or morning may it please the court this court this case should have been decided as a matter of law in favor of jasmine based on the plain meaning of the explicit terms in the four corners of the this contract but tween the parties here too shall be submitted to binding arbitration so jasmyn can be subject to the arbitration clause only if jasmine is a party to this agreement but the contract itself defines parties on the first page of the contract and the last page of the contract as the seller trina and the buyer jasmine you know three times we have we have a large body of law that says you could be that you know if you have the beneficiary if you have given someone the right to act as your agent we have that law it's not as rigid as you describe it is absolutely case your honor that if the court were to find that j r c was exercising its authority to bind jasmyn when it signed this contract that then jasmine would be legally the party under this contract and would be subject to the arbitration clause but of course j r c was not exercising its capacity as an agent for jasmine when it signed the contract that's the point that the district court didn't engage it simply addressed the question of letter new york interpretation doctrine determines unequivocal e and unambiguous lee that j r c signed in its individual capacity only and not as an agent for jasmine use just i think you knowledge that the district court didn't get to that issue if it had gotten to the addressed that issue it would have done it as a matter of law your honor that is our position simply by examining the plain meaning of the terms of the contract you can see the charity is acting in its own individual capacity jasmine is mentioned as a prospective guarantor in five five one attachment get the solar panels jasmine did get the solar panels there are downstream user but it was trina that was  signature line of the contract that the buyer j r c services as it was acting as agent that that the face of the contract suggests that it was the principal or statuses even then it's the principle well under this cour precedent in israel against chabra capacity in which a signatory signs is very good evidence of whether it's signing as an agent but you can look to other provisions and in particular the guarantee clause five point five one states th agent then that would be the effective equivalent of jasmine promising that it will secure a guarantee from itself its own parent of course it makes no semantic sense that jasmine can't be its own parent affected by the parent company the contract is one in which the j r c is undertaking the obligation to secure from its parent jazzmen a guarantee a guarantee which never was made and wasn't jasmine's obligation to make jasmine didn't sign  the point is that if you simply look at that provision and ask yourself if jr seaward jasmine's agent why would five five one exist it makes no semantic sense because jasmine can't be its own parent and it serves no purpose because the primary obligation or would be jasmine so j r c signing these arguments before on some of these arguments were made before this argument yes we have briefed this argument before and she seemed to think that j r c could be that there could be some belt and suspenders argument that we've been unable to understand there are no suspenders provided by a guarantee by a primarily or of it's own obligation you would have to have jasmine serving as a state as a separate distinct entity that's not bound as the primary on the contract in order for that guarantee to make any sense using the judge could probably had no inclination to look at the other agreement called the arrangement of rights and obligations that had been procured that gave jasmine authority to purchase or in which jasmine expressed authorization to j r c to purchase modules on its be act as an agent in all things related to such a purchase the arrangement of right rights and obligations your honor was taken into account by the district court and we agree that it establishes that the j r c had the actual authority to b jasmine in such a contract but this is three months later and that arrangement itself in paragraph three contemplates two ways in which the j s c might secure this purpose first it could sign as an agent second it could sign in its own capacity and have the arbitration agreement that's the direct benefits through the stop and you just that abhisit and would more specifically address how it is that we can view this record and conclude that jazz minute some level some degree didn't rely on the contract your honor even if contrary to argument this court were to hold that jasmine was a direct beneficiary bound under the direct benefits theory of stoppel to the trina j r c contract that would not solve the problem that the arbitration clause in that contract is by its terms restricted in scope to the parties to the agreement and as you know the direct benefits to stoppel theory does not transform a non signatory nonparty  it simply binds the non signatory to the contract but if the terms of the contract still must be read under black letter law and here it says that the arbitration clause applies to disputes between the parties so even if direct benefit to stop a bound whether the court found that the non signatory was a direct beneficiary or an indirect beneficiary in each case it was not a moot inquiry because the arbitration clause itself was quite broad broad enough to include the non signatory this is a be spoke narrow arbitration clause that trina wrote for its own purposes to exclude jasmine from the arbitration clause when he drafted it and it says it's