arse good morning my name is richard chef i represent the appellant's in this case and with the court's permission i'd like to reserve three minutes for a bottle ok the district courts or denying the motion to compel arbitration should be reversed for two reasons both of which require the parties to be compelled to go to arbitration st the district court failed to properly analyze and apply a clear and conspicuous delegation provision that none of the parties dispute exists in all of the loan agreements and which requires an arbitrator to rule on issues such as orbiter ability nd even if the court were to ignore that clear and conspicuous delegation provision which we contend it should not the plaintiff's only basis for  avoiding their promise to arbitrate gateway issues such as arbitron bill of the as well as the merits of the claims is a contention of prospective waiver and that is an they are the same agreements in the rd circuit in the williams case i believe one of them is the same agreements in the th circuit there are a variety of cases your honor in the gibbs case there are the same agreements in the dillon case there's the agreement for great plains that is one of the agreements in our guests and in the hayes case that is an agreement that is not at issue in this case and respect to prospective waiver and the cases that your honor has referred me to in which i talked about are all prospective waiver cases or what i would say your honor is that they are inconsistent with the richards case which is an on by case of this circuit and so to the extent this court were to evaluate perspective waiver or to say that the district court appropriately evaluated the merits of the prospective waiver which we don't believe it did we believe that's an issue that should have been sense to the dist to the arbitrator and the arbitrator needed to make the decision on whether there was a in the arbitration agreement prohibits or will not permit than it is to assert their rico plan for trouble damages that's the identical issue that was addressed in the richards case in the richards case where there was an agreement to arbitrate the plaintiffs was an investment case the plaintiffs argued that the choice of law which was british law did not permit a rico claim or certain securities law claims and of course the rico claim would provide for trouble damages and what the richards case said was the issue is not whether the foreign law that is to be applied as the choice of law allows you to a service specific claim but essentially the issue is are you barred from recovery do you have a remedy and here the and so with respect to rico richard's case has already determined there hell it's not a sufficient basis to find prospective waiver and there should be no difference with respect to tribal law here even though there's been no determination by anyone or anyone that ultimately on the m tribal law will apply so that's why richard's controls and that's why there is no prospective waiver at this issue previously have said that the delegation cause needs to be reviewed separately and enforceability of that delegation was needs to be reviewed separately the only basis for arguing that the delegation clause was not in force of all was an argument that the entire arbitration groom was not in force of all because of perspective waiver but what you need to do is you need to apply prospective  wired case is said that foreign law can be applied with respect to the issue of arbitron realty and some are on secular hey perspective waiver is an issue of what whether or not somebody can pursue a claim whether they can get recovery as the court in richard's has said the delegation clause doesn't cover the issue of all the delegation clause simply governs the issue of who decides what is  because of the perspective waiver because of the federal law prospective waiver or does a back to bed a law doesn't apply prevent the arbitrator from being able to do that in your ear the arbitrator can make that very decision your honor and decide that  the issue because you have a clear delegation clause it must go to the arbitrator for decision all of the issues that judge or it decided should have been decided by the arbitrator and so the arbitrator canada appoints can apply federal law and the arbitrator can decide that it's prospective waiver applies the henery shine is to be interpreted to say or to permit prospective waiver or give us to be raised to determine validity at this stage of the proceeding then i would argue that the silos case in the silver and case all say that really what what the what the the review at this stage is simply do you have a facially valid arbitration room it doesn't exist is there actually a as opposed to saying tribal law because i tribes are born in a sense but they're a lot like a state in a sense also i don't think you could say delaware law will govern but not united states law right you could say that that would that would that's not what i went to the courts that know and your honor i appreciate the distinction that you're trying to make and in all honesty i'm not a native american law expert however i've spent a lot of time in these cases which relates to tribal sovereignty and those issues of tribal sovereignty and how they mesh with u s law and u s policy so i would argue judge vandyke that in many respects if you had a native american lawyer standing here arguing these issues they would say you know we really are like a foreign country where we're a truck driver or a federally recognized tribes and we are a sovereign and only congress can override what we do and congress has not overridden what we have done in this area and so we are free to do what we want until congress tells us otherwise i think every native american lawyer would tell you that us of course they were in that at that point but you just made the point that they can be overridden by congress like condor germinates can germany can't that's right they d put us as state of hand so in that sense of kind of it they're more like a state but but they're and in many respects and i'll give you an example which is slightly off point but it sort of makes your point i think to some degree the the consumer finance protection board has a specific provision which were bureau which which says