view the award in question was not a commercial order that was rendered with respect to the legal relationship that was the ms has commercial under the federal arbitration that went invention with the  finding that the court made in its opinion in august of two thousand and fourteen was that di human had absolutely no relationship with their commercial or otherwise with the czech republic prior to one nine hundred ninety six when parties on the convention that is true the claim must read was that arise from a relationship which isn't as commercial the fact that there was an arbitration which so found and there was an award that and in the context of this particular case what the czech republic had been trying to do for years was dispatched by a human out of its contract with the czech republic diet he would have already performed it in modernize the operated under a framework agreement it had all the permits it did what it was supposed to do and it was barred in the conduct of the czech republic from getting paid for it there's no one is going to deny that that is what the case is all about but the point simply is that it's conceivable that you would have a claim based on exclusion from the tender itself but to judge you are correct that is the primary point that we were the only bidder we had the contract we did what we were supposed to do we were excluded from or known method of payment and that's what the claim is based on the questions we'll hear from the other side morning your honour's may please the court my name is elaine important and i'm here on behalf of defendant appellate and czech republic ministry of health as my opposing counsel has already discussed that the crux of this appeal really pertains to the issue of whether or not this arbitration and this award arose out of a commercial legal relationship not between human and another party a third party but whether it arose out of a commercial legal relationship between india and human and the ministry of health and that's because that's the language of the new york convention is that why you're saying that i guess your honor so i have a question of whether we're approaching this in the correct order so the supreme court has repeatedly held and so have we that the only exclusive way of getting jurisdiction over a sob or republic is through the foreign sovereign immunity set which suggests that the first place to look is not the new york convention which provides thirteen thirty one jurisdiction or rather the sovereign immunity as act which provides first section thirteen for and when i look at the sovereign immunity as act i get a slightly different question in my mind i look at a s with respect to a defined legal relationship so it doesn't even say arising under it just has to be with respect to that's what we said in the police case repeatedly question is related to with respect to then the second whether contractual or not and then the second requirement is the one that's relevant here the agreement or award is or maybe governed by a treaty may be governed by a tree doesn't have to actually  is governed by the new york convention just that it may be governed by the convention and we have two cases on this question one is the good as a bad case which says that all that's required for jurisdiction is a non frivolous argument that it's covered by the convention you don't have to actually establish that it's governed by the convention that is a cause of action question the jurisdictional question is only whether the claim is plausible i think it's a language and similarly in the short run case make the same point by emphasizing the maybe government so i don't understand what we actually have to establish here whether pursuant to the new york convention but a district court ruling for without only under stiction i'm right about that that's correct your honor so the only question is whether we have to that's the only question before us is whether the vers jurisdiction the district court right yes you're not here to discuss the merits we're here only discuss jurisdiction so isn't the case why isn't it the case i look at the two pieces of the foreign sovereign immunity say why isn't this the case this has to do with differences with of the attached final arbitration decisions and those things say whether they're true or not this is a question for another day but those things say that they had a framework agreement says it was signed they s nonetheless owned by or under the control of the ministry why isn't bad at all enough to create a plausible argument at least that there is a legal relationship and that the dispute here the letter was intended to disrupt that and eliminate that relationship well your honor as we discussed pretty thoroughly in our brief and as well as the district court second opinion after the motion to alter on the documents the additional evidence that was submitted with her status affidavit if you are if you look at the exhibits and you look and analyze the evidence we're talking about a proposal to enter into a cooperation agreement not an closing but you would turn to an agreement to get to the agreement right there has to like what they've done here now it doesn't whether they've actually done battle not they have a relationship they've agreed sort of to get to the next step of agreement it doesn't have to be a contract doesn't have to be a binding contract it just sort of is an agreement that we're going to continue to negotiate there's not what they have here well your honor i would i would respectfully say that under sort of basic contract interpretation in contract law they have an agreement to agree and then if you look at this memo we don't believe in ship whether warm weather contractual or not that's why much of the statute whether contractual not which suggests it doesn't have to be contractual well if you but if you look at the subsequent actions in this case of the ministry of health specifically the fact that after this cooperation proposal and after th draft framework agreement were submitted which were actually the the cooperation program was between the czech transfusion service and documents parent company and then the draft framework agreement was between d r human subsidiary