to resent the arbitration agreement and we get in force and unless the defendant proves that the award is not the billable work barred by the convention did work invention from being enforced view precluded what the arbitron award from ever becoming binding on the parties and what the district court said was that under the parties arbitration agreement which was made that you are seeking to induce right that's the ultimate well you know your honor it's it is true in a certain way that statement which is contained in a footnote in which the court is choose any but the district court's opinion itself goes off on an entirely different basis and it says that on the arbitration agreement the orbit for war could never become binding because once the se rvice of the request was made either by diag or the czech republic that makes the award non binding per se and that the resolution by dismissing the proceedings without coming to another  award meant that there was nothing for it to enforce in the google convention that was actually the holding of the court well well you know maybe i see it differently but i think that the upshot of what the district  in the upshot of what i concluded after reading the resolution myself using that the district court concluded that the review tribunals held then the partial award was raised to the canno with respect to the subsequent award it was called the final one and therefore that subsequent is that what's wrong with that what's wrong is that it is wrong on every conceivable basis it's wrong on the check wall it's wrong if you read the resolution carefully the resolution says carefully parsed linguistically by judge koda who is a supreme court justice of austria he points out that the resolution it's fundamentally draws no conclusion ultimately you know i don't know how much of any weight i give any of that ultimately our job is to read it is however a big use it is in trying to construe it but the court must read it in the context of chet law and the check for expertise that in the record very clearly points out that there's a very clear even admitted difference between a resolution and an  the resolution is a procedural the bias which says which means that the court that is looking at the appeal has no jurisdiction to act and there's the experts point out you cannot simultaneously ever have a case where the court in effect rules that an award that exists is no a fod while itself claiming lack of jurisdiction to review the award but i point five is that for whatever reason the tribunals thinks something has happened here with respect to arbitrary ssion and court proceedings whatever conclusion the court ruled on with respect to intervention now actually applies to the award but the award not be vacated it cannot point going to the language and four point five that says what you just said about eight lines down the sentence beginning with however in the following sentence it says in such a case they had no other choice than to discontinue the arbitration on the current intervention so they're saying that i guess to the to the extent that there's other graph by saying that the conclusions arrived at by the arbitrators were deciding on the principle intervention naturally apply also to the decision making of the dispute between the parties of the original  you at least we can agree on that if you don't agree on that i'm not understanding your position at all but four point four at least hasn't language in it about richard a kata that would be problematic but i take your point that at the end of the day the review tribunal didn't appear to do anything with it viz a viz the underlying arbitration proceeding so they go on to four point five and four point five the review tribunal explains why it's concluding that it doesn't have authority to act in this area and it's going to discontinue proceeding then that now that we're in the land of four point five the question becomes what for what is four point five and under four point five is judge will consent as it appears that in four point five the reason the review tribunal is saying it lacks jurisdiction has shouldn't have happened either at least at the final reward stage they don't do anything with as far as i can tell the review tribunal doesn't end up doing anything with that in terms of an all in the final award you may have a position there but the logical upshot of what appears to be the ground of four point five could have that consequence because it would mean that the orbital proceeding never should have gone forward to the final award stage does that not seem right that that would be the logical upshot of the rationale four point five we don't know what they're talking about four point five but one thing we do the way we do you have to know i mean what do you think they're talking about and for what what they seem to be saying is that there was some sort of core proceeding because what you're saying is i don't even know what this review but your tribunal saying i've read it in six languages i have no idea what it's saying all i care about is at the end of the day the bottom line is they said they didn't have authority to to pronounce a resolution on this review tribunal and that's all i need to know i went and you've may be right about that but suppose i care about the rationale of the review tribunal and i think that you need to care too because the way i look at it four point four has a ra resolution that wouldn't be in your best interests your argument is well i'm ok because under four point five the review tribunal says at the end of the day whatever i said about race judicata doesn't matter because my resolution at the end of the day on a four point five i don't have authority in this area so i'm just asking myself from this process and then i