your argument next this morning in case twelve nine twenty nine atlantic marine construction company most of the united states district court for the western district of texas mr hastings mr chief justice and may please the court from selection clauses ha been frequently used in contracts of all types and should be enforced as written in the enforcement of a contractual form selection clause should not just be left to convenience discretionary balancing tests will  three and section fourteen zero six of the united states code provide appropriate and effective means for enforcing a contractual form selection clause the language of those provisions that were written broadly congress use words like wrong in the rule use of the word improper which have plain unnatural meanings that are broad and are sufficient to authorize district courts to act to enforce the contractual clause is it common in the treatises or in the cases to say that a form selection clause is a venue provision i thought then you is something that the congress the term your honor the cases do discuss it as a venue provision one example would be this court's decision in stewart addressed a form selection cla zero for a transfer analysis which is clearly a venue analysis in addition to that with the two thousand and eleven amendments to the united states code congress adopted a definition of venue it's in section thirteen one that definition says the place of litigation i'm paraphrasing it but it's a pretty straightforward definition the legislative history of section two hundred one of that act acknowledges that the definition was intended to make venue determinations easier and to make it clear that for improper venue under fourteen zero six a because respondent apparently does business in the northern district of alabama which was not the jurisdiction specified in the form selection law so what if we were to write an opinion in your favor what would you suggest we say about your honor i believe the correct reading of that language is what the second circuit has said in the trade comment decision and others have written on this that stewart and in the text write by that footnote that's footnoted i believe the text right there said the immediate issue is how we address fourteen zero four ad and the way the majority of the circuit courts have read it is the issue and stewart this procedural issue that we're here on today which is simple not present for the court and so the court could very easily write a decision that acknowledges stewart still controls on a fourteen a for a analysis but acknowledge that like the majority of the circuits that stuart simply did not have to address this prove that's true that's true but it means that the entire discussion and storage is beside the point the court wrote a decision about an issue that really never should arise because the party seeking as you see it the party seeking to enforce the form selection clause should proceed under fourteen zero six zero stuart said well if if you proceed under the wrong provision this is how it should come out it makes the whole decision essentially meaningless doesn't just as legal i respectfully disagree and here's what the meaning of stewart would be as as we understand it first of all under the facts of stewart the same situation would arise of course if a party waived their proper venue objection that may be and there are a lot of cases but that would still apply in a case where a party doesn't assert the contract at first but there's another place where stewart would still apply when a case is filed in the proper jurisdiction here if this lawsuit had been filed in virginia there would be a very limited place for exceptional circumstances for a court to look at a fourteen a for a analysis and determine if public interest required something other than the contract law i don't see how that would i don't see how that would work and you're saying this is the argument you made in your reply brief that if this if the case had been filed in the jurisdiction specified in the form selection clause that court could transferred to a district where it might have been brought and your argument under fourteen zero six is that they couldn't be brought in the western district of texas that's a place where that there's a long daniel and you're one of the language of the statutes particularly the language you were just referring to about might have been brought needs to be read in context of the decisions from this court in van dusen this court held that that language might have been brought was a term of art the court has never reached that conclusion with respect to wrong or improper and in van dusen the court said that might have been brought language was a term of art referring back to a congressionally chosen venue under thirteen ninety one and so when this plays out under fourteen zero for at the court if the case is in the proper venue and we're on to the second issue of fourteen zero for the proper reading of the language will allow the court truly in exceptional circumstances to follow follow the language of statute and send it to another place where congress said the case could have been and again we this is really the second issue in the case we would emphasize that it's truly exceptional cases where parties have contract id for a form they've truly resolved the conveniences among the parties among themselves mr right if he said didn't thirteen one says the following except as otherwise provided by law not by contract by law this section shall govern shall govern the venue of all all civil actions brought in