between the parties here to the district court and should rubber excuse me just made a representation that this clause explicitly to exclude jasmine yet trina was the drafter of the contract jasmine just that play on what basis do you say it was written explicitly to exclude jasmine from the arbitration provision because it's designed to it explicitly  interpret in the text yes i'm just looking at the text and they have to be in the parties because of course one could interpret parties i'm more relaxed point to point if you're given the arrangement of rights and obligations because the enjoyment i was getting the delivery was making that payment and so i think it's absolutely crucial to understand the jasmines never denied from the start and through this litigation to this point that the purpose of the transaction was to secure solar panels that was for jasmine and jasmine was initially ready standing ready and willing to be the buyer but trina insisted because it's unsure sent to shore found that jasmine which was a new company didn't have a track record it wouldn't insure it and trina as our representative it's agent dollar piazza wanted his commission and  exclude jasmine and make this a contract exclusively but tween j r c and trina i don't have to be exclusively to secure those purposes if you add on the u s entity that is insurable did the presence of  e australian entity destroy the benefits that were aimed at it certainly they could get the insurance as long as charity is liable in its individual capacity but then if you go back and look at the  contract that doesn't solve the commission problem they were trying to serve and if you go back and look at that at the actual drafting of the contract we don't just have the guarantee clause but we have a half dozen other clauses that make it absolutely clear on plain meaning that this is a two party contract your hon good morning may please the court you know when we look at this entire case i think the record very clear and the record goes all the way back to the early stages of this matter when the arbitration somehow jasmine solo was not a party to this contract that jazz more jasmine sold was not intended beneficiary to this contract but the record really sweet speaks otherwise we may agree with you or with respect to the overall transaction and the kind of lengthy negotiations and all the extraneous evidence that's been produced but but you know arbitration is a matter of agreement and we've been very clear about applying that principle over time and if you are to start and just look at the language of the actual operative contract you know we've just been hearing arguments about how parties is strictly defined to be that the two are see and trina the arbitration clause speaks to arbitration between the parties it refers to a guarantee that will be executed or should be procured in effect to the same date but jasmine is nowhere to be seen why do we even have to look beyond that why does and we went by when we just bound to look at the contract itself rather than the course of negotiations over time because i think your honor what you're referring to is a situation where non signatory can be bound to an arbitration clause in a contract in the laws very very well developed on that you can get at the non signatory number of determination that he was acting as an agent for jasmine in this case that was very clear in the record reflected that out so such corny as asking why do we turn to these theories well we have two parties plainly denominated in the contract why don't we go beyond that because it's because it's illogical to do otherwise every contract is going to if it's a two party contract is always going to be two parties to the contract and so the law permits you then to go outside that to find someone who either ought to direct benefits theory  evidence what you're doing is that you're binding a non signatory to an arbitration clause within the contract and the decisional law that in this circuit permits you to do that if you can make a finding that that non signatory can be bound on agency theory which has been determined by the district court that in fact they could be or are a direct benefits theory so let's not forget that this contract was done for the benefit of jasmine all the goods were delivered to jasmine jasmine ordered the goods jasmine acted as if it was their contract in fact mr starr's name is rate on the top of the contract as the australian contact so this is a case about jasmine as being the other party to the contract you know you made made by opposing counsel that was trina i wanted the contract set up this way while the record will reflect that the contract had gone back and forth contract right there was a drafting process and i don't want to i don't want to i can tell you what the record reflects but i can also tell you what happened at the arbitration i was there i tried the arbitration and the record reflects that the contract negotiated a contract that went back and forth a number of times and all the negotiations all the changes that were suggested by on from the jasmine side of the equation were suggested by dr starr the managing director of jasmine and at the end of the day the record will reflect that the contract j r c was put in there merely for the convenience of both parties trina's salesperson may have wanted j r c there because he wanted an american counterpart for a number of different reasons having to do with commissions and so on i think you're alluding to that and my question is that it's well it starts with the fact that you could probably seems to have just focused on the actual to make a determination