care about the rationale and four point five whereby the review tribunal says i don't have authority what is that what is that underlying rationale for your own or what i would say about your perception  from all the expert opinions right so that's why i'm saying that i that that's why i act have you done everything i said by saying i'm not saying you need to do this under check law i understand your argument and it may be that the formalistic and i don't mean to be explanation that seems to me like it's problematic for you you have an argument that says the review tribunal expounded on race judicata and then at the end of the day says basically forget everything i just said because the ultimate resolution is that i don't have jurisdiction and so the review tribunal ass's itself under four point five i think what judge will consider judge wilkins is getting to what i'd like to get to is the rationale in four point five by which the review tribunal says i'm asking myself from this i don't have jurisdiction seems to have consequences for the underlying arbitration proceeding too because the rationale does seem to be there's a tug of war between digital proceeding in a parallel arbiter proceeding it seems like the way things went down the judicial proceeding could have been stopped if the parties had raised the hand is he the arbiter proceeding as a red flag but they didn't do it so then the judicial proceeding takes precedence and if that happens then the arbiter of proceeding is out and that was seen to have implications for the final over two i don't believe so you are because the award under review was already ongoing at the time of this intervention the parties to the arbitration the principal is that if they went to court and they want to raise the creation so therefore what that meant is that the court has jurisdiction presumably over the intervention action but it can't really do anything about the underlying reads however due to all the reasons described above the arbitrators had no other choice than to discontinue the arbitration what what it means is that the arbitrators believe that they lack a valid review requests as the own clear statement they said any arbitrators had no other choice passed him speaking about my belief is that they are speaking about the arbitrators who issued the final award well it is them i can we agree on that i don't think so because i don't i don't think here's why we can't agree on that because in order for this panel to say that it has to conduct a review which it claims it has no jurisdiction to do the only way that you can  you cannot then render in marriage decision on the underlying award i had the same question i thought although it seems it is framed in the past tense and it seems and this could be an and an issue of translation even though it could just as a matter of translation it could be referring to what had already happened in the underlying arbitration and i thought that this sentence actually referred to what the review how it's office a man is on for it that's that is what it's saying and again you can prove that it's sad that the only thing we knew as a result of that with all of that is that this continued to persist because they have no jurisdiction to do one that that's not exactly what they say though they say that of review that result in a discontinuation of the proceedings they see don't explicitly but in their resolution well they can say whatever they can muse about anything but the truth of the matter is that they must have jurisdiction to ask their say as far as we can understand it that if it were up to us in the first instance we would with said there was razed to the  which it does it says that there was a minimal agreed amount of damages which we are now going toward other issues are left open for a final word and that's not let's assume that the review tribunal looked at this and said we don't believe that the arbitral panel had authority to issue the two thousand and eight  situation where a review tribunal concludes that the original panel had no jurisdiction to proceed first of all the review tribunal itself  takes the review it says we believe that the award is barred by res judicata and we know of five then they dismissed their own proceedings they dismissed the review procedures because having perfectly clear on the track walk and the only difference by the way between the experts here is not on that the question is whether that can be done by a resolution  perfectly clear that the resolution the only basis for the resolution is doing what it is because it believed that the final award was lacking the ability the fi award is nowhere not once mention in the resolution not months and without all the agreement all of the experts would agree that there is the always the final word was not mean there's no point to having section four point three if you're not discussing the final war i'm sorry four point four they even mention it is the duty to instruct section four point three because they talk about whether you know the motion for review was timely fine and so they mention the two thousand and eight award there  award is that the award governs the rights between the parties it adjudicated the rights between the parties resolution does no such thing it dismisses something for procedural basis so if you go through and look at these at this resolution you will find that there is not a single statement regarding the effect of the final award and in fact that this is exactly why this is exactly why the clause of legal effect is on that final word after all of that citizen event were these arguments aired in the district court they were all before this record the district the only reason they're being argued on this appeal is because this report had a footnote right