district courts of the united states and then it goes on to specify certain rules for where venue in a case can lie so if i'm looking at that i'm thinking well those rules apply and they can be reversed or countermanded or whatever by by contract by parties agreement except to the extent that that contract can figure centrally into the fourteen zero four analysis but it's not appropriate in fourteen zero six analysis because you know the statute says what the statute says here is venue and your honor the language of section thirteen ninety one in the first part that i believe is thirty nine he won a word has a language of shall govern in federal courts that's really no different than what this court said in stuart of federal law controls venue in federal courts but the issue that comes up is that venue venue is very important venue even before the current statutes were written was recognized as being a privilege for the litigants there to protect the defendants and even in nearby in the one nine hundred thirty nine so almost a decade before that some of the current statutes were written this court said venue is subject to disposition by the then you is the high the way bubel thing you can stand on your venue right but you don't have to my problem with your interpretation is you are allowing a private and limited to make a venue prescription that congress and the improper congress said it was for it may be that it should not apply in this case because the parties have consented to something else but it's not a wrong venue i mean suppose the question had never come up the there wasn't a claim that this was that wrong the the case could have proceeded and he would have been a place of proper venue right your honor if there was no objection raised  certainly but if it doesn't become it's if they place a proper then there may be a reason why another bending is the one that should control in this words improper and wrong but improper is used in twelve of the three congress didn't or in the courts did not explain what that applies in practice that word is used for many different contexts to use to enforce form selection causes the majority of the circuit courts in fact more circuits than have weighed in on our favor use that language to enforce one in clauses in were causes requiring state court forms it's used in a brave broad context in order to force people contract rights even used in arbitration contexts although the f a a gives parties the right to move on to the f a a many parties raise their complaints under the twelve b three because of the procedural impact of twelve b motions allowing importance not to have to answer complicated federal cases and gets a procedural arbitration more quickly giving the language a plane in natural meaning allows the courts to essentially do justice and allow to streamline and have  in a court in which it otherwise doesn't exist your honor personal jurisdiction is also it simply a personal wide of the defendant and so if the defendant is willing to consent to personal jurisdiction as often happens well i as i said anybody can waive it just like anybody  almost everything in our in the way the federal rules work but do you think that parties can actually create personal jurisdiction where it doesn't exist i am the one that spoke a single person jurisdiction not could is what difference would it make to you if if i thought the venue here is proper but i thought that there there was no cause of action in the circu balancing test what difference it would make it actually would be very favorable to my client because this case would have to be dismissed the we've have concerns about that rule that's why we didn't push that is our argument the circuits you have  because the result and see if it's only dismissed on no transfer in justice ginsburg that is one of the one of the concerns with the rule but professor sachs approach does first of all start off with a strong benefit of enforcing contracts me a bit of a category error the twelve b sets is something it's an on the merits determination about the viability of your claim it has race judicata effect where is this is not if this is just a question of why did you bring the thing in the except for this kind of case has a court ever used twelve b sex to deal with a case of which court outside of the forums like to call it on anything that it's not an on the merits determination that precludes a case in any court in your honor i'm not aware of or doing it outside of the context of the form selection was issued as the first circuit one question here it seemed because i start out for reasons i won't going into thinking well perhaps it doesn't matter frank we can get to the same result under any of these three procedures but then one thing professor sachs says does bother me that if we take your approach then how do we deal with the problem of removal i mean you can only remove the case to court which is in the district where the person of the plain to file now if there's a farm selection clause the defendant seems to me to be stuck because he can't go to a he can't go to to another he can't go to another court he can't go to the court within the district has the farm selection clause and he can't go into another court because of fourteen forty one a so that argues to me that we ought to either take the fourteen zero four approach or we ought to take professor toll it's twenty eight us code thirteen nine to say it's not conveniently set forth in any of the papers right no your honor it's not did not know that this issue was going to come up fair enough but with respect to thirteen