going to begin your honour's by addressing the public policy issue and then i'm going to turn it over to mr katz to address the discovery and reason the war issues your honor the court below erred in confirming the majority award over petra ross's public policy objection under article five of the panama and new york conventions u s courts must refuse to confirm an arbitration award were confirming the award would be contrary to u s public policy here confirming the majority awards decision to gran six hundred and fifty million dollars in lost profits violates the bedrock us public policy against the bribery of foreign public officials although the district court and the majority award relied upon the doctrine of ratification to overcome the public policy issue not of the district court nor the majority award found facts sufficient to cleanse the bribery taint in this case i want to begin briefly with the applicable standard to review with regard to the public policy argument i set out in this court's gulf coast case this court like the district court defer to the arbitrator factual findings but refused to know the question whether you have a policy has been by only did this of course require that the court identify the have to accept as a part of the judge duncan yes that is a factual finding awareness of allegations of bribery is a factual finding of the orbital tribunals for which deference is owed we submit that that factual finding of awareness of bribery allegations is insufficient as a matter of law to cure the public policy change with the with the d s a the drilling services agreement here so the question of ratification is a mix question of fact in law the fact w could have made it been made aware of lots of facts it is i'm just trying to understand it's not just awareness of allegations but it's on the basis of an op that was that was  ted by the company what's your response to that i think significantly if you go to the audit report the order report express lee says that he quote cannot prove the veracity of the allegations of bribery now it does find irregularities deficiencies in the contracting process but with respect to the specific issue awareness of bribery it says it cannot confirm the veracity of those allegations the audit report in this case is performed two months after a newspaper article comes out us interviews twenty eight dollars witnesses does a thorough review and the conclusion of that review as the majority what makes clear is that while petr is aware there are allegations of bribery and while it may have had suspicions that bribery was afoot it cannot confirm whether those allegations of bribery are true or false so that point you have a position where there is no actual knowledge of bribery it makes clear that the city could not consistent with us public policy be put to the choice of ratification based upon a suspicion actual knowledge is what you need to show coming forward two thousand and four we've cited that the  seven circuits decision in williams which reverses jury instructions that would have allowed the jury to find gratification without actual knowledge so what these cases all tell us and this is an important issue of public policy we're not going to put the the victim of bribery in a position where it has to make the choice between proceeding or not in tool it as actual knowledge because otherwise we could imagine a situation it seems to me at most what you're saying is the arbitration panel misapplied the law of ratification but they made a clear finding of ratification and i think everyone agrees that a ratified contract after the bribery or fraud is discovered does not violate public policy so why isn't this really just an attempt to undo the factual and legal findings that wed the arbitration panel to conclude there was  public policy if you hear all the parties can see that contracting through bribery as a matter of u s public policy cannot be enforced in arbitration award in forcing such a contract could not be confirmed consistent with u s public policy what  your best case what's your best case that says of courts can undo a leak a factual finding or a legal conclusion because undoing it be the opposite conclusion they reach would violate public policy in other words the way i see it the question is is the decision of the arbitration panel in violation of public policy you're saying we have to flip their decision and then it would violate public policy what's what's your best case for your view that this public policy finding of ratification what you'd have to do is take the facts the facts that they've given you you've got bribery to cure the c s a you've got awareness of allegations of bribery by patrick ross take those facts does confirming that really irrelevant is the question of what facts were found and how applying those facts how that would implicate our public policy and i think this is this court's decision the gulf coast case provides us a good road map of how these issues are to be resolved you for drugs this court this or if you are you look at the facts you took them as they were but she said reinstating that employee would violate the well established us public policy against the use of drugs on employment premises here but that's something you still have not overcome in my view want you to go a bit of time to respond to that even though your time has run out i think the response to the south with it would be that again the label that we put on it ratification is a legal conclusion drawn from that a legal conclusion that goes to the public policy if you wish to review the novo so i would say we look at the facts as found and then