ration but the court said nothing about the particular should here the district court recognized that this procedural posture is significantly different from turmel re of recognize that in i understand your position to be that the briefing on the non sovereign immunity issues is the burden and what i'm curious about is you know there is some ambiguity in the way our cases talk about litigation burdens it is clear that the immunity is not just immunity from liability it is immunity from suit and cases have talked about discovery and trial perhaps you can answer but my question is is there any is the talks about the burden of lawyers we fam and you see the distinction i'm making the garage and i  the notion that the actual laboring war is undertaken by the workers for the sovereign as opposed to the seven itself i don't think i don't think that's a need for the sanction obviously the subdiscipline is still under some obligations to assist counsel in the defense in presenting that center necessary they have to pay when the burden is there and my understanding though that there is no case in the circuit where there was no collateral but there was we could have who ran the risk that it would have been the night because the appeal was a sufficient vehicle to address the issue because of the rights of the son but collateral order darkroom requires if we're we're talking about how a district court is structuring its briefing orders and you make a fair point that that could implicate to one degree or another and immunity but it's on the margin and what would be wrong with saying that mandamus is the vehicle if the district court does something really six issue rather than an issue where you need to where the defendant would want to put on evidence collection and the district court couldn't even make the sovereign file an answer that's another when a district court is managing jurisdictional discovery on the scope of sovereign immunity correction but not every discovery order in that context qualifies as a collateral or right mandamus is the vehicle for policing your iraq contacts i would i would agree but there you know the the principle  at least that category of orders where intrusions on the sovereign student of the year police through mandamus rather than through collateral order appeals pressure all of that in those those instances where we are now in the discovery  district argued that recognizing that this was an open question but if we were to rule in your favor then whether this report said that or not sarber council would say we're going up  going up this is too much and in fact i mean one question i'd be interested in knowing from you about is in many of these cases with foreign sovereign immunity claim that immunity is quite intertwined with american corrections and i wonder how you could answer the concern that we would have a lot of appeal saying well that's too far into the merits you don't really have to asians at the threshold of the case he said so be doing because that is how important this principle of community here is how important it is that it be resolved be or any other aspect of the case is  t it's typical in these cases that the sovereign does respond on immunity grounds and on other i mean you know motions susceptible defenses in one filing and it's your position that they do that as a matter of you know they do that montero only but that if a court wanted to make that the standard practice it would lack of power to do that yes you're exactly that the court's analysis can start and stop at the collateral or the doctrine without struggling with what or how much burden it is enough or too much and that reason is that there really is no case where the appellate court has determined that very district judge had not actually made a decision that the district judges actions somehow constituted some effect of decision and therefore the party had a right court's decision that the sovereign against its will can be forced to brief marriage issues together with immunity issues i heard of your firm ruling and the district court indeed stated its proceedings so that that question could come up to this court i agree your honor that the court not actually issue a decision but perhaps being kind of about what it might do with not qualified however here  what we have is not an actual decision on your station in every case that has been cited in these theories no matter how the parties of characterize the hobby of public court is characterized as the actual order by the district judge just said  now we create an entire category that is very murky of anything that could happen in a district court that is not an actual decision on an issue but some type of behavior by the district judge that subject constitute an effective decision and i would say this is completely impractical as a matter of judicial administration to say that parties can fit within the cloud order doctrine by citing practical effects of a district  immunity right i mean there are two different aspects one is the merits issues about the waiver exception and the arbitration exception the other is this procedural aspect of immunity which is do they have a right the sovereign to present all of its merits issues together with its immunity defense it actually did not order the sovereign to present any particular arguments it basically allowed the sovereign to say whatever he wanted to say and said give me give me all of your jurisdictional and merits defenses to gether this is the sovereigns one and only chance to litigate confirmation action i believe that perhaps some of that might have been implied based on some readings but the court did not actually literally order nigeria could brief any particular issue it basically ordered nigeria to respond to the petition and allow the theory of to raise any arguments which said had supposed they had filed something and raised three merits to fans and then later in the case they sought to raise a th you have any doubt the disorder would bar them from with however i think where we are talking about what is the court actually ordering them to do and is it actually a decision on the issue of jurisdiction such that any party in the future in a district court proceeding could come up here and complain about it i would submit that if you read into the notion of what the judge might do one jurisdiction issues where the fact that he ordered a responsible condition to come at a particular jurisdiction st in the allowed nigeria to appeal if they deny saddam the right there is no indication of that in this work that's correct is there any indication of that otherwise perhaps decide to merits in say you know i'm not going to