appeal certainly certainly will your own thank you and swift coast seeks redress in the courts for some studio under a course of construction policy which was issued by the defense the defense in this case or underwriters munich re it was actually the lead underwriter they call it lloyds but there's many many syndicates that have subscribed to this risk it was a master policy drafted and fro jurisdiction on appeal yes or certainly will well first the issues are no vote under the policy than that of a standard of review and the issue is under these three key provisions thousand and one of the key provisions is the claims section of the palace and what he says is that the insured shall commence quote action suit our arbitration within six months asked you to focus on that and how i would do that i was going to focus on both but i'll certainly do that this case meet let me start you all in appeared in the supplemental letter briefs we required that you c d that you have no jurisdiction under section two hundred ninety two b that's not your position no sir here's my position what we did was appeal we got to we got first judgment  that the court called it that he can call it no but he did directly say directly in the new ruling that the prior judgment was the final appeal just it when he said was that was how he was considering it he didn't clarify that that's what he intended i mean i know that subtle but what he did was he construed the prior order it as if he weren't there was not the author of it rather than saying my intent in entering it was yeah well judge i was say no he looked at it oh because of our food rule fifty eight motion and with all the jurisprudence presented we presented all of these issues to him and his order came back and said that the prior september twenty fifth two thirteen order compelling arbitration instead he seems to be engaging in the exact same exercise we are which is considering that order and he construes it the way you say i get that but that is different from clarifying it for redoing it or reentering it or whatever but i don't think you've yet answered whether assuming that wasn't a final order he had this alternative ground about the twelve ninety two and judge barksdale asked you are you conceding that we lacked jurisdiction over that because there was never a timely request for us to accept that appeal well i wanted to use two parts but i will certainly answer that so i think it's important that we did have and we appealed at that point  is let's say evolve but it seems like our case law has drawn a distinction between dismissed which is pretty clear and stayed within administrative result of what happened i don't care what pacers i completely don't care because you have the order the order is all the governments what some clerk in the office thinks about an order is not binding on us or the judge or anybody else this isn't a pro se litigant who is confused or something you have the order and the order says stay and then caus the case given the other likelihood it does not say all possible things are terminated this is over whatever whatever it says you're not bound by pacer understand but there's a lot of case law saying pacer is important in looking at this because i think the judge would have some input but then we started it in our little birdies i promise you i've been not in this court by any means practice i don't know about judge walter but it's generally recognized and i don't mean this in any critical or disparaging way at all but it's very common across the circuit for district judges to close cases administratively cases in which not very much is happening because there's the march thirty first in the september thirtieth deadline to where the reports come out about pending matters in the district judges understandably don't want their numbers to look really big when they've got cases in which there's nothing happening and it builds up their numbers so lots and lots of those cases i'm just speaking from twenty six years of experience in here that a lot of those cases get administratively closed and then they routinely get reopened either to either right after the march in september deadlines or at some point after that and i don't know whether you agree with me that that's the practice and again i'm not talking about judge walter specifically but that's the problem that we have if we if we call all of these in ministry we close cases close for purposes of of appeal and i understand that and i would say i can't speak to all administratively close cases i can say in this case there was nothing else for us to do it was it was closed it was done it was over and that's what the judge reiterated in the in the second clarification ruling it policy bay put it together in fact that's what mr clydesdale testified we put the master policy to get on the key issues is it requires that the insurer commit suit action suit or arbitration within six months it also the provision about consent to sit and we're not arguing just on the consensus of close but it does it tells you how to effect service it tells you they will submit to and abide by the jurisdiction of the courts we certainly relied on that we gave notice as require we found the suit we we perfected service the policy also has an arbitration provision and it and it consistent with the right to sue and consistent with he got to take action suit or arbitration it selected suit and in dealing with this this issue it was brought up before the magistrate this is a magistrate's ruling that the judge judge approved magistrate you know did talk about the rules of interpretation but we would submit it in a plot to go look at the policy as a whole you get a look at all three of these provisions and you've got a ploughman not make one section meaningless what happened here is the an affidavit was filed by the underwriters and so we had to depose the a five and he a great he's the one who actually marked up in his own handwriting the policy is the unique you got before you the policy that he's scratching through in writing the words and and all that he said i think the word soup in there is relatively clear and he also said this prevent this paragraph provides an action or a number of actions the insured in tech he's agreeing that there were options and forward they had to take an option you had to do want to you lose your rights so they took it out we took it up then there's services and what he also said is all of these provisions that consent to search through and the claims section where market standard provisions i've seen him before they're not that unusual their market stand we haven't