by the parties and the court looks at the agency principle if it does to say they're actually an agent for disclosure principle not the other way around and so they're not even party forget about the fact that they're conceding and i think the court has noted they've conceded is a non signatory so you can get to the sign part but as an agent for disclose principle or not even a party and so they've got to find a way to get to jurisdictional i think the courts have and in fact are supposed to figure out whether they've got the subject matter jurisdiction in this case and only then can you get over the hurdle into the whether we consider the alter ego or the agency or the substantive equitable stoffel there has been representations to this court today that this issue was quote unquote addressed tangentially i think if the court looks at what that means as to how it was addressed change actually with respect to waiver what happened is that don juan said there are five avenues to get there alter ego equitable sabol agency etc etc and then they say but only one applies equitable stoppel that's not addressing the issue tangentially that's saying the other ones don't apply that's the basis for the waiver here your honour's they do set out the five which acknowledge that they knew about them and then they said only one applies and that's the equitable stoppel there is nothing equitable about having the party in the room who is in the best position to enforce it situation under the contract come in later and say wait a second we were deserve the equities of the court it's understandable when a principal appoints an agent but it's not understandable when the agent don juan is in the room at the time and is in the best position to create clarity this messes occurred because don juan didn't do and now like to come back in and enforce the equities of the scenario there has also been believe judge fisher asked the question regarding whether you need a contract written or otherwise under two causes of action if you're a party that has contributed to the death of somebody on the high seas you don't have to show that you're an employer and employee you don't have to show that you're a passenger on somebody who's boat you could be on your own little boat and somebody else causes you injury and you have a claim under just that and so does that is not exclusive in any way shape or form to an employer employee relationship let alone a contract under general maritime law which is where a lot of  for instance on sea with the un seaworthiness is often asserted that also doesn't have an employer requirement has an owner requirement which is different an owner is required to provide a sea worthy vessel but not just don't require an employment contract or an agreement they don't even require an employment relationship as you go into jones act now you have to prove that you have what the law calls an employer employee relationship you don't have to prove that there's a contract you don't even have to prove that there's an agreement in fact the law presumes several times the borrow servant doctrine to allow a claim and sue and party who is deemed to be the employer and so i just want to correct the record because it is it is ultimately clear you do not need a contract otherwise otherwise what you would have happened in every jones act case your hono is that you would have some owning entity creating up some shell corporation to sign all the employment contracts with no assets and you would leave semen without any cause of action under the jones act that's not what the law instruct what the law requires under jones act you simply need to prove that there's a relationship and you can prove it through an employment contract or otherwise in this case this is a much different case your honour's then a situation where somebody is in forcing the terms of the employment contract mr yang is not enforcing any terms of the employment contract it's not coming in here and saying section seven of this employment contract is where i need rel against don juan arise out of the fact that they had unrelated contracts to manage the crewing the names the upkeep and the repair of the vessel and they didn't do their job and that that is what contributed to mr yang's de and so the employment contract is a piece of evidence that shows why mr yang may have been on board but i think what's being conflated here by don juan is their ability to turn the arbitron clause inside that employment contract into some huge broad clause that not only covers majestic blue but also covers don juan for anything that comes out of that and that that that they are not allowed to do because they don't get over the jurisdictional hurdle they be they don't even get a substantive hurdle of being in total tax would have a stop and i think the difference under california law is that it must rely on the terms of the contract and mr yang's claims that they don't mark it's not required that they would lie on the contract there happens to be one but that's not where this arises out of it arises out of the statutory claims that are available to him irrespective of whether there was a contract or not ok thank you thank you counsel act and no claim on her general maritime law why because his sole basis and the sole reason mr yang is on that particular vessel is because of his employment contract and in fact in the record there was an affidavit that was signed by s g park in this case that indicated that the reason that they enter into these contracts is so that they can work on these vessels in the first  complaint my colleague said the complaint doesn't reference or at least rely upon the contract to support the jones act beyond seaworthiness under general maritime clean one one only need look and there isn't one here there is no jurisdiction is that correct i don't think that's correct your honor because because there is in fact a contract in writing issues whether or not it's signed by the both signed right signed by the parties right right and  you could has to be signed by the parties under the convention there's no jurisdiction here that that but the convention doesn't require it to be signed by the parties what convention i'm saying if we disagree if we were to let's say we agree to this with the second circuit but the second circuit is a different analysis after all of us know what i'm saying to you is that even on the second circuit what the second circuit was saying was that the second circuit said on the can that you can have an arbitration clause or you can have an arbitration agreement signed by the parties and so agreement signed by the parties and what you're saying is that that doesn't really end the case for you because now you're getting back to your agency theory that dhawan was a party because it served as the parties on this one ok thank you for your time thank you mark that concludes our session for this morning the matter is submitted council have a safe you have a safe trip back to florida