about actual authority and do nothing further i thought and of the big i think you have to suppose that that was in her mind that she determined those who were not in the deserve supposing did that's right so could you  but you find intent from the documents you find intent from the review of the record and in the review or the record your answer to me is that she didn't actually address that specific point she may not use the actual word intent but intent but also when i look to besides the actual word becomes to me actually the parties the documents the record the entire record you know judge probably made it very clear to me at oral argument before her that she was doing it in over reveal and that she was going to look at all the evidence in this case she did that and she made a determination that j r c had undoubtedly had actual authority including when executing the p v sales contract she made that very clear she also made it very clear that there was no question that j r c was acting as jasmine's agent throughout the negotiation execution and fulfillment of the contract that's crystal clear as well that was determined by her it was also very clear to the arbitrator susman as well and in making that determination she touches on all these issues such as the arrangement of rights that was important to her and undoubtedly on the direct benefits there just help me out and let me know tell me where the there  evidence in this record that jasmine actually invoked the contract in connection with making demands for delivery in this record the purchase orders were put  it isn't folk in the contract and i think i think i think what the what you're saying over here your honor is how do they exploit the contract that's really what it's about how does how does the party being sought to be how does the party for which we were seeking to s there there is possibly but this is about direct benefits i can't we view this as a contractual relationship not the actual contractual provisions because this is a direct benefit they had a direct benefit that arose directly out of a contract i think you're talking about these incidental benefits in some circumstances parties do receive an a benefit incidentally from the contract but that isn't the case or this contract was done soley for the purpose of providing solar panels to jasmine communicated directly with trina about the solar panels he wanted those communications that he invoke the contract he's invoking every theory or order he's making demands on of the contract he made a promise to pay under the contract if you look at the i want to buy a vacuum cleaner and i get a distributor i sort of deal with the distributor and has got a contract with the manufacturer to buy a bunch of vacuum cleaners and i say i want my vacuum negotiate the contract with the with the with the manufacturer i bet under your scenario you're not using purchase orders under your name under that scenario i bet under your scenario you're not calling up the manufacturer and complain to them that the delivery is late i also bet under your scenario that you're not promising to pay the manufacturer directly and i certainly sure under your scenario that you're not calling up the manufacturer and saying these parts aren't right that's a distinction so you know i think mr  these arrangements this is not going to change the law all of a sudden wal mart gets hauled into a situation where between a manufacturer and an importer because of those scenarios the facts are very different when i started off i want to be very clear let's not make any mistake this was a contract between jasmine and trina solar the names change throughout our levy for the camions of the parties but that also doesn't change the fact that j r c always acted as the agent for jasmine that's how it was in the beginning that's how it was in the negotiation that's how it was when the deliveries was supposed to happen is you saying that when the district court's confronted with a motion to confirm an arbitration award it doesn't just look at the contract  actual moving party that that we go we start out by going well beyond the contract in which an agreement was made is that is that right i would say you have to actually just really says otherwise how do you look at the question of agency they kind of expected the agency must have included the authority to agree to arbitration as a prop for everybody as opposed to adjudication and a court there are a lot of them princes that are being drawn here and to some disputed  facts which is i think why the question is also raised about whether maybe the question of arbitron realty should go to a jury but i'm a little troubled because i usually start thinking about arbitration with a motion put to the parties intent of the intent to agree to arbitration at a time in the it initially but that's that's that's not the issue that's not what matters because the jurisprudence says you can bring in a non signatory nonparty and compel them to arbitrate of these various theories and we have all these conditions they're all you know with all due respect long as the two parties of the contract intend to bind another nonparty talk tradition that's enough i think we're suggesting is if the other parties intended the other parties may or may not have intended it  it's always difficult to read into what their minds we have to look at the contract and look at all the other evidence that's admissible to make that determination but i think here the records really clear very very clear that this was a contract that was intended to bind  but i think a lot of everything with the same i'm just trying to understand