seen a case that backdrop the magistrate ruled that lloyds might elect to allow the matter to be resolved through the litigation process or it could elect to enforce the arbitration clause just an area i'm going to give you two extra minutes because we took a lot of the mistaken interpretation was compounded by the fact when he said that the insureds option of pseudo arbitration was solely to allow the claimant to prevent a band that's not what the policy says and i would suggest to you that this say we hear about request arbitration proceed pursuant to this provision so to me he's rendered that provision meaningless he also erred in assuming this whip though somehow consented over an arbitration quote merely by entering into the policy that's what what the decision said i'm not sure as we all know a threshold question before anything else we deal with the threshold question is whether a party is bound by an agreement containing wording in the policy clarified he said for example he could say that those who quote do it do consent to carry out the site when you start adding punctuation and language to a policy that raises many issues course you cannot rewrite the policy it makes it could raise issues about clarity and ambiguity but this is contrary to law as he cannot rewrite policy and our position is you don't have to be right it does provide those options and there's a reasonable way that the provisions can be read together if you if you want to start adding words to clarifying then you do have ambiguity all right thank you mr gillon you shave your full five minutes for a there is not jurisdiction for this court to consider this appeal and i think that as judge change showed out the case was clearly developing on the us from american heritage back i believe in two thousand  thousand and two through the city financial corp in two thousand and six i think what we're saying is the courts are more and more strictly interpret ing the issue of a case closed for administrative reasons and in the context occurred to me last night at about ten ten pm he doesn't really say other than he says according the fruitage from going according to american heritage it is a final judgement so i guess clarification might be an appropriate statement for  clarification and what impact is that hat because if it's a clarification then isn't the new order the final order and stick that would be ok i see your point i think the judge clearly didn't know because anyone on t certified for appeal under twelve what is a twelve nineteen b he didn't amended order i think that the only order that the order can only be read as a judge the september twenty fifth order is what it is the legal consequences of that bread roll fifty eight many times i can't really understand although he didn't grant a rule fifty eight mentioned he did something a little different i think it's important and the motion he did grant which was our motion to compel arbitration and stay the proceedings there was no movement for dismissal of the case there is no request for that remedy there is nothing that asked the court to do anything but stay it and certainly the administrative closure is just  new complaint and a new filing fee and all that and do anything had this been a final judgment you know your honor that is one aspect of simply don't know i can get i could look it up when we get back and send you a supplement but i just don't  and i think that is one thing and federal law that i've noticed in prior matters as is i don't think that there's a clear in reading answered even after final judgment as you know when the appellate deadlines for us but i do think it would be pretty hard two years down the road on the back side arbitration to try to get the judge to reopen a case of that had been subject to it i don't know if you should find your sticks and if you should disagree with me and decide to go forward into the  provisions that he ate at issue the arbitration provision of service of supervision and i guess claim presentation or claim rejection languages you can't read these and conflict with each other and it was difficult to harmonize but i think he clearly does a great of harmonizing and the only disagreement that i have in his opinion is once he's harmonized it he says it's on a big us and it doesn't really matter you guys are going arbitration there is one thing on the issue of consent that i think invokes a convention because what i think i think the convention is relevant not only the jurisdiction but i think it's also particularly relevant to the idea of consent and the point and what i'm trying to go as you said co agreement arise out of a commercial relationship and is a party to the agreement not an american citizen once under the convention you reach that test i think every other can i think every other of consent and setting aside the fact that i think the magistrate got it right when the parties agreed that the arbitration would be binding upon those who consent to same and that's not exactly how it says it he meant it was a consent at time contracting i think also within the framework of the convention that's correct and the cases i'd offer in support of that convention waive his rights to remove will and i think that the public policy consideration of that is relevant to the issue of consent within our contract and the reason why is that the court came up with the express wa rule that you have to expressly room waive your right to removal or else you've got it you can remove any time of the trial period the reason that they said as a concerns of international comedy respect for the capabilities of foreign and trans national comedy respect for the capacities of foreign and transnational tribunals and sensitivity to the need of international commercial systems for predictability in a resolution of disputes require that we enforce the parties arbitration agreement even assuming that a contrary result would be forthcoming in a domestic context now once you find that the arbitration provision applies i think that that logic applies not only to the issue of removal and remained but it also carries forward over into you know who consent i don't believe that that is ambiguous if you all disagree with me i still think that under that theory it has to be construed in favor of arbitration under the convention to respect our treaty rights with the other signatory natures and to show you the point the cases that a e p have has proffered and support of arbitration provisions that were found to be unenforceable one case they talk about considerably as a pioneer case in the language in pioneer there are several issues in