to determine that issue the basic facts of this case are not in dispute and essentially your honor that were true telephone orders for a product known as an all tech co a product which is made of some natural cork which is pulverized and then mixed with polymers and a synthetic or containing some natural product is then used for under ontario law and then secondly would it be under a part of the contract under california law we have an opinion this news in your national scale are going to say yes it is your honor and you didn't look at the convention your honor the we have an opinion in a record from a barrister and solicitor from ontario who has given an opinion that the form selection  clause would not be part of the contract under ontario law we have maybe that law doesn't govern well your honor and we obviously argued also to the district court that california life applied basic thrust of the motion below and obviously we responded to the motion below was there at dismissal was warranted under twelve b three of improper forum and the argument was honor we believe would be subject certainly to a product liability claim irrespective of the convention as it concerns the breach of contract claim and are also would be subject to a claim of false advertising in deceptive practices the record made clear that these same defendants engaged in the same sales practices promoting this court is eighteen three court in california and that there were claims by california wineries against these same defendants for that same crime duct and respectfully your honor if we if we got wrong which a body of law would govern the question international conventions and agreements or shriner course what i can speak of the every chance we get yes your honor i certainly understand that and the district court didn't find to rely on the international convention dismissing and the district court found and held that whether or not the form selection clause was included in the agreement was a matter of federal law and specifically the district court district enter french manufacturer and seller of goods in this case the canadian winery purchased a composite bottle closures from a french manufacturer and seeks to invoke the jurisdiction of this court and the district court to resolve the dispute arising out of those transactions the parties course of dealing consisted of approximately two earth of twelve invoices over the course of about fourteen months that one course of deal caps mall and invoices order that relate to the to the manner in which the parties negotiated with each other i think it involves the totality of those things are occurring and i think that if this is the negotiations are relevant to the and those terms become relevant what happened if the first invoice would come then if somebody was smart enough to be able to read french took one look at that french and think oh my god form selection clause and said wait a minute you know this is all over  don't believe the course of dealing in our system is dispositive on the issue here i think it's probative but i don't believe it's dispositive but factually i think the court needs to know this to take note of the fact that contract or the agreement in the first place well your honor this is a canadian company and a french company i don't know what they're doing in california and if canada wouldn't wouldn't enforce the form selection closet seems to me they should be in canada  by states they mean different countries yes and neither of you know what that convention requires apparently i'm not aware of any law your honor that says that the jurisdiction of the united states district court is a function of what the united nations has  i believe that braman is the right loss the u s supreme court in it and it's basically discusses the situations i think that form selection is a matter of federal law and not a matter of the state law of ontario or is the convention to say about that i don't know your honor frequently those things to play out or supersede local laws but your honor i understand that that's true but again we have we have two corporations neither of which is a resident of the state of california the wholly owned subsidiary had nothing to do with these transactions i think the first question is what are we even doing in california now if if the federal if the federal courts have adopted a different standard that very well may be but but the law of the case that was raised to the district from what you're making for my convenience argument  under brain and was either put in by fraud or overreaching or that it's unfortunate would be so unfair as to essentially tonight a litigant his day in court and neither of those showings has been made and  over fourteen months what do you do with the language and carnival cruise and since we do not address the question whether respondents hence efficient notice of the forum clause before entering a contract for passage respondents essentially have conceded that they had notice of the form selection provision isn't that manifestly different from what we're dealing with here a form selection clause in a foreign language and the other side saying we don't buy into that first of all your honor french is not a foreign language in canada about it they're saying they didn't agree to it despite the fact that the form selection bias was located right next to the amount due on the invoice in twelve invoices over the course of fourteen months there was never an objection never a statement setting where purchase orders arrive by telephone are confirmed by in what by written invoice which contains carries information such as the warranty terms the damage terms the shipping terms several other very important terms in the transaction that the party later on when one of those terms turns out to be inconvenient can merely say i didn't read those terms it was that all i did was call up and say sunny's uncorks and i'll pay you but the invoice but they now they're trying to only analysis was not well developed below and the reason that the international convention wasn't discussed or briefed by the parties below were raised is because the question of course of dealing was only for the first time mentioned in the point to that is as a reason why we didn't discuss the international convention about course of dealing that we never had a chance well just going down stairs we have a library here with lots of stuff on it and