beverly martin and judge joel pryor and i are delighted to have with us this morning judge might more war from the eighth circuit we were reminiscing this morning he's been a federal judge for many years first as a bankruptcy judge and then on the district court and he and i know him i guess i should say virtue of some of his good work for  mania factored venue proximate cause and damages by taking three hundred thousand dollars off the closing table to ensure that we would have to sue in arbitration in atlanta and then later confessed to judgement before the trial in fact voided the bargain for form selection clause and gained a million dollar judgment as a result of our client's bargained for this clause and raised twenty million dollars for oad projects on the basis of it and were denied the benefit of the bargain now ideas setting an international blueprint on how to manipulate these types of clauses in the busiest airport in the world area forum selection did you all agree to have the  tribunal determine the arbiter ability of the counter clime your honor what we did is we agreed in the first instance for review subject to the f a a in new york convention rights in fact the issued a waiver that  brought up by the other side was never brought up in their district court brief if you look at it you won't see waiver of judicial review i'm looking at the order of the poem in your order terms of reference and case management filed in the district court to the extent that the i c c or the arbitrator determine that the counterclaim shall proceed as part of this arbitration pro from x preserve the following defenses including night defense the i c c lacks jurisdiction to consider the respondents counterclaim temp defense venue in atlanta georgia is only proper for pro from x s claims and improper for consideration of the counterclaim in fact the district court did not even recognize the waiver issue as an argument that was brought forward it is new and foreclosed because they knew that we were going to come forward with judicial review in fact they never brought up a telephonic hearing in the district court we would develop an entirely different record with affidavits and depositions we might have even asked the arbitrator to testify but he didn't certainly there's no clear and unmistak waiver as howsomever says dean witter a case oad states and the third restatement of u s law and the international commission on arbitration section two eight says that you should put the terms in we foreclose judicial review you are not required as you know by the court case of chinamen metals materials imports and export ltd three thirty four f third to seventy four third circuit two thousand and three case that says we are not required to bring a separate action we do not have to waste the resources of having an independent u s district court we can end up having an initial arbitration decision by the form selection by the arbitrator him self and we can have judicial review let me let me ask a slightly different question claim cracked your honor yes but and my butt is if you look at the forum selection clause it has a qualifying clause in other words it says if in fact it specifically  atlanta and it has that qualifying language for arbitrary billeted without it they don't get arbitration and form selection clauses in international cases are absolutely critical because the arbitrator should not be able to pick himself what he gets to do if you look at the prior panels ruling in such versus dean witter of this particular circuit the eleventh circuit said the specific provisions in the arbitration provision take precedence and the arbitration rules are incorporated only to the extent they do not conflict with the express provisions of the arbitration agreement what our arbitrator did is he repealed and replaced the provision that said these disputes must go to tel aviv if they are submitted by a way d he did exactly what the said you cannot do and in the international i c c case short versus alberta canada they said in the us supreme court the form selection clauses are indispensable indispensable to the predictability international business transactions and are critical to prevent the destructive jockeying of parties to prevent justice and to take tactical advantage in bringing in versus the pot of they said that these are indispensable elements in international trade and commerce in poland master the only case th is cited with regard to a form selection clause of the district court did not mention did not mention sure did not mention bream it's a versus a pot and they use the exact same arguments that o o a d mention which is they said that counter claims are a part of the same dispute what in fact according to this palm master is not binding on us it's a night circuit opinion and i've looked at it pretty closely what and i understand it ruled on the venue question the way you want us to but  it did so without very much discussion and i mean what is the discussion from palm master that you think got it got our decision here well your honor that says in the ninth circuit says counter claims are separate claims independent of the they say that a counter claim is in effect a new suit and said there is no reason why the arbitration agreement had to provide for the treatment of counterclaims to conclude that arbitration clauses ambiguous on this basis sets up a rigged game just like this court had stole meats and came before of course and in those particular cases and still nice and the court reversed the arbitrator saying he had no power to entertain class arbitration when you got to art got to oxford oxford said still neeson is still good law and says if there's not a contractual basis for the arbitrator to include the form selection is appropriate in this particular area you overrule it and you follow stole neetzan this is a still nice in case where the contract has no opportunity or bases to be depended upon because and there's no ambiguity to the claw whatsoever i would also ask the court to see it done talk about counterclaims right now it talks about class arbitration which is well put it whatsoever but i mean in a big this is the second question is the international chamber of commerce rules is what governs the agreement by by your agreement right to the extent as such as this prior panel said panel said to the extent that the i c c rules do not conflict with the agreement yes but when they do so your position is the i c c conflicts with your agreement the i c c rules to the extent if they were incorporated and tried to be used by  idea of the arbitrator to the