pioneer but ultimately the provision that they found to be at issue and that they found to be an unenforceable voluntary provision not forcible under the convention was quote well the mutual agreement of the assured underwriters was plainly required by so i'd say that there should be an express requirement within that consent and certainly to the extent that you might feel ambiguity might exist in the words you consent the same i think the public policy rule strongly that any waiver of consent should be concerned should be express and i would go further if you look at temper source the policy at that issue say stated if both parties do not accept the nine by the non binding arbitration the matter will then be referred to a court again expressly put down that it is a non binding arbitration provision our provision once you're in a convention if we go to the second consent if we go to the second  and so the fact that mcdermott was objecting to the entry of the arbitron all award grounds of consent was found not to be sufficient to save off ensure the arbitration agreement and the court held the twenty goals of uniformity and summary and speedy judicial inforce when the arbitration decision are plainly furthered by the district court's action confirming the award i think i  don't know how they get around over it swept go i think in the event that you all determine to find jurisdiction i think the convention makes it mandatory that this then goes on into arbitration the final issue i'd like to talk about and i might be able to give you all some time back even although it's a dangerous thing to say with seven minutes on the clock contra preference on the district court made one finding of fact subject error and that was neither party has plainly described how the policy came into being i can't disagree with that reading through the depositions i certainly can agree neither party has plainly described it however i would say the judge could go a little bit farther on this panel could go a little bit farther with that finding and not contradict and the issue of contra preference though we cite three cases i think are relevant six foot six that we've mentioned in one nine hundred ninety one said that the that do you believe was under louisiana law they recognize a sophisticated ensure and then even leasing which was a fist circuit case admittedly under missouri law but it was depositions of the various individuals i guess let me kind of back up a bit and talk about surface line policies very quickly so that you can kind of have the framework which this testimony when we get back into the forest not the trees  how this policy works is a p came up with a plan they were going to build for power plants they went to mcgrath who was their broker in the united states they said mcgriff we're going to build these for power plants we need an insurance line to cover mcgriff and a e p put together between themselves what coverages they needed to build these four power plants mcgriff then goes to london where there's a london based broker called jail to jail t is  growth put to get confect a policy a month them selves and scott says this if you look on the reporter's record eight forty five thirty eight forty six he talks about the master policy which was the ones that which was a policy that would cover all for three or four construction projects he says it was a concerted effort amongst a piece risk management department of a group to us broker in jail to j p l the london broker the purpose of the broker and then it was assembled w still says is he says it's both in his affidavit which is a reporter's record page thirty eight and he says it and his deposition several times well he says it put it this way he says in his affidavit and his deposition he says he's proffered the language she says i'm paid six eight he would approve the terms of the broker presented to him on page five ninety six for the stall project  reviewed the terms and agreed to support the project five hundred ninety seven he reviewed the policy when it was presented to him and agreed to write the project on a truck to prevent it presented on page six one four he says where the broker meaning jail t v a peace broker or the broker would allow him to make changes to the policy who would make the changes on six nineteen what a p cites as evidence that we underwriters but the policy they gather in the context of talking how the jail t presents the policy to him he says when we negotiated this one we put together the master policy so that's not him saying we underwriters did it again no parties plainly described it but i think we do get into  sophisticated businessman and represented by counsel on the same professional level as the counsel for insurers and we didn't have counsel in the process but they had brokers involved and we had our under lighters and riders involved so they were represented by sophisticated players insured and then presented to the insurers to underwrite and under those circumstances i don't think contra preferential applies certainly under the convention i don't think country preference and should apply and under the f a a i don't think clear he did not say i'm green and he knows what it is to grant a motion in fact i read it is very carefully ducking that and not granting it but either way you look at it important points i just heard the argument that somehow the convention a pleasant whether you have a binding arbitration agreement or not you're subject to the convention that is not the law there's case after case after case you have to as a threshold in london after we started talking about his affidavit he admitted the many errors in the affidavit it even referred to paragraph numbers that he said i don't know what they are i never seen those paragraphs because it's referring to the course of construction policy and he also admitted rather than somebody given e mail this these are all standard market provisions that i've seen many times before and his words were we put the master policy together we being the underwriters and there's many other of it missions including that i have authority to write these policies anywhere in the world and that's what i was doing and those on our side can ask me to amend it they can take a lesser part of the risk or they can reject participation he was as clear as he could be that's another reason why the cases the policies in the case a little unique a claim section which i have not seen interpreted by this court and the absolute proof of their control over the policy in their issuance of the policy and his admission that he did so with you having in the record his hand