please the court terry gross for once for i'd like to reserve five minutes stuff for a bottle the sole issue before the court below was whether the identified payment obligations of the congo were used for commercial activity in the united states within the meaning of the foreign sovereign immunity sacked the district court should not have even reached this issue that's because the congo in order to induce a loan agreed in the loan agreement underlying the judgment that it quotes consented to execution and enforcement against any property whatsoever irrespective of its use or intended use and further that it not only way he agreed to waive sovereign immunity but also that it is greed not to because the non assertion of immunity claims had been litigated before the fifth circuit citing to pages two forty eight to fifty one of the c b c opinion however a review of that opinion at those pages or any other pages which for example that's going to happen implicitly by appearing in a court and not asserting it ok but we have something that's even further that in this that in this agreement the language here congo agreed that it would it's different than the language that's in this loan agreement have essentially well i mean i think really what the question is why is there this additional language there that's and it must have some meaning i mean there's the the general rules of construction of contracts which  the one agreement if you look at the entire provision it shows what the intent is that basically it also says that they agreed to execution as to any property irrespective of its use or intended use and further that this was intended to be construed and you know i'm having a hard time seeing how those payments are used for commercial purposes in the united states because then every other united states business that does something i mean the congo borrowed the money and i was surprised that you could build a highway first six million dollars or our mortgages on our houses they often get sold many times and that doesn't mean that they should not be forced to use her some herschel purposed in the united states though it would seem to me if we adopted your your what you want us to a doctor not with th is that you know every company the united states company that's doing business on you know with four on foreign soil that they're going to be subject to attack if there's commercial activity that's taking place in the united states property in the united states with respect to commercial activity in the united states then yes the debts that are owed by the u s companies to the foreign sovereign should be attachable an execut in that case the congo was owed several multimillion dollar bonus obligations ok beisner by c o c l ok but they were well then pledge these bonus obligations as collateral several times for loans with what must be presumed to be a u s corporation you know under the procedural posture of this case and that was in as a as collateral in the twenty five million dollar loan in the piece financing agreements  as collateral in the five million dollar prepaid oil sales contract and both of these agreements besides being with a company that must be presumed to be a u s corporation they are under u s agreements or under u s law and they're with payments require payment to us bank account in addition to show that the congo is it has a history of pledging these types of detroit these exact royalties and these types of royalties i'm sorry these types of bonus payments ok if you look at the agreements and you look at what the nature of what it is it's a loan there's a there's an interest there's a one percent discount per month just to serve excuse their assets off the possibility of paying it back with money as opposed to yes that's correct and it's not even paying it back it's not about paying it back with oil they sell the oil and you paid back with the proceeds from the oil so it's not really being paid back and oil was being paid back in money and even if it wasn't alone it is still a commercial dollar payment if it's really prepayment then why does the congo have to pay it back if it's pre payment for oil why do they have to pay it back they don't have to pay back it's paid back by gross has made reference to it being the presumed u s company that is not the presumption that was made in the district court the presumptions there were several presumptions that were the predicate for the dispositive motions one was that s n p seat would be presumed to be the alter ego of the congo with respect to the texaco expertise the only presumption was that they were present in the united states for purposes of personal jurisdiction so that the court court were inclined to could make its own determination on the side issue but the focus of judge hamilton's decision was assumed sadist and then determined are the obligations statute is such a straight forward to that issue how about the commercial the commercial use issue that opposing counsel talked about regarding the prepayment is contractually pre committed decreased if the bonuses are paid in the meanwhile indicating that the prepayment obligation isn't doesn't feel very much like an actual payment for all while because it seems to be being in first of all it's not really  paid back in oil as i understand it and also in the me application will be diminished by money not by  bonus in other words it's not if if the prepayment isn't otherwise paid then you look for the bonus the bonus is stated as the fund of money that will be used to repay the prepayment if on the other hand the prepayment has otherwise been exhausted before the bonuses paid then the money is paid not into the u s bank account but to the congo in the congo but it's a that first of all there's no distinction between not serving a waiver which by the way that issue was raised in the c b c case in the fifth circuit but there is no distinction between agreeing not to assert it and waiving the defense with respect to what it takes to waive the defense structure of the foreign start uni's act makes clear that it predicate to getting to waiver is that you are dealing with a property of the foreign sovereign that is in the united states used for commercial activity in the united states that's what section sixteen ten starts with the  to that it only applies to property used for commercial activity and then that property is a taxable if one of seven a numerated exceptions applies one of those exceptions is waiver another exception is that the property was used for commercial activity upon which the claim is based that's not this case in contrast if you look at section sixteen zero five which deals with exceptions to jurisdictional immunity waiver in and of itself is not you know there's no prerequisite that you're talking about a certain type of property waiver is an independent exception to jurisdictional immunity it is not an independent exception to execution immunity it only comes into play if you have identified potentially a testable property that he contract may used what sounds like extreme language does not change what the foreign sovereign immunity that says nor does it change the fact that there is an unbroken stream of already from the supreme court the fifth circuit other courts of appeal throughout this country that say it is always a prerequisite to immunity under sixteen ten that you are talking about property in the united states used for commercial activity in the united states so you can't  that race judicata is appropriate under these circumstances because the precise issue in other words whether under the loan agreement same agreement in the fifth circuit as it was here whether the loan agreement constitutes a waiver that gets you outside of the used for commercial activity exception and also what used for commercial activity mean and the second  question and i understand that there are circumstances in which preclusion applies to purely legal questions but i think courts are somewhat reluctant to do that so my question is what are the particular fully in fairly addressed by parties