ninety see congress said th eight the yes sir yes your honor congress said that these rules with the exception of the transfer rules do not apply in removal cases congress has answered the cat question removal procedure is governed by the statutes on removal and yes if you're in state court there's one court you can remove to this rule on this issue doesn't change that but if if this case had been filed in texas state court for example and was removed to the western district thirteen ninety c still says that the transfer wools it doesn't say fourteen zero for a it says the transfer of rules which would also pick up fourteen zero six could still apply to reallocate the venue for the lawsuit if there was a contract clause or if it was annoyed to explain i'm sorry i'll read it more carefully later but it says you have to you have to remove to the court for the district in division where the place of action is pending so if it's filed in state court in texas you have to remove to the texas federal court not how do we get now haha and you can't go to the texas federal court according to you because of the contract ok now hot now you explain how  provision over thirteen ninety see gets around that injustice prior i would respectfully disagree about whether you can get to the texas call you know you can remove to the texas court if you even though it says you can remove you can remove to the district court despite the the contract yes just as bar by as a conqueror because of the specific federal statutes allowing for removal they tell specifically where the removal must go and so we're not suggesting that the court would have so what the court should say in what i'm saying is that the state if the parties were in the state district court and remove it to the federal district court to under the statutes under thirteen ninety six well first of all that was that's what the removal statutes with thirteen ninety see would say the transfer rules still apply the texas district court if we had our contract and should have said now that you've removed this to federal court we must transfer this case to virginia because the transfer rules still apply what about the vote suppose the playing to says think that's what i understand the question to bit you know the contract says you got it for ginia ok they filed this in texas state court you tried to remove it to texas federal court  sorry the contract that he loves says we can't remove it to texas federal court and your honor that the contract would not prevent the removal but once the case was removed the contract would control where the case where the case would be allocated and federal rules of civil procedure the basis for foreman convenience justice kenny that's an excellent question because the courts when they usually rule on for non convenience do not specify that or senator is not a federal twelve the sex or summary judgment that would be a contract issue be governed by alabama law alabama losses to form selection causes no good in justice alito we do think there is some tension between professor saxes position and the stewart decision because if perceive professor sachs is correct in the first circuits correct there really would be no room for a fourteen zero for balancing issue the issue i believe that you're asking about why is it why wouldn't fourteen go for a continue to for scalia if if the contract if the contract elevated this to an issue on the merits is essentially what twelve b six does then it becomes an issue not just about venue it comes an issue about merits and so a venue allocation provision wouldn't change the fact that if the case was cool if it weren't for a but it depends upon upon the defendant if you choose to go the fourteen to four a route he could go that way could meet what you're on he wouldn't have to it's an issue on the merits it doesn't have to be raised right the beginning of the case a party could certainly move to transfer and do a lot of other things but they could raise that issue as a defense on the merits of a lawsuit and have it resolved at trial after the entire proceeding had proceeded in defense here eighteen requires the state in justice ginsburg it certainly would have to be pleaded and certainly there's opportunity you know leaders freely granted in cases less you know other circumstances arise it's possible to plead it down the line but most importantly it's when you get a ruling on that issue and that's the problem what is the problem with the seat that you admit that if he goes to virginia he's filed the suit in virginia or then he says judge everything's in texas please remove under fourteen zero for a you know good to dissent i don't resend it down to texas and you agree that in an unusual case you say because you give a lot of weight to the contract he could win and go to texas right present your position if that's your position what conceivable difference does it make if you codes to texas in the first place and then you say remove it to project me and i mean it should work out the same way it should work out that the balancing under fourteen zero for you know each gives you the factors should be the same it wouldn't be your honor the way this would work out is if focusing on the fourteen a for a issue the real issue gets down to where does the lawsuit need to be filed what rules are going to be in place and if a party can just file in texas because they want they they want to try to move it there for convenience they can just file in texas what they're doing is they're requiring a party who just live as a terrible thing you have to say fourteen zero four