i want to explain that really and these issues that we're seeking is a fairly narrow in the hand which is really for the district court judge judge can cade to reach and decide really the one issue the one question back to be decided yes you are there are there actually was there was never a complete record made on that issue because the issues only ever addressed directly with the arbitration panel in which the non they couldn't join in because even if they wanted to say things that come up and speak and say here is our part they were the position which if they did so they've now conceded that they are party to part of the arborist it's a very it's a hobson's choice catch twenty the foundation of that determination that the actions of the non signatories were violations is based on the st instance the determination that the non signatory were indeed subject to arbitration ward because they were eight the peril explains it normally soaring when would be able to discover the factual basis for its claims that respondents breached the agreement by entering into x agreement or financing why when a project or making z equity investment  and i'm well aware that there is great difference paid to the citizens of arbitrators this is not a run of the mill arbitration this is not a run of the mill appeal to district court judgment affirming would be the st case in united states jurisprudence where one side is allowed to have more arbitrators than the other side over objections that's what the contract shared an arbitration is a matter of contract the f a a ages not contemplate a situation or or the or the new york act or any of the in of the arbitration acts do not contemplate a situation in which the parties have decided for unequal representations  can go to the arbitrator's i'm talking about what i call the on equal representation death issue and you're saying that that that the us courts are never going to recognize an arbitration award where the representation is unequal at least to the extent there is no case applying article five defenses under the new york convention whether it's been in an even privy at all none we looked for  energy is the claim and they're the playing of they chose they chose to for which is arbitration they chose to allege is that non parties were brought in to this it appropriately and this apply to the non signatory who never signed the contract the contract is you know arbitration only by consent and is a good authority supreme court this court that says the did do that never did do that i'd like i'd like to i think there's no dispute between the parties that public policy and due process are defenses under the new york convention and there's no dispute that just due process extends to arbitration proceedings we cited i'm not going to go into a lot of cases already for the proposition due process and fairness applies to arbitrations  the traditions of fairness and due process ever tried that this is the st case  equality of treatment he goes on similarly procedural public policy under article five to be that's the public policy includes equality of treatment and impartial tribunal in the record is the declaration of mr townsend the head of the huge corporate greed arbitration practice former chairman of the aaa he quotes a few concepts or is universally good morning please the court blue clay or on behalf of soaring wind in the movement i think it's important to make sure that we are clear about what is up on appeal right now which is that's a very important because afaik usa was the signatory unquestionably to get this proceeding and therefore the question is can it be enforced under the standard principles of arbitration and i think it's crystal clear that it can be enforced because there is not any basis that they have shown to  specific award i want to say i want to spend just a nd on jurisdiction even though the other side did not argue that because i think it is important and i want to just focus on the question of jurisdiction under the new york ego and we a legacy involvement that creates a federal jurisdiction under the new york convention and they're the st circuit in the stem case and the nd circuit in the oracle case make clear that where the question they're asking they're basically saying go back and decide the alter ego issue but you don't do that to find jurisdiction i thought a soft basis for jurisdiction was diverse that was the basis that was pled but  as is the court undoubtedly is aware any basis of jurisdiction is appropriate for this court to determine you don't just rely on i think diversity applies but that's a more complicated question i think it's crystal clear that meaning and our position is are there has any legal effect as a legal effect and there's a point court itself has said that the very purpose of arbitration is to in fact for the parties to act voluntarily and to comply and that and that the cases that they are talking about with respect to diversity jurisdiction are cases where you're seeking in enforcement there's no question that you can't execute but you but and and the divestiture can be undertaken without any need for rd party action that's a different situation than saying that you can go to court and seek execution of part i think that's a different question was the question in my mind is whether an arbitration award has any meaning there's no question they can review it and they can seek to overturn it but the question is does it have meaning and of always leaning is meaning is not t court well there's just no question that has some legal effect and the question is is it sufficient legal effect and whether or not it altered the legal relationship between the parties merely the fact that there has been an award to which number one the parties have not agreed and number two has not been confirmed in federal district court and the stand your honor that is the question i think there's cases that suggest that it doesn't have sufficient legal effect our position is that it does in this case because it does not require any action by a court in order for that to be effected and the cases that talk about legal affect all the cases we're talking about where you have to go to court to get some action taken so that that's our position i'd like to address the other issues if i could so that that's that's fine if you want to do that you've got fourteen minutes left but you're in real danger here of having a dismissal for one of of of jurisdiction in the district court so if you if you want to try to avoid that question that's that's respect to that the court can look at bases of jurisdiction including the dig your convention so we are entitled i didn't argue that argue the new york convention because it has to have a real reasonable relationship of foreign st are pro award arising out of a legal relationship which is commercial there is no question that we have an arbitrary award against an organ of the chinese government determination because i think you're suggesting remained in your briefs on the nie if if we say no diversity are you suggesting remain on the weather falls of the convention we don't believe that it remained is necessary because all this required under the cases is a non frivolous basis in other words if we have removed the provision isn't that a separate from the rule related to in the removal provision no i think the exact same test applies under under the actual new york convention in merits and therefore you must assume jurisdiction and address the merits that's what i think is the is that the rule under the stand versus gomez case and specifically under the oracle case in the nd circuit exactly the same situation or who was the parent they brought a claim in federal court to enforce the award against oracle the parent and the court found it was wrongly determine that oracle had been suffocating arbitration but they did not dismissed for lack of jurisdiction because they said it the question was a merits question you must assume jurisdiction