in the district court level based on the outcome of a fifty minute trial that took place in russia in a parallel proceeding filed by sperry bank of russia the non forgery defenses were never actually litigated in a russian court and russia no compulsory join to rule or other legal principle that would require them to be litigated in the foreign court similarly it was error for the district court not to conduct that fairness in a reasonable in this analysis required both under principles of international comedy and by principles or preclusion simply because mr tracepoint earlier in the case moved to dismiss this action and f n c grounds are going to rush it was a more suitable form it was also  for the district court to preclude mr tracepoint from developing and presenting his forgery defense that would stand in the outcome in the russian case because the unreported summary judgment record establishes that the russian law of preclusion which is a law that the says such as the one drawn by the russian court as you may recall the russian client with respect to the forgery related defenses had every opportunity to make that defense and as a result as i understand it of the failure to a willingness to appear the russian court ruled against your client on the forgery issue yes that's correct so my reading of  one does not bar do we litigation of matters when there is new evidence unlike us law which looks upon whether the evidence was available and whether the evidence should have been presented our expert upon that where there is new evidence that was never presented before that could be that to recognize this would work is that i'm sorry and i did not hear you if we don't give the recognition to the expert opinion that you're suggesting that we do where does that leave you it leaves us with article sixty one i and because of new evidence that's what you ask me i can see that there is nothing in the language of all sixty one that leads to that when we say that conclusion that is why we presented expert testimony and subject in the expert  of a party as demonstrated so the fact of an existence of an action yes as demonstrated by the actions of the client during litigation what is your best case for that proposition that we need to look at the intent of the party as opposed to these systems of the lost and that foreign and the grief for mr tyson doesn't develop any argument about fairness the grounds for non recognition of a judgement under connecticut law or very narrow and there's no contention in the brief that recognition was requires the courts to determine as a matter of law what foreign law is in this case russian law is and you as so far as i'm aware cited and one thirty four it's so why look what i've got on the record because there are no treatises knew nothing and the expert report and you can quibble about the timing e clearly applies it's not unprecedented for a court to apply a clear statute especially in a civil law jurisdiction like russia which is the primary source of law the southern districts done it in abdel hamid where they just regarded the judge have asserted as a counter claim that he did not actually assert that this really doesn't contain an express statement to that effect well i thought you said that you will on the plain text of one thirty four i think subject matter and causes of action referred to a claim to connecticut law to fill the gap because on the other side again we only have this expert's assertions and citations to nap as it is laws so if we're in a situation where we're not sure whether you agree or disagree with the russian preclusion laws and not of connecticut our brief pointed out that none of this evidence was properly before the district court because it all came in through submissions after the close of briefing on the summary judgment motion there also preclusion reasons that new evidence doesn't change the analysis the district court ruled where an article sixty one seems clear to me but if there's some question about what it means in this circumstance connecticut law clearly doesn't allow you to come in with additional evidence that you could have had before and say that the judgment before w t turning to it briefly i preach judgement interest and prejudge and remedy the pre judgment interest follows from article three ninety five which is a russian mandatory norm that applies to situations where a creditor is deprived of its funds and not are broken are briefly pointed to the operative version of that statute and guidance from the from the russian courts to that it applies to guarantees and there's no reason to think that it's suspended here it doesn't matter  clear you don't have some free wheeling and very into a ten intent you look at what is there an independent cause of action here we've got a claim for breach of the guarantee we litigated that claim on the merits we move for summary judgment on the merits it was only after we got an enforceable russian judgment that connecticut we mr triesman was not a stranger to this transaction and he financed that he was on the board of sealand the credit agreement conditioned extension of credit on his execution of a guarantee the bank has his of things in motion petition on why should we have a rule consistent with will forty four point one that says that if you are going to will live apart is going to rely on foreign law in this case russian and pollution law it must affirmatively put something in or reference a treatise or provide an expert report a law that's provided by its adversary another question of law and i want to resist the premise that we didn't put in anything we put in a statute and if this court has a question of domestic law that's what i what i asked you and i think that you answered this correctly is one thirty four by its terms doesn't clearly preclude the counterclaims here there may be some other language that you want us want to point us to but one thirty four doesn't talk about claims that are not asserted is that correct we disagree with that reading by understanding your ok let's go let's go to one thirty four tell me where it says but when we read we read subject matter and of the guarantee arising from that and cause of action as factual circumstances and the factual circumstances are certain circumstance of the execution of the guarantee and if i understand your honor i understand your honour's position and if you agree that there's some ambiguit you relying on the clarity of the language when you say that one thirty four precludes claims that are never asserted in the underlying litigation in russia but if that's what it means it's under no yes or no do you agree that it's i would agree that it's in the us ok so if it's ambiguous then isn't it helpful to have an expert report or something else that provides us with some history behind or regarding article one thirty four but if we'd had the case law say that's also yes or no answer yes there would be helpful but extra reports come with expands and we also have to respond to what we're given again this was initially briefed as a matter of play all we have as a matter of the history of article one thirty honour's it's important to point out that in several instances the non forgery defenses encounter claims arose from facts that post date the judgment in particular the counterclaim based on article and of good faith in disposal of collateral stems from the sale of a mosque on a shopping center by a spare bank through the bankruptcy process and artificially depressed price and also under suspicious circumstances that shopping center was sold for three months after the russian judgment was entered therefore that claim could not possibly have been asserted earlier that was standing there i agree with the chords observations about the ambiguity and the lack of clarity in article one thirty four as case that we cite which is the only case in the best case that we found that deals with identical issue that in a global case in northern district of illinois held that the the burden is on the moving party to establish the foreign law preclusion and blending foreign law occlusion with american law does not get you there is to go in the what you want is a reversal and then another trial before judge and we seek reversal and and remained and we believe that this case belongs in front of a jury if i will concede wholeheartedly that on the forgery defenses if you apply the connecticut law our our case would be far more difficult on the non forgery defenses i don't believe that even with the application of connecticut you want i'm so sorry it's my fault would you take off for me the nun forgery issues that you just mentioned or even look just point me out you don't have to read it to me are they are set in defenses five six eight nine ten eleven sixteen and seventeen and counting claims one two three and four generally speaking they involve allegations that one the bank has received significant payments that were not accounted for to the bank is not explained the absence of what what happened to valuable collateral including a publicly traded stock that was purchased clavicle three the district court mr understood that we presented evidence of two hundred in one separate payments that went and they were slowly raised in a connecticut court because the connecticut case was developing on its own track and the russian face was developing its own track we were duty bound in response to a complaint which was upheld to present affirmative defenses which is what we did there was no attempt to end the round