franklin good morning thank you your honors and may please the court in my limited time today i would like to focus on two clear legal errors made by the district court the first of which undermine the basic fairness held of the action that undermine the basic fairness of the underlying erbitux proceeding and the second of which underlined the basic fairness of this confirmation proceedings first the the rules and under the communications all the rule set was all the communications of as well as a rule set the answer should contain if applicable an appointment of an arbitrary but it was not applicable here because there was no communication ever from the board that made it applicable and there was nothing in the hearty have an arbitrary an arbitration without an arbitrary in the course of that the way the rules work your honor is that if the answer counsel at that time and did not end up providing an answer to our knowledge in the case so that allowed it could be the arbitration to proceed under the rules and what should have happened to her is at that point the board should point an arbitrator and none of that happened and the result of that your honor is under article five one of the convention the arbitron all authority it was not in accordance with the remit of the parties and therefore could not be confirmed guess it's rules nine through thirteen of those stockholm rules and the need for host pleading negotiations about appointment and deadlines and such  but the argument that you made on this point that your predecessor counsel made on this very point to the tribunals was quite different it was simply an argument that no rule specifies a time limit and twenty one days and even thirty five days is unreasonably short i think it's the same argument plus the the argument you're making here is a very precise focused one under specific rules but that ultimate end of the argument your honor is no rule governance there was no rule here under which they could won the argument wh argument you're making here is that the appointment was made in violation of rule thirteen yes but that wasn't presented to the tribe you know so you're asking us to reverse or  confirm based on an argument about what stockholm rules mean stockholm process rules mean that was never presented to the stockholm i think arbitrary i think fairly present this argument to the tribunals is there any principle that would require us to reverse based on a legal argument about tribunals rules that could have been made to the tribunal but it wasn't i don't think so you're right and certainly i think the other side in this case hasn't made that argument so in fact they have no idea that objection as well that's a question i have for them but i mean we're you're asking us to muck around in interpretation of tribunals rules and i'm not sure we would lightly do that in a case where the that tribunal had no opportunity to present certainly was presented with the objection and they arbitrator had been appointed and you thought that was improper and your predecessor counsel was lined up and went before the crowd bunol and said this is improper and you made the general fairness argument that i mentioned then you made a different argument about a conflict of interest well i don't know that we made a conflict of interest per se your honor but we did certainly say the rules don't allow it i would by the way your honor i'd like f the studies petitioned to confirm that court incorrectly prevented as it's done from even presenting the evidence even allowing it leave to present the evidence to the court of newly discovered evidence of that that court case holds your honor is that the defense under article five of the new york invention of public policy defense is subject cannot be waived and cannot be forfeited and of that court must always consider it even for the first time on appeal hell is because the court is otherwise becoming the tool of the fraud in essence by allowing the fraud to be confirmed in this case we were never allowed her opportunity to present her evid many you could you probably could hold that so in can we just can we talk about the merits of that issue and if as i understand the chronology and the relevant top tracks were terminated  twenty first of two thousand and ten and five days later your client filed its statement of claim or complain whatever the right time is right that's correct file the request for arbitration the enjoy the jena six the treaty that requires arbitration requires a three month period in which the government is put on that this might be headed to arbitration and they can either try to settle it or they can line up their ducks to figure out what what are we going to do if we need to arbitrate it would seem to include thinking about  appointing a member of the tribunal and none of that happened that didn't happen whether none of it happened i don't think is quite so clear the record suggests that there were discussions that went on before the filing of the request for arbitration where they can call those you were to strictly apply that three month period a sovereign would be able to have whatever attrition indefinitely by simply committing the breaches this moving along unfolding dispute and one i think that the parties have been discussing and have been communicating with one another about you give notice of the intent to invoke arbitration and then there's a three month period in which the parties can either try to settle or prepare for contested proceed that's what the treaty citizen of the court looks at the b g versus argentina decision and instead of that you have you know the first formal invocation of arbitration is this letter it's written in english and sent to the government's justice department and says hey pie the way twenty one days tell us your arbitrator well that's what the board did you have this much time to file an answer and if they were to look at rule five of the r c c rules they would see that a that first communication put them on notice that this would be a three member tribe you know because the the board but all in violation of the legal rule in the relevant treaty that at a minimum party saturnine games to figure out how they're going to plan for this well the tribunal figured out a way to cure that