convention text aspects of the first abilities to requirement and the fourth requirement g e says that because they were a sub contractor on this project they qualify as a party there must be an agreement quote to arbitrate the dispute and that simply is not present here in this dispute with g e a nonparty to the contracts each mil contract states at the beginning and then on the signature immediately thereafter the contracts then define the seller and buyer individual ie as party and collectively as parties the common understanding of the word individual of one personally singly in an individual capacity such that seller and buyer alone are met and when the word party is used and together are meant when the word parties is use i ask what is the operative effect because the contract specifically states that when the seller is mentioned it shall be understood as subcontractors included except if expressway stated otherwise so should the court interpret the two legal entities a buyer and seller buys in crop now a company and an f l industries as f l industries including the subcontractors g e energy and that's why that language is important your honor because it is singling out the seller individual as party so when the contract says expressly state otherwise that expressly stating otherwise hey seller individually is party here that's why that's important it's also important because seller that term is not used in the arbitration clause is the term that's used in the arbitration clauses of course is parties clauses specify that only disputes between both parties to arbitration so that's where the singling out of seller individually is an important consideration but she points to a contract sentence saying that contractual relationship because the contractual relationship gives rise to the claims well that would go to agree with that the the argument below now is not an argument you can you believe in the proposition that the bring the suit or the claim under count two of the one hundred three and you put them all together anyway they're all in one ball of wax when and without having a contract between the parties well that would that would be a merits based inquiry i don't know that's an allegation you made and it has to come out of the contract that's right well and there is a contract or it between your client know they know the contract then how can you sue somebody w whom you have no contract well two things here one the proposition is that there is a consortium agreement under which they're supplying these  produces no you there was a contract to design these motors you agree i do and it was great and count t well our our position would be that their duty if it came from anywhere would come from the consortium agreement because let's say there was a disagreement and that they had an agreement for for your benefit so you're the third party beneficiary somehow beneficiary that would have to be the case with so you had said god track rights and in order for g e to be liable for an implied warranty they have to sell you something a stop will it's clear i don't know a stop i'll have to sell you something to be liable for breach of an implied warranty i mean it goes to your cause of action doesn't your warranty cause of action stemmed from the supply with the theory of counsel would be that i don't know of the syrian council just the law period the point here is that that is the scope is dispositive in any case on that issue because they're raising that as part of an equitable a stoppel argument oh no no i'm looking at your complain that's labeled a claim for breach of contract but it's it is not reliant on the mill contracts it is not trying to assert the mill contracts and the scope of this arbitration clause is so narrow that under either alabama law or federal law the scope would say you don't have to go arbitrate these claims because it's between both parties so the scope here even even if it was really related to the mill contracts the s still demand that no arbitration proceed here because they are a foreigner to the arbitration clause that's that's the law under alabama or the or or federal law applying equitable stoppel and agency and the like disagree on that they're all the say right i don't i don't disagree just a way of introducing and i didn't want to repeat what mr for any said because our analysis is the same on that so that's where it's going i wanted to talk briefly on the jurisdictional issues under the new york convention and basically you know the question of jurisdiction is there has for there to be federal jurisdiction to compel arbitration the case would have to fall under the convention well how does one determine if a case falls under the new york convention that's the only way this case is in federal court and there for a prerequisite set forth in but and it's the first in the fourth that are at issue so you have to meet all for the first requires an arbitration in writing agreement in writing within the meaning of the convention and what does that mean well sorry no this chorded says you look to the language of the convention and you know when you discuss equitable you discuss third party beneficiary when we discuss those things g energy is overlooking the fact that the new york convention is different from the ordinary federal arbitration act article two of the convention defines an agreement  as one signed by the parties or contained in exchange letters or telegram but then paragraph three of that same article makes clear that the party signing the arbitration agreement have to be the same parties in court it says the court of a contract in state when seized of an action with respect to which the parties have an agreement within the meaning of this article shall at the request of one of the parties refer the parties to arbitration so what that contemplates is that the parties to the make sure i'm understanding the question here so not a agent