this case the legal issues of flow from that are one what standard is necessary for this court to apply to such a contract when determining whether it's fines sovereign state owned entity such as to how a district court presented with a factual discussion like that is to allocate the burdens and sovereign immunity cases and three when the district court is presented with disputed facts what is the course of action that it must take any one of those three issues would be sufficient to warrant reversal in this matter on the first one than the authority of an individual actor the case turns on whether this court's decision in the republic of indonesia stands for the proposition as a second times that regardless of the character of the act whether it's a sovereign act or a kerman national act only actual authority is sufficient to bind joe isn't that what the case stood for because i'm looking at is is we hold that an agent must have acted with actual authority in order to invoke the commercial activity exception against a foreign state and there's nothing in there that makes this distinction you're making that's correct your honor and there are two reasons we believe for that first the issue in that case dealt with a truly sovereign actor it was the indonesian national defense counsel the army essentially and second one of the key elements of that case noted that this court the ninth circuit in never required a defendant seeking to invoke sovereign immunity to prove at the outset that it was involved in a sovereign public at later this court in sovereign public act as a result while phaneuf does say that directly it doesn't apply to this specific instance nor is it consistent with the direction the court has taken and in fact what the congress intended when it an act of the f s a and the last seventy years or so of state department policy implementing the restrictive theory of sovereign immunity which does a hard distinction between soldering public and private commercial acts such as a contract for the sale of residual brine which is what we have here in our view that once the sovereign removes his crown and steps among the common people to engage in commerce then all of the standard laws and regulations apply common lie agency principles common law contract for mation and binding principles and that's exactly what the sovereign immunity doctrine this for commercial any other citizen or and city they are treated by the law like any other citizen or entity under not accorded immunity from our courts let me ask this question as you know the district court dismissed or granted the motion to dismiss because there was no foreign sovereign immunity act exception that applied what exceptions do you think actually applied on this record on this record we believe two separate exceptions apply the first that i've been to that is the commercial activity exception but the second which is a simpler issue is there is a waiver your honor if this contract is binding at least at the outset and subject to dispute later possibly but assuming that this contract your honor i actually believe that the arguments are the opposite that says contending that it doesn't confer jurisdiction and simply says where the law shall fly because the contract i believe says that it shall be the federal laws applicable in los angeles and i'm doing that from memory so i might have misstated its lightly but under this court's precedent a choice of law provision where a foreign state whether i in a sovereign act or in a commercial act consents to be bound by state or federal law of this country that's considered an implicit waiver of sovereign immunity so that's one of the two  and on that issue of what exactly this contract calls for your honor that brings us to one of the other points that i raised at the beginning namely what is a district court to did you when presented with a contract that contended means one thing by the plaintiff and one thing by the defendant the answer to that question is twofold one this court has adopted a burden shifting framework for such issues which the district court applied didn't which the district court purports to apply in its order your honor we believe that a actual review of the order demonstrates that if failed to properly upright ply the burden shifting because a portion of the or the court may deny jurisdictional discovery but it is required by precedents and the procedural posture of the case to construe all disputed facts in favor of the nonmoving party it must construe any dispute in favor of the nonliving party here it did not for example on this very issue of the choice of law provision it did not resolve that issue similarly fact authorized by the board of s s directors similarly he provided testimony and information regarding his understanding of the contract and as your honour's no contract interpretation i believe your honor that yes there is not any outright explicit statement but mr portillo did outline the course of events and he specifically pointed to the infamous in this dispute resolution fifty one and what that meant now s s provided a different type of haitian a resolution fifty one whether that constituted an approval or ratification or not the dispute there has to do with whether it involves mr port authorized to pursue a contract or to consummate a contract but again let me ask this question and i read in the materials here the quote it is under speeded that the board never passed a resolution expressively approving the contract with taxes is that accurate what i just said i believe it is not your honor it's true that within the record because of the order of proof and the fact that much of the information on which to realize was submitted on reply to which the district court