with the same interests as the parties that stake here but not the issue so they want to party to the text action that is correct but i think that they would support the interpretation been decided if you want to apply these principles i don't i don't i don't think either the principles apply have anything to do with whether you win or lose i mean that's the parties just so they they argue out if they like the result or not but for us it doesn't matter i would agree with that your honor and i also think that this court can and and it would be appropriate for this county court to pronounce upon its own interpretation or you may ask for me about that because this is one of the things that i've noticed staring at this thing statute say that the use for a commercial activity in the united states has to be used by the foreign state that is in place since it doesn't explicitly say that the structure of the language though foreign sovereigns conduct is we're talking about the foreign sovereign property and it is the foreign stauffer and engaging in commercial activity that is the base is the premise of the predicate for not providing sovereign immunity and it would be inconsistent with the purpose of the foreign sovereign means act that a third party the conduct of the third party could subject the foreign sovereign to waiver we're talking about the foreign song it is the foreign sovereigns engaging in commercial activity or the foreign service use of its property for commercial activity that triggers an exception to immunity and to shift it's not the third party commercial actors that the foreign sovereign has a relationship it's not that it does well i've been trying to think of what a hypothetical would be but i mean suppose the the consul on an airplane commercial activity in the united states that triggers  the in failing itself isn't enough that's what's strange about it the fact that they profited by commercial activity in the united states isn't sufficient and instead they have to be using the the language supports that i think the language does the language does but the language is not limited temporally in terms of only is it using it going forward what the fifth circuit second opinion says is that if you look at the history of it  used in the past the present and the future if there was an isolated aberrational commercial use that's not enough if there has been continuing extended in monetary only significant use that is enough even if that court we were the parties before that court because we were garnished in response to our garnishment we raised a whole bunch of defenses including the foreign sovereign immunity act and there's case law that says that a third party can raise that and indeed it's the court is quired on its own to consider the application of that defense there is a rash of these cases that here your honor i cross the country and they are indeed putting the ability of american or great discounts and litigating extensively around the country to try to satisfy these judgments against american companies here in the united states and there's a difference between a texas case where you're talking about a domestic garnishe twenty five million dollar prepaid crude oil sales contract this overseas entity sought to acquire the rights to acquire two cargoes of oil on the possibility that they wouldn't be able to acquire those cargoes of oil they wanted back up ability to to recover the money that they paid for that cargo and so they chose to have that and the consul was given the right to paid the money back if they so choose the congo could have taken the cargo of oil and paid back in money or as turned out here we didn't get the cargo of oil it wasn't paid the  if we had taken a cargo of oil yes that wasn't offered to us if we didn't get it and i'm really kind of confused i thought question of whether or not the way i was going to limit in the sense that but the passage of time if the oil wasn't if we weren't able to acquire the oil buyers for a particular time and  i don't see it as collateral i see it as a committed previously committed right to acquire a bonus payment that was more to the district court saying this she had some explanation and i gather it's what you're trying to say now which is that the property was somehow yours automatically and therefore it wasn't being used in commerce i didn't really understand it well there was no use in commerce as of this offshore in a bank account in bermuda and that was paid to a bank account a designated account in new york which was under the crude or sales contract ok it's a zero balance account and went right back to b same day so  think that first our just like to address for a moment the issue preclusion argument with respect to the fifth circuit opinion and to point the court to some authority that we didn't mention in our brief which is the restatement seconds of the judgment section twenty nine and in that in the restatement sec of judgments it says that issue preclusion need not apply when it's important to develop the law and comment on me in particular is about fresh determination of law that says that  court says where an issue was determined in an appellate court whose jurisdiction is coordinate to that of the appellate court in the second action that is to preclusion need not apply or even when the issue is of general interest in this not been resolved by the highest the court that can resolve it and the supreme court in montana referred to this at page one sixty one then said in under un and an reflexive application of collateral estoppel could freeze doctrine in the areas of developing if the court were to look at the you know reconsider the meaning of that the phrase used for you know in you're questioning of my opposing counsel one of the things that  the entire underlying activity and if you look at the underlying activity basically look like what happened here for example it was a joint venture in which the congo wanted to partner with the u s corporation for its expertise as part of that it's that the congress said to serve one texaco we'll give you the right to some oil that you can take out of our ground in exchange for which if you give us just boil t payments on some of this oil ok and that royalties or these profit shares ok and that that's what the property is and it's used for its use by both chevron texaco and the congo as part of this entire underlying commercial activity and that's what we should look at the fifth circuit interpretation just doesn't make any sense and it doesn't make any sense for a number of reasons is that you know basically would make underlying activity libor of bank first as bank or nationality second circuit were they so how would you what would you define is the standard of the test the standard of the test is that you look at the underlying commercial activity and you look at the underlying activity might be true but under the facts of this case the procedural poster here you're looking at chevron texaco you're looking at the fact that even with its offshore subsidiaries that virtually all of their activities their engineering it's property i have to use for a commercial activity in the united states that's part of our party quite like us to the commercial activity in the united states is the commercial activity which takes place here which the undisputed facts i think you know  wouldn't make any difference if it's a u s company that or that that has a dead end and has activities that took place in the united states with respect to it and it doesn't seem to me to make sense to be looking at where the companies activities are as opposed to else the company is doing it's the entire conduct of the commercial activity which is you know the the engineering all the work with respect to the extraction of the oil a lot of that takes place here and granted the application the property has the obligation and that obligation was created as part of this activity where the congo came to the united states came to a team to chevron texaco because of their expertise and which they knew was centered