and i have reserved three minutes for response time yes your honor the agreement here the interim funding and settlement agreement which we call the if so meets all the requirements for being an enforceable arbitration clause it's an agreement in writing it indicates what disputes should be arbitrated those are disputes about how to allocate the proceeds from the sales of the nortel businesses and it reflects the intention of the parties to submit disputes about allocation to some form of binding why that dispute resolution process rather than court procedure you know the problem i have of all the arbitration agreements that i have looked at her or have reviewed or have studied i only see the wor arbitration in the provision that provides for arbitration and that's what strikes me about this case your your argument is you want us to infer that the parties agreed to operate arbitration from the language of  resolvers that's correct yeah it's it actually has to do with the escrow funds and it says i mean that the term is used in several different places dispute resolver but twelve the i think is the heart of it which says in no case shall there be any distribution from the escrow account in advance of either one agreement of all of the selling debtors or to in the case where the selling debtors fail to reach agreement the terminations by the relevant dispute resolvers under the reasonably practicable following the execution of this agreement not in this agreement your honor we say that there is an agreement to agree here about what the procedures are that would have if i am going to agree is not an agreement to reach the ultimate goal that you would like to resolver here was understood by the parties and intended by the parties to be something apart from court proceeding some kind of super national proceeding you know there is a dispute if the parties can't reach agreement then you go to sixteen b don't you which when it appears in a an agreement that also provides certain matters are to be arbitrated is construed as providing for ancillary arbitration it could be  ingredient that's needed to make it an enforceable arbitration clause is that the parties intended it to be some that's where there was an arbitration clause but your honor there are so many cases where the parties have been vague about this where they've specified first of  all there are plenty of agreements that don't use the word arbitration they say a physician an expert a government official we've cited these cases in the brief certainly the word arbitration itself doesn't have to be used there are plenty of cases where the parties end that would be quite well i mean it was accepted i think by the court below and i think by the parties on this appeal that this does contemplate that there will be dispute resolvers and so the crux of the issue decided by the district your differences to the courts and this procedure this section mentions the word court's six or seven times i don't see that word arbitration engine anywhere near our experience with agreements that have an arbitration clause there is often a clause like this which doesn't have an expressed horror about and which school for arbitration was cited cases on that which say that where you have a general jurisdiction clause like this it's construed to me an agreement that also calls for arbitration of certain agreement or calls for arbitrary rights so you don't get the six day ok well i mean if you find that that there is no arbitration agreement and section twelve b or section twelve of  this then you do look at section sixteen of the here which which we say doesn't actually apply to disputes about allocation it refers to disputes about matters agreed in this agreement well this this only applies if the on allocation under well you don't get that your honor that that interpretation is the interpretation that sixteen b was intended to be the fallback in the event that they didn't reach agreement under section twelve is not consistent with the overall terms of this agreement and the related agreements because this agreement first of all doesn't have anything to say about how allocation is decided in fact it's got several provisions section ten and section twelve f that the parties are to negotiate for the procedures that are going to apply by the dispute was always which is not consistent with a court proceeding the parties are going to may appoint more than one dispute resolver other parties choose how to how to make an arbitration clause how to be clear about it how to put it in the contract your honor they were trying to get these sell stuff that if that's what they wanted your honor they were trying to get these cells down that the parties around the world needed to know that there was going to be some procedure in which their various rights would be protected as to how the proceeds would be allocated it was very important to do is it just doesn't seem to me that arbitration was left out by accident that it may be that that's what the parties want it nor betray your honor the extrinsic evidence which we put before the court which was undisputed shows that the parties always intended arbitration that was all the negotiating not before the bankruptcy court or the  canada court did we bring it up yes we did your honor we asked the law how it was when you file the cross motion correct we require the cross motion weep pointed out that the court the statements that were made by the parties to the court at the time of approving this agreement indicated that it would be  in some form of a there is a procedure in bankruptcy by which you can ask that that is be referred to arbitration yes there is your honor that was never in about what we made i'm not sure it was required here we just made a motion to compel arbitration you for arbitration it wasn't view that this is a plain meaning analysis that we engage in what does the agreement say it's very clear it does arbitration your honor that's the court's interpretation of of the hunt of it's order of the contract is not under the