company but if you look at the following that subsequent actions the ministry of health opened up this public bid process asking seeking companies to tender proposals for the very work that these this cooperation program in this draft framework agreement were addressing importantly d r g human did not contest that bid proposal it didn't object to it if it truly thought that it had a actual commercial agreement which is argued in their briefs or if it thought that it had a commercial relationship why not object to the proposal or dad why not but the only question here is whether this is plausible or her something binding do they have agreements with hospitals and trucks  submit any actual framework agreements but he submitted his testimony that there was there was agreements with some number of hospitals right he did but he didn't specify exactly judge i think athlete honed in on was the fact that while mr stott as affidavits spoke about these alleged commercial agreements or framework agreements with individual check hospitals and this was after that change in the czech hospitals i think there was reference to university hospitals but they don't directly control they're not entering into agreements with respect to those hospital longer basically ran the show with respect to these check hospitals there was basically a change there was a change in the law and alter the way that or would you describe the relationship between the ministry of health and true i thought your initial argument here you were defending the district court's position which was that this did not arise out in other words that the did not arise out of this relationship assuming there was one issue on that and so i guess my question is if if that's the argument aren't you ballons by at least the findings of the arbitration tribunals in other words what you seem to be arguing with the  that there was no relationship but the arbitration tried your home found in fact that there was and that it was a commercial relationship so i guess what i'm trying to figure out is think that there's there's multiple aspects to that question certainly the arbitration proceedings have continued in the czech republic and i don't know that that's necessarily something that i should address at th have continued i thought this was a final award you're saying that this is a final well there was a subsequent there was an appeal and the record it discusses the fact that both parties submitted an appeal of the final award and it point that this this decision came through which was part of that was part of our one of our arguments before the district court was that the award was not yet final and binding because there was an appeal to the i don't i don't want to get into it too deeply because i don't i don't i can't speak on it very specifically when you say you know what you mean by a truck court or do you mean by the by an arbitration an arbitration pan no i would argue now world in your i think just based on the limited narrow scope of the appeal and where the facts were at that point in time whole case is moot now because an arbitration awards been overthrown by the arbitration panel itself possibly ok for questions from the panel there right hopefully we'll hear something from the other side on th both sides took an appeal an appeal to to well under the structure that was agreed to and this is quite uncommon in this country there was an appellate process  the validity of that appeal was something that was very hard on you and i i guess i had assumed perhaps wrongly that the interim one was the way to the final one but that's not on the basis of the minimum agreed upon damages between both sides experts so the preliminary award became  correct i am a friend of the firm with respect to the final word that determine the quantum of damages remaining other than what both parties got agreed to in two thousand and two this was the subject of massive amounts of expert both their their expert and our expert submitted evidence what ended up happening was that the oracle panel selected the low end of damages as being what we were entitled to both sides took an appeal from that diet took an appeal on the ground that the award was too low czech republic took an appeal it wasn't clear what the basis of the appeal was because there's been clear findings of liability more as a result what happens next the result of that was a vacate anything what the what the anybody really good thing yes ok so why some of them are living on the bottom line whether you agree with it or not what's the bottom off the bottom line is that and as i understand the procedural point even if the worst action in this case the district court could not get to the merits is or say no i don't say that because as far as we're concerned the effect of that ruling by the panel in reality what all the work could possibly do was render the two thousand odd house i was asking was after the district court to determine whether that's correct or is that for the chinese you know it it may it may be that this record has to determine that but i know that they're other provisions in the new york convention for making those kinds of determinations by district courts would be the new york convention provides as a defense like a finale so if the convention ok so that's a six right bracelet that was the original based in the district court under the under of the a and why there was no possible defense of sovereign immunity and this court has the term a real case which so the term as far as i know so that was the basis for foreign state should not mean from the jurisdiction of course of the united states or the states in any case gooden in which the action is brought either to enforce an agreement made by the farm state with or for the benefit of a private party this is a mid to portray sion and your role there princes which have arisen which may arise between the parties with respect to a defined a legal relationship whether contractual or not concerning the subject matter  agreement or war it is or may be governed by a treaty or other international agreement in force for the united states calling for the recognition and enforcement of article words see the underlying claim save for the agreement or