a and the other case he has to say fourteen zero four a and it i mean maybe it makes some tremendous practical difference but what if it makes not much difference i have three routes that seem to me almost should work out the same way and in favor of their route is the absolute language that justice kagan pointed out before plus the footnote ok so i'm thinking and this doesn't make much it's important to have a rule it's important to have one clear approach but as between the three it shouldn't matter and they should all reach the same conclusions so let's go with the language of stewart all right what about now what's the answer to that just as prior first of all i would agree with you that under this case all three routes should have a lead lead to the exact same conclusion that that is correct in this case but that may not be in all cases why it matters is that the parties should be forced onto their contracts and so if a party honors its contract and there's a very high standard such as the exceptional circumstances standard for perceiving a transfer their parties who are following their contract it's unlikely you're going to have much litigation over transfers whereas if a party can say i can try my shot at a home court forum file in violation of the contract and then make the other party raise this issue and have litigate venue we're going to have a tremendous litigation about venue a lot of problems with the law of the transferring state travels to the transfer states so they've undone their taking texas law if you go under fourteen zero for super junior and that would be a problem in many cases you're and that would defeat the were the chief justice may please the court we've got this hundred sixty thousand dollars in trucks in case in the western district of texas which is where we performed our work where the projects located where all the witnesses reside and where virtually all of the evidence is located but even though it's where you agreed not to bring it yes so i'm going back to what justice breyer says let's suppose you're right about fourteen zero fo i think you have some pretty good arguments for two no four it seems to me shouldn't affect this case in the sense that you should have that this was a negotiated contract you got something for the fact that you accepted inconvenience when you brought a suit and under fourteen zero four the court is perfectly entitled the court has to take that into account that this was a negotiated contract that you accepted inconvenienced and that you got something for your inconvenience for your acceptance of inconvenience the end you have to live with your contract no your honor we have a contract that and we are having to live with it in the sense that we're up here now fifteen months after the district court rule that we were supposed to we should have to fifteen months after the district court denied a motion to transfer what we did we didn't go in this is those are indeed the terms of our contract however the we felt that any court following stewart and fourteen zero four would waive the interest of justice in the decision whether to grant the transfer or not and indeed that's exactly what the difficulty or interests of the a source of justice that the district court weighed almost all boil down to the interests of your client the then the inconvenience of witnesses oh well  corinne to the extent we're talking about their witnesses they're not concerned about the inconvenience of having their witnesses go to to norfolk but you have witnesses the other witnesses or your witnesses so that's a factor that goes to your convenience compulsory process to produce witnesses same thing so what were the public interests and the what were the interest that were weighed here that are not the interests of j camarines witnesses so why should that be why should the inconvenience of atlantic marines witnesses be a factor that weighs against atlanta marines position that the case should be tried in norfolk they were neither but late ignoring witnesses nor are i wouldn't suggest it so well you why then couldn't you go to virginia to all these factors i mean maybe the jury has to take forty two visits to the bottom of an oil well shaft i don't i mean there could be something that would weigh in your favor i don't know the case so why not go to virginia and then file a fourteen zero four motion and it should reach the same result whether you can you go to texas and and asked to stay there or whether you go to virginia under fourteen zero for a you win this case let's say or what you're going to change it should get to the same place shouldn't your honor in some ways exactly what we're worried about the same place at fifteen months after the court ruled on the transfer of mo so it's actually more  lights the court is like one of the justices pointed out couldn't train her back to texas anyway because by their lights venusian proper anywhere except project you know they're not saying they said that you could make the fourteen zero four motion in virginia and they think it would only be granted in an exceptional case but that's their opinion in that and so it should come to the same conclusion they aren't barring you from that on their view but my thought is that if all these come to the same result in the end and you just need one rule we have something pointing on their saw your side which is the stuart footnote in the language of the you know the absolute language of the venue statute and you have something pointing in their side which is if we c numbers five circuits or favor and only three in yours aren't