we'll hear argument first this morning in k seventeen twelve seventy two shine versus archer in white sails mr shanmugam thank you mr chief justice and may it please the court the federal arbitration act requires courts to enforce arbitration agreements according to their terms this case involves a straightforward application of that principle in the context of arbitron billet specifically where the parties have agreed to delegate to the arbitrator the authority to decide whether claims are subject to arbitration where the parties have so agreed the arbitration act requires a court to honor that agreement a court does not have the power to decide the issue of arbitrary realty for itself and a short circuit the arbitrators ability to do me justice ginsburg there is a question in the case concerning non parties the agreements in question are agreements with some of the defendants not all of them and so therefore as to the non signatory defendants there is a question reserved by the court of appeals about the doctrine of equitable stoppel and that would be an issue for the court of appeals to address on remain and if this court agrees with us on the question presented that is obviously a discrete issue not reached by the court of appeals in the decision below and again an issue that would be open on remand but on the question presented i think our submission is quite straightforward the holy ground exception on which the court of appeals relied has no footing in the text of the arbitration act where the parties have agreed to delegate the issue of arbor tourbillon to the arbitrator the merits of that issue are for the arbitrator and holy for the arbitrator to decide sections two three and four of the arbitration after all point in the same direction where you have a valid delegation that is treated as this court has indicated like an antecedent agreement to arbitrate and all there is for a court to do is to determine first that that provision is itself valid and second to determine whether the opposing party is in fact resisting the enforcement of that court makes that decision and i wonder why this isn't this a similar question i mean your friend on the other side makes the argument that will parties would not have agreed to submit wholly groundless questions to  arbitrator and so you should see treated as the same type of question so mr chief justice i think there are two parts to your question first to pick up on my response to justice ginsburg we are certainly not disputing that the issue of equitable and stop all the issue of which parties are bound is an issue that goes to village it's an issue for the court to decide so again on remain and that would be a question for the court of appeals in the first instance the court of appeals explicitly did not reach that question because of its holding on the holy grail this exception it said that the requirement that arbitrarily goes to the arbitrator was not enforceable as to anyone even as to the signatories to the agreement i think as to the second part of your question  again we think that the question of whether or not there is a valid agreement more generally is a question for the court and so if for instance there were some question about the validity of the delegation provision say a question about whether the delegation provision is itself unconscionable that would again be a question for the court to decide but i think that on the issue of arbiter bilinear this court has said time and again most recently in the first options case that arbitron ability can be delegated where there is a sufficiently clear delegation and once the issue is delegated it is for the arbitrator saying that that is indeed the position that we reached restatement has taken so all of the courts of appeals to have considered the issue have held that this type of incorporated delegation meets this court's requirements and let me explain why that's true even though again that's an issue outside the scope of the question presented we certainly think it would be appropriate for this court to provide guidance on that issue but the court certainly does not have to reach it if it so choose what is going on in this case if you look at the four corners of the delegate of the arbitration agreement and i would point the court in particular to page fifty eight of the joint appendix were two page eight of our brief is that the arbitration agreement by its terms incorporates rules of the american arbitration association and it does so very clearly that is a quite common arrangement particularly in commercial arbitrations like the wanted issue here then if you take a look at the rules of the american arbitration association those rules and in particular rule seven a clearly gives the arbitrator the authority to decide arbiter pillock and under this court's decision in first options the relevant in whether or not the parties were willing to be bound by the arbitrator's determination on the issue in question and so with all due respect to professor berman and his amicus brief the position that he propounds has been rejected by every court of appeals to have considered this issue and if the court has any interest in this issue i would refer the court to the very thoughtful opinion of the tenth circuit in the belknap case which discusses this issue in some detail again the fifth circuit in the decision under review ultimately did not decide that question and it did discuss that question and i would respectfully submit that it's discussion on that issue was somewhat confused the fifth circuit seem to think that because there was a substantive carve out from the scope of arbitration here that's the very carve out that's in dispute for actions for injunctive relief the thought that somehow had a bearing on the validity of the delegation here but i think with all due respect  yes that is correct and the fifth circuit then discussed the issue but ultimately did not rest on it and once again this is a discreet question it's outside the scope of the question presented but i would respectfully submit that i think that the law on this issue is quite clear and that in particular to the extent that the district court discussed this issue justice ginsburg its reliance and respondents reliance on the substantive carve out cannot be correct in