district court would first of all end up depriving my client of an entire segment of his case in check was the case is decided by the plaintiff the plate that makes claims must be disposed of the partial board says that certain things are not being this yellow so huge so your final award it also results in the district court robbing the two thousand  award of its own race judicata part of that and substituting what the district court thinks the resolution should have said to achieve what the district court thinks the resolution wanted to do morning your honour's fisa court elena four hundred half of the czech republic d r human opened its argument by noting that enforcement proceedings before the district court are supposed to be summary proceedings and that there's a very small burden of proof however under the new york convention which is the a political law for the district court to apply and the standards set forth under the new york convention the disher court is required and bound to look at the exceptions to enforce agreement should be read is that any time a party triggers your view that it is not it makes an underlying award not in forcible no no your honor because i don't think that looking at the district court's opinion and taking that interpretation i believe takes the opinion far beyond the four corners of the opinion and what the judge actually said and what i think that she did as far as the footnote versus what was concluded and the body i guess will say of the argument is that initially and primarily the court focused on the plain language of the arbitration agreement couple of with the overall outcome proceedings came to a conclusion and the proceedings were ultimately discontinued and so the court looked at the plain language of the agreement which says that if a timely application for me it for review is submitted then the our patrol word will not go into effect at that time and throughout the pendency of the arbitral review proceedings the award cannot be final binding and capable than foresman once the review tribunals came to its conclusion on that timely submitted application for review and discontinue the proceedings there's no war to enforce there's that many other words or that all depends on what happened in the final review proceeding in the right because it is it that you don't take the position you might you know i disagree on the way we read the district's opinion but it doesn't sound like you're taking the position that once the review panel mechanism was triggered then that means no matter what the review panel does that the underlying arbitrement more is right and i don't i don't think that's what the district court was trying to say so even under your view we have to look at what the the review panel did in order to figure out whether the final award is yes there has to be some there has to be an outcome to the review proceedings one of the one of the factors or circumstances i should say that actually been pointed was if you if you look at how the district court interpreted the arbitration agreement theoretically both parties could have submitted of requests for review or one of them and withdrew it and would try to prevent the arbitration award from ever coming into a fact however that's not thank goodness let's get past that out of the pickle and say the review panel just says we don't have authority plain as day we don't have a of requests it was out of time whatever it is the bottom line is flat out we're not pronouncing on anything about the merits of the award we just don't have authority to pronounce on it at all that's a conclusion it's a proceeding that's trigger award was ultimately drafted if that until i'm telling you how the final review panel the only thing that's relevant to me is it says we don't have authority to pronounce on this petition for review i don't know the exact language but we don't have the authority to pronounce on this petition for review so we are discontinuing the proceeding we are not her announcing on the underlying final award because we don't have authority to pronounce on and are you are you saying th far as a hypothetical situation or ok and that's circumstance i mean from a hypothetical standpoint i assume if the court said we don't have authority to do any sort of merits review or make any sort of determination like they did here where they have a race to depart and alice rice right now in that circumstance i would assume that the review arbitration tribunal would say i don't have authority to discontinue or dismiss the proceedings and the award to issue a partial war with a final word to come later under check or is it i think it's appropriate if the partial word is actually a partial award and is correctly awarded under the circumstances of czech law that allow it to be a partial ward my understanding of czech law is and and based on what the review arbitration tribunals determined based on czech law was  that that the specific circumstances that are spelled out under czech law for one it's appropriate to have a partial war going not present here and because they were not present here in the personal word actually and effectively was a fine award are you are  saying if the parties in arbitration agree that the claimant is entitle to say ten million dollars and the disagreement is because the coin is is seeking one hundred million dollars but the arbitrators can't issue a ten million dollar award and let the arbitration go forward for the larger amount i mean that that interpretation seems to be to be embodied in the district court's opinion that he endorses ever she endorses that view of check law and yet i don't see any citation or any exposition about what right i think the partial award was just it the amount was awarded pursuant to an arbitration