extent they conflict they are not honored what is honored is i mean it i'm asking you is it your position that they do conflict in this case yes your honor they do conflict in this case why is that your honor i think because what they're saying is you can you can bring counter claims as a result of the i c c rules as is their particular does but since you don't you don't object to their ability to bring a counter climb as i understand it to bring any claim any dispute has to be intel of the that's how they qualify for arbitration whether it's a claim or a counter claim that's our that's what we believe the reading the poem master and such is in addition your honor we believe that's also the sterling versus hammer conclusion is well in sterling versus hammering on at this particular court said that after they tried to include the in a s d into the contract they said hammer points to the n s t rules and said just for the arbitrator decide where the arbitration is located but the arbitration agreement said it had to go to boca raton florida and the eleventh circuit court of appeals held a federal district court has jurisdiction to enforce a form selection clause and a valid arbitration that has been disregarded by the arbitrators and later but in that case the forms the parties agreed about what the forum selection clause required and the court simply ignored and that isn't how it happened in sterling well in some ways the court didn't interpret the c that this particular arbitrator did not interpret the clause at all he used two paragraphs paragraph thirty eight and duplicate paragraph thirty eight paragraph thirty eight says you didn't affirmatively negate counterclaims even though it says all disputes have to be tried in tel aviv and second he says i incorporate the i c c rules which repeals and replaces what the arbitration clause says similarly your honor if you look at what they did in sterling they tried to refer to the n a s d rules and the district court said that's incorrect and the eleventh circuit upheld it you know we would also states you that substantive arbiter billet he is an important issue in terms of who should decide this if you look at the carville case one of the questions ending grigsby to which your honor judge pryor incorporated grigsby one in and talked about waiver in that particular case what they said was be careful of issues that might end up being the gateway not being able to be should be determined ultimately by the court and they talked about forum shopping being a critical issue that should be determined by a court as opposed to an arbitrator an arbitrator in our case consciously or subconsciously is paid by the claim paid by the hour should not be the ultimate decider on his own jurisdiction which is what the cargill case said is well last that we rely on our brief with regard to mr goring in the fact they gave us an identified went and says to determine their proximate cause and damages we were denied the right to confront by presenting any affidavits depositions or witnesses in response and denied a meaningful opportunity to present that evidence twelve minutes goes by fast we would ask them to stop the manufacturing of venue in the manufacturing of proximate cause and give in the interest of justice what the court says in shirt and braman and palm master should be afforded to the parties that agreed to form selection causes within their own agreement thank you please the court good morning my name is simon bloom i'm joined with my partner troy covington it's our pleasure to represent o e d the abilities in the case of the court is identified through its questions the core issues that are to be discussed today and i think  absolutely on the right track the question the threshold question is a question of deference is this court going to pay deference to an arbitrary decision regarding form selection or not the courts where the parties agreed for the arbitrator to and yes ma'am that's simply an additional reason and i would say the first reason why the parties or the court must defer to what the arbitrator said about venue because let me ask you this yes or should we be concerned at started confessed confessed judgment and and in fact and in effect did the non round around the arbitration cause the answer is no you should not be concerned i wish i were that clever is the second part of that answer and the third part of that answer is the parties contractually agreed to have a dispute a dispute submitted by one party the other heard in the other party's form that's what the parties on ambiguously unequivocally agreed to in the solicitation agreement that means what it says at the time to rip to point to remind the court at the time that the demand for arbitration was filed in this case these parties were in a blood feud like the hatfields and mccoys there was not just the one narrow issue regarding as your honor points this was a bubbling over feud that the demand for arbitration goes to great detail and great lengths to set out the demand for a patrician could have been just like you want to point out and said you were supposed to do x you didn't do x therefore say well that that was all set up to to manufacture this venue in which your answer to that i respectfully disagree with the predicate premise of that question we did not know that we owe them anything it turned out over the course of the litigation that for one type of the we conceded that type of fee was in fact but for the other type of fee we litigated hard and this is where things get a little bit confused there was a promote and it is in a disposition free for one type of fee we litigated hard for months that that fee was not due and owing to pro from mexico this whole idea that we sat back in a sinister layer and conceived of manufacturing for a venue simply doesn't hold water there was there was vigorous litigation over the entire amount of that seat but by the time into your your honor judgment is question again these parties in the middle of this litigation said arbitrator you decide the form we both consented and i keep hearing this reference to the fact that this is being raised the first time i would refer the court to our brief at the trial court level on page six docket number sixteen where we make this exact argument grounded in oxford and we started this discussion judge martin with this premise which is if the parties agree to have the arbitrator decide the form they're stuck with it now in this world you're never stuck with anything you can always go to someone had to get a kind ear to hear you and they could have done that so at the