other words the respondents r signed arbitration agreement over an account and the if it was closed within a year and years leader says the ban improperly assumes your stiction there's been a delegation what are the what are the potential outs for the porty who's now been stuck in an arbitration that legally is wholly going to lose the arbitrator made a mistake so just to sort of mar let me address you know both that and the related question of what remedies are available to the arbitrator and to the arbitron billet the remedies if any would be those provided for review of arbor troll decisions more general way and as this court is well aware there is a very live dispute in the lower courts about the extent to which courts can review the merits of arbitrators to decisions and whether they can be reviewed for a manifest disregard that is an issue that this court has left open but i think that would potentially be available in lower courts have said that that is available where an arbitrator reaches a wildly incorrect decision on arbitron pillock i think that to the extent that the other side points to the douglas case is sort of the flagship example of a  no different from review where an arbitrator reaches a wildly incorrect conclusion on the merits of an arbitrary or in other words arbiter ability is in the same bucket as any other issue that is properly remitted to the arbitrator review  any would be under section ten of the arbitration do you think that it could be the arbitrator exceeding their powers well it could be and i think that if you look at the lower courts that have reviewed our mature ability determinations some of them have located review in exceeds powers in section ten a for though even those courts have engaged in pretty deferential review i think as a practical matter it's basically the same review as manifest disregard review and it certainly is not the sort of de novo review that respondent seems to contemplate can you understand the common sense resistance to the idea that if a party has not agree to arbitrate a particular issue because it's holy ground list there is no way that an arbitrator could in good faith and without  r reach a conclusion that our patrician was agree to seems counter intuitive to believe that we're sending a party to arbitration to potentially think one of the unique i said the courts or not understanding that at the core of this is always about have you agreed to arbitrate an issue and if you have it you shouldn't be forced america sorry to have interrupted but two points in response to that first i think it's important to the extent that we're talking about the party's intent to recognize that the parties intended for the arbitrator to decide arbitrary ability there was no carve out explicit or implicit for holy ground most claims which is to say that where as here you have a dispute of this variety you have one party saying that the claim of arbiter ability is whol groundless you have the other party saying not only is it not wholly groundless we believe we have a valid argument about the construction of the car about the parties agreed to have the arbitrator be the decision maker and i don't think with all due respect to respondent who faints in this direction that there's any way to reform the incorporated delegation here to create a carve out to create a carve out for holy ground most claims to say that the party somehow implicitly agreed that the arbitrator would decide arbiter ability unless the claim was somehow holy ground most or that there would be some preliminary determination by the district court but why i do that mr sham again i mean if you look at first options first options is a case where we said we're not going to treat these delegation clauses in exactly the same way as we treat other clauses and there was an idea that people don't really think about the question of who decides and so we're going to hold parties to this higher standard the clear and unmistak intent standard and wouldn't the same kind of argument be true here that the parties never really considered who was going to decide these groundless claims of arbiter ability or maybe if they did consider it they would have thought that it was a pretty strange system to send it to an arbitrator just so that the arbitrator could send it back to the court so that we are going to get to you know to to say that there's a special rule in interpret in these kinds of clauses justice kagan and i think there is obviously an interpretive rule that requires clear and unmistakable evidence that the parties intended to delegate the issue but i would respectfully submit that once you have that evidence that rule falls out of the equation and again why do with you have the evidence when forty six of this court's opinion and first options it focuses on the willingness of the party to be bound by the arbitrator's decision and i think with all due respect we have that here and i think that what you what you cannot do i would submit is to say that the parties implicitly countenanced a regime where the district court would make a preliminary determination with respect justice kagan i think your question assumes that the claim of arbiter billet is wholly groundless that is  very merits dispute between the parties we believe that we have that the claims that issue or arbiter of all and respondent disagrees with that and once that is true this is a merits issue for the arbitrator to decide what's is there clear and unmistakable evidence that an arbitrator has to decide whether a particular matter x is art that right yes the and step two the answer to the first question  they did decide that clearly an unmistakeable and now we see if why not send it to them or it's totally groundless we still won't send it that's this case right that is the regime that respondent is advocating here that i would like to say a little bit about why we live a question about church you say when you get to step two once where they are now there is no holy ground with exception go send it to the arbitrator is that right that is correct now i suppose it's really weird i mean you want to say no exception to all he says my claim here is a martian told me to do it ok are you saying no matter what even if he has to read the word yes in the contract to mean no never