should i go case the contract itself is not an order of the court that's not i don't but when the bankruptcy judge determined that there's nothing was not he was not moved by your position your are the bankruptcy court appeared to believe that this was not a force of arbitration clause because we would have to come back with the procedures to be used in the arbitration but there is ample authority under the federal arbitration like a federal arbitration act a provides for how to deal with that situation or appoints the are there a couple questions on the back of your brief on the sec  judge denied our motion to compel arbitrate right because he found that instead of arbitration and he looked at both section twelve and section sixteen here because of that he denied arbitration because he said the parties agreed to honor we don't see that that's where we do agree with your your position i understand it but we don't see that that's a reason for this court or the court below to abdicate its responsibility to decide the matters before her and that you have a march trial date that's correct certain clued abiding arbitration agreement for allocation disputes secondly did the bankruptcy court under bankruptcy rule nine zero one nine see approve an arbitration clause approved the as and as to that latter point i just want to emphasize this is not a situation where two parties entered into a contract years ago and the coming to the bankruptcy court this interim funding settlement agreement only exists because it was approved by the bankruptcy court here in the us and the bankruptcy court in canada and both of those judges has said when we were approving the interim funding settlement agreement no one told me this was an arbitration agreement i did not think it was an arbitration agreement and i most certainly did not approve one well that's what they said but doesn't section two of the by the parties to your dispute settled the arbitration agreement and mr outlaw had a very telling comment at the beginning of his argument when he pointed to twelve p putting aside that it's not even a dispute resolution clauses in escrow clause and he said twelve years shows the parties agreed to a private to spew resolver that is not what twelve b says he's putting the word private in front of it to narrow the words and back were used by the party as it would be have had any significance at this point given that there's been a failure to resolve any of the protocols to resolve the protocol for the distribution or allocation of asco essence i think the only significance it has is that protocol where they were negotiating everything and they were trying indeed at times they were trying to negotiate a path that would result resolve this and they had we had arguments over with their be witnesses with every discovery would it be final included there were all sorts of disputes the party said we can't agree this way let's try to negotiate something with the courts and that's when the joint minister said we're not going to do that and so the parties did would negotiate something this is an important point because courts rule there's no arbitration agreement the party sat down and they negotiated a very detailed protocol with discovery procedures that apply in both courts with order of when things are to be heard in the joint trial and feelings are about whether he authorized arbitration or not well i think in this case because the s is an ambiguous and i believe yours an ambiguous i don't think the court needs to go outside either the contract or the order but the law is clear if you're going to look at the judge's order put aside the agreement from that we're just talking about the order nine zero one nine see this court has said in cases in the shin angle case the supreme court judge said i know what i approved nobody told me i was approving an arbitration agreement look at my order when i talk about nine zero one nine the only time i talk about nine zero one nine two approving the settlement we should remember that this is called everybody says yes this is easier to say it's the interim funding and settlement agreement a principal part of the supreme it was to settle emergency funding needs canada needed him to settle on the disputes between all three of please a court patricia mallette on behalf of the committee of officials official committee of unsecured credit creditors and nortel networks in this case there are a number of questions about what if we decide that the word dispirit resolver is a get directly to that question first of all it is not ambiguous what it is is a fraud it was a deliberate conscious placeholder because what was going on in this case was a determination that they needed to sell assets quickly was a deliberate placeholder and one thing that's particularly important to look at is it doesn't just say dispute resolver carette ask which shows you there wasn't even agreement on that look at the word right in front of it relevant dispute resolve it was it was a specific decision not to decide that question as what i would give you it's almost like in sports where they say you know we'll do a trade for two players to be named later right this was a decision makers dispute resolver to be identified later and that could be courts it could be arbitrators and the critical problem with their argument about ambiguity is if ignores the word relevant which preserve the ability to actually have different dispute resolver for different issues it ignores the fact that you have to look at a word in cont you don't get an arbitration agreement by picking up a document and finding one ambiguous word and saying aha it could mean arbitrators that means there's an arbitration agreement you have to have essential terms and particularly because this is a bankruptcy case where notice not just between the parties but notice to creditors and public is vital and this is not this is not a private agreement it's negotiated this was poster titian filing their decision was let's get these sales and then if we can find a way to