help me if there was and if there had been a form selection policy in the contract and we'd filed suit in texas it's inconceivable that they could have problem the difference all things don't lead to the same place fourteen zero four says to the district court look at a hodgepodge of things including the interest of justice and figure it out and you know maybe they'll give the contract some weight or maybe they won't and if they do it's not clear how valve to transfer and i don't know why you so cavalierly dismissed saying oh it's in the contract of course but we've got more witnesses it isn't that your honor it is in the contract because it's in the contract we didn't get the deference that otherwise the plaintiff would get on selection of venue well that come as a surprise you know sure and we haven't we haven't attacked the clause on braman standard we haven't claimed it was in use by justice alito said was absolutely right you have given up the ability to claim private interests here by virtue of your choice to sign that contract the only thing that could weigh in the balance against that is if there is some something that has nothing to do with your convenience but is instead a feature of of and something about why that it's important to the judicial system to the public interest about keeping the trial in one place and as you have not been able to point to anything nor would there be anything to point to in most cases involving forum selection clauses in most cases there wouldn't be any and that's why in most cases the clauses are and forth and that's why i don't think you've seen one of these for twenty five years they reason that we've got that we think our case is somewhat unique is that it involves a construction project in the district in which we file all of the witnesses are there virtually all of the physical evidence is there it's subject if we stay in texas texas law and for those reasons if the case is going to get set for jun systemic integrity of the system i think you know but the reason what it is like causes enforceability of these clauses is critical to a lot of modern commerce if you i don't know what the details are here but a long time to your company and you're doing business now all across the country and you say i don't want to do business all across the country if i get dragged into different courts who knows where with different tradition you know the juries are different i want to do business around the country so long as if i'm going to be sued it's right here so i'm only going to do business with people who are willing to say if i have a problem i'll sue you right here that's it that's critically important to modern modern commerce and the idea well going to court saying we'll be there a few more witnesses or you know it's convenient to them and all that that that seems to be throwing a significant wrench into the process your honor i don't view it as a range it's as opposed to an opportunity or mandate from congress to do this to the federal court to exercise some discretion in arbitration or a state court then the court has no fourteen zero four power it must transfer to those failures if we accept fourteen zero for a supply then we're disfavoring commercial parties from picking federal courts because they're going to have to accept that  nonselective venue will have the power to make that decision whether to transfer or not that seems to mean to invite and there may be people who think that's a good thing and get cases out of the federal court even if they're international commercial cases but isn't that what you're inviting i think your honor i'd say that's a possibility i'd say the on the other hand that the arbitration example that you brought up that's governed are what would be the authority for dismissing the case if it had specified the state court i think you'd be the say one isn't brave which didn't in the brain which didn't mention for no agreement is an admiralty case why want to just be a forum on convenience i case one like this one where he's likely going to have to hear it without witnesses or certainly without live witnesses and to render a judgment based on facts that were developed fifteen hundred miles away on a project that's not far away implicate i think the integrity of the system and that ultimately a federal judge is the one that's going to have to write than take nothing in judgment if i can't scare up the witnesses to be encouraging don't put me in the group that thinks you can use for moon convenience  when you have a foreign selection clause for a state court and sue is grote attempted to be brought in a federal court i mean if it's in the federal court that is the most convenient court i mean let's say it's a different table of witnesses or i think it's very strange to say that because there is a contract provision requiring it to be brought into state court this court is  question of if i just said you know the answer this is another i keep thinking they should all come to the same conclusion but then what about this point just as sort of my raise suppose you sue in texas you know you got there but the contract but say it was a different contract from yours but it just was made in nevada everything about his concerns nevada or are they really going to use texas law to interpret the contract rather than the i would have thought that the choice of law question is a different question and where you sue should be irrelevant to the choice of law question except in so far i don't know maybe you looked at the i envision said that the law moves with the with cost they put it's got every