been undermined significantly so that it could be considered by a panel based on the supreme court's intervening decision and keep out and the key about basically in three ways undermines the  in t n really the court relied on statutory language touching on interest on international matters the use of the word importation and key a bell the supreme court had a similar statute it referred to the law of nations did but but this question of course is about what the language of the web whether the language of the statute gave a clear indication that the presumption against extraterritoriality didn't apply and so the language of the statute i think it's critical and that sort of turn leads to the specifically said that there has to be a clear indication it doesn't have to be a clear statement of the statute but it has to be a clear indication and we pretty clearly doesn't apply that clear indication standard so you're saying there's some kind of doesn't have to be a clear statement that in terms of this is extraterritorial and i think my friend in their brief and the court in general we took that to mean that but there didn't have to be clear indication  that that congress meant the statute to apply extra territorially and i think to the extent that was true i think he had bell makes clear that that's not right and that in fact there has to be a clear indication that nowhere in route that it was wrong it was wrongly decided well i think the i think what we tried to show in our brief are two things first of all that that he a bell makes clear that the basis on which t n really was decided the three bases about but also looking at other cases that the courts decided because it could be we obviously don't agree with this but it could be that even though the three reasons that were given in we are inconsistent with keep up maybe there are other arguments that would second issue on comedy but yes i think for the panel at least that will be over and obviously will be opened for the palace to say that this should be taken on but i think yes that's exactly right so just to cover the third difference identify what the focus of the statute is because that kind of the focus of the statute has to occur in the in in the united states generally didn't apply that test perhaps because the court the the majority there thought that morrison was limited way to read generally is fairly clearly saying the focus of everything is domestic well it is although as the judge as the dissent pointed out the statute doesn't just refer anywhere in the world as long as it relates in some way to the imported goods is covered is quite a broad extraterritorial application in the absence of what congress sets but maybe i should move on to the to the comedy to the comedy argument because the the second issue that we my friends don't really defend that argument they say comedy was in a plot was would be was it appropriate here for various reasons relating to the nature of the issues before the court in china and the chinese with a haitian system generally but the i t c did not apply the appropriate comedy test and decide whether it is appropriate so there's no obligation to a very competent right it's a discretionary akam behalf of the agency in this case well i think there's an obligation that comedy principles apply in any particular case there's no mandate that the foreign decision be defer or to the court has to or the agency has to apply the test that generally applicable a test for comedy which  requires first of all for someone to come forward with with a decision and then for the party opposing comedy to say well they were this was an unfair tribunals or there are various other reasons that are set forth in the restatement foreign judgments section forty one and some of the cases that we cite that would then be assessed and the decision would be met you know of a case where a federal court is granted comedy in this way essentially giving reclusive fact to a decision by a chinese court we  number of cases involving recognition of judgments in which obviously the first step in recognizing a judgment is to recognize it and then enforce it and so we've cited a number of cases in which that's been done the federal court is in force the transferring the case to china and for convenience grounds that the district court found as we discussed in our reply brief that the chinese court was an appropriate forum and it would be i think very surprising to have a blanket rule that any country's courts are totally off base without some examination of the fairness and the proceedings there and we cite a law review article in our reply brief that talks about the fairness of the chinese tribunals so we think the appropriate result here is to say no there may be underlying factual findings that that may get deference but here the i d c didn't address that issue at all it just in the footnote at the beginning of the case and in the passage at the end basically just said comedy doesn't apply it didn't base its decision on some that issue has been decided by camry you know first the other thing that we hear from the opponents is that changes everything you know if it really was so obviously changes anything you would have expected to sign a letter to bring it to the to the attention of the commission it never did so even in its missions to the commission after killable issued putting that to the side of the facts of curable in the statute there are very different from what's going on here curable the supreme court could not ascertain the focus of the only import statute from its face for from its legislative history because that statute is purely jurisdictional as the court cited page sixteen sixty four it does not regulate conduct or afford relief these difficulties an  as of yesterday the more the day before if you search on westlaw for kyogle in the same paragraph as touching concern for only fourteen cases of the courts of appeals none of those cases interpret killable in the way that  that even when the presumption against extraterritorial he applies the supreme court has not treated the presumption as a clear statement but just noted that conduct can be consulted as well and that's exactly what happened and in  kyoto the court found that the presumption applied but then left open at the end of that for cases that touch and concern the united states with substantial force that that you would be able to override the presumption there was no motion to dismiss or to stay proceedings upon the institution of the investigation and instead signed a legend waited nearly a year waited for the hearing here to try to to try to raise these issues that's true late on page sixty and just talk about the chronology of what happened here because the evidence that my colleague on the other side not