is still active or not and in fact if that were the test and we were to use those words in their colloquial way but with in the legal realm then in virtually every opinion a sector in a go and then sometimes they will close the case mark it on the docket and it has ramifications in certain instances as to whether you can go back to that district court for a for legally whether it exists or not but it i'm trying to figure out is it still able to make a decision that group that panel is still able to make a decision on procedural matters as far as we know the answer your question is yes your honor we wrote to the panel as as the quarters aware from the briefs and the appendix we wrote to the panel within a couple of months of when penn national demanded arbitra the arbitration to consider this consolidation question as well as the question of its own jurisdiction then national refused to arbitrate refused to arbitrate that consolidation of juristic the issue before the pal and that's the basis for our itration demand and the same day or within a day or two of when we wrote to the st panel asking it to rule on consolidation and its jurisdiction within a day of two of that we  it's participated in by multiple reinsurers each reinsure has its own percentage share of the whole and these are reinsurance treaties spanning a period of years and also layers an individual arbitrator how consistent with this language could we order a national to move forward with a prior arbitration that's until and unless until it's decided to be the same it would seem to be presumed a different well i think it's completely consistent your honor because if you parse through the arbitration clause of more than one reinsure is involved in the same dispute all such reinsurers sub constitute and act as one party for purposes of this article so the reinsurers acting as one party are responsible under the reinsurance agreement and under this arbitration clause to appoint an individual as a party arbitrator on behalf of that group of reinsurers who are involved in the same dispute did you did you participate in the the way it should work is that at the from the inception from the get go all the reinsurers are are named in the arbitration demand and all the reinsurers participate in selecting a party of horn an arbitrator you know there are other reinsurers that participate in these treaties besides my client and the two reinsurers that with the subject of the panels st panels initial award we don't know what is happening with those other re insurers penn may have settled with some of them and penn may be in other arbitrations with others of those reinsurers and penn national and some of those other reinsurers may between themselves waive the right to  enforce the consolidation clause which we believe is a mandatory consolidation clause anyway the right as between them to enforce it but that's not something that would be binding on my client or any other reinsure with a mandatory consolidation lies goes issue of contract interpretation and of arbitration procedure what kind of arbitration did the parties contract for and it's very clear on the supreme court presidents and presidents of this and other courts that that is an issue for the obdurate years for impaneled in keeping with the procedure in the treaties that determines that is a threshold question i think that's what just cross is asking certainly what i'm asking and i don't hear how you've given an answer as to how we can just the treaty applies question for a panel wide the st panel because the st panel assumes the ins or to the question by taking it to the panel that only has jurisdiction if it's the same well all the all purposes done just across i think that those are two distinct legal questions legal issues one is which panel should this consolidation question go to and the cases  binding on us why should they pursue correct they're not binding on the shore supermarkets st circuit two thousand and three and and this court's decision from two thousand and seven and certain underwriters at lloyd's against west chester against westchester fire but i was saying there are two distinct questions one is which which panel should it go to and the cases that i cited to judge be this all having go to the st pa can decide what seems like a new issue a new dispute because adding the threshold question that's where they are british is whether it in fact is the same dispute or not and the the st question as i said is which panel should make that determination there's nothing under the f a a federal law for trace an act or under the contract that allows a national to reject a panel that has been agreed to try partake panels were required by the treaties there's not that agreement here ok and in shaw's there was a single a arbitrator everybody agreed that they'd have jurisdiction over all the claims here you agree an arbitrator is to decide but you're presuming the ins or your question which is it has to go back to the st panel and i think we've both been asking version of the same question not hearing an answer about why how you can get it back to the st panel a less we can implicitly decide is the same but you've conceded we can't decide that no that's clearly a decision for the arbitrator's to make right and in situations such as this or in the cases that even though the case law otherwise would have the case go to the st panel to decide the consolidation issue obviously it can't if the panels functus officio i'm happy to answer further questions but i do see my time is up and i'd be happy to address for the questions  where you moved if you moved at one point to confirm the st panel decision has occurred that's correct very very briefly yes we did and and the reason that you put a stop to that is what plural seed says that each party shall appoint an individual arbitrator and n b c msnbc deal with a unique circumstance where one for more than one reinsure is involved in the same  in which circumstances there we insured are required to act as a single party in other words that appears to be to field act and national to protect it from having to litigate on multiple fronts if it's the seem to be seeking here your i think the question is whether you asked whether we insure elect to proceed in a common arbitration you could elect that the question is whether it's required to do that and the question is whether it's the same dispute in this case each reinsurer signs the same treaty but its liability is separate and distinct under the terms of the treaty and there's no dispute about that so it's as if there is a separate contract between penn national and each we ensure that clause i would suggest you is intended to operate in a situation like the hartford arbitration where there were two way insurers but they were affiliates and they acted as a single party to the arbitration for purposes of the hartford arbitration it does not make the dispute between heart heard and national the same as the dispute between penn national and everest and it does not mean that the fact that penn national might have a we insurers and you agree that the reinsurer could elect to proceed as if it were the same dispute what why don't we have that case here i don't think you do here on this this this was a the hard core dispute was initiate so what are the issues you perceived was this with her brits there are similar but that those disputes have not mature into a briefing and whether the panel will will resolve them on the same grounds whether the same issue defenses will be presented by everest the participations are not identical the issues are certainly similar i can't do that they are the same underlying losses but evarist is a participant in some years on some wires where efficiency issue each party has the right under the contract to pick the panel members know you can do it and you may be rippin you may be right there may not necessarily be a a duty but why don't let the st p technically hasn't been confirmed yet correct