proceeding that resulted in a partial award now it is not in a good redeployment and then the check organization agree you are entitled enforced and then at that point once it went through the necessary review proceedings and came back down that their work was in force and it was ultimately paid by the czech republic but as far as a partial alert what triggered what triggered the second unit was there the the final final as far as as far as my understanding is there where it was mostly interest basically it was amounts for interests that were  of the final or excuse me the partial ward is that it spells out actually having a partial word in here that it spells out that it uses the phrase ancillary issues and you know quite quite honestly you know i can't really explain why the partial award was issued and why the final word came to be and obviously the underlying original are arbitration panel thought that they could proceed and thought that they appropriately issued a partial word under check law that ultimately was decided to be incorrect by that we're view arbitration panel on the resolution i think that's very clear from the section that discusses ra was just trying to pull up the i have the partial award rate here and it talks about other parts of the matter issue including in silly rates and interest to crude as well as cost of the preceeding shall be decided upon and a final word so you know from from my standpoint the i mean the bulk of the damages and the underlying arbitration were decided by the partial war and they were ultimately paid by the czech republic and satisfied and the additional issues which aren't even actually started out in the partial ward which i think is one of the arguments as far as check law and why it does not appropriately yes and just under under the application of czech law my understanding is that a partial award can only be issued when there are it's an award on as to one party's claim when there is maybe multiple plaintiffs multiple defendants or when they're small to pole actions that issue say it was you know you had a breach of contract claim and two other claims and there was a partial award on just the breach of contract claim for example and then additionally under check law my understanding is that a partial has to specifically spell out what it is reserving for a future and file and final word and that's a word based on the plain language that i just read this not do that and that was an a dditional issue under check law that the review arbitration panel found for determining that partial award was actually in fact a final word when you look at and you know when you can't really under to morrow result in vacating the final well first of all your honor and i think i think you might have had spoke to us but i don't view the toll paragraphs as being clear and i think that's very evident here considering that there is a lot of dispute and there's different experts on post sides talking about what was meant and intended by the most renowned expert that was submitted by the czech republic and even he can see that the arbitration act itself does not specify when specifically an arbitration award has to be issued versus a resolution and also another one of the czech republic's experts actually concedes that whenever the decora told paragraphs are not clear or are ambiguous then you resort to the reasoning of the opinion and here i think it is very appropriate to resort to there's a bunch of stuff i want to get off my chest about race judicata that i think it just has to be out there because i don't want people to not understand that you know i'm overlooking rishta kata so i'm going to go ahead and spin out of bunch of stuff about race  way to reason through arbitration resolution and then the question becomes is that what happened here and there's some indication in the language of the resolution of the of the i'm using the wrong language because i don't mean to the rest of the m that the request for review of the arbiter award is in fact procedurally ineffective only for completely different different reasons see below so right there they're saying this request to review is procedurally in effect of which i take it nevertheless the arbitrator's can perform any assessment review only on condition that are procedurally effective request for a use s which exactly tracks a language that we just talked about earlier where they say look look ahead we're going to tell you why th review exists and then four point five proceed to explain why the procedurally effective request review of does not exist and then at the end of the day what we're left with is a resolution that seems like the bottom line is a raised by the cumin with respect to their quest for review as far as the appropriate signature of the person that submitted the application to review they resolved that as far as the additional discussion of how it had to be initiated by a motion for review and there was the studio advised of the duty to advise back in theoretically until the motion for a view was actually filed the court ultimately went on to do an in depth discussion of substantive versus procedural law and how it when something is ineffective under substantive law that cannot be remedied but when something is procedurally defective under a procedural law concept that that in fact can be remedied and i forward despite that procedural defectiveness and heard the review anyways went through with the review process anyways but how because it was not a substantive issue it was just a procedural defective issue they basically waive that issued with their determination came to the ratio to cut argument and then ultimately discuss the almost separate argument right as far as whether th arbitration proceedings should have been discontinued