ok thank you my clients come before you today because i know that risk the respondents have evidence in their possession here in the united states army there's a bit of a  back there but no go ahead there's a bit of an echo but what you're hearing is your own voice i think in echo but i see thank you i was trying to make sure i was responding to the court that relates directly to damages suffered by my clients in germany denying them discovery of that evidence will be a denial of justice because there is no dispute that the discovery is relevant in the german arbitrations there is no dispute that respondents possessed this evidence and the simply no dispute that the arbitron tribunals in germany are open to accepting seven hundred and eighty two discovery in both cases before you the tribunals was asked to order my clients to cease and desist their seven hundred and eighty two requests and in both this case will be in essence denial of their applications we have one hearing in one of the cases that it's meant to go begin in may and if we can get a resolution here and get discovery the panel is open to my client presenting that evidence in that hearing we have another hearing that is one of the other proceedings is going to go to nominate proceeding in germany believe in january  the evidence may be relevant in that proceeding as well so waiting for the supreme court to rule would in essence be denying our client's applications that's the st thing the nd thing is i do believe that the supreme court would benefit from  from this court's view on the circuits but the way that circuit splits get resolved is obviously either congress intervenes or the supreme court says something and i think that the the th circuit and th circuit opinions clearly are we believe the superior decisions particular the th circuit which gives such a detailed textual analysis and i believe that the supreme court would benefit from this and all that stuff is overthinking the case and i haven't talked to my colleagues about that but it seems to me that's exactly what happened here the courts are over thinking it was tribunal means tribunal and yeah it might mean a governmental agency it may not that doesn't mean it's a big u s any more than saying have the authority to decide when there is no central issue before the factual truth is a maybe a factual issue in terms of one of the until factor is the timing of the filing which i think four months here the arbitron panels in both instances were a prize of the seven hundred and eighty two applications made adjustments to the schedule and specifically allowed the seven hundred and eighty two applications to proceed so there is no factual district has to be worth the fact that they're no longer has jurisdiction and at least the act of race that any point just seems to me it creates a very unwieldy process if you were to go ahead and rule without the supreme court stepping it well your honor i think that what i'm trying to say is that if you were to rule in our favor without a rematch and this would be resolved before the supreme court decides anything and if you are going to rule with a even sell unless the court sits on it below for quite some time there would still be a practical decision made at the district court level before the supreme court rules at the end of the day an application like this is is very much akin to a rule forty five subpoena and so rule forty five subpoenas don't take that wall to litigate if the court allows us to proceed we can meet and confer with the other side we have a narrow set of  of requests we're looking for a narrow set of documents that's clearly defined so this does not have to be a months long discovery exercise this is fairly discreet but now my colleagues on the other side  at the end of the day as judge mckee rightly pointed out the word tribunal is a broad phrase and what congress has shown in its amendment of this statue and many others is that when it wants to have a limitation it knows how to put one in here it didn't do that in fact it took limitations out during the amendment process and one hundred and sixty four dollars but maybe maybe a strongest argument there was amendments and the fact that it intending to broaden it beyond the kind of official designation that my colleague suggest comes to his mind what he thinks of the term tribunal well that's exactly right your honor and that's why we included in our briefing not just dictionary definitions but the definitions that this court the supreme court and courts really for hundreds of years have used the way they've used the word tribunals and we believe that when you look at the work trib this common everyday usage even as it uses existed in one thousand nine hundred and fifty four the supreme court is very clear that what we're supposed to do is apply that common sense agreed term and if there needs to be a limitation then congress can impose it there needs to be a policy discussion and congress going to have it it's really not for litigants to decide policy questions it's really for congress to do that and we believe that what congress did in its amendment and sixty four dollars was true choose a purposefully broad word to describe tribunals and so here we are we believe that it clearly applies i see my time is nearly at an end until  no dad it's because it's not an official governmental entity i have to do something for the well we'll try that experiment so your honor let me go directly to your question right so the supreme court intel which is the only case the supreme court has decided regarding opinion says congress understood that change that change meaning that the change from the prior version of seventy two which used the term any judicial proceeding to the current language four and her international tribunal congress understood that commission fifty eight in smith is just not a law professor who wrote an article he was also he was also the reporter for the commission yes and  let me try to explain why i think intel really does all point in the same direction including this quote from professor smith so the quote in full although you know some courts have seized on the use of the term use of the word you know better smith doesn't say section seventy two dollars when the court goes and looks at that senate report not just the particular format the supreme court reproduced and intel but that entire section of the senate report in context which by the way is the very same page of