we determine whether those facts create a public policy issue three key points to make on the the discovery issue the st is that the dissent is unprecedented neither side or the district court has found anything like this where a dissent western the fairness and the due process and you tire arbitration process i think the nd point is that the facts related to our request to take discovery are undisputed and support discovery and rd i think a lot here supports discovery under this sport and other  so on the dissent issue the dissent was issued by mr davis mr davis is an accomplished and experienced arbitrator who understands the fundamental fairness and you process rights provided for in the f a a and he specifically we believe that dissent alone and the fact that he was privy to facts that that occurred things that were said things he observed with respect to in particular arbitrator brauer that in itself alone justifies every year but there is more and seventy three that's nine thousand five hundred and seventy three if you look at no other page in the record you should focus on this age because it shows that arbitrator brower spent thirty three hours focusing on accusations by mr prejudice bias in this conduct things where he questioned whether or not the process it's fair a trip away again on that same page it shows it conducted a conference call with the arbitrators collected additional information it has that information the arbitrators have that information and the district court air here because it went ahead and ruled on the motion to a cape without having a full and complete actual record as is required under the f a a when reviewing and award  parts it basically says is the discovery sought relevant and necessary and two will it resolve factual questions that are not apparent in the face of the arbiter of record that test is clearly met your how do we know that well we essentially here mr davis is like a fact witness right he saw things this turn back to catch either procedural question about this argument let let's say just you know hypothetically you convince us and we say there should have been discovery but you the district court rejected and dismissed your your arguments that you received an im impartial tried or impartial tribunals and that all those claims related to this arbitrator please the court kathleen sullivan for happily vantage i'd like to begin with the public policy argument and to state that the district court was correct in rejecting the panama connection public policy argument because it the public policy exception which has never been applied in any panama convention or new york convention case of which were aware would apply only where the arbitrator's conclusions taken taking the facts  law as found by the arbitrators would violate public policy and has already discussed by the panel in colloquy with my colleague on the other side the arbitrators here found as a matter of fact that picture bras knowingly ratified the contract despite knowledge of bribery and found as a matter of law that the ratification the quantum of evidence of bribery sufficient to support that  so to go back to judge duncan's spectrum this is a case where it's a far cry from a mere allegation of bribery there was is judged on can pointed out there was an internal audit in concluding in october of two thousand and thirteen an audit that found allegations of bribery sufficiently severely made out by the evidence in the record that the audit report concluded with a recommendation that the matter be referred to prosecutors in brazil so that's an internal audit that goes far beyond mere allegations of bribery there's actual knowledge of bribery moreover that was the best a geisha by petra ross internally was prompted by the article the article that appeared in aug rd teen and i think it's worth spending a little time focusing on what was in that article it involved a confession an admission by a coconspirator to the br raise a bribery defense he stated that he'd been paid a commission of nearly fifteen million dollars by a vantage director with respect to the exact contracted issue the d s a the use of the titanium audit absolutely nothing the contract would be void avoidable would be voidable at that point if petrograd said picked up the phone and called houston and said hey what about this bribery u procure your contract we want out of the deal and for all we know vantage might have said ok fine oil's at one hundred dollars a barrel we'll find another contract we'll let you out we don't know that might have happened or petrobras could at that point have gone to the arbitrators and sought some sort of declaratory judgment saying hey we read this article it's an admission it's a confession of bribery we'd like it declaratory judgment that we can void our contract they did none of those things this is significan to the decision you think we need where there's a public policy exception up to this it is it is not relevant your honor in the sense that the standard of review here precludes inquiry into the factual or legal basis for the arbitrator's decision the sole question before this court is whether as you say it your honor it violates public policy taking the arbitrator's decision as it comes that this was a contract ratified despite actual knowledge of bribery you must take that as it comes and that decision is consistent with u s public policy so we actually believe you need not inquire further than the arbitrate jer's decision on its face all i'm doing is suggesting that to the extent that mr mccann then has said well there's a deeper issue about whether the law of ratification was violated