defense to import of their agreement that there were do you explain to the court why the money on litigation was a waiver you made maybe there was a sentence in the papers simply failed to rule on the issue either way and so i can go on the record and i will see in your district court papers an argument to the district court that there was a waiver because  deciding waiver and said of the federal district court deciding what and so i recall the procedural posture was that we were seeking to have the arbitration of war vacated and so the argument for the district court was not necessarily whether there was or was not a waiver although that was certainly a defense that we raised to the arbitration going organ the earth but at that juncture we had an arbitration award and  confirm and on waiver anything to the arbitrator did not have authority and when the arbitrator entered procedure order number one procedure order number to determine that he was with her person to determine arbitrary body and did not stop the arbitration is no longer rendered if if we agree with you that waiver is an issue for the court the district court here didn't reach that question can we address that issue on appeal under and your honor i actually look specifically to try to find the answer that question i believe the answer is it yes i think the court can do that by by looking at factual making a record and i believe there is evidence in the record those arguments were made to the district or so procedure right what would be a fact question and perhaps  narrow defenses that are available and the challenger bears the burden on all of us and what i'd like to do is focus my time on the two major arguments it sounds like hold on the other side raise which is not waiver of the right to arbitrate then if there's time be sufficient to facilitate a meaningful appellate review but there's also a nd layer of insulation that exists here for the district court a district court is never required to make any factual findings or draw any if that issue was never raised in the st place the party has to raise an issue before rule fifteen to weigh and impose any requirements at all courts don't have to consider arguments that nobody make and as a result of this this kind of dual layer of insulation the district court's decision below was the correct one the district court affirmatively found and found correctly that diner resources raised as the judge kelly pointed out the waiver or the merits of the waiver issue the mr coulson mentioned why what why wasn't that adequate for preservation i think for a couple of reasons your honor the sort of high level one is that nine resources brave the argument that the arbitrator should not have decided resource that standard doesn't exist anywhere in the record and there's also no argument by design resources suggesting that that standard was met that indicate that there was no waiver to address a few of the points that my colleague on the other side made claim that they adequately briefed an issue but even if they could the only thing that google groups application does is it explains the procedural background in the arbitration so it says before the arbitration parties have this dispute about the arbitrator decided that those are all true statements about what happened that there isn't any argument that they're making before judge moore before the district court on this issue looks like the way to put it of authority is that the  i think that there are quite a few authorities that suggest that it's a court rather than arbitrator that makes that decision we we didn't argue otherwise in our brief but i do think that it is essentially it doesn't matter i guess because  and that analysis would be the same i think that i have just said which is there's nothing in the record where dinah resources that has actually said here's the standard for waiver of the right to arbitrate and here's why so in other words even if it's true that the district court's order didn't adequately explain its finding that there was this waiver of waiver that fine was in fact correct because there's nowhere that we can find in the record where there's a discussion of the waiver issue on them and so th but instead chose to voluntarily dismiss that action and essentially give up its right to appeal the issue but in addition to that then resources also could have just argued in the alternative before judge moore in the  more think that you need to decide the waiver issue here's some reasons why you should design paper and they made the considered strategic choice not to raise that argument in the alternative the reason why i think they made that argument why it would have been a strategic choice is that they have prevailed in the mexico city courts and that's because the court had given them a favorable ruling and they wanted that rule to control in essence they put all their eggs in the mexico city court basket and were hoping that the court it didn't turn out that way but that was a strategic choice and as a result they're stuck with that choice on appeal so there are all the arguments why the district court's decision even if diana resources had properly preserve the waiver issue it wouldn't help because the panama convention doesn't recognize we have the right now we concede as my colleague suggested that there are a couple of cases the rd circuit decision i in the nd circuit decision usef which go the other way and say the domestic arbitration of the federal arbitration act is incorporated by that but there are also four decisions that go our way as well and we haven't found anything on the th circuit authority that definitively answers that question in our point is there's a strong program force and bias in the convention and all the senses must be construed narrowly this court is presented with two reasonable interpretations one says issue for the arbitrator which basically would be if that's true it would be virtually on repeal will in a confirmation proceeding and then and then if you say well you know alternative question for the court but the court can't reach waiver because we're going to construe the f a fairly and seems like the implication of your position is that there would never be any review of as the u s supreme court is held in this court is held in every kind of or his health there's a strong proconsul nation bias in federal law and that's particularly true in the context of international arbitration and so it isn't all that surprising that the review is argument that the arbitrator exceeded his authority there are a number of arguments that we raise and we but the one that i really want to focus on is harmless error and our point is that even if the arbitrator exceeded his authority the error was harmless  affirmatively prove that if they can't prove it there's no finding in favor of waiver or by litigation then the arbitration agreement the final award is valid the matter would be different if this was an element of one of the claims but because it's an affirmative defen e getting rid of the affirmative finding doesn't have any effect on the final award the the final award still is a valid and final award even without that which you do and they see that i'm running short on time i would just say that in colorado and that case only the defendant of the panama convention would be acceptable but the fact that it with decided in the united states acted by either panama convention says that the domestic f a a does apply for the distinction is really where the actual arbitration work