parties to go forward in a consolidated proceeding that is directed the underwriters to name one arbitrator and to participate in the selection of one pirate let me rephrase my question did the first petition seek an order to compel arbitration on a contract by contract basis yes that did your job that would be in effect non consolidated that would be one consolidated yeah so that asked in effect asked the court to rule on the gateway issue of whether there should be consolidation or not in the first order the first the petition that underwriters fall file asked for an order consistent with or under the terms of section zero six of the convention or the the act that implements the convention on on for an arbiter or wards for an arbitration that would proceed in accordance with the contract now tonight on any legal basis as i read it just record tonight in the first order and there's no showing that craven's had defaulted on its contractual duty to arbitrate yes that's correct what's wrong with finding because the petition that underwriters filed was asking for an order that the arbitration go forward in a cordons with the contract and they have the right to do that under section six of the convention on one form arguable awards so at that point it wasn't enough for the district court simply to say you underwriters go forward in accordance with the arbitration demand with the contracts but it's our view that it wasn't consistent with the contract since the contract provides for contract specific arbitration and not for a consolidated proceeding that gets back the question of who decides that because what judge la did first of all he denies your motion and he says craven's is not the fault that it's contractual the due to arbitrate respondent has initiated arbitration proceedings in the court declines to set the terms they arbitration right there's nothing wrong with any of that contract but under the so called reinsurance program maybe if i switched the facts slightly and give that give a hypothetical let's say that the arbitration clause provided that the parties would appoint an arbitrator who was that turns out the bill sullivan is an attorney who has never worked for an insurance or reinsurance company at that point the underwriters could go into court and ask for an order under section two zero six that the contract there was already a try penal that wasn't paneled pursuant to the contract in each of those cases at the beginning you have an arbitration piano in place and the question is is that panel going to decide this particular issue or that particular issue and first options the supreme court said that questions of arbitrary ability won't be decided by the panel will be decided by the court in hell some they said questions court reached the discussion of whether the issue of class certification was for the panel or for the court the court made the following statement and this is on page let's see i'm reading from us court page four fifty ok roman numeral two of the opinion and in so far as the other class members agreed to proceed in class arbitration they consented as well and i believe that what the court is doing there is it's making the poem unary point that there is an arbitration panel place pursuant to the contract because it's quoting from the contractual language in that section it then goes on to decide the issue who should decide the question of class petition to compel arbitration period in accordance with the contracts yes just that you just want to get arbitration under the contract right without any attempt to foreclose the question of consolidation that's correct and that point becomes explicit when we respond to the cross petition that the cravens dargon made craven's dargon then without realising that the court had already disposed of our petition appointment of an umpire and then not be honorable to side the consolidation issue in opposition to that the underwriters said expressly what should happen here is there should be four panels put in place as per the contract and then the question of consolidation should go to those four pianos so in some strange sense you have common ground between what the underwriters are saying and what craven's dargon will say the question consolidation is for the panels or the panel the question is what is it one panel which is set up in response to an arbitration demand or is it four panels arbitrators on the question of whether it ought to be consolidated or not well that may be a problem and so there are some questions of the fish and see they are in the court may say well that doesn't really make sense we don't think you should go forward that way but that concern that you just raised your honor is a concern of public policy or efficiency and arbitration is a matter of contract and i understand that and i'm just playing us out of it well as a practical matter what would happen if you don't mind saying what you care four pianos if they were successful in doing that then there'd be then they would be consolidated if they weren't then they would argue to each of the panels and they would come up with some sort of practical solution maybe joint discovery maybe joint hearings whatever the arbitrators felt made sense given the context of the case let me come to your second question though why do we care let me try i assume it's tactical well it's more than that it's more than that i mean people spend a lot of time arguing about procedure because procedural matters let me let me change the facts a little bit and imagine that there was a consortium of people who buy real estate and they buy a piece of real estate from a property owner on colorado avenue and then under their contract they have certain residual obligations two years later they buy another piece of real estate from the same property owner and they use exactly the same wording but it's a different ten years later they buy a third property same wording different property same parties over time the parties get into a dispute over how things are operating the seller of the real a very general dispute up here and that the people who purchased the property that