denied any opportunity to respond there is no further response however there is once again the dispute regarding resolution fifty one and its import which notably was not submitted in fall was not  subject of any specific inquisitional testimony such as through a deposition or court testimony and otherwise was not subject to challenge that given this is we're going to your time you in the form of an appellate offer of proof we have had numerous discussions with mr porter who is resident least part time here in the southern california area mr portillo described the actual process and what was presented during resolution fifty one which included that he had a slide show distributed packets of the packs as contract to the board and this is the slide show highlighted some of the financial terms and otherwise obtained it's rather it's appropriate resolves furthermore your honour's in mexico unlike in the united states many many of these board meetings are recorded in subject to freedom of information act equivalents requests we have some of those recordings now those would have been submitted as well and would shed light on what in fact transpired at the meetings which are in dispute had the district court allowed us to proceed with jurisdictional discovery those would have been placed into evidence and the district court to that presumption applies faiza does not require asset to prove a public act or to a step to establish a prime official case of immunity for new could not be more clear on that neither could the statute and mexico is clear and the court properly applied that law and probably proper properly found that there was no resolution the court found for example that resolution fifty one did not equate to a authorization because it did not set a price for the sale of goods in the court was not clearly erroneous and that finding well we argue this that there was rat actually authorize the exact price formula correct and the reason why this is so important is this is a fundamental tenet of mexican law mexican anti corruption law mexican anti corruption law  set forth in the constitution and in bodied in article fifty eight which the district court applied here makes it very clear that it's set out to prevent exactly what happen prevent one person being able to go out on their own and set a price for the sale of goods and that's what happened here you know through meetings and restaurants this is exactly what article fifty eight is a sign to that's why it so at this case is so important to us in mexico and it has such a strong interest in this  if there's a counter correct your honor there's a waiver only fiza contract and there's no contract here so for him to assume that there's a contract and apply what is that's just were law pointed out not even clearly a choice of law provision would be backwards we have to first look to see whether this is a valid contract or honor is correct  with respect to the evidence below i think one of the very important points is that the plaintiffs had access to mr partido the entire time they and they alone submitted a declaration  the court has questioned on in that declaration nowhere does he say he had actual forty no where does he say he obtained a board resolution authorizing the sale of mexico's goods and as a district court said it's artfully ten million tons of brine a year and they say it's worth billions of dollars and to have that kind of a contract in clear violation of mexico law without a board resolution is incredible it's kind of a mystery to you know you come in on these legal issues are there domestic mexican political issues that we're not aware of that but i believe a difference perhaps a different political affiliations i think though you know it's important to note in terms of what's happening in mexico and this is in the record mr portillo was arrested for his behavior with respect to this contract  corruption charges with also with respect to what's going on in mexico i'd ask this court to note that there is a case that taxes filed in mexico to attempt to and all of this this very contract and that's unless you're honest have any further questions that briefly by counsel and was the subject of rule twenty eight j letters that the court can review finally there is one of two other issues we focused a lot on what mr portillo says and does not say in his declaration and it's important to see what he does and doesn't say there's been a lot of effort to parse his language and determine whether it was artful or simply simply stating fact as necessary but i would point the court also to the fact that mexican legal experts declarations were also submitted to the district court explaining the import of mr porteous declaration and the acts that he sets forth as having taken place in there that's a tab fifteen of our record your honor which is our declaration and there is also rebuttal declarations from the other side which i conveniently forgot to look at the numbers to and finally there was this mention of the corruption arrest of mr porter as well as subsequent legal actions in mexico i think that it's important to note that each and every one of those acts took place subsequent to the filing of this lawsuit s o waited to file its and nala the action in mexico until after the district court ruled mr portier was arrested after he extra legal efforts by the mexican government to pressure noncompliance with this if anything based on the record including the information that counsel pointed to that further demonstrates that factor which is relevant to and i apologise my time's up two seconds please which is relevant to among other things the form non analysis which we didn't really discuss this afternoon or morning apologise thank you thank you karen