the they treat tribes the same way they treat states but that's an act of congress which which said that so here what i would say is that travel was really no different than any other foreign law in the arbitrator arbitrator can decide if certain aspects of federal law applies so the arbitrator is a lot more latitude and is not as pigeonholed because they out of the federal arbitra circuit case i think the exposure and you were discussing earlier it was exactly these agreements and the four circuit case as i recall this gets case against case actually said that those agreements the arguments do not explicitly preclude the application of the law but it went on the base they say they sort of implicitly precluded that it's not as clear to me i guess when i read these it says that they won't be governed by the laws of any state it says that they if you're saying a delegation clause you can apply federal d state law excited and if this goes an arbitrator an arbitrator has all of that to look at in deciding whether these are forcible contracts and then you're saying an arbitrator could read this and and we don't know it's going to depend on what the r word well assuming that the case gets said arbitration it'll depend on what happens with the arbitrator i mean those are decisions that as in any litigation or not a big event is a question that i'm not saying what the  argue the only way i can respond and i cannot respond to that specific case or apologize for not knowing that case well in the area of and this may be a little off point if it is i'm sorry i'm sure he'll tell me in the area of tribal economic development which is what this case is all about in terms of the business that is being run by the tribal in the end it is all the tribal economic development the federal policies are extremely strong and clear to support tribal economic development and tribes ability to be self sustaining to be on their own and the most recent case that i am aware that speaks to that issue of federal policy and in support of tribal economic development which is what is happening here is the williams versus big picture case in the th circuit which was decided in i believe june of two thousand you followed up on about this question of of the status of tribes in tribal law because if there is one thing that we know from that unanimous weight of authority in the nd circuit the rd circuit the th circuit  it comes to truly international contracts contracts that select the law of germany or britain for instance a case like richer all the circuits have the exact same rule for contracts like that and for choice of law causes that select truly foreign law and if you read richard's what you see is that that he's involved what this court cog truly international transaction the parties in that case who were the method citizens of the united states flew to england to enter into a contract with lloyds of london and in that context what this court said was when we're asked to decide whether a choice of law cause together with the choice of or implies words to operate as a prospective waiver we we apply a different standard than the standard we would apply under chapter one of the national council i think you're probably right cases it looks to me i don't have i did have those contracts i just have the way that they're written about in the cases but it looks to me like they had the stronger language for instance if i referred paul correctly in the in the four circu two thousand and sixteen hayes case i think it was yeah it looks to me like in that case the the actual language tried to explicitly say federal law won't apply right that was and i could see that but then he seems like that that it's used kind of front center and it's also not clear what whether there was a delegation clause and just didn't seem to really address that but a said for federal law didn't apply i don't quite see that here looks to me i mean a specifically doesn't say federal law doesn't apply it any state of the united states and then there's some kind of kind of not particularly clear language a federal law want to apply less it doesn't apply you know i'm paraphrasing but then later it says that th mean any federal state or tribal law claims and so why wouldn't the arbitrator here be able to be able that certainly apply federal law in deciding whether this is in forcible in other words be able to contract will be governed by know about a law you know and they don't usually say or maybe based on my experience they don't necessarily always say this contract will be governed by the battle law parentheses oh yeah we're not this claiming that the law also said well it doesn't express a preclude we're going to read it to implicitly preclude and that seems kind of i never do that with other contracts but what do you think that you're i totally agree entirely with your premise that if you were designed the party were to select the state law it wouldn't carry with it any implication about about the ability to bring federal statutory claims and any party that would attempt to argue that would probably be laughed out of court because of course federal law always the the difference here the key difference and the reason why the th circuit has been split consistent about this is that that these contracts in their attempt to apply tribal law tribal law displaces federal law that's what it does and so and so in that does that because of tribes sovereign immunity to avoid being sued for federal claims unless as as mr jeff explained congress abrogates that sovereign immunity not the way i read this so the answer is no and the reason the answer is no is because unlike a quarter an arbitrator's power and authority derives entirely from the contract they are not licensed for do not have the authority to extend shall apply tribal law that's a that's a firm mandate in the contract and it says if the tribal law if the arbitrator does anything i'm paraphrasing doesn't say this exactly but i'm going to paraphrase the arbitrator does anything the delegation in and of itself is invalid so what about the language that you're pointing to or tell us that the delegation separate from anything else is invalid so let me let me back up and i want to answer that question but i want to back up because i was not a case in which a