relies upon this of all of you article as opposed to anything in these in these proceedings somewhat counterintuitively when the issue of the chinese proceedings came to so what we're left with by the time the commission received the case is a situation in which there was there was no evidence of comedy in the record you know if you look at the forty ninth reunions cases what you'll see consistently is you'll see affidavit practice which is go respect to the underlying proceeding none of that is at issue here and instead what sign alleges trying to do is to argue that in some cases three out of these eight in which cases were actually dismissed pursuant to the of for my convenience because sometimes a case might be dismissed in favor of proceedings in china this case should be dismissed too but reading those cases demonstrates the difference in the evidence that was put in you get to the commission  think commissions position on comedy is that comedy is an affirmative defense you know that look at the answers here are fourteen affirmative defenses how many isn't one of them so in the context in which this was presented to the  commission a year or two proceedings comedy had no place here there was there was no evidence of comedy there was nothing to the extent that in a future case a party that promptly raises these issues i think under those facts maybe there's some room in a future case to to make similar such arguments it might go more toward staying a case rather than just miss all but even in sign elections pre hearing brief its arguments at that point until the would i would say that there might be a little bit of wiggle room with respect to a party that actually makes substantial arguments and does so with a timely manner with the benefit of hindsight given th the the there are multiple elements of a three three seven case as court knows and comedy may or may not apply to any or all of them in a particular case of that's my understanding of the foot no where that the commission says that it has to satisfy itself of whether there's a three three seven violation in this case the commission didn't rule out the possibility even of comedy in that particular case and future case may be worth raised probably of discrete issues like misappropriation or even trade secret protect ability for example but in this case side of legend didn't raise comedy on those issues in their commit briefs on commission review of silence it actually did raise the issue of comedy in their to like to have review and and they raise comedy generally there but then the commission side will grant review on all issues briefing and then on review in the briefing they basically waived that they  address it all they did was they they addressed comedy in one issue and one issue only and that was on the issue of public interest they didn't address it on the merits of the misappropriated claim and they didn't talk about you know the issues and how they would have been argued in both in address it on protect ability or anything else what they did was they said that it bears on the issue of the public interest and in the in the commission's opinion the commission actually did address that issue factors which the commission is required by statute to consider in connection with the issue of the revenue so it was considering all the environmental public health of the things that it's required to consider in connection with three three seven as it applies of inspectors so it didn't it detailed discussion on due process but there was in our brief quite a bit of discussion on effectively what that was in terms of in terms of the denial of the opportunity to present evidence that the denial of the opportunity to address this article that they mention for the first time i feel that benjamin vi article is written by a lawyer who is trying to drum up business for a for a chinese legation the chinese lawyer the article basically says there's numerous cases that in which us skate companies have been successful in china actually if you look at the article there is only one case the g e case that has ever been noted has been successful as a as  occurred for example where the misappropriation for they do that for the first time here on appeal and that's not really the propre places for the for that to be raised for the first time in their brief to the commission they did not  not punish deceptive conduct but only deceptive conduct in connection with the purchase or sale of any security registered on a national security this change so neither need a statute either and  situation and morrison applies i think very directly to this case and you would find that that the that the that it controls and that the result is that the focus is on importation and a presumption without violence case got thank you thank you on to refer to response to that it says it was raised in the petition here's our response essentially comedy doesn't apply we have to make our own determination the briefs that my colleague is referring to are the written submissions after the third point second wave of argument which is that the post grant brief only addressed the use of the chinese decision in connection with the public interest factors that's because at eight fifteen  what the commission said when it issued an order was the parties are requested to file written submissions on the issues identified in this order and on the issues of remedy so it would have the commission did not request for their briefing on the general question of comedy and arguing that somehow there was waiver because it wasn't raised is directly contrary to the language of the commission's opinion i think it's clear contrary to what my colleague from the i t that there is a comedy principle that it's applied in the federal courts and here the commission in footnote one rejected it and the question is whether that comedy principle applies if it does then the case should be remanded so the commission can make the determination that you honor is referring to when the commission obvious that would have to consider the fairness of the chinese proceedings the claims about the identity of the parties and things like that we think as we explained in detail in our reply brief it's clear that they should be rejected but that would certainly be open on  the court can't uphold the commission's decision rejecting comedy across the board as a principle in a political to the i t c based on the different finding that the i p c c didn't make that for some reason comedy might be inappropriate in these circumstances if that's the question then it has to be decided here and that's why contrary to what my colleagues say we're not arguing that there precluded from raising that argument or that this court should should say that the i d c judgment has to be