previously because of this whole issue with the intervention was or the whole issue of the intervention seems like it's doing all the work though because after the race judicata resolution the next sentence so has nevertheless which indicates to me that never notwithstanding everything i just told you i refuted cotta there's a procedural ineffectiveness problem here and the procedure want to factor this problem is what i'm going to spell out in four point five and what is spelled out in four point five is exactly what you just said which is the in agree your honour's that this is not artfully drafted and that there are there are questions but one thing that czech republic included in it tell it brief was and this is also based on a footnote i understand that the district court specifically said that it did not roll on the foreign decisions and coming to its conclusion but your honor as you noted in a previous argument from earlier today this corps is permitted to affirm on a on a different basis that was raised below and we have multiple foreign jurisdictions that are all signatory countries to the new york convention that all looked at this resolution and declined to enforce the award based on the outcome of the arbitrary view proceedings and what this resolution says and there's a there's one of these one is if you go the other way yes yes your honor and some of them i think two of the opinions that were referenced by the czech republic and our brief are still up on appeal one one appeal came down and affirmed in the czech republic's favor that was submitted and a subsequent letter to the court of citation of stop when i taught for anything but we have we have other signatory countries who are bound to apply that the standards set forth in it and the new york convention and there is if there is a it's favored among signatory countries that they interpret and apply the new york convention in a similar fashion arguably to prevent parties from forum shopping and so there's there's a even more some paces to recognizing race judicata and international comedy when we're talking about enforcing  interpret this so review tribunals resolution and reasoning the way the human says it should be interpreted  award if you have if you have the ability to bring in a force of an action in a particular signatory country as you noted because there's theoretically some sort of assets or something of the defendant that you can come after and claim and that signatory country that then a party certainly is allowed to go into that country and pursue and force an action as your honour's have seen from the various foreign proceedings that i've noted in the brief that that has happened in this case so that's certainly taking place and you know as far as international comedy the courts obviously not required i believe the language is may look to those the three opinions that the czech republic notes in its pilot brief were essentially very similar to what is taking place here because they were actions that were filed to enforce the arbitration award and the same sort of arguments came out before th courts particularly with respect to the resolution and what the important effect of that resolution was and applying the language of the resolution in those cases the courts to turn to were i was wondering if the and and respect to enforcement action is obviously the new york convention and the standards set forth under the new york convention and then the the law of the enforcing jurisdiction because what that what the district court was not being asked to do was to overturn or invalidate the award that's not that's not the district court's purview and that was not the purview of these foreign courts either they're just simply acting in an enforcement capacity so therefore that the dish are almost good but you would agree with you know the background and the and important aspect of the interpretation of this resolution  to the underlying arbitration proceedings the arbitration agreement self was concluded under the arbitration act and specifically says that proceedings will be conducted pursuant to that act the act and section thirty incorporates the checks that will procedure code and mandates that the checks that will procedure code be applied to underlying arbitration proceedings i guess where i was sort of heading in and my point was that nothing in the a nothing cited by vi human requires the district court to apply check law and delve into these issues the district court is an enforcement court looking at the award and trying to determine whether or not one of doesn't really matter whether the goodness incorrectly right grace if we can ascertain what they did in the effect of what they did  even if they were wrong in doing it don't we have to enforce it isn't that what this works that's that's correct your honor and i think you hit the nail right on the head and that i believe is very clearly spelled out in the czech republic can happen but none of that as your honor said it matters for purposes of this important proceeding or i was not there and it seems to me it's perfectly logical and common sense that the background certainly is because the underlying arbitration proceedings that this award came out of were based in check law and for governing by check law but what i'm saying is the district court's job is not to determine whether there was an error of law or we're the district court should ask the review tribunal what the heck did you mean if we can't figure it out i mean we mean what are we supposed to do we can if we're tribunal you know can you clarify you know least two three points honestly your honor i think that's probably a very unique novel question that maybe has never come up and i don't know i don't if it's it is it proper for the district