party challenge the enforceability of a delegation cos the only question at issue in that case was whether a court could look past the delegation was presumably a valid delegation ca what about that provision is is a prospective waiver separate from the bigger i think there's two hits to that you're on the st is number one it deprives any party of applying federal law in an arbitration your opponent thinks that they're not going to argue that to the to the to the arbitrator yes they do and in all of these cases just again to be clear in all his cases they have come in and said we can see we will allow the that says it will be governed by trouble d off and your argument is trouble us special it displaces federal law i'm not sure about that but it seems to but it's not like it's not like the other making to us the arbitrator's going to kick this case out it's going to find that the that it's not arbitrary what they're going to decide they are this on a forcible or they're going to decide it the other way which you're just are you just can't be can't be law apply in one spot in another spot of says all federal state or or travelogues lames i think what you must be saying is that that those two piece languages work together to say all federal and state and tribal law claims will come in and bring oh look an arbitrator may be with you in the need be back here no we wouldn't be back here because if you look at this contract what it does is it sends the parties to an arbitration to be governed by tribal law and then it forces whatever strip somebody of their statutory right let's see what happens and if it turns out that it does then then the federal court can come back and review it on the back that is not possible here and it doesn't matter again whatever on the other side wants post i want to hear from your opposing counsel about this but it is eleven question i had in mind i mean worse like i said before if you go to the arbitrator and the arbitrator agrees with what you're saying now the arbitrator will kick it out and you're saying without it go to trial court then you're saying that if let's say the arbitrator does something grossly wrong like let's say this goes the arcade arthur says yeah i read this exactly the way that that mr west or you're saying that it should be read so you can bring your federal claims very draconian and there's this thing called perspective waiver but i don't care i don't like the supreme court and stow that some really  specified in the contra and what it says is that the only way the only decision that will be an only decision from an arbitrator that will be up help is one that is consistent with tribal law that said so so anything just to the underlying arbitration contract but also to the delegation was because the delegation caused all it is under a renaissance or the only thing it is this gets judge hunsaker to your question it's just a separate be made that's not a remedial legal or so how does that fit with the argument that you're making that there are no there are no remedies under tribal law that would authorize an arbitrator to refuse to enforce the reman and i'm not sure when we've there is no way for it to work that's by design that's how these contracts were intended and so i guess i'd disagree with the premise that this contradicts it by an arbitrator's hands i think the th circuit has done that multiple times and it doesn't matter if somebody gets up today or next week and concedes that they will allow the claim to move forward what you are the task here is to interpret this contract as written and not not to allow parties to interpreted in the federal arbitration act so it is the arbitrary charge and it is much broader and it sweeps in the f a a as well as cares for which defines it the point that mr wexler made about it the sort of the review and this is that tribal court is simply not correct judge van dyke is correct it's simply an intermediate level when what the district court does want to refer the case to arbitration where it should do is it were tames jurisdiction stays the you're wrong and kills it all then when it comes back to the district court in the district court at that point could say well if you can you know regardless of what the arbitrator said the there is a prospective waiver problem here because it turned out that you couldn't actually says that is that why is that your position yes your honor it is it's our position so the to the extent that mr wexler wants to raise the issue that you know of prospective waiver is going to that the application of tribal law will somehow prohibit a remedy here because of claims of the munity none of the defense in this case or resume unity or of ever raised and immunity applies to energies that are created by the tribe for purposes of the try and they are known as arms of the tribe and to judge fletcher is question we were talking about the william case the reason that williams was not controlling with respect to gibbs is that all williams it was it said that big picture loans was an arm of the tribe that essentially technologies was an arm of the trial of a different tribe therefore were entitled to an unity and they talked about federal policy doubts the importance of williams it's not an arbitration case two other very quick points the richards case the courts federal courts have never really distinguished between international and domestic in terms of perspective waiver it's a big issue motors was an international case italian colors it was a purely domestic case so that is not the distinguishing factor and so the point of what mr wexler is suggesting and what i may mention in my main argument henry showing the cases which follow say you have a valid you have a valid delegation cause it's clear you have you have officially down arbitration agreement all of these other very interesting and complex issues that we're talking about as judge van dyke said they all go to the arbitrator that's what the parties agreed to the arbitrator figures it out your trader makes a decision could send it right back to the district court your recruiter could keep it and then it could end up back in the district court for back in the unit about the sessions i just occurred to me so let's say they let's say the permits a broader review by the district court