i think that the disputes are separate disputes relating to how each separate building is being managed  now in that hypothetical the seller of the property is going to want to have one arbitration because he wants to have the panel a panel of three people focus on this one overarching issue the people who purchased the property though are to want to have separate arbitrations because they want there to be focused on the individual issues with respect to each building so it was the policy issues so our the issues different with regard to different layers of reinsurance in this in this exist in this respect your honor it's not just different layers but it's treaties that cover different periods of time so for example the first treaty covers the period seventy two to i think seventy eight or eighty and then there's some success of treaties after that there are about thirty claims that craven's starred in contends are at issue here they're attached to their arbitration notice some of those claims only hit the first treaty some of the claims hit the later treaties so the underwriters think that the issues here are very claim specific so if they have a claim that just hits the first treat they want to have an arbitration that just deals with the first treaty praising starting on the other hand thinks that the claims are overarching so they want to have one consolidated proceeding that will get them at a very they said well they're only difference by layers but of course reinsurance being on the lower layer of the upper layer makes a huge difference so that's that's really a big difference it's not a technical difference you're on a you h petition if i could what craven stark and asked the trial court to do was to and i'd like to read the exact words that they used because i think it's important and this is that before him all preliminary matters of contract interpretation and arbitration proceedings must be decided and the district court granted that cross petition well not exactly what the district court did and that may be the difference in this case it simply says that the multiple arbitration theory will be presented to the arbitrator why isn't that procedural already to direct the appointment of an arbitrator it did not what it had the authority to do was to direct the parties to proceed in accordance with their contract that both the essay and the convention keep coming back court to create an arbitration panel to sit and decide issues affecting five separate agreements unless each of those five separate agreements provides is that the power to do that i'm going to i'm going to one contract i'm going to stay everything else all the other contracts and we'll see where your motion consolidate goes with the arbitrator on the first contract nothing wrong with that is there i think there would be because i don't believe that was wrong with the stay order that i think the two zero six doesn't give the district court the power to state the arbitration it is in the power to direct that the arbitration proceeding accordance with the contract and the other thing that i think is wrong with that way of dealing with it is one of the rights that the underwriters on each of the contracts have is to appoint their own arbitrator and absent very important right and it's actually a lot of the cases that craven started has cited both of the parties agreed that they would they would appoint the american arbitration association to decide issues for them and i think that answers a lot of the reasons why for instance for example consolidation issues that are coming up here don't come up the notes cases because the american arbitration association has rules for dealing with the consolidation issue and because both parties have agreed in those cases to let the american arbitration association deal with issues of consolidation the courts and i'm quite happy to say you made that agreement you go there and let the ai decide here on each of the contracts he underwriters retained for themselves the right to appoint an arbitrator so going back to your hypotheticals your honor if the district court said all right got contracts one two three and four and five i'm going to let a panel on contract one decide this issue that is going to have affect the rights of two three four and five the effect of that is to take away from the underwriters one two three four and five their right to appoint an arbitrator and that right is protected by section two zero six they have the right to appoint an arbitrator to decide disputes on their contract they retain that right they haven't given it away to the american arbitration association or anyone else and so the court even if i understand all the reasons of the fish and see and wouldn't make sense  uganda too there's some policy considerations particular in reinsurance contracts involved in major tour litigation or damage from litigation because you have the possibility of a lot of inconsistent results both on the law on the facts obviously if you're talking about what time periods or over what period of time damage your crews and and i for the typical spill toxic spill i mean those the possibility of inconsistent results is rather troubling from from a legal perspective from a policy perspective it's not just efficiency well let me wrap all of that and let me wrap all of those public policy concerns in and certainly engravings organs brief they say that what the these parties came down on a different side of public policy than what the court comes down and and i would say that that there are practical ways to deal with four or five arbitration panels and i gave you some examples of those another example would be for the for each of the panels to be aware of  decisions the others were reaching so there are ways of going forward in a practical way on this basis and there is real prejudice to my clients because remember arbitration awards are not reviewable in any meaningful  e and so people in business can legitimately say were only going to put so much of our liability before a panel of three individuals when we only get to pick one the other side picks one and their