court of this court to do that because isn't that essentially i mean are you asking the review tribunals to reconvene and make a decision on the merits again or are you just asking for a what's going on here he's being but isn't bad but is what he's saying is you lose if we can't figure but isn't that i mean is that it isn't that essentially depriving my client of the benefit of the resolution because i mean they didn't draft it they can they can't help it if something wasn't particularly clearly drafted i mean i sorry there's work is that you're you're trying to make use of a resolution and the burden is on you to show that the resolution was an exception from foresman and so you're i mean i take your point that it would be great if the resolution was more clearly in your favor because for you at least it would be great because well i carry your burden i mean you would i would respectfully say then that we met that burden because not only have not only have we submitted expert opinions i hear your honor and i understand that you know whether or not you should be you know how much value are important you give to those expert legal opinions is within the court's purview but we have certainly attached and filed legal expert opinions as well we have also throughout our brief pointed to areas where  humans expert opinions actually make concessions that are helpful to our argument and support our argument and in addition to that we've also pointed to multiple jurisdictions who have grappled with the same questions that and your honour's are dealing with today and that have sided with the czech republic so from our standpoint i guess i would argue that we've met that burden thank you thank you your honor therefore we treat the partial a word as a final word and you cannot appeal that because race judicata that's a way that if they had the capability of so saying and they but but aren't we getting into you know whether the review tribunal was right or wrong in you know now isn't that beyond what we're supposed to be doing here now because the appeals panel itself knows it can't do anything about that award that's why they can't stretch where they say nothing about raised to the cottage because even they know they can't do anything about it they're saying had we been the people involved not appeals panel we might have said this but we can't so we're now going to move on to something else but there are all kinds of other issues here i mean there is a certain redolent is to this resolution which we haven't discussed that's all in the record too with respect to what exactly happened after the resolution and  came out which i'm not going to get into but it's all the record i do want to address something else so ever and that is with respect to the question of what you can do to find out what they meant we have that in the record because mr schwartz who was the administrative review panel arbitrator told in response to our request that we put a cause we'll effect on he explained and  my legal opinion it became binding and came into legal force as it was not challenged judicially within the relevant pine frames and therefore he goes on to say that i think you can put a clause of legal up that done it and we have that it's in the record appears the objections of the defendant that the decision formally titled as partial is not actually such a partial decision must be agreed to so that the arc traders here seems t through all this it almost looks like cut and paste stuff i mean things that were in prior to solutions and they cut it out and put it in here we've got all this cluff which really doesn't have much to do with anything there are now is use of this resolution t and the expert opinions but i will say this they have no power if they're saying we would have done something different that's one thing but they can't do anything different because the two thousand and two party itself has raised today to that point  few times of that i thought that the reason the four point five is called judicial procedure the corpus eases because it's an explanation by the review panel of why we lack authority and the reason they say they like authority is because of judicial proceedings court proceedings because all they say in there i mean at some point somebody has to be able to tell us what this means and what it seems to mean to me is that in four point five it's called judicial proceedings they seem to think that something that happened in intervention meant that they had no power to act right for whatever reason they could be wrong about that they try to right but one thing they conclude is that they  me caught up in czech law in two thousand and two the czech republic thought this was raised judicata it had the right go and the obligation to go through the check court system under article thirty one of the and tell the court this is what happened stop that proceeding and it never did and in fact they never raised the objection whatsoever until i think two thousand and ten or eleven and some if you look at the record you'll see big never anything there are only two things in check wall that it does have the power to do one of which is to if it happens to be the lower panel in this instance had issued a final award which wasn't affected by  you then the lower panel has put in clause of legal effect on that that happened here the other thing that a lower panel hand is is the power to the positive confirmation proceeding in which it's the defendant's burden to prove that this award is not available for the fact that there are other decisions around the world those are all local in the sense that for court which rejected all the czech republic's arguments and force you ward that's the most recent decision and we put that in there as the court knows i think