after the l series response ruth came in scase so after that happened we provided a letter to the court informing the court to elsewhere had decided to start taking power and that was in conjunction with our reply brief so it's kind of came in between the response of rudeness appeal  so so there might have not been an issue for arbitration then but is there now and does that make a difference that now they're not complying with the contract so now there is an issue for arbitration so do  if we agree with you or do we go back to step wanderer right or do we go now the fact that they they have not complied with the contract i guess or it goes to arbitration now it seems like the issue is right now it might have not been couple things about the most of the cases in which that's happened the court hasn't actually ordered something some kind of affirmative relief so this is what an order compelling arbitration really does is it order specific performance of the contract and so at that time the court obviously didn't have a at the time it had no no authority to issue and this issue is of great practical significance in terms of how the jurisdictional issue a play out because it wasn't just that the breach claim was a right but there were a number of other issues that could no arbitration and so this case is a quick question of consent in a turns on what is a performance dispute as a matter of texas contract law and we believe you the court can certainly look to the t decision as providing a framework for analyzing a more narrow operation clause so article thirteen defines the scope of arbitration and everyone in this case agrees that it's there in scope l c r i said it but relates to performance disputes on page forty one of the in this court and the district would read a page five eighty six of the opinion that it covers only disputes wish back to the formants so the question before the court today is whether they section nine point three claim that elsie has alleged is a dispute with respect performance and we discreet question of whether elsewhere is damages for liability liability for damages rather michael's may be count when l c or his argued in this court is that the payment of damages is performance but that's wrong based on the text structure argument about why it's really or need to remedial issue in this case and that is because with a they are you is that the contract the p p a provided to alternative pathways performance they can either take all the power or they can pay damages but that badly misconstrues the terms of the p p a there is simply no textual support for the alternative forms theories and all one needs to do is look at section three point one it is clear that people obese performs obligation we must deliver the power to deliberately any power we produce any when energy we deliver to the delivery point and elsewhere is obligation is equally clear to take in purchase all of this power at a set contract price these are not optional performance obligations so what happens what happens if they if else really does not take the power and the answer is there is a percent of provisions in this contract that are part of what's called a quote exclusive remedy for this failure to perform so i thought to be helpful to walk the court briefly through some of the key contractual provisions explain why the way this contract operates supports our argument that it's remedial in nature but at bottom it's a the calculation analysis of the extent of the remedy is governed by a multi step damages analysis based on different remedial concepts and provisions so for example section four point three the contract in addition to stating that is a question of specific an exclusive remedy establishes a measure of damages it's a measure of damages then section nine point five interestingly is a mitigation provision what it says is there's a duty on capital ot to mitigate damages for nonperformance it doesn't say mitigate performance or nonperformance is a damages concept and is governed by commercial reasonable a standard and also it highlights the court section nine point four the p p a which confirms it confirms as a remedial provision in every way this provision is is you know talks about what happens we have exclusive remedy it governs in force ability and it talks about the disclaimers of other forms of damages and it's littered with damages remedies concepts the route and this is the very provision that's nine point four that applies to the four point three exclusion remedy so the immediate application of section nine point three in damages only then does this very discreet question but how the cap applies only then a week at a point with that issue comes to life in terms of rightness but it also reveals how disconnected the nine point three question is from performance i want to address all series what we we believe sort of a backstop point where they say that well our how we how you interpret section nine point three arbitrate will determine our performance obligations and this is simply wrong  of the statute mandates is that the district court consider the jurisdictional question quote save for such agreement in the such agreement as their tracing clause so almost every one of the arguments else or a makes in this case is based on the arbitration clause itself but those play no role in analyzing the courts subject matter jurisdiction so we will focus on the plain text i want to point the court to two decisions which we think of quite helpful in this respect the first decision is bait and which is a us supreme court case which teaches that the court looks past the arbitration clause to determine whether the court would have jurisdiction over the substantive controversy between the parties and then a decision out of the to compel arbitration or section four the district court must determine if a case of controversy exists over the motion of well if there is no case or controversy then the court cannot compel arbitration and what else series position of section four is they  explicitly rejects this particular argument with the argument where was the was that quote the party's discrete dispute over the ark to believe claims close quote is the controversy of purposes of section four in the in court in that if we said no ate there were so many contingencies as we talked about that we could even get to section nine point three one of which is whether they would even make the decision to stop taking power and in fact it was or why did a lot of back and forth between the parties on a pre dispute multiple times acknowledged that's exactly what they were seeking this is an advisory opinion there is no right case or controversy so in addition based on section four of the of the art federal or christian act the question reversed the gist was judgment compelling arbitration thank you very your honor i want to address first see the issue of whether the disputed the request to interpret section nine point three the liability limitation of b p a is a performance