decision is not going to be reviewable and that's a legitimate thing for business people to to decide that they're going to have an off their potential liability in any particular arbitration and they did that in this instance by requiring that the arbitration each separate contract has its own arbitration clause and each arbitration clause provides that it will propose that it applies to this contract this seems to be you would think an issue that has arisen prior occasions i mean this is not an unprecedented situation as it has in the industry deal with the consolidation consolidation yes your honor the n c a a for example to the extent that arbitration clauses have a clause in them then then that's out with what they have their own rules they have their own rules that deal with this in terms of the reinsurance industry clause that deals with consolidation so certainly later on i think in the eighty's and probably coming into the ninety's there are causes available within the reinsurance industry to address this issue i can't tell you whether decision of the district was absolutely on the saleable outcome is completely correct and the courts are simply affirm and we start at the first order and judge thomas you asked the question you said what's wrong with what the district judge said with respect to the first order he says we've been asked t compel him stay arbitration that's denied because there's been no default of any contractual duty on the part of craven starting i still don't know what the contractual duty is that we defaulted on under the you know we asked for arbitration under our interpretation of the agreement and we asked them then to comply with that requirement they were tracing cause here is extraordinarily broad it is with respect to any difference of opinion with respect to this contract we had a difference of opinion with respect to this contract believing that the appropriate way to proceed was in a single consolidated arbitration that's what we made a demand for and we were ready to go forward they're the ones who ran to court and ask to through the consolidate the proceeding that's clearly not the kind of gateway issue that the supreme court identified houssam and greentree as something that the district court is supposed to entertain under any circumstances this situation is somewhat peculiar because is i read your demand for arbitration is not made under the contract it's  kind of a blanket demand for arbitration under the treaties without reference to the contractual provisions and there's i know there's a meaningful difference between the treaties and the contracts i mean the arbitration clause is abetted within the series of treating arrangements between and among the various underwriters and then those i think it's downstream so i don't and i don't think i mean obviously the only basis for seeking arbitration is under the arbitration agreement and argument obviously was  any specific agreement obviously we believe that there is an overarching practice that has been undertaken by the by the underwriters in the circumstance so paying their insurance responsibilities and so it covers i crosses all of the contracts yes and we wanted to have that pattern in practice evaluated by an arbitrator which we believe to be a difference of opinion with respect to this contract and every other contract that we have among the parties i understand why you w i'm just i'm just exploring whether you ever made the demand that qualifies as a man for arbitration under the contract contractual arbitration as opposed to a comprehensive request under the so called treaties i don't know that there's any meaningful difference between the two i mean we the other side has never challenged the adequacy of our demand well the difference would be that if you were going to demand on each contract there would be an  appointment arbitrators and each contract for each panel and that's that's would be the consequence if you made a conventional request for arbitration under the contract right well i mean you know did we have the discretion has the party seeking arbitration to make a demand that was specific as to each of the elements where it is to each of the specific arbitration provisions and try to desegregate it among larry's i said yeah i think we clearly could have made that kind of a request but that i don't the question is are we have blige to to make that kind of a request and is that an issue for the court to resolve as opposed to a question for the arbitrator but in the first instance the request for arbitration is contractual is under the contract and if you made  of any with the contract that would be an appointment of arbitrators under that contract and so you end up with four or five panels but you're avoiding that by making a demand that simply avoids the process of appointing arbitrators under the contracts well and that issue is it is perfectly valid one for the for the first article panel to consider indeed to have considered that issue and concluded that it was perfectly permissible to file the initial one arbitration panel demand and that that panel will hold on to all of these proceedings again at that the difficulty here it seems to me your honor is that there you know that's not that's not the gateway issue that's for this court to resolve the gateway issue is is there an arbitration clause is  valid and doesn't extend to the particular dispute between the parties and the answer to both of those questions is indisputable yes those are the two reasons but the question for you about that if you don't mind of course there are separate relationship it seems that it might be glossing over the particular contractors in other words there is no as i understand it there is no s  that ought to be submitted to the arbitrator ought to be decided by the court the court said no that's not right that that issue because it's an open question is itself a question for the arbitrator to decide and if it turns out at the end of the day that the arbitrators make a decision that this ought to proceed as a single arbitration it will be available at the end of the process for the