here because this was an allegation case and not an actual knowledge i'm just trying to sa benefits of the bargain and stick with it when you could avoid it in good times and then change your mind when times go bad so your honor all i'm suggesting is that our st argument would be you need not pay any attention to anything i just ted about the factual and legal support for the arbitrators conclusion but should you think that you need to explore on public policy grounds whether this is a deficient ratification we respectfully suggest there's absolutely no basis to question the arbitrators judgment the judgment was correct i was struck that mr mckinnon was unable to cite any case in answer to the panel's question and suggesting that you could flip an award as judge cost  case that sent the ratification issue back to the jury for a fact finder to describe and here of course we don't have a jury we have the arbitrators who petter bras contracted to give the fact finding function two and this court is not i not frankly within your power to peek behind the arc which will award into whether the fact finding by the arbitrators was correct so respectfully your honor you can ignore everything i just said about why it was correct because you must take the decision as you find it i just want to assure the court that should you think there's any neat reason to look at whether the ratification was adequate enough to satisfy american policy on ratified contracts despite bribery are ok you would find ample question adequacy of ratification were at the high end of your spectrum here your honor and therefore this is the last case in which i would want to be the st court to ever find a public policy exception to the absolutely standard bedrock principle that parties may ratify a contract per cured by bribery as by other fraud if there are no further questions on the bribery or public policy issue i'll just turn briefly  whether you should remain for discovery again i want to start with the extraordinary nature of petro process request here it's as extraordinary discovery as it is on public policy they're asking you to reopen of record three years thousands of pages of transcripts tens of thousands of pages of exhibits in order to depose the dissenting arbitrator who issued a cryptic blunder buss dissent that said everything about the arbitral proceeding was flawed after petra plus not only once but twice sought to disqualify judge browder both before after the merits hearing and before the final award and again after the final war that is quite extraordinary and you ask you something before you move forward how extraordinary use th  is that the way such concerns are raised is what were the options for an arbitrator d who actually thought the process was unfair oh then you know judges don't usually express themselves in quite those turn we can say is you can be strong in correcting unfair seizure but don't go much beyond that what what should we make of that dissent insofar as a matter of busted twice they sought to disqualify judge brower the judge they were complaining about for having interrupted their witness too many times and they failed on that count so i think the more important thing about what's extraordinary about the is how dangerous it would be to reopen inquiry into the confidential arbitral proceedings here based on such a vague and conclusory dissents contrast your honor for example with the fertilisation taste case from the southern district of new york which is cited in my adversaries reply brief that was a case in which the dissents detailed over one hundred dollars patients of specific allegations of supposed misconduct and unfairness and i think it would be a terrible preceden for this court to say the dissenting party appointed arbitrator for the losing party can lobby on a cryptic dissent with no detail with no stated factual allegations unlike for listen to these and then get to undo the entire ritual proceeding based on that includes a restatement of your honor it's rare but that's because no one's had the audacity i think to try to reopen a completed arbitration with such a cryptic response your honor the nd thing that the arbitrator could do is appeal his to his co panelists and i think another extraordinary fact about this record that supports the district court's rejection of the deposition request is that you have a concurrence here between judge brower and dr park and petra ross isn't accusing the chairman dr park of any misconduct here and yet dr park we know from the record the district court knew from the record was privy to all of these allegations about judge  supposed intrusion into the case or one sidedness and dr park is completely innocent here not accused of any misconduct concurs not only with the substantive outcome remember that there's a specific paragraph in the arbitrator ward that states that we have examined the allegations here and we find that there was no unfun unfairness or or misconduct so your honor that the alternatives are go to the  a talk to your fellow panelists that was done here that should be the end of the matter and the only thing that would be extraordinary here would be to allow a party appointed her traitor to blow up an arbitration  conduct is not in any way impugned here look at the fundamental unfairness and due process characterizations and reject them explicitly find in their final award that they were not met made out i would refer your honor  explore these fundamental unfairness allegations those opportunities were available by petro bras in the aaa requested disqualify brauer and we think it would be most extraordinary to say the district court