related speed and it clearly is l c r a under this contract had to obligations to alternative obligations it either had to take and pay for all the electricity generated by the wind farm or it could not take it could not take the energy and it could pay liquidated damages in order for l  it had to take the total amount of the electricity or for it to know how much in liquidated damages it had to pay you have to know what section nine point three electricity do i have to take under this contract that's performance or if i don't take the electricity how much i'm liquidated damages the alternate performance do i have to pay and this court is held repeatedly liability limitation standing alone is a performance so therefore there is no performance but you have to read the agreement as a whole and the liability limitation as i said is i intertwined informs both your obligations how much electricity does l c r a have to take and how much and liquidated damages says it have to pay in other words your honor judge sparks got it right when he found there was a performance related dispute with respect to write this i think his judge jolly pointed out the dispute is now right it relates basked we've had the  candid i think there are two issues if you determine it's not a performance related dispute then you can arbitrate if you determine what if we just say at the time that judge entered his order here decided right at the beginning i mean that right right when he sprung into action that's when you have to make an assessment if that's a target as bringing used backwards if that's a determination you make then we have to start over but the issue too much in an argument because i'd rather hear from you than myself but as i am i what i'm concerned about here is at the time judge spock's entered this order everybody is happy well i don't know if they were happy but at the point was everybody is telling the judge and we have to credit this we're all just performing like true soldiers we're not we're not breaching anything we're i'm course that's that so why at the very it we're looking at the question whether the district court had jurisdiction that's that's the threshold issue and if there was no if everybody's on course there were not threatening to breach everybody's happy why may not have been happy that everybody's at least performing an and the question is did the district court have jurisdiction did it have a right dispute i don't  what the problem is you have to distinguish between a case or controversy under section four of the federal arbitration act and rightness of the claim and what all of the cases say and we cite them in our brief and we discussed one in particular the bunker hill case case out of california and then we cite a bunch of federal cases but bunker hill had the best determination what the cases say is for the claim itself you have a right or a case in contrary for for purposes of section four if three requirements are met number one you have to have an arbitration clause number two you have to have a party who refuses to arbitrate number three and this is where the so called rightness or case or controversy comes then you have to have a dispute about whether the underlying claim is within the scope of the clause so if you have that dispute so if there's a dispute about the claim being within the scope of the arbitration clause then you meet the case or controversy require all right so i threw that once more with feeling what that's where you're hanging your hat and one other thing your honor if you read all the cases what they say is arbitration is a creature of contract and three jurisdiction and their argument there is that because it dismissed or because the question of jurisdiction is right there's the question is whether if you can relate back in the right to situation when you could not rightness can be determined can go back or can relate back but it's not clear at all to me that they can have it and your honor i think what's being met mrs here is here there was a dispute about whether the claim we were seeking declaratory relief in effect and she did say that we what we always said we wanted an interpretation or clause we weren't allowed not to take power once that once we raise a dispute about the meaning of the of the liability limitation under section thirteen point two of the arbitration provision were required to continue to perform so we couldn't contractually say king's x we want we want to talk about this we have a dispute about it now we're not going to perform but the point is your otter and i believe the laws very clear on this and we said in our brief two court of appeals decision is and seven or eight district court decisions and when there's an argument about rightness that issue becomes one of substantive versus procedural arbib or visibility the claim the the court has jurisdiction under section four if there's a dispute about whether the subject matter the claim if you have a rule that the claim in dispute the claim that purportedly subject to the arbitration clause if that has to be right then what you're doing you're in grafting  contractual obligation you're say you can't you cannot agree to arbitrate an unripe dispute and that's contrary to every case here is you can agree with that you can  exists if you have the other trace in clause if you have a party that refuses to arbitrate and if the dispute itself is about whether the claim is subject to the  there is a claim we had to do we had a dispute we met with them for two or three months in the and let me go back what happened in this case is we signed the contract in two thousand by two thousand fifteen because of the collapse in oil and gas prices the contracts out of the money in other words we're paying far more for this wind power than what you could buy electricity on the open market and they say you're wrong you don't have to do it we don't have to do anything but we won't tell you what what the liability limitation means you have a dispute right there regarding the meaning of the liability limitation does it limit l c r is liability the sixty million dollars or not that's c issue we took to judge sparks and that c issue that was arbitrating and what their position is is at that claim has to be right and what i'm telling you is if you look at all the cases we cite in our brief and you look at it logically if you can agree to arbitrate unripe dispute which the parties clearly can or no cases that say then what the courts say is that test for rightness or case or controversy doesn't matter whether the dispute is on ripe because that becomes part of the substantive procedural dichotomy in house and versus dean witter but that the parties can't agree among themselves that the court will have to restriction that the court have to decide it has to and i agree with you but the point is what went well what the confusing and i think what the court is confusing is what constitutes a case or controversy per purposes of section four and that distinguishing factor