under no circumstances is there no exception no matter what yes and picking a yes i'm just no exception no matter what there is no exception no matter what but there are remedies available where a party makes a truly frivolous claim what worse it is agreed that the arbitrator has the ability to impose a wide range of sanctions on a party that is making a frivolous argument those it's fair to say that they love arbitration so they are not probably very much inclined to sanction parties bring suit bring arbitron disputes to them they actually do have specific an expletive remedies under their rules for providing for imposing sanctions including cost and fee shifting and the like and it may very well be that after an arbitrator makes his or her determination that a district court would have the ability to impose sanctions under rule aven where the requirements of that rule how then do that if the court can't even take a peek at the arbiter ability question itself how does the court all of a sudden have the power to sanction a motion to compel at least before remaining the issue to arbitration i think there would be a conflict between rule out and the arbitration act if a court were to make a merits determination first but i think at an arbitrator makes a determination when the parties are back before the district court i think the district court would have the ability to make the determination that the petition to compel arbitration was frivolous or odd is the advantage what is the advantage of this because remember step one step one is we have to decide court record we have to decide whether there is a clear and unmistakable commitment to have this kind of matter decided in arbitration now congo of matter now you would have thought if you really have a martian case the judge would have found some way not to send it and he would have said kind of matter well not the martian kind of matter there's no clear and unmistakable commitment to send that kind of matter in other words if it's weird enough you don't have to get beyond step one because you can say there is no commitment to send this kind of matter and now what's the difference between that and what they did say there's no commitment to send a groundless matter but the whole point of the principle that the parties can delegate arbitrary ability of the arbitrator is that the parties can make a unless they really said martians which i don't think would ever happen in other words it is a totally ridiculous claim shouldn't you have to find a clear and definite commitment to send a wholly ridiculous matter goes to the merits and wherever you set the bar the fact remains that it is still a merits determination and to the extent that this court is concerned about this as a policy matter and i would respectfully submit that there is not a lot of evidence indicate that this is a problem perhaps not surprisingly because often the defendants bear the cost of arbitral proceedings the regime that we are advocating is not only more faithful to the language of the a particular which they focus on what does that mean and what does that do sure as this court made clear and cream of paint that language limits a court's role in ruling on a petition to compel arbitration to reviewing the making and the performance of the agreement and here the relevant agreement is the agreement to remit arbitrary realty to the arbitrator and there is a failure to comply when the opposing party the party that does not want arbitration is resisting  what work does that language do all that it under proviron it's what give me an example of one that would have some of it if there is one well i think that all it requires the court to do and this is a pretty minimal function is to determine that you have one party that wants arbitration and another party that is not that's what i thought you'd say and that means in essence i think that that language in the statute does no work well there has to still be a a dispute which is to say you've got to have one party that's covered by the beginning of the section four though well i don't think so i mean i think that that is the relevant the relevant failure to comply party aggrieved by the alleged failure or a refusal to arbitra e i'm just trying to figure out what failure to comply there with i think both sides agree that those two things are essentially reinforcing which is to say that when you have a party that resists arbitration the moving party is ag d and i think that respondent recognizes in a footnote in its brief that aggrieved does no independent work beyond that but i do think that the regime that we're advocating is a more efficient regime precisely because under respondants regime a district court is supposedly making this threshold determination on whether or not the claim of our rich realty is wholly groundless if this report concludes that the claim is not wholly groundless presumably the issue with then go to the arbitrator or a determination on that issue and if the district court determines that the claim is wholly groundless there will be appeals as of right immediately under section sixteen of the arbitration act and that will lead to the very inefficiency that we see in this case this case is certainly an outlier because it has taken so long but we are now six years down the road still litigating the issue of arbitrary like that with that listen to collect click to decide r arbitrator in the first instance as it should have that we probably would be entirely done with this case and of course our fundamental submission is that there is simply no footing in the text of the arbitration act for this exception to the extent that the court has questions about the delegation in this case that is a discreet question that the court need not reach here and so we submit that on the question presented the answer is quite simple the f a a does not permit this exception and therefore the judgment should be vacated all reserve the balance my delegation and if there is don't look to the merits i don't see how determined whether something is wholly groundless is anything but a merits determination your honor it's what possible outcome then you should send it to the arbitrator anyway and in fact that would be inconsistent with what this court did install nielsen and so it neilson