the award has not been confirmed there's no further proceeding related to that award and no because of the settlement yes and no for the proceeding related to that to that dispute that dispute is conclusively resolved same dispute with again going back to the language of this agreement if it's the same dispute then the reinsurers are required shall constitute an act as one party but we're where it's not and then where are we just dealing with like a and c each party shall appoint an individual arbitrator penn national did that as a party to this single treaty for the layer it selected its arbitrator our reading of the contract to do that and i think that that is the right that penn national sought to enforce when it filed its petition to compel you know our every every court that has considered the question of which panel in these cases has struggled with the issue that you have both identified how can the court fulfill its duty to direct the parties to arbitrate and at the same time ovoid sure of you've given us a reason to suspect this i think that the the had all the st panel had already rendered its award that is to factually distinct from every other case that that they cite let's say we're not sure why should should is it the district court that should be making the fact findings here you've given us a few tell tales you know you and your brother seem to agree that it is it's not a one hundred percent clear here why is it is something we should be dealing with in the st instance you know i think what the district court did here was to follow what the federal arbitration act rexx him to do which is to direct the parties  and to direct the parties to follow the arbitration selection procedure in the contract which is we appoint one they have point one and the two of them picked the umpire that's what the district court did specifically to avoid having to make a determination about whether this was the same dispute whether this was was something that should be consolidated or should not be consolidated and that in in my view is the correct decision when confronted with the circumstances of yes there was a prior arbitration between different parties pursuant to which there was an award now there is a dispute between the national on everest what should the district or  as being the same dispute but isn't there at least the same distribute not to get too metaphysical but as to the threshold issue of whether it's the same just you at least that would be in common with with your are traitors at that point right well it would be uncommon but it wouldn't because there would be different parties in other so so if you look at every case for example arrow wooden dam that is a case that everest lies on those were three disputes between the same parties and with the exception of the aegis decision every one of the cases they cited is a dispute between the same parties in the question as to whether it should be to solve it or not that's fundamentally different then a dispute between two completely independent entities but they are at that point wouldn't it fall under paragraph b i don't know the letter is all dealing with the same question of whether it was the same claims are the same but i don't you know not from my perspective at least the contract is intended to address the situation in which there are multiple reinsurers involved in the spirit and to address the procedure for that but it is not intended to require or make mandatory that disputes with different reinsurers all occur at the in the same proceeding mr leonard said well it was an obligation to name every re reading of the contract silly to have reinsurers who are not disputing an obligation to pay mandatory parties to an arbitration for your insurer who who doesn't agree with that requiring and i will tell you we we made this representation to to the judge below this is the hartford arbitration is not the only arbitration that penn national have been involved in under these trees related to these losses there have in fact at the time that we were before the court below there were three a total of three different arbitrations not including you have written arbitration i would fully form panels today there have there are four all of those proceedings are concluded and but but but it's not as if anyone other than evarist you know regarded this as as a mandatory consolidation each one of those disputes was regarded by the parties as a dispute between the two parties not the reinsurers collectively before you sit down listeners and who are questions of my colleagues  address anything relating to the ceiling unsealing of the documents i want to prevent you yes you're on or if i if i could very briefly it would be our request i think the issue there obviously the parties did not have the benefit of the event  decision court did not have the benefit of that the question is whether you can or should affirm the result without affirming the process by which judge jones got there our view and i'll try to be very brief is that the applicable standard here is the common law standard because the st amendment standard has never been extended to a proceeding of this type and i think i will be shouldn't be under the common law standard the question is whether the award that was attached to the application to confirm should be treated as a judicial record under the circumstances of this case i think our view is that practically your honor is the award in the hartford arbitration i think there are a can on some level to discovering material from for analytic purposes but they're not purely discovery materials that let me try the new put in perspective the purpose of the federal arbitration act is to promote arbitrations the principle value to the parties to an arbitration is the confidentiality if the mere a of filing a petition to confirm which must a clue to include the award made that award a public record even if the court takes no action so simply the act of filing it that would vitiate the very purpose for which parties engage in arbitrations would be completely contrary to the public purpose that is embodied in the f a a and i think it would be inconsistent with the public principles that underlie the common model of access the common law right of access is intended to ensure that the public can have confidence in the integrity of the of courts can understand why the courts did what they i applied the functional test to discovery type materials not to non discovery type materials and this is there's a lot of sense to that because it would not discovery type materials you're dealing with the with the core function of  court to decide a dispute and and we don't want to have i don't think that we want to have a situation where with it where when the ceiling issues come up a court has to try to get into the mind of a here the articles that penn nationals cited for the proposition that arbitrations are confidential go on to point out that the trend the increasing trend is that  when a pardon goes into court relating to the arbitration that the confidentiality of those documents is is with increasing frequency not upheld when it's when it's filed in court because the courts of course have their own rules that they are abiding by my brother referred to the district court decision to require the appointment of a new panel  said that the district court did that to avoid deciding whether it was the same dispute but of course it's really two sides of the same coin by making that decision the district court interpreted the contract and concluded that this is not the same  sixty seven dollars decision in the la valle plaza case kind of hard to imagine a clearer statement by an arbitration panel that it's finished the arbitration award in that case provided that it was in full settlement of all claims nonetheless the district court sent the matter back to that panel to decide whether in her how the award that that panel had issued took account of a deposit that was made prior to th