had to go beyond a record that was that fully vengeful it at the arbitral level i know my colleagues keep making a big deal about how judge power spent a lot of hours as reflected in his time records exploring gave us his allegations that just shows that it was taken seriously within the orbital process your honour's asked for mr katz as best cases i would st point out that the only cases in which the extraordinary step of deposing an arbitrator have ever occurred to our knowledge involve real allegations of partiality or conflicts of interest where an arbitrator had an undisclosed business interest in the opposing side for example this is such a far cry from that case the other side's dropped any suggestion that judge brower had a former law clerk who worked at vantages firm as a basis for partiality and they're not really suggesting partiality here they're suggesting he interrupted witnesses and said asked and answered  are engaged in extended colloquy these are nowhere close to the cases involving partiality and conflicts that are cited by mr katz but the other point is that this circuit has been very clear and i would cite as our best case legion insurance this court's one thousand nine hundred and seven case which held that you don't want to have courts lightly intrude into the confidential processes of the arbitration because that would undo all of the benefits for which the parties bargained by selecting arbitration as a form of dispute resolution and you don't want to do it lightly especially in a case where the allegations are so unspecific as here so your honor we think it would be quite extraordinary and novel for this court to insist that the district court go beyond the record here the same and again it's an abuse of discretion standard the court was exercising its discretion in deciding that further discovery was unwarranted by any facts presented in the record and to depose an arbitrator would be a very serious thing now my colleagues on the other side might say well how does it intrude into the confidentiality of the process to just oppose this but as the district court noted and said expressly on the record i can't just depose this i have to talk to the other arbitrators if i'm going to listen to what davis has to six i have to hear what they have to say and that would be and i'm needy in the confidential deliberations of the panel think we think the district court was well within his describe that he was correct to reject situation into the our ritual panel deliberations but at a minimum he was within his broad discretion under legion insurance in other cases or if th e panel has no further questions on that gave us deposition we'd certainly submit that the standard of review also precludes reopening the record to subpoena the  that the district court rejects that request because it's a sandbagging request at the final hour made just a few weeks before the motion to vacate was scheduled to be heard petrobras sat on that request for several months after it had made the rejected request to depose davis and the district court was well within its discretion to say that that sort of it last minute imposition of delay would destroy the expedition that arbuckle processes are supposed to accomplish so we do not think you should open this up and send it back for more discovery we do think it's telling that petrobras does not pursue on appeal the various rounds for vacate or on the merits that it pursued in the district court and we would submit this is a case in which the danger of opening up a fishing expedition is severe and the court should confirm affirm the denial of the deposition briefly on the the st the st one i want to address is d there's a reason that my colleague my adversary went straight to the evidence in the record of actual knowledge of bribery and that's because the majority ward it does not conclude it does not conclude the petrobras had knowledge of bribery all it says and it says it repeatedly is that petrobras was aware of allegations of bribery you can go to the evidence of course that that my adversary has gone to have here on the factual record is awareness of actual alleged bribery another point on that on this the idea that you should defer to the legal conclusion of ratification that cannot be correct if this tribunals here had had determined that there was bribery but the contractors know what is is nonetheless enforceable as a matter of law your honor is would not i submit defer that decision because it would violate public policy point in your view does the does the knowledge of bribery rise to the level of actual knowledge as opposed to allegations when does that happen in this case that happens when earlier on the basis of a newspaper article and that newspaper article itself indicates that the allegations contained therein are contested by the witnesses it by others that they the newspaper article they reach out to the witnesses and the article itself says these are off southwick in answer to your questions that the descent is extraordinary we have looked for on similar one vantage has the district court has there is no similar dissent as challenge and question the fairness and  the rules and and ethical can is do not restrict this court in any way shape or form they don't have the force of law so the use of force of law the one deciding if the district court abused its discretion why can't a court give respect to those confidentiality provisions which you know judges federal judges when it want their their deliberations exposed that makes a lot of sense why the aaa as those restrictions to two points st off the standard is abuse of discretion however