the parties expressly agreed that the arbitrator would decide if there's cost arbitration and the court said the arbitrator applied the wrong analysis and it did not send the case back to the arbitrator to do again it said there was only one possible outcome and so proceeded to decide the issue on its own and that's consistent with general legal principles if there is an absolutely futile claim  makes absolutely no sense there's no conceivable possibility that the arbitrator will say that this case belongs in arbitration there's not a bona fide dispute there's no point to sending it to the arbitrator it doesn't they brought them is and that's the problem with my prior suggestion is really we're just the sort of myra's says once you look beyond the first question did the parties agreed to send this kind of dispute to arbitration and then you start getting to the second question they mean this parties agree to have the arbitrator decide suppose you have an agreement that says the arbitrator has exclusive authority to decide all questions of arbiter ability or guard less of whether the claim of arbit ability has any merit whatsoever what would you say that i think would be a highly unusual agree mail but what would you say it if the party said that then i think you would have a failure to comply with that agreement but the reason we don't see that is because no one agrees to be the scope of what was delegated the question here is did the parties actually agree at the outset is there clear and unmistakable showing that they intended to have an arbitrator decide a holy ground this claim that has only one possible i thought the question and we agreed to take was whether there's a most exception when the parties have agreed that arbitron bill will be will be decided by the arbitrator but that i think there are two different things here justice alito one is is there a general delegation clause which again wasn't even found in this case it comes to the court parties when they said nothing else about it really intend to be subjected to frivolous arbitration claims mr geyser the problem is that you're taking the position here that this was wholly groundless to consider relief until the arbitration is over if they determine that both can go simultaneously they do it but there are plenty of cases with mixed questions that courts handle all the time my difficulty is that i don't know where to draw that line i don't know where what's holy frivolous to you may not be to someone else and if there's been a true gelug ation why is shouldn't that go to the arbitrator don't go to the facts of this case let's assume a clear delegation because i know you're making arguments about the a b a but we didn't grant cert on that i ground that arbitration was not ordered by the court below this is the quintessential case we're most of these cases are on the margin and i've actually gone and had the library to research the number of holy ground most cases is very small it is you know mistakes are made even by judges so the fact that the four or five course i think where the line is drawn as to where the courts of appeals have drawn is there a bona fide dispute if a court cannot identify any plausible or legitimate argument it can be exceedingly weak then it goes to the arbitrator because that's what the parties agree that's not your trust in this case but again my friend though it may be extremely weak and i'm not sure that's true but if you're in a respectful you know petition or sorry you on one question not to you they took it was their strategy they didn't all or nothing categorical attack saying there is no holy ground stockton under any circumstances they could have added a second question saying if there is a holy ground this doctrine we don't think it was met here but they didn't they didn't raise that washing machine you're just you know slicing the baloney a little  it's not just groundless it's holy ground listen when you say what's holy ground as you say well it's there's no bonafide to dispute it you know that the answers about what the content of it is just sort of substitute one adjective for another which i think highlights the problem which is that i mean do you think there's a difference during ground listen holy ground yes i think the difference is is there a legitimate or plausible argument is there any argument on the other side of the back of the ledger and if there is then the courts compel arbitration so what standard should we say holy groundless or no bona fide in dispute i would say if there's not a bona fide dispute then it goes to the arbitrator i think that effectively even the courts of use different articulations that's where each standard point what if even that mean clearly there is a bona fide dispute when two parties are litigating all the way to the united states supreme court right but and so i know it's a small exception today but the experience of this court has been what it creates small exceptions they tend to become larger ones with time and the whole point of arbitration of course is to try and streamline things and having litigation all the way up and down the federal system over holy ground this only the wind up in arbitration alternately seems highly in t isn't real complaint here the first one justice briar's and that there's just maybe a really good argument that clear and unmistakable proof doesn't exist in this case of the desire to go to arbitration and have the arbitrator decide orbit ability and what is the take care of ninety percent of these kinds of cases it may take care of a lot of them and it will take care of it in this case if a circuit all but concluded that there is so why do we need to go down the blow me slicing road to mix my metaphors so we we we suggested that the court not grant review precisely because this is not a good vehicle for it because there's not a clear and unmistakable showing in any possible way but so are you are you are you now saying we we  don't need to answer the question presented and you know you give up and read what go back to the court you haven't had one absolutely not i didn't think so absolutely not now and just to show how little of a problem this causes in practice this doctrine has existed for decades in multiple circuits and it's rarel arbitrator you make sure that