my name is kevin nash and i am here on behalf of the talent we are a challenging the rulings below essentially on the misapplication of canadian law this is a somewhat unique situation the case arises and the claim in this age where it's bankruptcy arises out of a can canadian insolvency proceeding involving a canadian hotel property involving canadian attorneys and the essence of the claim is that equal overseas was involved in the bankruptcy proceedings at various levels when i say the bankruptcy is the canadian bankruptcy proceeding and  there was a time where the the bidding on this hotel was reopened for a brief period of time my client equal overseas earlier in the process was a potential bitter it dropped out of the bidding and it was there a conflict here between canadian and american law and the word on even if you apply canadian long would it have made a difference in the result i've been given the factual findings i think it does i don't think this is an esoteric discussion in terms of choice of war i think there is a there's a different type of standard in canada in terms of the ability to withdraw from bidding the e u at the ability to withdraw from bidding in your own self interest and i think what's interesting in the case here is that my client in the case itself withdrew from the bidding became a potential lend there and when the alternative looking at the canadian competition right which defines good reading in that sense it's a crime for someone for the for an agreement between two or among two or more persons whereby i want to mark agrees not to swim in the bin or under tanks withdraw isn't that precisely what happened here no no what happened here is that the at the time on october sixteenth when this phone call was made my client was not a bit or if anything my client was a potential not what potential bit or it was a pen tensional lend if anything he was a potential lender to another bidder but by that time this is a day and a half before the bids adieu on the eighteenth my client was in france when he got the call so he had less than thirty six hours  to do anything and all he said was i like to be a partner in the relationship and the following day the attorneys too must understand this this is a settlement was reached by the attorneys in operating in canada did he not agree to withdraw his financial support for competing and to refrain from submitting his own bid or from supporting any alternative they looked at the collusion under primarily the section three sixty three end of the bankruptcy code and the district court focused exclusively on section three sixty three and in the bankruptcy code but the rub here is the settlement agreement the consulting agreement has expressed canadian choice a lot of provisions so this court has written the robie decision i think the rob no remedies in canada to address this and certainly there are remedies in canada to address it the arrangement you can test this was not fraudulent solicit this and this arrangement that was really negotiated was negotiated by counsel whether it was done by counsel doesn't really change too much i mean this bankruptcy court in canada reopened the bidding process so that the creditors would benefit right that it would it would draw additional bit which might then increase the value of the property realized by the creditors right that's in the excellent point ok but let me go i have a finish and then what happened here is that cohen agreed to stifle the bidding process of a pricey agreed to not make a bid and he agreed not to assist in somebody else's bit right know well that's the factual finding of the bankruptcy court after a trial isn't it they what really happened here and i and i think it's there in the record was not a factual finding i don't believe self that i think the the bankruptcy court looked at the timing and the context but the coen arrangement and settlement and this is very important the cohen arrangement settlement would say to chris resulted in an increase bid from sage caress from one point seven million dollars for unsecured credit the five point one million right right but if there had been other bidders it might have caused even higher bids and so it would seem to me just as a matter of economics that the money paid to cohen at the very least was a drag on the bid that was made finding that he was going to resubmit his bid and then he was persuaded not to because an agreement was made to pay him money that's is that are those facts factual findings clearly erroneous yes because the testimony and they don't even argue that it was it was done as a quid pro quo what cohen said and he said it when he got the phone call i'm going to keep my options open and from there there was discussions brief discussions i would like to be a partner in the transaction and from there the attorneys developed an integrated settlement and cohen gave releases he put money in escrow for another creditor and there was a comprehensive agreement and in that agreement there was an acknowledgement a he was not he was no longer he had stopped his interest in the transaction with the old in a bitter old in a bit it came in there without any money and he was shown not to have any money that was reported to the to the monitor and the upshot in the reason why people were happy with the change of bents is because when the bidding was closed the week before is at one point seven million dollars and now the revised bid is five point one million dollars so the notion that there was a there was harm to unsecured creditors is not true now we're supposing that if cowen was where i am on