the very same  are metal bodies that's the very part of the senate or of the supreme court in intel relies heavily on that and that professor smith is quoting in the snippet of of his article that the supreme court quoted but i also want to want to point your hono and procedure for the discovery quote which may be in whole or part the practice and procedure of the foreign country or the international tribunal well international tribunals which you know across countries may have their own practice and procedure established by treaty   means a tribunal created by treaties between countries right and so a treaty between countries that creates a tribunal but i practically for that tribunal which wouldn't be anyone countries practicing procedure because it's international right here we're really talking about foreign tribunal as opposed to international and foreign tribunal that refers to practice and procedure of the foreign country so congress clearly understands that foreign tribunal as it's using that term will mean a governmental body because only governmental bodies have the requests and it talks about the state department for all it authorizes the state department to transmit letters rotatory or requests from foreign or international tribunal or tribunal appropriate tribunal officer or agency in the united states the state department role here harper told you lose the state department of course our government representative of the other countries not private oddities in the state department has this role the congress provided because congress is talking about interactions s because the senate report explains congress recognize that some countries might do things a little differently it might not technically call things letters purgatory and so if something was functionally the same as a letter or a tory but not all that congress wanted to capture intel where the supreme court again reinforces the point that congress is talking about interactions between governments about about governmental proceedings the courts this is on page two  four the opinion in roman or section or the court says as the nine hundred and sixty four senate report the same one that we were discussing earlier suggests a court presented with the seventy eight to request may take into account the nature before and tribunal the character of the proceedings underway abroad and the receptivity of the foreign government or the court or agency abroad to us traditional assistance the receptivity of the foreign government or the court or agency undecided as to whether i want to call the german arbitration institute tribunals but i would be less undecided if you were asking me is it an agency ok well then let me move on to what this regrets as later in the same paragraph which is that i just recorded or seventy two and consider whether a seventy two request circumvents for improved gathering restrictions or other policies of a foreign country where you know states and like language about the practice and procedure of the foreign country in seventy two dollars itself the supreme court here is clearly understanding you have been talking about governmental bodies and not surely private ones so that's all but that's an intel and before you're out of time and i want to make sure that mr craig has time to address wouldn't have done that without some house noticing that it was doing that that would be a major step you don't assume that congress would take that inadvertently we just sort of stumble into that kind of a conflict and there's no indication that any of the conceptual materials from the context of engine rely upon the legislative history to be softly and beauty but the spin courts have told us in our present is that we don't even get to the legislative history in this we st find so you suggesting that the court in intel looked at the legislative history to determine whether or not there was an ambiguity in the term to be you know but that would be contrary to the supreme court's instructions about how we go about interpreting statutes at it is is when you the way that i would suggest looking at this is you don't really even have to look at the senate report in some cases to itself in a reference to the practice and procedure of the foreign country and seven thinks that the word tribunal notwithstanding all of those contractual indicators remains ambiguous well that it would be entirely appropriate to look at the legislative history and we know that it's appropriate to look at because the words were this remark and so it relies heavily o and all of this factors point in the same direction and the interpretive pattern which is again as distinct from i've said it straight that you're supposed to avoid conflicts between statutes and read them harmoniously as opposed to in conflict that also points in the same direction because of the conflict i was just describing involving the federal arbitration act so i think i think all these factors point in the same direction and i'm not asking the court for a while it's a mystery as distinct from the accident context which i think it's more strongly supportive of our legislative history all of the above as the supreme court i'll point the same direction congress had no intent in changing any judicial proceeding to foreign or international tribunal to reach purely private dispute resolution proceedings congress instead was very clearly focused good at allegheny county  audio was clear it made a huge believer i don't mean this for today is a little bit troublesome dollars congress would have included statutory language to protect the private arbitrations were intended to be included there's no such language in the statute and the legislative history which every court of appeals has considered never mentions private arbitration aims of the changes to seven hundred and eighty two st to provide sufficient assistance or dispense international litigation and nd to encourage foreign countries by example to provide similar assistance international litigation what that isn't is international litigation no sir no sir it's not international litigation litigation by its terms encompasses proceedings before a court and is distinct intended to include encompass state actions and that is also reflected in the nd of the twin aim which would not make sense in the context of private arbitration the nd of the twenty it's doing curch foreign countries example provide reciprocal assistance to our courts that nd point to be