there is literally no argument that supports it now maybe you disagree with the facts of this case whether the standard was met but the fact is that we didn't brief this because outside the question presented the texas district judge looked at it three  at it and they all said there is no possible scenario where this will end up in arbitration we have a district judge who disagreed and we have other courts in other circuits i'll bet but we have other clerks who have read it exactly the way they read it and so it can't be wholly frivolous when you have so many people split on an issue know your own and very clear on two things the magistrate judge recognizes that petitioners construction of the actual the agreement was problematic that's a page forty one a petition appendix it said problematic it rewrote the agreement this to to match with the magistrate judge thought would be a better arbitration cos that's exactly what this court has said that arbitrators can't do and i don't see any license for a magistrate judge to be able to do that either you have to apply the agreement as written and for the other circuits that have looked at other clauses and say we can divide it up between injunctive relief and cases on the merits those involved a very different arbitration clauses the language of those clauses were written in very different terms they typically divide it up one general delegation where everything goes to the arbitrator and then in a separate section are separate sentence at least it carved out specific want money damages and the courts could have or the parties could have written at least the ones that had the arbitration clause could have written this to say that the predominant relief is damages it goes to the arbitrator that's not what they wrote but what kind of  they'd like to have happen is at the end he had a combative conduct to stop now that this is the arbitrator that will multiply proceedings because an arbitrator can force their own award they don't have an army you need to get an award from the arbitrator saying will grant an injunction and get that i force in court where surely will be more litigation in court so it makes perfectly good sense that parties thinking in advance that they might need injunctive relief that would not want to include to our to arbitration and action seeking injunctive relief but to bring us back to the that someone's opposing the referral or opposing arbitration what's your response to him respectfully i think he's mistaken when when the plain language of the statute which is imposing a direct the keeping function on the court say they have to be satisfied there's been a failure to comply with the arbitration agreement so from a common sense perspective does anyone think that you failed to comply with an arbitration agreement when the only conceivable outcome is the case belongs in court it's effectively like saying a party has to go to the arbitrator and see pre clearance before they can file their claim even if it's the martian example where there is no conceivable chance that the arbitrator if they're genuinely considering the agreement will say this forms an arbitration and that respectively dismiss no sense and especially makes no sense looking at the statutory design congress under section ten and we do you think section ten provide it's a back and safeguard here that if an arbitrator takes the marching case and they absolutely exceed their powers they that the parties did not grant authority for the arbitrator to resolve that would be an excess of authority it makes no sense when congress has that specific subset of check on the back and they've authorized the same judges to read the same agreement and make the same holy ground this type  termination that they say let's just do it on the backend and not on the front end before we can save this huge and colossal waste of time and research is just phony here is that professor berman i thought was writing a  point he made might be a good point but that's not the case so that's not in the case of there is whether there is a clear and unmistakable arbitration it's not in the case whether this was wholly groundless and we're taking this case assuming that there is such a thing is the unmistak e and assuming also that it is not wholly it is holy ground this then is there an exception for the holy ground us so we're i'm not making an argument i just want to be sure if that is in fact what the court i believe is doing and we would warrant the theoretical and back to i'm just as kavanagh as textual question because when i stare at this language the failure to comply there with language it seems to me i can read it two ways neither of which is yours so the first way is mr shand mcginnis minimalist way doesn't mean very much of anything at all the second way suggests that we've gone wrong in prior cases it's the maximalist approach which is what this language was meant to do was assign arbitrary realty issues to the courts but we've we've pretty much we we've gone by that that understanding of the language what i can't understand is how you can read the language to create this halfway house position sure  that the ship has sailed i do think that this if you read the language sensibly but both looking at the actual text and looking at section ten understanding that there will be this review on the back end it only makes sense to say that if there's not a failure to comply with an arbitration agreement it parties agreed is that if there's a legitimate dispute there's a bona fide a dispute it goes to the arbitrator if there is not a bona fide dispute then there's no failure to comply by filing it in court and i do think that you can't read that into the language of an ordinary  we're looking at all the contracts and all the cases that came up in this i don't see a single example where people said well have a delegation provision but no frivolous claims or no sham allegations no one right set into an agreement because it's presumed but you seem to agree with justice kagan i think that the statute doesn't most naturally read create a holy ground with succession without wangle which may have suggested the courts to decide questions of arbitrary realty so we've heard the courts that it's very hard to see new in the statute is what i'm saying in the