decide something correct just because this is a petition to confirm an arbitration award so what we're calling the merits here in fact is just one confirm that would be ok i think that would actually not be physically possible because it is an integral part of the petition confirm arbitration order that sovereign immunity actually be brief because the petition and i would say that your honor the district judge here was trying to decide jurisdiction st because in harken pay obviously that is not an arbitration word confirmation proceeding here federal statute has set out that the way that these proceedings go is by motion now the district court here chose the least burdensome type of motion practice one could have which is one motion on the issues that are already in body and what it means to confirm an arbitration award so he did not expand the proceedings  motion that's correct it doesn't prevent a twelve b one motion from the defendant doesn't prevent either party from seeking discovery doesn't prevent either party from seeking to introduce live testimony or cross examine witnesses or anything remotely like that nor does she says she cheat when you teach this up you don't file something that's called a choose to say that section six doesn't do all the work that you attribute it to which is to automatically as a matter of law compress all the issues into one round or brief yes i agree that it doesn't do that section six does not require this trip just to do it by one motion ok so then if we're back to ordinary principles of foreign sovereign immunity we have pretty settled law that a court is supposed to decide the immunity st even if development of the immunity issues requires discovery and fact finding and such as as early as practical yes i believe that the guys as early as practicable and i would submit that where you have a district judge operating within a legal construct that directs him or her to motions but i believe it's within the discretion of the district judge as to how he wishes the particular issue of issues in the petition to be heard and i think to create a category where you have a arbitration confirmation proceeding which the statute says has to be done by motion and where does the word does not direct the district just do it by one or multiple motions by the senate the district judge or the expand the scope of the proceedings to beyond what's necessary to confirm your position where you would have a potential of your position i take it it's is confined to arbitration confirmation proceedings that you're seeing that is a different kind of proceeding supposed to be very abbreviated  order requiring the twelve team on foreign sovereign immunity motion to be briefed and decided together with all other correct i would say that is depending on the facts potentially vulnerable command davis or because i believe that well it's not final in the sense that it doesn't resolve all aspects of immunity but is that different from say the district court denies a foreign sovereign immunity motion at the motion to dismiss stage and says come back to me on summary judgment when that's not only fin by mandamus if it otherwise satisfies the requirements if one creates a category of this virtual decisions that district judges could be deemed to have made without actually making a decision i would say it basically swallowed the falls of the entirety of what could happen in industry or proceedings and i was in that could occur multiple times in the proceeding after the st influx were appeal of some action by a district judge that's deemed to offend the dignity of a sovereign that that same dignity could be offended yet again doctrine to try to have a district judges understand what they're supposed to do and up to you your opponent's position is broad but it doesn't seem to me it's murky they want a bright line rule that in confirmation cases like other cases the immunity issue gets decided st period full stop and you do what you brief it you develop the facts you have discovery have a mini trial you do whatever you have to do to resolve the immunity before you go on to other issues i believe like not a hard rule the understanding right i believe my posts in this position is murky on the cloud or doctrine but it's quite clear as your other points out on the erg biocon this position is that friend on the other side in the case goes back and we stand with a rule that binds district courts going forward what would be murky and how that is implemented i mean the district courts in future cases will get the f a a petition and if the sovereignties up does a twelve the one motion and says no we really are immune that issue will get litigated in and actually issue it will believe that part would be quite murky because of that and was a configuration of different events that can happen in a district court proceeding that could be deemed to have been a offense to this artistically except that the district course management of the immunity part of the case and if we have this strict sequencing worl it would still be the case that the district courts management that was abrogated here and we sent it back we've got withstood because we're splitting hairs but i actually think that that would go to the issue of whether it's too much burden such that they can't be made to do discovery they can't be made to stand trial they can't be made to answer a complaint on the merits and you have cases saying they can be made to do a saddest conference on discovery they can be made to be subjected to jurisdictional discovery and there's just a legal question about whether this kind of joint briefing falls on one side of that mine or the  other correct but then the opinion that this court would have to right is that the scheduling order issued by the court is an effective denial of immunity as opposed to a decision on the issue of immunity and i think that categorical black and white distinction is and ninety two would require for this isn't to actually have been made and here there is no decision on the new day that has been made at least not the way that any other court has ever to find a decision and every scase cited the district i think the way you can interpret that is that this district judge was actually trying to do what the law guides and to do which is to minimize the burden on the sorry so to keep in mind unlike the cases where the depositions we discover your other things that have not yet occurred here the very argument is nigeria's complaining that it would have to have put into the assets of the petition that response to the petition had already been briefed so really a cut and paste job instead of the one brief on immediate issues that