beginning they said you decide for him if they didn't like that decision they could have immediately run down the street to the russell building and ask the judge to say kendrick got it wrong but they waived that opportunity and went forward and tried the case with thousands of pages of documents and dozens of depositions and hundreds of thousands of dollars spent and then in the end now they don't like the decision just like in palm master when they got popped with a two point five million dollar judgment and they said we're going to find any error that we can to try and stuff into a convention defense or an f a a defense and that's the manufacturing that's going on here judgment lloyd manufacturing basically a defense could contemplated by either the convention or the f a a which is really just a list of errors that they seek to appeal and the courts discord in particular has repeatedly said that the limited review that you were to offer an arbitrary traders decision is so narrow it's so narrow and it's designed that way because there is a public policy in this country and in th circuit that encourages alternative dispute resolution and so the only way that you get to appeal errors is if you don't go to arbitration you're giving up those additional due process rights when you contract to have your  surd in an arbitrary form which is what happened here so the first question is deference we submit that both for the oxford reason that the parties agreed to have the arbitrator decide the form as well as the how some doctrine which looks at the substantive versus procedural arbiter broadly questions and it makes a decision and says is this substantive which is the your attitude or drawn a prior judge prior the question is this whether you arbitrate that substantive or is this where you arbitrate and all of the courts to address this although the circuit courts say the where question is a procedural question the where question is a question that is answered exclusively by the arbitrator the where question is not a question that can be reviewed with this open but the with the open field approach like palm master did how do you respond to your colleagues argument about the word qualified that the dispute is only qualified for arbitration in that venue where your honor the division that i'm reading does not use the word qualified the language says any such proceedings shall take place in tel aviv israel in the event the dispute is submitted by o o a d and in atlanta georgia in the event that is spewed to submitted x there's no qualified language there the the bottom line is if they submit the dispute they've got to do it here if we submit the dispute we've got to do it there it's not terribly complicated there's no qualifications that govern here your honor that the issue is whether we are we being the royal you have the ability to open the issue again and decided to know as if you were hearing it for the first time and the res the four other circuits that have addressed this question head on and the us supreme court is that maxim i call it super deference must be given to the arbitrator's decision that arbitration was appropriate here and in atlanta for the counter claims and one of your honors pointed this out judge came to an arbitrator kender went through the very same process that this court condoned and in fact regaled and in southern communications the court said you did what every one of us would have done c rules it goes to rule five section five and that the rule says that not only may you bring a counter claims in an arbitration under the i c c but you must bring those counterclaims or else they are waived just like the compulsory counterclaim rule it goes a step further and it says under rule eighteen of the i c c that the form question is one to be cited by the arbitrator so here's another reflection of the parties intent the parties adopted the i c c rules and one of the i c c rule says arbitrator you make a call on for him so there's an additional reason and we shouldn't need to go this deep but all these were arguments and set forth in the briefing so as though he says the i c c rules conflict with the parties agreement yeah i wished i followed i tried to follow that honor i'm not sure that i did and i'm not sure that i ever got the answer i don't think he likes the i c c rules in terms of what section five subsection five says and in terms of what rule eighteen says but how can they conflict when the very solicitation agreement that is the subject of the case expressly adopts and incorporates the i c c rules there's nothing else in the solicitation agreement about counterclaims so where is the conflict there's silence in the solicitation agreement and there is a  i think it just goes a step further that that it says it is compulsory but no it permits those counterclaims to be heard why if it wasn't compulsory what if what if if i had had gone ahead and filed a lawsuit and the district court in atlanta because that's where they would have venue and then you said well we have to you have to arbitrate that would you been it would you have been able to bring it into this arbitration proceeding or would you have started separate one oh i think that if i think that the answer is we would not have had to start a separate one we would have filed a motion to compel arbitration in the russell building you would have asked that judge to compel arbitration based upon the arbitration provision the form would have been atlanta and the dispute with then have to bow if it wasn't compulsory counterclaim why would the form then necessarily be atlanta since that form selection clause that israel will because they would have been submitting the dispute if they had filed suit i think i understood your question your honor but if they had filed suit  atlanta as the plaintiff they would be dissed they would be quote unquote submitting the dispute and therefore it would had to have been in atlanta now what happened after that in terms of causes of action counterclaims or what not tag along  c office and file your arbitration the plaintiff if they wanted to continue to pursue the action in this case pro from x would have had to go on and submitted the dispute to arbitration here in atlanta and then we'd be right back where we were so i don't know that i see the distinction i might be missing something in your question judge but i don't see that there is any material impact of whether it was a counterclaim meant compulsory or permissive if you get past the deference question and i think that we all know it's very easy to get past that the deference question