sense that you had an all or nothing question i think with the statutory language as justice kagan said of the court and decided that i think i think there are two ways to look at it and what one is  statutory hook which i still do think is the best way to read this language it's very hard to understand how something is a failure to comply with an arbitration agreement if the arbitration agreement is saying if there's a bona fide dispute over our bid ability then it goes to the arbitrator if there is not a bona fide dispute over our debility then you don't fail to comply by filing it in court so it is in fact i think the holy ground this doctrine that it's tapping on intuition that's already there it is giving this language some sort of reading that makes sense and that's consistent with the party's intent and it goes again to the interpretation of the delegation of arbitron realty sign interesting your argument you're saying that implicit in any provision of a contract that says arbiter ability is for the arbitrator there's the exception for for this type of dispute the there is the argument right there that is that is part of the argument your honor and the reason that i think it's correct is that no one in to subpoena being dragged into a absolutely frivolous dispute good faith is inherent in every contract that's a matter of north carolina contract law which is what this agreement is subjected to and general contract principles but is that is that generally true one parties agree by contract on a particular decision maker when if it's a form selection process there is an exception to that for holy grail most disputes no i think a form selection cause it would be slightly different because someone has to  underlying merits whether it's this judge or a judge in a different district that's not true though with the holy ground this arbitration demand this is generating a pointless process this is what happens when you fall on holy ground this arbitration demand either goes to the arbitrator who wastes time and money  and it's far more than my friend suggests it can take weeks or months and it can take tens of thousands of dollars to get this predicate threshold issue resolved and then they sent right back to the court or even worse they make a catastrophic error and sometimes people make mistakes they keep the case and then the court vacates it at the end of the dander section ten and respect lee that is not a sensible system and to the extent my friend suggests ways to police that are the arbitrator sourcing it is this a sensible system we're even though we only have five cases over a long period of time in which courts have denied our per tradition and wholly frivolous grounds we're now inviting this fight in every motion to compel arbitration and i doubt it so will multiply expenses maybe not in your individual case but as a burden on courts so it's not clear to me that your solution is more efficient in a meaningful way i think our solution is far more efficient your honor and if i could explain why only if you win well it if we women i think you win in court well no i think plaintiffs have have an incentive to have their adjudicated they're not the ones that are trying to invite protracted ciba geisha over issues it's only the plaintiffs who actually think the arbitration demand is wholly groundless that will spend the resources to resist on that level and i also think it's far more efficient for the court to decide this in the arbitrator the court already has to look at the arbitration clause it has to do that whatever section four means we can all agree that it doesn't pose a gate keeping function before the courts do have to look at something so they're looking at the dispute already all they need to do to resolve the holy ground this inquiry is a is there a dispute they don't need to decide it they're not resolving arbet ability they say is there any legitimate argument here that any reason decision maker could credit if they identify that argument they send it to the arbitrator that is far more efficient than asking the parties to initiate a needless and need to see expensive gateway arbitration when everyone knows the only two possible outcomes is they send it right back so you can start over in court months later you know possibly tens of thousands of dollars in the hole or months or years later if the arbitrator makes a mistake and keeps it so i don't think that is an efficient system and i think again this doctrine has existed in courts multiple courts for decades without any noticeable effect on the parties legitimate arbitration right to go back beyond your saying it's not an efficient system are you saying essentially that the the the basis for this rule is that we don't believe that a delegation clause includes this that we don't believe that the parties intended for a general delegation clause to include these kinds of groundless questions is that basically the idea that it's a contractual idea exactly that that is a core of the idea so but but so i mean that might be a rule of of the kind of contract interpretation here but you're trying to say that the f a a specifically section four sets up a kind of substantive interpretive rule that we're going to interpret these contracts in a certain way and that seems like a strange thing for us to think about the f a a oh i don't think that's strange at all your honor and first options and oxford are installed nelson the court specifically says that he crafts interpretive rules in the setting to match the party's likely intent so the court thinks that when parties are silent about what you do with a holy ground less frivolous dispute and again if they doctored this is an all or nothing challenge to it the court has to think what about the truly frivolous arbitration demand and i think it's perfectly sensible to say that parties did not agree to have non bona fide disputes sent to an arbitrator i don't think that's a reasonable proposition again i have not seen a single contract that says we reserve whol frivolous abusive arbitration demands well but you phrase it that way but you could phrase it differently but if there's some party that has historically not done well in court and whatever whatever comes up they say i don't want to court to do what i want to arbitrate or to