allocate we will attempt to agree again there is talk about money when one see it doesn't say i will agree it's as we will it's to agree and that's how you end up with both sixteen b is the default mechanism but even if you settlement agreement and that's why it was not a one night a nazi it's a settlement agreement it was about to interrelated activities that had to happen and the main function was they wanted to do the sales to international sales here to to increase in size the cigarette also a funding transfer pricing issues were addressed funding money was transferred all of that had to be approved by a bankruptcy judge and the notion that you can sort of hide elephants in mouse holes and find an arbitration that way in a bankruptcy decision is exactly contrary to not one see in the entire function of the bankruptcy process but there and keep in mind is as very noted there were two years worth of efforts here by parties to agree on this process and are trying to do here is to get from this court the arbitration process they couldn't get through negotiations for two years and you don't seize upon a documents this exactly by its term all manner of issue and that's why i said the the problem the point is that people couldn't even agree on what the scope would be there was a big debate about intercompany claims e m e a as claims against canada whether those would be part of it how they would come in and that's why i think the word relevant dispute resolver shows that there wasn't even agreement that there would be one particular mechanism for deciding this so i would refer you in particular to pages thirty seven thirty two through thirty seven thirty five of the join appendix and that is after after a year of these negotiations a list of twenty nine items that had not yet been agreed upon and twenty nine that each had subcategories my view for single page bas spaced pages that identify things they still had resolved that were absolutely fundamental to a bankruptcy arbitration and you know what it talks about mediation it represents a court's references the panels of references which is issues will be out i think the a word arbitration isn't in there but even if it work that's not an arbitration agreement that has people talking about it and even if all we had talked about for two years was arbitration which that record shows is not accurate even if that's all we talked about unfortunately when arbitration and cream and is fundamentally about consent and if you don't agree there's no penalty if you don't agree on arbitration you're in the court process it's an ongoing of an arbitration agreement and in bankruptcy and what with those and in particular in bankruptcy i'll give you the most fundamental when you have to half and that is a court order under nine zero one nine c that says i'm approving this is an arbitration and approving a settlement is completely different understand what this arbitration approval would have been it would have been a ceding of bankruptcy authority over a most fundamental bankruptcy decision and that is the allocation of the including the creditors which we are most concerned about some basic elements of process who will decide what again the scope here wasn't ever great upon who will decide what and for bankruptcy information who will  bankruptcy purposes what information we will have access to was an important issue that was under debate that might not be in other arbitration cases but it's very important that this court understand in deciding as the special me as if it rules governing bankruptcy determinations which  just said the first thing she speculated about was the reason for choosing the term dispute result of her and she suggested that that was intended to be brought in as a placeholder which could in compas many things we've traced out in our word dispute resolver was chosen because it was contemplated that this dispute resolver might be an accounting firm or another expert and on lawyer a nontraditional arbitrator and that is why the term dispute results or was was  it can include it well sir she did say that but she said that it was intended to encompass a broad range of possibilities if the intent of the parties was to encompass possible court proceedings and that's that's not in the record here that's that's contrary to what we see in the record that that evolves before the if so should also discuss the party's course of performance under twelve see here where they were negotiating about the what the protocol would look like a nd contrary to what she said and i believe this is an rebutted in the record every draft every discussion about what the protocol would look like included some form of selection of private individuals to to decide this tis in the final draft that she was referring to said quite reasonably that it would be three panelists three members of an arbitration panel one chosen by each of the three steers of influence  now of course that could have worked its way to the actual three it could have yes yes but the parties had not decided who the arbitrators would be who the individuals would be at that time they did leave that to be negotiat but that's not an essential ingredient for an arbitration clause there was also discussion just now about what the judge you knew and the judges comment no one told me this is an arbitration clause well at the approval approved this specifically said that the allocation would be by a neutral arbitrator you have to finish up mr thank you and judge gross himself in a subsequent decision which was appealed to this court said it regarded as having created a process where things would be decided in a single quasi jurisdictional form just one final word here your honor of the you mentioned the trial that we have a harsh ordering arbitration will not delay that date all of the discovery that's gone on all of the pleadings have been exchanged can be used in arbitration we are offering the quickest way to get through this and pay the creditors here because the procedure the court has ordered leads to a deadlock