substituting an award of actual damages for the agreed upon cancellation do we know they did that there's no question they did it why they did it is the subject of the disk of the district courts confirmation where you know why didn't anybody ask for an explanation of what happened you got a one page arbitration award and the way maybe i'm wrong you had the authority to ask these people to splay why they did what they did and nobody seemed to ask for an explanation leaving us someone in the dark there was one round of requests for clarification that the district court judge judge ma that after the district court hearing and the district court ruling the district court judge issued his decision now we could i suppose of the law me in florida and with a motion asking for further clarification and for an explanation and you do it under the rules and we want an explanation of yours to you you know going in you get your time that's right and this was done under aaa arbitration rules and we could have asked in advance you're right for a reason the whole war what we're coping with so we're left all kinds of vague interpretations well could have would have should have my tips i don't let me quarreled about viet with what we're asking to do we're asking for this court to review the district court's conformational now the district court on one issue found it necessary to get clarification then issued the district court's ruling next they took it before i expect them to take it again but at this point the issue before this court is a review of the confirmation with it's true hindsight is always twenty twenty we could have gone back and at the beginning of the arbitration for a reasoned decision we've now you're telling us that the that something was done that that shouldn't have been done right i'm telling you that the award is subject to being vacated because of things that the arbitrator did not the reasons why they didn't things the arbitrator actually did your basic position is that any arbitrary arbitrarily war that is not two million district or the appellate court level cannot review the merits of arbitration awards now over twenty years ago this court addressed that what i have referred to as the dangerous half truth and says there are limitations on that proposition and one of them is where the arbitrator's substitute their interpretation or their award that review power is supported by not only case law from this court but also case law from the that it's a principle what does happen however is that there has developed in both of those and that is why we attempt to make it clear our brave you have to look at what the court has actually done as well as you want this thing and in particular there are suggest to you at least two major reasons why this dichotomy that exxon attempts to exploit on this appeal has developed one of them has to do with the fact that some of the ca simply a postponement and therefore because they didn't exercise their right to cancel the provision you're talking about doesn't apply and so then they go off and do what they were empowered to do is figure out any of the disputes that were for them until they were damages i mean how do we know that they didn't just say well they really didn't cancel they just asked to postpone i think there are two answers to that one of the it was given by the district court the basic bottom line is to reach that look at the contractual language it gave both parties through choice all the event or cancel what i saw and did was to write a letter saying well we want to postpone it right sometime in two thousand and two but we want you to roll over the fees as a matter of fact they said we expect you to roll over the fees there were some negotiations their current after that various proposals were made for that quote unquote postponed convention until at one point exxon wrote us a letter saying we want you to roll over the f and if you don't do that and exercise your liberal legal rights we'll never do business with you again and i did that they held the convention in two thousand and two but far from being a postponement of the two thousand and one convention exxon was not involved at all so if you are going to try to say that you can play with the language well postpone it on our terms and it's not a cancellation said well you simply work at the cancellation provision figure out whether we're better off if we cancel or if we postpone or if we don't perform and your choice according to the answer to your question judge fraud is look at the contractual language it doesn't give the parties that choice and as a result the arbitrate is just regarding the contractual language if that's in less than one third of the cancellation fee are not in fact just proportion sufficient to characterize it as a penalty and in fact it's very difficult to get to a penalty circumstance in exxon's expert during the arbitration said wait a minute that produces an award of gross revenue not an award of there was if you want to say there was notice there wasn't payment for some of the wasn't cancellation the problem with that is that the actual wording is payment will accompany the notice of cancellation accompany i think it's a top note that's is not withstanding a new provision either party may cancel upon written notice to either party has any time prior to the event and upon payment of an amount based on the following scale so it seems you could take a strict view of that language the only way you can cancel is by saying it's over and here's the go and falling short of that you haven't cancelled the problem is that you say if you cancel then you have to a cancellation what occurred here they told us we will not occupy the rice draft this language that's correct it's cancellation takes two things without the second one you have a cancellation i think you do you have a cancellation in iraq because you have is a breach of the provision and i see so this is why i'm thinking well maybe the arbitration panel took a look at this the way i didn't say gee you have to do two things to cancel this wasn't cancelled is true then you have the problem of age cancellation occurring in fact and you have not you know you have no remedy you have no break i didn't write it right you initial questions that have been asked in answer to the question of why didn't the parties request it's a good question at this point as as i'm sure the panel knows on the american arbitration route the parties do prior to that arbitration can decide to take one of three tax they can either say we want details findings of fact and conclusions of law too we want a parties said give us an award now when we think in terms of arbitration as being the create a creature of the contract these parties heads they have when we empower these arbitrators the thing that controls them is the agreement and we understand that they may either misconstrue that agreement or they may mist apply the but we understand in order to get expeditious determination of this dispute that's the trade we make as a matter of contra andy the circumstances under which a court and then come back again and if you've read the record in the drop over here the trial judge was very frustrated by us and how do i know the arbitrator's  didn't just go off on some wild hair and we had an extended conversation about this at the time of the hearing in the district court and my answer could only be that is because the people who drafted this agreement and who executed disagreement had said that is the way we agree this dispute will be resolved now counsel talks in terms of of the irrational decision judge drop has already pointed out what we believe is one point and that is i they ought to be prepared to stand by and they ought to understand if an arbitrator reads it the way they drafted and so the record is clear under that provision when exxon ask to terminate this entire brain and he had asked to postpone it even offered to pay three million dollars that the nation could hold for a year no interest to roll it into the following year whether the disqualified was in fact a valid judgment by the parties as to actual damages or as to the test to be applied to see whether it was a penalty and therefore it would fall there and and that is the reason that we feel like we're here to biting something that quite frankly i don't find too many legal propositions that i think are being on the bike but i believe that  determination is made there's a rational way to get there then this debate is truly over i think that the that the the trial judge when he heard this matter w he was distraught that he didn't have the ability to testify but i think that was because i didn't do a very good job of telling your honor if the parties don't give you the tools to test then you're only decision is is this decision so irrational that no rational person could have arrived there and we believe we are as we believe that that is the situation we've got here i'll be happy to answer any questions but i think that i think i've basically said anything everything i've got to say unless the panel has questions thank you thank you only thing i want to comment on is the last statement made by counsel and that is that the only test that the judicial level is whether the award is irrational or not i think if you look at the case law that is not true i think it is one of the problems that has a reason is the fact that while that statement is made in conjunction with manifest disregard of  are an equal number of cases in point in which courts have in fact looked at much more as whether the award is rational and whether to refer to your question judge tri whether there are rational ways by which the arbitrator's could have arrived at this award one of course is what just right you and i discussed that is the language of the contract one of them is also the question of remedies these parties did in fact commercially liquidate as sophisticated parties to liquidate their when you look at the contract which expressly says cancellation is not a breach and the cancellation amount is determined by way of gross revenue because of the fact that's in the interest of both