this site my primary argument is that it should have been under canadian law and it should have been exclusively on the canadian law and the care in the choice award provisions should been controlling and  arguing that it does make a difference because on the canadian law this this this settlement did not violate the competition act and the attorneys looked at it they understood it and they were confident that there was no violations on both sides the sage crest attorney and and my clients attorney so i can't one from the notion of collusion that's bad on the any country's law but there are different rules and it is different no one says in collusion between canada and america and i think this passes muster on the canada canadian law and i think to apply canadian war you have to give effect to the choice of war provision and it was it was overridden here thank you save some time for a bottle thank you and then you'll get thank good morning your honour's lawrence may may please the court laurence may on behalf of the appellee the sage chris liquidating trust your honor on december twenty third two thousand and fifteen the united states bankruptcy court for the defeat of connecticut issued its decision order and findings of fact expunging a proof of claim filed by equal overseas in the chapter eleven cases of sage chris limited and very of its affiliates the bankruptcy court found as a matter of fact that the claim which appellate contended was a quote consult based a quote based on a quote consulting agreement in a settlement agreement close quote between appellant and an entity known as sage chris dixon was not what it purports to be according to the bankruptcy court findings coming after a two day trial based on the evidence that was presented to it the settlement agreement and the subsequent consulting agreement were cornered into bankruptcy court decision si deals between sage kristen the appellant's principal john daniel cone again quoting from the bankruptcy court i think we've read the bankruptcy courts opinion in a fairly that's the case and in the bankruptcy court concluded that under either canadian law or american law that would not be therefore enforceable it would be voidable right if that's correct you couldn't write collect on that in banks or direct the district court however didn't apply canadian law now district court applied u s law and so correct and we can find that here right it doesn't it doesn't matter the bankruptcy court found that as a matter of canadian law this agreement would be unenforceable and in doing so it cited a couple of different propositions two of which are common law principles which s courts that's the imperiled to look to when it's causey turpie principles and it relied upon the principles of a case called sound air which is a canadian case which talks about the integrity of the process in the canadian case says that they will not this case stands for the proposition that we would not enforce this kind of an arrangement if ekta the integrity of the process in the bankruptcy court found specifically that the integrity of the process was affected by this particular transaction in the way this thing came and indeed if you look at the at the of the appellant's brief and the record below the appellant submitted a banker and opinion of canadian counsel with respect to this particular issue hoping to convince the bankruptcy court that under canadian law they should enforce this particular transaction and that opinion says based on the presumed facts and it lists the facts in the opinion we would it is our view that the integrity of the process was not affected of course however the bankruptcy court actually held a trial and actually facts were presented and the facts were different from the presumed facts that the opinion of appellant canadian lawyers who were relying on and in connection with that trial the bankruptcy court said look these are the facts that i found there was collusion there was a telephone call that took place and there any finding that the amounts were a fact that i once was are finding that the final amount was lower than it would have been had the commission there was no express finding on that except that i believe on page ten of the bankruptcy court decision the bankruptcy court expressly found as a result of this transaction cohn was able to get the full amount of what he believed to be as unsecured claimed it was filed in the canadian bankruptcy proceeding to the detriment of other creditors net proceedings there is no specific finding and it was no proof offered by the appellate appellant during the course of the trial that raised its bid as a result of the arrangement it reached with mr conan in mr cohn was the precipitating reason to the cause for the raising of that big rubber presumably would have lowered their bid because the cost they were willing to pay was now diverted in part on the choice of law issues so obviously the bankruptcy court didn't deal with it they basically said it well we don't have to decide because under either at american or canadian law the result is the same the district court  concluded that us law properly applied do we have to choose this under robey under bremond do we do we have to address choice of law before we get to the merits or can we do with the bankruptcy court didn't say it's a wash doesn't matter same result i i believe you can do it the bankruptcy court did that you can look at the canadian law and you can find it there's really no conflict here that the law provisions of both you know u s and canada ontario with respect to this issue are the same and i would