breach of their contract but but i'm puzzled by this because it seems to me that if there isn't the freeman here between the the power suppliers and the power that it should be arbitrated and as far as i know the government never asked to have a case of it is arbitration like any other provision of freedom freedom way of arbitration and the government's position is there's been no breach and therefore no problem they don't seem to  other hand case law is pretty substantial it's as if the parties operate and litigated matter before the court for an extended period of time they have in effect waive the arbitration provision in the contract so i don't think there's an issue there but there is clearly an arbitration provision in here and the government could have foreseen that or could've asserted that if they'd chosen to do so they did they're perfectly comfortable litigating this matter in the court of federal claims we were perfectly comfortable litigating it there that they know they have an excess amount they have an obligation to pay they have never paid that money and as a consequence of that pretty much straightforward breach of contract at least where i come from now the court of federal claims in the uk and the government make a couple three arguments to try to get around that this isn't me that's the core of what this case is about and you can assert pretty but the reality is that who else could this obligation run between as a as those of the buyers and sellers we know from these agreements that  instead we look to whether that alleged agent agreed to be controlled by the principal which is section one of one does the record contain any evidence that either cal i s o or the kelpie ex agreed to be controlled by the government yes because i would never go to the manual which is incorporated into the into the tariff expressly a four forty nine and a eight that's section one point four says the manual is incorporated in the manual explicitly says matter of the of the agreement by its terms say that that the fi x of the iso will act as agents for all the participants it only makes sense in this context you know answering my question i'm sorry in this matter if you were looking for anything it would seem to me just well you'd have to be looking for language that would have carved out the agency relationship between those between these entities and then b p and n w a because it's absolutely no i think that i think the record reflects that the e p a meant to enter into an agreement with all of the market if you're familiar surely you're familiar with the holding in glass i'm not familiar with i mean i say we help that a party had well i don't know the facts of the case all of the be able to explain exactly how it might play out but it does it to me your honor that when you're talking about a situation of an exchange which is what this is that the law in regulating exchanges quite clearly that by simply enter in you agree to abide by the terms of the exchange as the rules that in our interactive that that govern how the parties to the exchange interact and interestingly enough the two cases on which you rely on are incorporating arbitration forces that's what they're doing preferentially with what you can't be contending that there are individual agreements with respect to buyers and sellers here because we're talking about a fungible good under if seems to me pretty clear that there can't be individual contracts right right it would be unrealistic to think you could have this kind of a scheme and have individual contracts and it's unrealistic given the nature of the business so your theory is there's a collective contract between all the fires and all that so we're yes and that's exactly what i think the exchange case is stand for when you're going to set up an arrangement like this and what you have of the exchanges which operate as agents on behalf of both sides and that operat share responsibilities to both sides that the contract will relationship to contractual obligations flow from the real parties in interesting ones which are cases don't involve the pieces that you sorry cases of individual contracts on the on the on the instrumentalities that does it either for the benefit of work through an agency or frankly i would say through an exchange arrangement with a law which is simply recognizing that the obligations that flow from one party to the other party only makes what the what the agreement itself says and the company on the on the participation agreement says it will perform all obligations under the tariff involving billing and collection and then specifically as i read earlier it you x creditors if the if you received more than the amount that he's entitled to he will pay back that's an agreement directly under the tariff but that's the agreement that they that they incorporated expressly when they entered into the arrangement with the arbitration that would have been fine but they should have done that obviously more than a decade ago she has made it quite clearly pleased to have perfectly happy to litigate it under the circumstances it's as think at the end of the day what i would ask the court to do is to recognize that judge smith analyzed the tariff recognized all the obligations of the party evaluated against the course of conduct and industry trade understanding came to the conclusion that these are straight forward almost garden variety of responsibilities of if you get more money than you're entitled to under an agreement you have to pay the money back but the question is are legal questions doesn't make any difference whether judge smith was the decider a judge  instrumentalities here would have understood as everybody else understood that that you're setting a single rate under the tariff if that rate at that that rate is subject to review alternately by the ferkin to turns out that the f x officials right now what was the industry the testimony by industry practice that the that said that these memphis clauses created an obligation to do anything other than allow the resort to the federal commission well the clauses themselves only provide a mechanism by which you know you're not simply bound by whatever the quote market price that gets set in the first instance they provide a mechanism for second guessing that it's the other provisions that impose the and that's and that's what the court out of that's what the court ought to have been forced that's what just smith did so just most of us respect the declaratory orders i would ask the court to reinstate all judgments that decision in this case what's the government's position on the arbitration question we didn't see the trash and because we don't think that these contracts are in forcible by these particular plaintiffs they're incorrect when they certainly know what i mean there's a dispute here why wouldn't that be covered by the a quote incurred great cost urgency energy to at inflated prices outside california organized market and provided that energy without receiving compensation i couldn't find bought my tricycle but getting back to my point is that they claim that there was an overcharge but to have an overcharge you have to have received more than you're entitled to the agencies receive i'll have to be brief i think the answer to your question just like with respect to the alternative dispute resolution mechanism is if you look at essay one forty one it says that disputes arising out of the just and reasonable rates are not subject to the  r there well i've read that but that sounds as though the clause is saying that they are determined in the federal power question as to whether the rates are just reasonable which is under your theory not what the arbiter is would be asked to decide here i agree with that although the language is a little squishy or at least in my judgment and typically normally what you interpret in this kind of language to favor arbitration usually read it pretty broadly i don't know whether you would narrowly read this kind of language in this context or not but it least by way of an explanation of this is clearly involved this involves issues arising out of the just unreasonable rates and therefore sees me perfectly sensible to take it to the court of federal claims if if the government wanted to arbitrate it i don't know that we would necessarily have fought that kind of an assertion but at least i think at the time we had a good faith basis for presenting it the way we did i think it would be helpful if you mentioned cases earlier where you said that an arbitration that first payment may or may not be the amount that ultimately is required by the contract and if it turns out for whatever reason and that's the language if for any reason it turns out then they have to pay that money back and to the