against them for use in a foreign arbitration the application was improperly granted for the following reasons st under nd circuit precedent notably the decisions c and most recently in you're a glow private international arbitrations do not constitute proceedings before a foreign or international tribunal further validated the n b c decision and identified a range of factors to be considered to determine whether the deliberative body question confesses the functional attributes most commonly associated with private arbitration you know to correct your honor we have detailed the factories in this case and we believe based on the fact the court should have found that the arbitration commenced by the fund in two thousand and nineteen it's only questionably private in nature and therefore the applicant the fund is not entitled to the relief available to the fund if it is indeed an investor it ticked ad hoc as opposed to a court or an arbitrary court or any of the other alternatives that were believe that the arbitration is private and that precludes the relief that was sought the other side has stated and the court below the line on the fact that there is a bilateral treaty between lithuania and russia involved i think that based on glo and n b c that argument does not carry water  the fact is that the treaty itself does not create an khatron which is the entity whose rules are followed in the arbitration neither russia nor lit play any role in the decision making they have nothing whatsoever to do with resulting the issue or the procedures that are going to be involved so while the bilateral treaty is involved it does not focus on or have anything to do with the arbitrary but which itself is private the court below also relied on the  private arbitrary proceeding outside the scope of seventeen in the two and the court will address the split between the circuits nd circuit and the th circuit have decided that makes good sense in re grow the court reevaluated or looked at what judge to brownnose identified in its opinion and said private is out now the court ma conclude that private is not an execution and it's a private arbitration possible if they did i think we would be back before you if they don't this court's decision as to whether in this trial arbitration and the matters that are before the arbitration are private and if so when the supreme court goes that way then there will be no need to do i'm sorry i didn't mean to interrupt you now go ahead go ahead you know but i have a response yes go ahead yeah judge the treaty does not create the arbitrary body it's not like it was in sea tac  arbitration and all of these decisions are focusing on the arbitral entity and whether it is government we control certainly the treaty says you can go to these various places in judge livingston saying he wrote that didn't this type of situation you're suggesting us even though it's an agreement between countries and that's the jurisdictional you know arjen that because they selected a private track you know it's it's game over well i don't think so an important one here i think that when you look at n b c and the analysis of you know we're trying to do something here that will encourage foreign countries to reciprocate that  that it will look at the split in the circuit but i completely agree with judge bianca that act will have no impact on your skate i i want you to  statute and here our position is that we are before an international tribunal within the meaning of section seventy two dollars and i think it's important to recall that the same question before i do that my three minutes are up and if you want to ask me questions before i do that perhaps you could pick up on judge poolers earlier question to opposing counsel see them as in any way in congress with our position since they don't deal with the question of international tribunal created pursuant to an investment treaty or they may go the other route and invalid a quote in which case although i i still don't think it directly on point eleven would think it's all the more likely that one would agree that are the discovery we're seeking is again that's going to be really turning on the the proper construction of the term foreign and since we're really on the international tribunal prong i agree it makes it all the more true that we're entitled to discovery but i don't agree that we're you know a private good story in tribunal and there are houses with the house's point was that they might decide something in between or in deciding that issue they receiving their guidance but i since this is not a topic that is covered by the appeal or one that's likely to be discussed by the appellant on that appeal i i don't think that there would  it did in several respects st of all but for the treaty we would have had no right to arbitration what happened is russia looking when you made reciprocal promises to offer investors from each other's countries the opportunity to to arbitrate when they felt that they had been mistreated under the treaty so essentially the promise to arbitrate that we accepted connection with  will be returned to the main conference this conference is being recorded only the main conference is recorded and i don't know what to do with that period i'll continue i lost a couple of seconds but just quickly to answer your question judge pooler first of all there will be an obviously in the arbitration itself which is the key for an opportunity for lithuania to speak but you explain to me what the supreme court has to say to make this case outcome determine if they think that private irby tradition panels are also obviously and read it closely to see if there is anything that would distinguish errors from what the court held but look if if if we are dead in the water we will act accordingly demonstrated that it is an interesting person as required in order for the applicant to receive relief to be sure they have started the proceeding the arbitration i get that but they admit in their pleadings that they are not an investor and only an investor can invoke the treaty now they say they are an ass in it there is nothing in the record from the supposedly investor but there is a question and we have no evidence from the party that only the claim that they provided it to the fund that's being challenged over there and then we said well they're not an investor so inexperienced they don't make it  honor not for our purposes we're not little rain here we are two parties in the united states who are going to either have to turn over documents about events that occurred a decade ago if we can find them give testimony rights which was the language in the intel case as rights that are prominently prominently include the applicants ability to use the evidence and so in the u s courts before the foreign ministry to try you know our courts so by virtue of being a party and having the position to road whether the case should proceed or whether the discovery that they get can be used so there is there is this cloud which they have done nothing to try to eliminate and i'm talking about  a criminal investigation every one of them we distinguished in our brief and we are not in rd circuit is there anything further i can give you the thank you for me