other side to come to court and challenge that arbitral award on the ground that that panel exceeded its authority by disregarding their contract rights of the individuals the question is whether or not this court will intervene at the outset of the process rather than wait until the end of the process and that's the basis on which the supreme court house them and in green tree and candidly the cases that follow tree in the lower courts all say no the issue is one that you resolve at the end of the process not that you pretty proud are mit the consideration of the arbitration at the beginning of the process and that's all we're asking for is let's go forward with the so it's as it's been as we made the demand at this point there's no point in this court intervening let's allow the arbitration to go forward just ask the question what's the reason to go the other way and the answer is exactly the one you gave there is the tactical advantage of trying to make this more complicated and thereby presumably hoping to be able to force this to some kind of a resolution on terms that are more favorable to the underwriters i understand that tactic but it but it's not a tactic this required is a matter over that it's warranted as a matter of law and there's no arguably that be true although i'm not sure on what basis they would have they would have had a reason to demand an arbitration and they're just not paying right so they don't i mean they have nothing to complain about we're the ones who are complaining so it seems to me they ought to give the planet the benefit of the opportunity to go to the arbitrator in the first instance decide it up if they want to come in and subsequently make a difference and arguments before the arbitrator that would be a different a different situation but they have not made a separate demand for  demand of the various contracts we are entitled to do that it's not for the course intervene it's right now that's absolutely true as it happens i think in general the more you know the party asking for the arbitration will more often than not obviously see the more can the more efficient consolidated proceeding because that's the party who is getting the money and i basically would prefer to have the resolution of the dispute sooner rather than later and that's almost inherently going to be the case when you're following a single proceeding rather than have to go through all of the multiple proceedings going forward i do judge let's order yes it is going forward the question of whether or not additional panels ought to be brought out or should be identified has been rejected by the arbitration panel and they have and they are proceeding to resolve all dispute agreed all the first the disagreements among the parties so that's their interpretation of the contract palace of the way the winds are so that your demand and then they decision on whether or not to proceed in terms of consolidation that's correct you know and obviously under those circumstances you know with respect to the cross petition your honour's it seems to me in some ways that if there even if there had been an error there would be largely harmless because at this stage all we really wanted was to be able to proceed in accordance with our demand that they sought to wind the demand in a sense that was denied going forward and telling to go to comply with the way the demand proceed it seems to me to have done centrally nothing more than what was required of the arbitration agreement in any event so the there's no prejudice or at least none that is identifiable from my perspective and therefore you know the case is now going forward at this point it would seem to me to make no sense for this court to revisit any of these issues allow the proceeding to and if the if at the end they conclude that there's been some kind of there are prejudice ephedra then they're free to go back to the district court to raise that issue but i would urge the court not to intervene at this point and then over the questions i would urge the court to affirm thank you thank you directed the underwriters to appoint a single arbitrator and directed them to cooperate in the appointment of an umpire how you respond to mr phillips argument that at the end of the process you will have reserved a right to challenge that it's sort of a split decision the decision was too on the one hand go forward on a consolidated basis on the other hand the decision was that if you look at the arbitration demand there are list of thirty claims there and a huge concern that underwriters have is that a single arbitration really isn't the place to decide thirty complex claims and so the panel put in place procedures that will require craven's dargon to identify a more limited number of claims which will then be be heard for a decision in january of next year so if you will there was a shouldn't we just let the piano go forward we're giving guidance here not just in this case but in other cases and you have before you a statute section two of six which gives the district court the power to make accordance with the contract it doesn't require the parties to wait to the end of the day and take whatever limited appeal they have if the arbitration demand is not in accordance with the contract they can come in to court and have the court do something that's what we're asking this court to do we're asking it to enforce the rights that are given under section two of six and one final point i thought it was interesting how many times the question was asked of craven sargon counsel under what contract is this arbitration proceeding and i submit that that question was never answered because the arbitration is not proceeding under any particular contract it's proceeding according to a district court order and that's not how arbitration is supposed to work it's fundamentally opposed to the idea of arbitration being a matter of consent and the parties being able to structure how they are going to proceed and you try to get its they've the district court's order as order we did your honor you tried in both the district court in here and we were unsuccessful ye