note that both bremen and robie which came twenty two years after bremen really involved consent form consensual provisions as opposed to really provisions this issue in this case does not involve consent to jurisdiction in canada this is solely a choice of law provision and when you get into a soley of choice of law provision you get all the dynamics or are somewhat different  what's i'm sure that's true as a matter of practice what's your basis for saying that as a matter of law what the if you if you look at the robie case the this court cited for exceptions to  forcing the parties in that case it was a consent to jurisdiction clause was but not now no i mean the decision went beyond the actual clause that was it issue and talked about choice of last for sure that it did that but the actual issue that was before it be actual clause it was before it was a consent to jurisdiction as to whether the plaintiffs could bring the securities action in the united states or by reason of the fact that having agreed to this consent to jurisdiction  there was no discussion in bremen whatsoever concerning choice of law but it took those four exceptions in the end and our view is that if any of those exceptions are available or then then then this court then and then the new court should or should not could if you if you believe what appellant saying which is that canadian law would come up with a different decision if canadian laws were different in us law on this that would violate put us public policy but if they are the same that wouldn't right so that's why i don't know if you have to make the distinction between you two if you start from the premise that the canadian us law are the same yeah there's no i'm not sure that whatever canadian law was i don't know that it would have violated public policy to say canadian law should apply to this agreement because of all the canadian contacts can and probably will i don't think it matters from yeah i agree with you that it doesn't matter but i don't know that it is correct to say that applying canadian law whatever canadian law might be would violate public  policy i see a little distinction there your honor one thing used yes i don't think it violates canadian law to put a choice a lot parisian in the agreement is canadian not applies but when you come to the context of enforcing in us in the us bankruptcy court and you look at it and if in if you find out it's the bigger picture as to whether there was collusion i mean you were violating the public policy of both countries right if if you enforce a collusive agreement so i don't know again it goes back to that i don't think there's a real difference in the part of the public policy in the us is pretty strong because this particular action had taken place in the us bankruptcy case and it took place in a canadian insolvency case it was a canadian companies arrangement act but had it taken place in the us bankruptcy it would have been probably would've been a crime under one fifty title title eighteen wanted to sell your green with the district court's analysis for choice of law you're agreeing with it and the fed yes but i'm also saying it doesn't matter it doesn't matter  we may of course affirm the judgment on any basis in the record provided there's substantial evidence as supporting a record and i think the records pretty strong both with respect to canadian and us issues the facts remain the same they don't change whatever law you apply and i think the bankruptcy court was absolutely correct that under canadian law and u s law these are on enforceable agreements and as i said i think the u s the u s public policy reasons are really very strong we have a specific provision in the bankruptcy code three sixty five and which which says that these you can undo these agreements that actually court wants to and then we have this criminal statute which says that it's a it's a crime to forego or offer any kind  of money or other consideration to take specific actions within the context of a bankruptcy so it would be in our judgment that's what the courts below found and i think they were correct in their decisions and we respectfully request that this court affirmed the decision  canadian law does not require a different result does it matter what judge bryant did in the district court i going to agree with that but i do think he misses he his focus was on the american bankruptcy code he paid passing reference to the canadian statute he didn't look at the regal constellation case which is really the controlling case in terms of the latitude of parties to to move in and out was going to bid more than that mr may present in the web and he represents h caressed and and so i do think it does matter and if you're going to look at the canadian war you have to look at it in and in all it incantations and there are distinctions that are made in canada regarding flexibility of bit is to move in and out of the process we did put in an expert report in canada that this was an even covered by the competition act because it technically was in a bid it was a process to see if credit is could get more money and credit is due to get more money and so that's why the moniteur who ran the torture to prevent somebody from making a bid we would enforce canadian law you would force canadian law if there was a remedy for punishing the torturer and there was there is remedies in canada for punishing true bid rigging with something in violation the only way you would disregard canadian more from my reading of of robey if there's no remedy in canada there's a lot of remedies in canada and that's the point