what you're asking us for i think to create a rule and i'm trying to understand the contours of the consequences everything with the same and jasmine had just added some document we are not we do not intend to be bound by anything in this country with that be would that make a difference i don't know i'd have to see it in the car talk to me if there was definitely said we do not intend to be bound by the arbitration clause i suppose if i suppose if there was some document out there that was written and it was properly put together and they said we don't intend to be bound by anything in this contract then i suppose that would be the case but that isn't the case that we have over here and i want to say that you're saying then that this third this the non signatory it's intent is also important and to this context it's important because of the closeness and uniqueness to them if you look at the body of law over here you know oftentimes that party that's being compelled to arbitrate they really had nothing to do with the underlying contract is a great case i think is that in current cases the one that involved the sailing yacht  and the owner of the yacht had absolutely nothing to do with the contract between the ship building the classification society absolutely nothing and they were compelled to arbitrate in that case nothing and this is a very simple case it's a very simple case by looking at the fundamental black letter tenants of contract law in new york for which you justly famous around the world take a look at the four corners one agreement to go outside of it only if one finds ambiguity here if you look at the us supreme court case in waffle house the court says absent some ambiguity in that agreement it is the language of the contract that defines the scope of disputes subject to arbitration and nothing in the federal arbitration act authorizes a court to compel arbitration of any issues you point to the fact that jasmine is not a party slash signatory to this contract as an agent for jasmine the jasmine would be bound by this arbitration clause and as a primary value that there was actually there was actual authority but the question of whether they exercised it can be answered by ordinary contract interpretation it's not possible to give meaning to the terms of this contract and hold consistently the j r c was acting either only as an agent or also as an agent and a primary i will go also on that question because one can simply look at the contract itself and read its plain meaning your honor it's not possible to construe it under new york interpretation law you cannot make sense of the guarantee you can't make sense of a half dozen other provisions which we outline all of the terms of the contract there was a half dozen of them that simply can't be squared with a three party contract that we list on page nineteen of our opening brief and that guarantee itself makes no sense if j r c were acting in its own capacity by the way trina and the district court have to treat j r c as bound as a primary i believe or they would have jurisdiction to arbitrate against charity so it would have to be a three party contract and that's not coherent on the plain meaning of the terms now this is trina a very sophisticated party with council who drafted this oversaw it and approved it and controlled it so i can't think of a clearer case in new york to establish the principle that that we're going to enforce contracts as they're written that's why i say it simply as a matter of law we don't have to look beyond the four corners and that's what new york law provides now on the question of direct benefits your honor you did ask whether jasmine invoked the contract or not and whether it exploited in the ma portfolio standard for distinguishing between direct and indirect benefits is whether you exploit and thereby assuming the agreement itself versus exploiting that in your contractual relations there an argument is that in fact it would have to  assume it which means have a right to enforce it so jasmine can shout to the how to how stops were enforcing the contract and they have no more right to enforce it under new york law then i would so all of the things that opposing counsel points to that yasmin allegedly did by way of enforcing the contract simply as a legal matter do not qualify as enforcing a contract they can't because jasmine lacked the right to do it under fourteen point four where trina drafted a clause the sole purpose of which is and it's  in this circuit that when the parties write a third party beneficiary clause that excludes third parties from the right to enforce and that's the end of it so as new york law there is really no dispute that jasmine lacked the right to enforce the agreement if you look at all the jurisprudence where a non signatory in fact did have was found to have direct benefits i think you'll also find that they had the right to enforce it whether they actually were suing on the contract or not in all the cases including ten car of the owners  of its way to restrict the scope of the arbitration clause to between the parties and to include a third party beneficiary clause that excludes jasmine from having any rights under this agreement and once again i would say we don't even have to get into the direct benefits question of whether these are direct or indirect benefits to solve this case on basic new york law of interpretation if you just look at the arbitration clause it's clear that even if jessamine more a direct beneficiary that does not transform it into a party the agency theory and direct benefits they are separate theories they're not the same thank you very much