principal but more of a third party beneficiary know they have a contractual obligation let's say to sign for th bound by the contract that that is so but our position is you know don't need to get into third party beneficiary don't need to get into aquittal stop we don't need to get in that because you have a limited arbitration clause that's between both parties and the example that got mentioned at argument in the court below before the magistrate judge was simply saying if g s interpretation is right if someone messed up the dry wall some i don't think i agree with that and because that goes back to if there's a failure problem with the implied warranty claim on failure to state a claim that goes to the merits the argument here is the motors were defective they were placed in the stream of commerce they reached our company's mill in alabama and they caused damage at that mill and you know there's a contractual relationship between f l industries and his in crop and there are limits to the warranties and that's contractual but the manufacture of the motors if you put nine motors out of f l i was basically the manufacturer barton they were basically the manufacturer because it was understood that somebody else would be the manufacturing for them so they could carry out their obligation to your client i then i guess in that sense it goes back to the lawn care company buys a pickup truck the longhair company goes to the car dealer they know the car dealer isn't making the pickup truck and that the motor may have come from one company and the truck may have been assembled somewhere else and yes in that sense the other point because i see i'm out of time i did want to cover briefly the fourth of prerequisite and that simply you need a reasonable relation with a foreign state and we don't see that on this for breach of contract in count three the plaintiffs allege that g e is a merchant in the sale of goods and is subject to alabama's commercial code including a lot more fitness and  merchantability the plate specifically references alabama code section seven two three one four and seven two three one five if you look at three one four which addresses the implied warranty of merchantability it says a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that cat so the  necessarily arguing not just arguing they have alleged in their complaint that g e is a seller of goods the motors that were covered by the sale in the sale contracts there is no sale contract for the coal rolling mills including the component motors other than the contract that we are that we have been sued under and that we are seeking arbitration under so bought back contending in the complaint that w merchant and i seller of those motors and that a warranty was implied in the contract for their sale they are necessarily alleging that we are i sell or under the supply of contracts that we judge blue you pointed out the fact that section one point two of the supply contracts right there at the beginning say you know there are two parties two defined parties buyer and seller but seller include tell you just beaking for myself what i think is a potential vulnerability in your position you can tell me where i'm boring about if we weren't under the convention if we were just in a regular arbitration situation it seems to me you'd have a powerful is necessary to rely on a contract and so you would go to a stop all sorts of suppose you wouldn't worry so much your client didn't sign we'd have to look to the contract the contract includes an arbitration there should be an arbitration or not under that that s were under the convention and the convention says the term agreement in writing shell include an arbitrary or an arbitration agreement signed by the parties and your client didn't sign anything ninth circuit the yankee held that at a stop all principles do not apply under the convention so that is my concern your client didn't sign anything were under the convention a stoppel does not act it says that when an arbitration agreement relates to an agreement fall ing under the convention i'm not talking about jurisdiction i'm not i'm assuming i don't i'm not keen on their jurisdictional argument i'm talking about the actual merits of whether you get arbitration under the convict moving to that the yang they moved to the merits and said you don't have a stop or principles don't apply the can first of all i'd like to address what agreement in writing means under the convention becometh sometimes these in a relate in a way that that we should address that first of all if you look at article two section one of the it reads that each contracting state shell recognize as an agreement in writing under which the parties undertake to submit to arbitration all or any different which have arisen in it goes on  recognition obligation is in article two section one and i think that we are i think the treaty requires the united states to recognize an agreement in writing  apart from whether there's a lawsuit or part from whether who's the parties to the lawsuit so then you look at article two section two which says what sort of bring in and writing i think that really was what your question was geared to  agreement in writing it's the if you look at the language itself it says the agreement in writing shall include an arbiter because in a contractor arbitration agreement signed by the parties and then or contains an exchange of letters or telegrams historically the courts have traded that language include as an expansive term so that what comes after it is just an illustration of what's within the and says the agreement in writing is an agreement signed by the parties your client didn't sign it tell me why that should bother me well for two reasons first of all because of the includes language i just mentioned i don't i don't think i'll go i haven't seen it addressed in the case law that agreement in writing the parties is dispositive of