other dispute resolution clause that could be in there to make it difficult for us to get this case to a court but it doesn't have a core it doesn't have a good choice of it doesn't merit respect when the plaintiff has agreed that this suit will go forward someplace else something like this where there is a form selection was the burden is on the burden of trying to establish venue in some other jurisdiction is on the party opposing the form selection party it's invoking the form selection clause and the only factors that can be considered against the form selection clause to result in an exceptional case where that wouldn't be honored are factors that have nothing to do with the convenience of the of the party that doesn't want to tried in the in the selected for him or with the likelihood of success of the party that doesn't want it tried in the slot in the the jurisdiction specified in the form selection cost so in your case if there had been a hurricane that wiped out the courts of the eastern district of virginia for some period of time so no cases could be tried or there was an incredible back load of cases there that would prevent the case from being tried maybe that would be those would be something that might amount to an exceptional circumstance but everything else is off the board what's wrong with that person on the validity of the clause wig knowledge we'd have the bird we were trying to avoid this clause on the ground on whatever grounds on any braman grounds would get cheated into it or anything like that we'd have the burden on that we didn't try to carry that burden were not attacked in the clause hearing what the evidence was and court decide edge of the boot of virginia court to make that decision instead of your friendly down home texas court and that's you know that was why the for selection clause was put in there doesn't seem to me so such a stretch as you think it is to say that the venue is improper when you have agreed that then you would not be alone in this court we came confer can we can waive venue but we can't make him do so with the question is is it improper when it's been waived is it improper for a court to acknowledge when you when the party has has said i ike i cannot be i cannot bring my suit in this court i don't think it's a terrible stretch to to call that improper venue however theoretical it was is decided by a book by statute of course it is but people may waive it and when people have waived it i don't know that there's a great interest in saying that none the less the venue remains proper it seems to me you've given it away  it ought to be it ought to be the court where the parties agreed that suit would lie that would decide the these change of venue questions the provision need not be absolutely dispositive but to the extent it isn't that is a call that ought to be made by the jurisdiction that the parties agreed to the whole litigation or to begin there they shouldn't have to litigate this change of venue provision in a court where the parties agreed they would not appear it seems to me terribly unfair there's a arbitrator in presumably in for jane here and under the f a a we don't necessarily even have the right to take depositions to provide to move to get the evidence before the court even in deposition  complaint about that what we don't want to do is good arbitration for genuine which does not happen in this contract for everything it's got in it it doesn't have a clause that says that arbitration will be conducted in does not a choice of forum cause for the arbitration there is for litigation but not for up so what's more favorable to about texas other than your convenience what's more favorable about arbitration in texas other than your convenience  that's the only thing it's it's convenient for you to text it's convenient for us the arbitrator can drive out to the project and draws on clues and about what about how the thing was built big talk to the witnesses who are within his subpoena power to subpoena power of the of our district court in texas to show up yesterday you can i just like if you want to give you a chance to but i i think professor says look there is a way which you can both follow the statutes literally and say well venue is here and also get the place to the right forum respecting the contract just say it is an affirmative defense with justice ginsburg says the first circuits follow this approach you put it in the complaint answer and once it's in the answer the judge can put it front and center indeed in case he forgets to do that the defendant will remind him to get to the right court and let's decide this from the defense thing first and now we're back in the same place what do you think that i think that that's going to unnecessarily complicate this gets and it raises some difficult eerie questions about which difficult theory question which the court i think successfully avoided in with its decision and stuart i don't think that  be motions are particularly appropriate places to decide these contract issues and it eliminates the fourteen zero four gatekeeper role that the district court otherwise could be provided and was provide in the case of any disputed facts on a twelve b six you would have to have a trial do you agree with that yes your honor and i think that he understood underestimates the ability for resolute counsel to raise disputed facts that would otherwise prevent the summary judgment practice that he suggested well what they want to x or what facts are in the normal case what facts are going to be pertinent i mean you've got the contract there i mean i