do  it what's wrong with that i think if the party is as clear and unmistakable in saying that even if the dispute has absolutely no conceivable merit and everyone knows it's going to be back in court where the parties like it or not then if they make that sufficiently clear then debatably there's a failure under on the contrary this court construe c f a is creating sort of an equal treatment rule all arbitration agreements are still treated just the same as any other agreement and normally when a party files a frivolous and abusive claim in court there sanction they don't they don't win and i don't think it makes any sense to say that someone can file a frivolous claim then you can reward the claim you sent it to the arbitrator and then after the arbitrator gets done saying yeah that was frivolous then you sanction them under rule of that's ok if you if we don't accept you can you why petitioners argument that there is a delegation of cause was wrong but then didn't actually enter a holding on that which again is why we think that in a way this is an academic decision in this particular case against outside the question presented so we didn't we didn't brief  yes but again the in the way comes to the court is it saying is even for the most frivolous an abuse of arbitration demand imaginable if there is a delegation caused are the courts actually powerless where they have they have their only option is to send it to the arbitrator where they already know the answer and that's inconsistent with what this court did install nielsen still nielsen specifically looked in this is it page six seventy six and six seventy seven of the court's opinion and said if there is only one possible outcome even one of the parties as he did in that case expressly agreed that this is a determination for the arbitrator then you do not send it back to the arbitrator because it's pointless you decide it yourself and that's exactly what the holy ground the stockton is doing and it's doing it sensibly on the front end when you look at an arbitration demand and you can either say the parties in clearly are mistaken believe intend when you have a frivolous a dispute has nothing at all to do with the contract to send it to the arbitrator it's in forcing the parties intent i think it's consistent with section four if the wanted to arbitrate wholly groundless claims of arbitron bill ity the exact same argument could be made where the underlying substantive claims are frivolous the argument could be made that the parties would never have wanted for that to go to the arbitrator and would have instead wanted a court to short circuit that inquiry but this court in eighteen two technologies made clear that even if a court thinks that a claim is not arguable it is still obligated to send that claim to arbitration where the parties have so intended it is a little bit different than mr sham again because in the case that you said if it's really groundless you expect that the arbitrator will get rid of it just as fast as the court will get rid of it what makes this case a little bit different from that is that here that all the arbitrator is going to do is to send it back to the court and you might think well what sense does that make but the arbitrator will make that determination presumably efficiently will do so at the outset of the proceedings and of course we're assuming here that the parties contract it to have the arbitrator make that determination presumably for the same reason that parties arbitrate parties agree to have arbitrators make merits determinations because they conclude that that will be a more efficient and cheaper way of resolving the relevant issue and respondent has no answer for the sort of myra's question about this court's decision and run a center which provides that where the parties have remitted the issue of arbitrarily to the arbitrator it should be treated just like any other issue and what respondent is asking this court to do is to allow courts to make merits determinations on the issue of arbiter billet even in the face of a delegation and that bringing for sake of argument to re hypothetically that we disagree with you there in fact can be  disagree with you we didn't present a question concerning the application of the holy ground exception to be sure that's obviously a case specific determination but i do think that this case illustrates the danger of the holy grail most exception there would be a dangerous pliability to that standard regardless of what words this court puts on a page and this case illustrates that and so in addition to the inefficiency of this standard i would point to that pliability as reasons why this court as a policy matter should not adopt this exception and exception that as you point out justice sotomayor has been applied in only a very small number of cases since the federal circuit of all people first recognized in six option about a decade ago and so it simply would not be worth the candle to filter out the truly frivolous claims particularly where there are remedies available sanctions remedies available for justice briar's crimea hypothetical and any other hypothetical one might imagine and i think it's very hard to let go of the i mean normally when a judge has something frivolous he says so you have your thing on the one side it's like a form selection cla when the other side is a natural reluctance when you have something absolutely true is not to say there are certainly cases in the law not just our aviation it's all over the place i recognise it for instance in the context of administrative law there are cases that stand for the proposition that where an administrative agency concludes that it would be futile to have a hearing the agency has the power not to hold the hearing but this case is different from any of those cases because what respondent is arguing is that where the parties have agreed to have one decision maker make a determination another decision maker has the power to short circuit that determination and after all the fundamental policy of the f a a is to enforce arbitration agreements according to their terms the holy grail most exception would create a way around that policy and we would respect that some of the judgment should therefore be vacated thank you counsel the case is submitted