that constitutes a case or controversy is the idea that there's a dispute over whether the underlying claim is arbuckle is within the arbitration clause that's the rightness or the case or controversy argument if you do it any other way parties can agree to arbitrate an underwriting dispute you know you can agree you know you know for example judge king and i could agree to arbitrate whether the you know anything any point it doesn't have to be right and if you say that that dispute has to be ripe then you can foresee arbitration agreement that's not the law what the law is a sat if the clay if there's a about whether the claim is within the arbitration clause that's the rightness and then the issue of whether the claim actually has to be right is is a perk is it your sand is that it's in general principle that show what opinion on the supreme court and they did said that you go to the on the line you go to the underlined claim and you make a determination there as know as a court know was the f a a doesn't confer subject matter jurisdictions are you there have to have diversity or federal question invade in the question was how do you determine if there is federal question jurisdiction if one of the parties has ensued and asserted the claim so what the court said is to determine whether or not that federal question jurisdiction exists in the first instance you have to look through the complaint and see if there is a plausible federal question the other issue invasion was well if the if there was a counter claim that could assert a federal question does zacky the jurisdiction it had nothing to do with rightness if you look at the district court opinion the court of appeals opinion the supreme court opinion and every case that cites it there's not a single one that says baden stands for rightness for arbitration it's simply how do you determine if there's a federal question when it isn't pled in the complaint because one of the parties is just saying i want a head i want to have an arbitration but there's no cause of action alleged how do you determine if there is federal question that's the issue has nothing to do with rightness the other point out the last point i want to make your other is this dispute was right but what we were seeking was that the clear atory judgment regarding the meaning of section nine point do is give us a give l c r a hobson's choice if we breached a contract if we went to them and said we're not taking any more electricity which we can't do because we are prohibited from terminations payment in the terminations payment is basically the contract price less the current market price times the total amount of electricity from two thousand and fifteen for another twelve years after  dollar march that dollar amount was two hundred million dollars how it's not a hardship why should we have to make a choice between running the risk of writing a check for two hundred million dollars affecting our credit rating affecting our ability to borrow money affecting our competitive position in the electric market and the point is is this court is held in or its credit alliance and then a tire group is under when you're seeking a declaratory judgment you balance two factors factors the fitness for review and the hardship fitness for review depends on whether the issue is a purely legal one here there was no dispute nobody argued that the liability limitation was ambiguous so the issue was one of pure law the second issue is hardship as you point out judge prado and here we had a hobson's choice assuming that we could break which was run a risk of incurring two hundred million dollars in liability ramping its it may be your honor but the point is what this court held in that case in that case it was a question of whether a lease requirement that required you to restore the premises we him at any rate in that case was you had a lease that's sad at the end of the lease you had to restore the premises to its original condition to do that would it cost millions of dollars it was sad no it's not right because nobody knows what the laws are going to be in three or four years when the lease terminates and more importantly we never demanded that the less see m repair and what this court and the district court agreed with and this court reversed for the same reasons that i've articulated the question was one of law and the consequences are the hardship was great because it put the lassie in a position where it didn't know how to deal with restoration that will cost millions of dollars thank you thank you your m bank and it's this is language it's on page sixty three of the court's opinion and i would just like to read some a language there the relevant controversy between the parties they'd insist is simply an only the party's discrete dispute over  grant the motion to compel or you do not and if there is not federal jurisdiction that will quite a subject matter jurisdiction that you would need over the subject matter of the controversy itself you simply deny the motion compel and that's what we're asking to happen and i mentioned earlier what that means is the arbitration words on it were civil it would be set aside and yes i think mr wise current knowledge is in that circumstance it would be we would be starting over i want to go so do you go back now and now that it's ripe i guess because they haven't paid they'll be another arbitration like i it's here's what i think would happen judge prado i think because they've indicated they're not going to take power we would have a breach of contract claim under accounting firm and they say ok you know we got to decide whether to issue a report on your financial statements so how do you know how do we know that if someone breaches here what that what the disclosure in your financial statements has to be about that i mean yes we want an advisory opinion in a sense but it's concrete we need to know how what's the limit of our liability is and you know is it is it pure gold or i mean are we really limited the way this thing purports to be or not and i mean i can be a real it could be an important issue and i understand that concern that and they did you phrase but what i would say is it wasn't that hard to make a right to speed in this case when they sent a letter and i took them twenty sixteen but i think under the court's decisions rather than into a case which mr wise talked about and some of the even threaten to bridge so i don't i don't think the accountant scenario as presented i also would note that if you're looking i mean the point is that so you have all kinds of disclosure requirements that  driven by just exactly what are the limits of my billet here and it's not too theoretical it and i understand the point better not that they think that are sort of this hardship problem but again if that was the situation it would have been very easy very easy to say learned in your bridge where we're going we will bring each we will not we will not take power and they never did that when we pushed them on this