suppose you can always say were entered under duress and all that but that wouldn't seem to me to be typical in the normal commercial case in which these provisions are critically important what facts are going to be there i think there might be a question of materiality there might be a question of what type what type of materiality how material that clause was to the sixteen is the one that says what the price is it's what brings us here to the credit system is not for declaratory relief or to make a new law on venue it's to collect one hundred sixty thousand dollars of that clause i and just attained judge things did fit circuit well they can file suit course and for breach of contract and expense that would put them into yes i think i think they probably could we at least get one hundred sixty thousand dollar head start on that and they can bring that as an offset to our claimants i want to we disagree with the question of whether it cost him any more to litigate in texas and it wouldn't for jr anyway they're going to have to hire a law firm if we l they're going to have to send a lot of bad lawyers back to texas to defend the depositions that would have to be taken there i don't know that this case cost any more to be litigated in texas where the witnesses are available and where they might not have to be depos than in virginia where they have to move way after ship them across the country there's no further questions thank you your thank you counsel mr hastings you have four minutes left thank you mr chief justice i have just a few brief comments first parties parties bargained for the right result and they bargained and reached a contract that should settle the issue of conveniences and where this case should be litigated stewart has an important observation that i think needs to be emphasized even under fourteen  the majority in stewart said the bremen is still instructive and if it's instructive on anything on any rules and forcing a contract it should be instructive at this level the burden should be on the party trying to get out from their contract with the circuit misallocated the birth the burden should also be a high one it really should require exceptional circumstances or perhaps even more and it should not be a case where a party can avoid its contract based upon inconveniences that were forseeable at the time of contracting for example the fact that j crew hired texans to work on its project it knew what the project was about of what it would need to do and it should not be able to rely on hiring texans to change the deal in a go she had with my client should be a clear rule that allows the courts to hopefully answer questions about contracts and venue so we all can stop litigating these issues and know the right answers and avoid inundating the courts with motions to transfer for parties want to renegotiate contracts since the third circuit in the six circuit analysis circuit have adopted the minority position there's been a proliferation of litigation when a contract already answered the question we cited many cases in our  sion in a footnote and i know there's been many more since then and those are the those are the ones you can find published that doesn't even mention the ones that are unpublished and so a clear rule needs to be in place to avoid these problems of justice kagan you raise the issue of form non convening a ends is perhaps the answer as to what would happen for a state or foreign call contract laws i want to briefly touch on that because i don't believe that's the right answer the braman i looked at the case that came up as a for case and said we're not going to use the for non convenience test for enforcing a contract requiring a litigation in international forum they were sounding we rejected the form non convenience approach and i believe the circuit courts have read berman is rejecting that approach if that were going to be the approach to answer the problem created by the first circuit performance a courts what we'd end up with is a new common law approach whether call for non convenience or called something else that looks nothing like  probably a whole new line of litigation over i think you know i just took my point at least maybe i didn't express it clearly bremen comes up on a forum nine convenience motions and the court says yes the contract controls quite properly so so you know the fact that it comes up on a forum that you mean his motion has nothing to do with the question of whether the contract controls where people have negotiated for a certain set of things and there is no exceptional public interest otherwise  already twelve b three is the best answer section fourteen zero six allows the court also to address this issue honestly section route twelve b six and presser saxes approach is much better than leaving these issues to balance get one last question about six which is you know in one fourteen zero four is in suppose a state which does not recognize these clauses which you know for trumps that according to stewart but if you were under twelve the six you would have to way i know how to answer that question is i do not know how the professor sachs approach can actually be reconcilable stewart there are significant tensions in how that plays out is an issue that that i do not know how it plays out but i suspect it would result in lots of litigation will be three that stewart stays and it's federal law that controls and the judge decides it's right yes your honor and that's why we're asking this court to follow the majority approach on this issue thank you counsel i'm so the case is submitted