that issue but here we have an agreement signed by the parties it is not the parties before the court but article two section one doesn't say it has to be or or article two section two doesn't say it has to be the parties before the court this was signed by f l as our agent  met in germany to talk about this consulate before anything else but you but am right though am i not that your your contractual agreement with the general occurred after the general's contractual agreement was consummated wit after that or g signed a contract in which it said we are binding ourselves to the screaming use i believe the clause said that at the general wants to bring you into it as the general can but i don't know that i believe that the general contractor contracted with the plate and it had an obligation to deliver these motors so whatever whatever whatever fault or whatever to the general contractor not to the other side not to the plane in this it's so so sorry if i were the district i'll tell you what i would have done with this case if i were the trout i would have dismissed the claims against g e because there is no agreement a competent sub contract for itself to carry out its obligation of the plane oh yes for it i like to pick which was acceptable well your agreement will be that agreement will be for the for create a third party beneficiary arrangement for the plane so we can sue the sub without that you kept to the sub in this instance your honor i think because the supply agreements say that it covers subcontractors and then you couple that with the consortia legroom and where g e energy said we are sending the full responsibility for the fulfillment of without a contract which gives rise to the duty of care if you don't have a contract you don't have a duty of care well structured world yesterday don't have a duty of care this is hard book law without a an agreement they under they make it contract to design this thing for the plaintiff they have an agreement with the plight of that give rise to the duty of care without that contract in the complaint in this action these plaintiffs are alleging that they have a contract i know that they're not subject to disposal is all i'm trying to tell you  mr freddy you have a moment below and it's telling and what they submitted an affidavit below of mr forty year and in that affidavit he doesn't say they were acting as our agent in this matter what he says is that that the contracts  responding there to their oh i have an effort said agency and under a direct reading of the convention the convention says that the court of a contracting state one sees the ven action and respect of which the parties have made an agreement with the meaning of this article shell at the request of one of the parties refer the parties to arbitration and we would submit that right there in black and white it's very clear that the parties in the convention language of the parties coming in to your point ok and one further point is that the scope of this clause is controlling on any as an additional ground on any applicable stop or third party beneficiary under jenkins this would be defeated first is the ninth circuit case second is simply under alabama law you wouldn't be able to go there anyway because the first thing alabama glosses is wait a second what scope of this operation clause oh it's only these two parties sorry i  i don't mean to waive anything we argue in our brief that signed by the parties is critical and it will but would shell include shell is maust so it must include either an agreement in writing it must include either something signed by the parties or an exchange of letters which doesn't apply here so actually no we're not meaning to concede anything that we've set forth and in our papers on that point are i think are a couple of theories one there's a sloss suit for negligence and then another the idea that when they produce this product this multimillion dollar product that was supposed to last for twenty years and it failed within a year that there was a warranty that attach to that product as it entered into the stream of commerce and that when it made its way to the mills and it failed that they should be thank you again i think the issue that comes down to in this case is whatever the broader relates to language in order to compel arbitration there has to be an agreement falling under the convention and i think it's been covered but we do submit that signed by the acknowledge that but the argument that somehow signed by the parties doesn't mean signed by the parties was addressed by the second circuit and con lucas it rejected the fifth circuit interpretation and serina follows the con lucas interpretation so just as that matter a law if it's not signed by the parties it doesn't fall under the convention and this i think is the issue with g e energy's overreach they don't just say this relates part of the parties right and that originally caught the controversy of but between two diverse parties as the original controversy ye fraudulent joinder the insurers and you should disregard their citizenship and then g e energy changed tact after losing that argument affirmatively sought to compel the insurers also to arbitration so that was something that went  that's all part and they're nothing but subrogate they don't need to be on the lawsuit you agree pardon they're just i guess you know they don't have the i mean law if you really want to get in the detail why we're separate parties claim was what part of the claim was paid in those examples i think probably i think yes ok so anyway the point i just wanted to make on rebuttal was that you need the falling under and you don't have it either because you don't have the signed agreement and then you've got this reasonable relation and the parties to this agreement are two american entities that is the contract for the mills thank you your honor go to the last case white versus sacred heart