and check the box yes and you get super deference i don't want to spend much of the court's time going through the legions of cases that talk about and in this circuit talk about the great deference that one has to put as to pay towards the arbitrator f decisions whether those decisions are procedural nature whether they're legal questions that are decided or whether they're factual determinations that is the highest level of that of deference that is to be given in it in fact there's language is known to law so that's why i call it super deference i don't think that the tale of the tie gore and the evidentiary issues should wag this dog but i'll spend a minute on it and the bottom line is once you agree to arbitrate you have given up the full due process protections that we all would have if this were a standard federal court action that was filed in the district court you signed those away you signed those away because of any number of considerations you think it might be more efficient you think it might be quicker you think it might be less expensive those things happen and not turn out to be true all the time but in the end you think it's a better forum for you to have someone that is not twelve in the box in downtown atlanta or in gainesville or wherever trying to make a decision about interpreting the solicitation agreement in an international business relationship that's the quid pro quo once you do that you're stuck with the arbitrator and the arbitrators decisions and have to judge martin full circle you not only did it once when you signed up for arbitration you did it again when you of the lad the arbitrator to make the form decision and you did it yet again by going to trial the due process protections in an arbitration do not get into the minutia of about whether balls and strikes were properly called whether this document came in or hearsay it was not allowed in that's not the way the case law is set up the cases in this circuit are definitive on this question that if super super deference is given to the questions of procedural arbiter ability super duper deference i know these are technical terms super duper deference goes when it comes to calling balls and strikes at an arbitration hearing judges an arbitrator's don't even have to have live testimony they don't have to allow cross examination they don't have to allow discovery they don't allow any of it arbitrations can be conducted by briefing by both sides affidavits by both sides in it and a thirty minute hearing so to argue that there was some fundamental fairness impairment by the fact that the time goren didn't give them the answers that they wanted and the deposition simply doesn't even rise to the lowest level of consideration i think the court for its dom i want to close by saying this if arbitration in the policy behind it is to mean anything then we must be we must be reminded of justice kagan in the oxford health case when she said that limited judicial review maintains arbitrations essential virtue of resolving disputes straight away well this was not and has not necessarily been resolved straight away we're in year three of this of this saga she she goes on to write if parties could take full bore legal and evidentiary appeals arbitration would become merely a prelude to more cumbersome and time consuming judicial review process well welcome to the show we're in the midst of a more cumbersome and more time consuming judicial review process because they simply didn't like the result thank you very much y is trying to substitute its interpretation for what the arbitrator did which was not interpret but substitute repealed and replaced when they talk about the manufacturing of the new they talk about this other ninety six thousand dollar disposition thirty but in our particular case the unrebutted testimony that was in the brief said we would have never brought the international arbitration or that claim because it wouldn't have been cost effective they are deterring arbitration by ignoring the be clear and unambiguous language  essence of the contract if a counter claim is a dispute if you say a counter claims a dispute it has to go to television and the whole essence of the contract which the eleventh circuit the us supreme court sure  well as paul a master suggest is you have to honor that and the intent of the parties the arbitrator does not get his power to he doesn't the language they look at through their brief that says you favor arbitration do what the arbitration says ignores the fundamental preceding value that the arbitrator only gets his power from the agreement itself and it is very important to honor the parties intent and the essence of the agreement which is why they have two separate cities tell of the even atlanta so that they can defend in the home site and that is why the us supreme court said it was so important to honor that international selection pro from x did submit disputes related to de mation as a result they should go to doesn't your interpretation depend on this being two different disputes defamation and the contract issues yawner any dispute that is brought by pro from x whether it's  id if it is a tort defamation case it has to go as a not one big dispute arising out of the same set of facts and circumstances sure but the arbitrator didn't make that kind of interpretation he didn't go into a long issue about how the dispute was he didn't do what the oxford arbitrator did he said it doesn't affirmatively negate this and they said they it mid that they submitted this dispute but if you look at our august twelfth two thousand and fourteen reply to the arbitrator that's in the record it has a whole section of how these disputes are different in and as a whole section saying these are different disputes he doesn't interpret disputes anywhere please look at paragraphs thirty eight thirty eight which are duplicate and thirty seven you also note at the time the arbitrator made his decision there were only five defamation counter claims we followed a reply after that that said and the terms of reference were set those five counterclaims we defeated all at the final award he then we brought a motion to him in the terms of reference as well as an objection to them in february two thousand and fifteen bringing additional counter claims and said we would never agree even to an initial jurisdiction over these additional sixty or so claims that was never dealt with that was denied and certainly is preserved here we would ask you not to allow the international jockeying for securing tactical advantage which the u s supreme court has said don't allow