has refused to enforce an arbitration agreement and yet ordered arbitration in a different form so i think we are somewhat new and unusual ground in this  small set of circumstances in fact i'm not sure i do not know of another circumstance like this or as i said before do i know of any cases reported or unreported to deal with this issue so i don't and we are not talking about a situation in which we're simply saying any time there is something happens within the arbitration it's that you don't like you get to appeal what we're talking about here is proceeding to the court with a petition to compel arbitration based on an arbitration agreement and the  you are entitled to appeal at that point this isn't a situations in which at the end of the day if we if we look ahead to what may happen if we had not taken his appeal at this point  i do not believe that he would have any remedy to deal with this because i think if we went through an arbitration in the improper form and presumably i suppose it might have lie at the end of the case why not well because i think at the end of the case i would be coming before this court or another panel of this court and arguing well yeah i got this arbitration presumably i would be appealing because i didn't like the result so i presumably lost or gotten a bad result in this arbitration and then to come to this court and say well i want another arbitration with a different forum i suspect with all due respect that i would not get a very favorable hearing at that point because i would be saying that despite all of the policy behind arbitration to begin with that there ought to be two arbitrations in this case this is very different from appeal by proceeding with an arbitration and the reason i say that this is different than the situation in which the court orders a party to arbitration and the party claims well it really ought to be in district court at the end of that arbitration objective her if you're right on the on the substance of your argument then you may be have the best of two worlds right well it's not a now i actually i think both parties then are actually the worst of both worlds because both parties are going to go through an arbitration which may have its fact of fact only to then go to another arbitration the one other thing i would i would point out jurisdiction and when i come up on appeal there's a there's a dispute as to whether or not i have in fact consented to that arbitral form the arbitrators have made a decision and now do i really have that that ability to appeal obviously if i if i make this to feel as i have and the court disagrees with me in terms that has no jurisdiction i certainly have some protection from the later argument that i don't disagree with that at all but i do the district court that is the non arvid ability versus arbitrarily and this is not that circumstance and this case is going to arbitration one way or the other based on the combination of what the district court ordered and what the hell he has now agreed form for registration and acknowledges at least as counsel did in argument in the district court acknowledges that his intent in executing you for was to register with the n a s d which is not section four that a jury hears this but neither party requested jury and the court is certainly empowered under section four to determine the issue i think quite frankly the issues the pastoral issues are not are not ones which are really at this point in in dispute that that i think in a from the hearing that that was the basis for the order that the box was checks after and assuming that's true for a minute i don't think that does anything to the merits of this case and let's assume for pur for years after the fact i don't think anyone's ever going to know when or how that box was checked but the point is that the checking of that box given bush league desire and intent to register with the purposes of registering all of that makes the checking of a box by any as the as many as ministerial as c s f be sending that form on to the n t s b because bush himself did not do that and for him to have argued that well i signed the document i wanted to be registered with the enemy steve but i never thought they would actually send it to them would not have that he cannot perform that job and he would have been terminated that one of the cases we cite in our brief is the death of dario the second circuit dealt with a similar circumstance in which a plaintiff refused to sign a district court found that he had under the same idea the same concept and basically accepted by continuing his employment that was that was what was mailed him there was there was nothing that was in the record that was mailed him proving that he was registered that's not the case i don't see that in the declaration that he had no intention of being registered i don't know no evidence that he had any intention can't i mean the courts seem pretty clear that you have to be very particular with what you're contracting to you have to have a mutual assent here there's no mutual i guess you could say here that he gets he would have to be registered and let the well i lost the petition to compel and they they made the petition to compel based on the fact that they had this program the eighty are two that was offered to the employee and we lost on that whether or not that was viable whether that was a viable contract so i consider it a lot more time i don't have any other they have an appeal later they can do it after the after the initial discussion  case if you look at five we are one fourteen one nineteen and one twenty five and one twenty eight they all use language that the registered representative is required to go to arbitration which one of the answer owes then the c d r doesn't apply to you well the court found that he wasn't required to go issues that was just being argued for instance and then in the prior case about arbiter belittling the ability of a particular form to decide is a very big distinction i think that it easily be drawn between this is the forum which the parties arbitration and you have to do that and then only then after the fact appeal and that is a very different issue and it's a very bright line test and i don't think that drawing that bright line will be anything but a bright line between the proper forum which the parties actually gre