violation and when that in the review of his own treatment of those rules is a differential review so it's not the new york convention does flag composition as an issue it's an issue that's an issue for sure  and when the court looks at what happened and i appreciate your honest concern about you know the potential that the sovereign was was caught off balance was caught off guard you know by their filing of requests for arbitration but these issues were brought up before the requests the three month period so your client that requested is up there to the country in response to a request and that's what happened they requested a three month proceed there's a dispute and that's why i mentioned before the judge runoff there was there were discussions going on as i understand it that the parties didn't just wake up on the following arbitration there was a dispute that had been unfolding for some time there had been discussions whether or not those discussions could be characterized as satisfy me a three month period i think is probably something that we could debate about the record and i'm going to that provision believe it or not in the federal contracting law under the there's a statute called the miller act what i do know and if i answer your honest questions firstly i was moved to the point of saying that whether or not the three month stay that was ultimately imposed was sufficient to security potential violation of article twenty is something that is clearly and i think unquestionably the stage subject to a differential review in a new york convention proceeding this case is practically the same as busy versus argentina and the supreme court in that case said that when we are confronted with questions concerning satisfaction of these procedural gateways to arbitration the resulting judicial review is a deferential review the court made clear that a review has to take place and needs to be a deferential review but i think the argentina that basically is the end of the story the district court looked at what it did and said apply to differential review that seems fine to me to us and i think that it should be fine here on appeal as well just to touch we have come up with evidence that we think we can use to prove that this award was procured by fraud and if you let us we'll tell you all about and they describe a theory of fraud which basically said we were going to show that there was false testimony given to the tribunal and that was testimony resulted in this amount of damages being awarded in connection with the appropriation of particular asset that was among other assets that works for a period and the  conducted a year before and they have that evidence and i think when you look at the record of that motion and the motion for reconsideration the only reasonable inference that you can make is that because it's on chose not to put that evidence in below is the argument we're making today the district court rejected that argument on the ground that the rules told us that we needed to make an orbital point that is the decision that this court is now reviewing that decision was incorrect is the rules don't specify a time period for five for filing the answer or appointing arbitrator's twenty one or even thirty five day time period is extremely short lived talking about the first page that purred with all were under requirement to appoint it wasn't happy because there were issues that needed to be decided such as the the letter record you that answer with and work by the end of the month was fifteen days after we got it for the answer we didn't have you have the right to select remark but we didn't yet because the f c c hadn't even determine how many arbitrators there was going to be or the method for appointing them or the seat of arbitration the next thing it would have done we think is it asked for us here is that there were things in happened before doesn't always are there to select ones arbitrary there was a name first of all you need it would be helpful to know the seat it would be helpful to know whether that arbitrator is then what is like the chairperson but there are places where it would be applicable i'll give you one example of what it would be applicable would be applicable if the green it between the parties said you need to appoint your arbitrator in your answer what all the s c c should have done is it should have set a deadline for appointing the arbitrator did and i would also add by the way judge passes on page two six the other side is that there is no procedure for challenging it we didn't present this to the article panel because they're not going to rule on whether they were improperly  constituted and article five doesn't require us to have done that even though we did make an objection i would just also want to know that the judge randolph on the cooling off period me as saying that the that even a party can request a three month period either party can make the request radical settlement but is the investor that has the mandatory requirement two w filed and when when you did make the request midstream use you suggested to the tribunals that a three month stay would jurisdictional objection could ruin the entire operation in the way that was understood was we're proposing a practical solution you preserved an argument that as a matter of jurisdiction you need ninety days before the arbitration is begun in the practice you didn't link it back to the point issue not be a point issue i think is relevant there by saying that that was one of the reasons why we ended up not having to believe about answers we had selected council they rushed to arbitration had there been the three month period things might have proceeded differently but in terms of going operate as a separate argument finally on the fraud  your side said if we chose not to send evidence to the article to the district court we were very explicit express about what we were asking for in the district court we were asking for a week to present the evidence we're not saying we were presenting the evidence we  wanted leave to present it that was what was denied and then it was the night of the ground futility then reconsideration we showed the evidence that we wanted leave to present and the court still in here to its ruling even after