they had already written and submitted to the district judge we now have a year later an appellate proceeding and i think i know with us some interest that intensive and if that was their position they could certainly that and then have the district judge asked the district judge to consider here the st before going into a fact finding therefore relieving them of the need to actually have but the district court has said conclusively has ordered them to present their new york convention defenses but it did not skin to involve factual development i mean your your opening submission had five hundred pages worth of attachments and they're the ones with the burden of establishing new york convention defenses and those oftentimes involve factual well if in the initial submission whatever nigeria already knows as to why the petition should not be confirmed factual or not does have to be submitted so burdensome or not the procedure for right but  you're treating that as if it's some minor just a little bit of extra briefing it's not that it's the development of factual defenses that  are likely to be pretty complicated or i'm treating it that depending on the case it could be a lot or it could be a little but in a position to confirm an arbitration award where the contemplation is that there is one motion  course if there's more fact finding that's a serial b other issues with or hearing or fact finding but where the statute already guys the district judge to do this by the ocean it district judge says let me see your position in response to the petition whether it's factual whatever or if the response is we need more fact to move me see your whole case not just the equivalent of an answer where they say admitted denied whatever i don't believe this district judge required nigeria to submit its whole case it is hard to submit an answer to that edition and it is quite common as seen in all the arbitration confirmation cases for parties to answer a petition and argue that more factual development is necessary so that typical request for some kind of factual development i don't really know statistically and no it's uncommon but not unheard of to for a party which is in any motion whether it's a summary judgment motion or perhaps one side moves to dismiss and it is really treated just like whether a summary judgment motion or a motion to dismiss would be then the district judge has to make a determination are the factual allegations being made sufficient to cause me to have to do some type of discovery or can i resolve it based on what the parties and  quite parallel to what we see in cases in federal court that don't involve arbitration confirmation where if you're filing a response to a motion to this mess or if you're filing a motion to dismiss under these the points that you wish the court to consider district courts typically do not require parties at that stage to present every piece of evidence that could possibly exist on the issue but it does wish to build what your position is and if you have any facts are your possession to advance those facts particularly words of arbitration confirmation where you have district judges thinking you're supposed to do this by the ocean and all this district judge wanted was an answer to the actual motion on the issues that are already embedded the full belong presentation of the case with exhibits and factual argument is simply the rough equivalent of an answer and it's a pro forma document which says there are disputed facts so we need discovery or hearing or whatever may not really under cuts your view that arbitration cases have to be treated very differently because the f a a mandates this summary compress proceeding well i think the special thing about ar to treat it as a motion as motion practice the district judges can do this by multiple motions or one motion but if the public court is going to tell the district judge that now even though the statu doesn't require that a petition to come from arbitration work now mostly broken out necessarily into multiple motions regardless of what the district judge feels and then the st motion has to be a jurisdictional motion so that that general sovereign immunity principles which are decide the jurors decide the immunity question st but the f a a does already essentially declare that a sovereign does not have immunity sense of how this is taken care of in other jurisdictions where confirmation proceedings are brah you mean other countries with the practice various quite a bit your convention does not require to be one motion or multiple motions however where i do think that your convention is relevant to this discussion is that nigeria is in your convention country so you have a sovereign that not only should expect by operation of the f a a to face eight at least one motion words as motion practice at least one motion to confirm an arbitration work and the factors for doing so or you will know but you also have a sovereign to signed on to the new york convention therefore i think the notion that nigeria  has not already have essentially expected that this is only of these having to answer at the petition as directed by the district court is a violation of the sovereign immunity i think is really on valid or that there is no award and then that's possible that will lead to a possible decision of a perfuse all to confirm deal wore on the basis of immunity however that does not prevent the district judge issues in the district so that that issue is is not here i think that that concern mr krueger oh is that in a case in which a party is starborn has agreed to arbitrate and that's open and shut take an appeal and then that as we know depending on the circuit in this country can take you know months to even years and america is back to the district court and they begin the is there anything in the statutes is there anything that would support the notion that this is different that that that the doorway issue creates some sort of an exception and i would request that the court take a walk at the recent case th don't think that their concern is is irrelevant we make a couple things also here st of all you're asked a question about the new york convention the new york convention itself has nothing to do with motion practice there's nothing in that convention that talks about provisions from chapter one of the f a a the domestic section there out of wise inconsistent with the convention has helped get section six in motion practice that there actually is something which is that the convention itself says that the sovereign has the burden of proving the defense which suggests this is done by evidence not just not just on paper correction and just to that