answered readily there it's impossible or virtually impossible for private arbitration tribunals or panel to  was clearly much less than it is today you know why isn't is a boston type situation now where look to the text of the statute itself if you look at the text the seven thousand and eighty two itself by virtue of the fact that it incorporates the practice in procedure of the foreign country the answer is itself it encompass private private arbitration if you and if in fact if you look at the six hundred and thirty analysis which is the most directly textual attempt to try to say well look at nothing else given that they did consider every policy argument and they did consider all legislative history they get to a best reading not the only read so i think i think two things one it's difficult that nat that case there was very similar  it's not in similar of an entity i don't think there's i don't think there's a great deal of difference in some difference there if there is some difference and i suppose if we were you know that suggests there's some gradation with in the notion of international our story foreign tribunals such that you really have to take a very deep di into the structure of the tribe in all structure of arbitration regime and that's certainly not suggested in any way stick shape or form by by the language used by congress in seventy eight but if you're right that is limited to some kind of official tribunal doesn't that force that bree same inquiry we have to do w dive into the composition of who he she buno all the nature of it even if it's given to by private contract arguably it could still be a governmental job you know it triggers the same inquiry seems to me i don't european union it is by its nature governmental and there is a chasm of difference between it's a deal like that and it's like exists all d over the world at all times which is a private contract and for arbitration among litigants overseen in some in some way by a procedure that parties have agreed to but not overseen in any way shape or form by a governmental entity which is precisely the case in this instance and in the other instances before the other courts of appeals but my time is up i would if i have thirty seconds like to make just a quick point and that is to go to the actual import  an expansion of it destroys two key factors key elements of private arbitration one is the notion of of that are are are matters will be confidential and two are matters be efficient in our case the case begins with store ag filing a three hundred and thirty seven dollars page award from a previous arbitration that was in every way shape and form supposed to be confidential the parties contracted for that negotiated for that and relied upon that and that that document is now public just echoing into the efficiency point the fight  when when confronted with whether they should but as the efficiency quite the amount of time and money spent fighting only on d confidentiality demonstrates that joke lie the statute brought in arbitration briefing page can both tribunals here have to act in accordance with the civil procedure on arbitration in germany so there is a civil statutory code that's being applied here and i would justice scalia's concurrence in the intel decision which is only two paragraphs long he addresses i think quite properly the role of legislative history in this case but at the end of the day intel stands for a intel court did when we're talking about the senate report which is of dubious application in this particular context i would point out a few things st all of the kinds of provisions that my certainly things could have moved around the idea that a legislative body for six years after a pronouncement in one thousand nine hundred and fifty eight would have had a very narrow reading in mind just not credible it is a boss stock kind of situation is judge i think probably read as a six circuit that the phrase guides the district courts discretion and prescribing practices and procedures and nothing more it doesn't limit the application of seven hundred and eighty two dollars explicitly and it doesn't do so by implication th circuit really offers no reasoning when it concludes that this language supports the respondents reading of the statute merely pronounces it and the six are actually wrestles with and a cogent analysis which i would commend to the court  ok thank you very much there is no conflict the f a a does not apply to this case there's no way that section seven is going to give rise to a discovery ability of the litigant in  circuit suggest that there is it shows a misunderstanding of the ways the different so i think that the argument is that the your interpretation would give broader discovery rights under seventeen e two than you would that's for congress to decide and that doesn't mean that there's a conflict well i would like to end where my colleagues in store had ended and i think it really points to the whole problem of conflict and whole problem with their approach to the case is that this is a creature of contract as their own lawyer in germany pointed out if they didn't want seven hundred and eighty two dollars discovery they could put that in the arbitration provision they didn't there's an easy fix to all of the consternation in the policy issues that were raised i think that if the district court's approach to confidentiality in both cases shows anything it's that judges in the district courts take top attention all the seriously and in one of the cases appointed a special master to make sure that things were handled appropriately consistent with law and the expectations of of the parties so again this is something that contractually or command dealt with you don't need a quarter or congress to solve the kind handle those kinds of issues because those are the kind of issues that come up normally in the course of any discovery dispute so that i don't find particularly hopeful that's exactly right and that's what happened here we may feel emotions when we made transcript be obtained you can speak with patrick about the process for the idea that you split the cost of the transcript want to thank you for very excellent argument and it's always a pleasure to be your folks maybe not in the same configuration at least individually a back in our court again but thank you very much for your argument hold on i think david petraeus wants to have a conversation to try to clear up some of the problems