and then rule on jurors real on the merits you don't dismiss on the basis of jurisdiction even if even though they said they were wrong in what they said they did not dismiss on the basis of jurisdiction or of let me turn to his argument was that the whole foundation of this award is the finding of all three go and that's that's not correct the findings in this case the arbitration award found liability against right now because there is no reason why this cannot be confirmed we don't have to find all three go to confirm this award against avick usa the arbitration panel found and they're finding is binding on this score that they they built the wind farms based on evidence the serious wind farm in the rolls going far in violation of six hundred and twelve of the agreement that has nothing to effect the adverse inference is getting has gotten way too much focus in my my opinion because the court or the the arbitration panel specifically failed a violation of the agreement and damages it was only after that and what they said was very limited they said because you didn't follow a discovery or a discovery order we're going to infer without additional evidence this fifty one million dollars investment that was a merely an evidentiary ruling which is not subject to root review and so i very limited inference and it was in inference in the ward after they had already found liability in damages so it it seems to me that the the question is whether or not under the very limited test for which an arbitration award has to be can vacated they have not met that test because they are talking about a limited eviden is not the foundation the foundation of this arbitration award was a significant amount of evidence about the competition under six hundred and twelve dollars that was a significant amount of evidence that found that they had violated the agreement and the court the court actually considered very carefully the question of they found it was a big us they found the agreement one part of the agreement sixteen and only binds the members but six hundred and eleven and six hundred and twelve actually bind affiliates of members and we sided cases to the effect that where you have worked where someone could that's a perfectly valid under the extreme case in some other cases that's a perfectly valid agreement to make under the contract and so for that reason it was a direct l liability it was direct liability for the pilot issue by the affiliates under the agreement and that's the reason why this award comes up separate from the alter egos and it is a farm e because it is a direct violation and damages found which all this required for damages is that it come from the essence of the contract all right let me turn i have six minutes left let me turn to the public policy ought to be made by mr chad for some time to talk about damage to the ok but let me let me talk about damages then i'll just go ahead and address with and when they measured the damages they measure the damages loss to soaring when the entity so there's no question those damages were compensatory damages when measured by the loss d of soaring when the damages and then they did the divestment which was double the damages and i understand that but the question is under the case law all that this court should look at is whether these damages draw their essence or rationally inferrable from the contract that's what the executive on case from this court says is whether they are rationally inferrable from the contract and and there is extraordinary deference even more than any other  there's extraordinary deference on the rim of these selected by the arbitration panel so for that reason this court should not be looking to set aside a damage award which is in any way rationally inferrable from the contract which is exactly why a judge came kade in the district court said you haven't shown a basis and the fact that this court might measure damages differently doesn't change it doesn't change the fundamental character of the damages which were compensatory damages and therefore fully recovered will just because they call it kinda good damages doesn't make a cutie doing all right let me turn to public policy and again i think it's important to remember who's actually here at the alter egos are here they claim standing not because the wars against them it's not against a better word is not big confirmed by the district court against the alter egos yet the only reason they are here is because they as we acknowledge the issues as to advocate usa will likely by the with respect to those issues they're entitled to be here and to state their position because it will be binding on them but what i don't think is appropriate is for them to be here arguing about things that don't even apply to avick usa and the public policy argument avick usa didn't even make that argument in their briefing ok so this is just an argument by the alter egos which they'll have the opportunity to make when and if that award is ever confirmed against in this award they don't have to pay a dollar they this is not binding on the m it is only avick usa so i don't think the public policy argument is one that this court ought to take up at this point with respect to because it is not an issue that avick usa has specifically raised on appeal but if the court decided to take it up i think judge davis made the point that i would may which is this is a question of contract freedom of contract and arbitration just the most important fundamental principle is that the parties can determine how they want to arbitrate it on what basis they want to arbitra and the cases that they cite all of those cases involve situations where you have a relatively unequal bargaining power not not the situation here is the district court noted very sophisticated parties an organ of the chinese state highly sophisticated counsel all of that means that the freedom of contract principles that govern arbitration ought to be the most important element of what's looked at here so for that reason the public policy case isn't it mr chow said he didn't find a case but what he hasn't done this actually given your honour's a case that deals with this situation where you have parties with equal bargaining power who select an arbitration method pursued to their contract that's followed and of course what they want to do is convert parties they don't want members to appoint arbitrator's they want to allocate sides but that is not what is required when sides can change alignment can change it could change during the course of a case so it is perfectly rational for the parties to choose an arbitration method which gives each member the appointment of an arbitrator regardless of how the sides may ultimately align that's not a violation of due process and there's no case that he said in that situation congress intended here which is that this be a truly international dispute an order for the new york convention to apply a second d the mere allegation of alter ego does not want a ward of alter ego does not get them across the line here intertwined here and that's and that only a judge could decide was their jurisdiction in the district court or not frankly i don't know the answer is we don't know because we don't know the outcome would be of the question  that's it's fundamentally that absolutely the award is in part against a foreign entity first look in the definition that may suffice and why shouldn't that at the considerations that give these arbitration agreements jurisdiction in federal court or the or our big international awards would seem to be satisfied because the steps got taken out of order here your honor fundamentally the fact is the award should you can't simply simply assumes in the st instance something it can't actually decide and says these parties are now subject arbitration we can't then go to a district court and say well because arbitration panel does something it has no authority to do and found they were such arbitration