with japan and america that was put forth in one nine hundred fifty three that it was never intended for and the reason it was never intended for this was intended to allow japanese nationals to come into america with management positions and in this case there's nothing in the record that mr crawford was ever replaced with a japanese national and even assuming that there is mr crawford is a technical expert when you look at the language of the cases that was cited by mr brower in the original opening in reply briefs it makes clear that it's meant to allow free commerce between japan the treaty and it was the people that were on the commission that put forth the language that they wanted to allow free trade and i think it's important maybe historically to remember the countries and for old were involved in world war one that the third reich and hitler roast power so based on that and history the united states after fifteen germany in japan with world war two didn't want to make when you look at  why federal district court against the two japanese corporations plans airlines in japan airways however the application against white aviation services it's already been severed is going to go forward now all of the claims decided arbitration if you win and we reinstate japan airlines in the us there is a strong suggestion in the papers that japan airlines arbitration and the reason is because they chose to file motions to dismiss the claims against him rather than filing a motion to stay the federal court action pending arbitration well if we if we assume that they're back japanese corporations have never filed a motion they could have filed a motion they waive the twelve c federal rules of procedure if you don't raise an affirmative defense it's even questionable when you look at the and take counsel they moved to arbitration proceeding now because they chose how to proceed and they chose rather they won now why would it be unfair if we reinstate them to give them an opportunity to do whatever they're going to do with regard to the arbitration or move to billet occasion in federal court and in the outcome of the arbitration so they compared to submit it or file some sort of a motion to convince the district court that they should not be compelled to arbitrate because they're thank you our andrew pepper on behalf of japan airlines and with me is steven exile my partner i do want to clarify one thing about the time i'm not in any way involved in the third case today there's three appeal so i'm not splitting time with we've never been involved in an arbitration process and we went the route of litigating and making motions is they have a written arbitration agreement japan airlines in general ways my client do not have arbitration agreements were allege that we are the employer however they do not allege that we're party to any sort of arbitration agreement that's a separate issue here to decide whether or not you have to arbitrate are we were are we're just here to determine whether or not it was an error japan airlines from the case and to the extent mr ventures wants to challenge venue etc correct so if i why don't let's not waste time on whether or not you have to participate arbitration the district court can take that issue up as you see fit to raise that if we reinstate you to the case and reverse the dismissal or ok as well as i understand what kind of appeal because i look at the issues presented on appeal all this on appeal and it doesn't have anything to do with the transfer of venue or any of that the sort of stuff that you're discussing the transfer of venue is not on appeal the by the way the choice of law is not an appeal they move to convert the case to hawaii law they lost that issue they did not appeal that was not in their statement of issues on appeal so california law shall apply since they filed here and they allege that the offenses against public policy occurred in california so california law does apply so right like the start is that basically on the easy point which is mr crawford exclusivity and you win on the treaty they've only challenge the treaty grounds so when you address the treaty ok this court at a firm on the worth campana would like to hear your five k my position on the treaty is that the treaty is clear on its face the treaty says that companies from japan main gate each person now certain personnel technical experts and specialist of their choice it is an absolute grant it is not a conditional grant is inconsistent whereas an obstacle to the accomplishment of the purpose of a treaty and that's what that's where we are we have a problem with this river didn't the district court dismiss this action based on it interpretation of the clause and in essence declare that there is a blanket immunity for japan airlines for any employment related claims by virtue of the wording of th well what the court found was that there is blanket immunity for any employment law that frustrates or impedes or is an obstacle to the execution or accomplishment of the trees purposes and objectives and the tre environment for private international investment so basically what they're saying is and what judge chain was saying is any employment law a state employment law not a federal employment law a state employment law under the supremacy cl way it impedes or interferes or puts a burden on the free investment of foreign companies that we've entered into these treaties with the issue here whether the treaty thing plea guarantees the right to the lack of the nationals of the foreign country for these key positions in order to protect the investment but that the treaty recognizes that there will be  equal treatment between domestic companies and these foreign companies with respect to the application of all other domestic law you know your i think in the title if the problem with this case is that there's very sparse law when you're dealing with a state law and all of the cases that are in the briefs have to do with a conflict between the treaty and federal law title seven or the eighty eight and the treaty and those are those are laws of equal dignity it's federal law versus federal law so when your position would be that had they allege that title seven claim in this case japan airlines would be amenable to them to defend such a claim notwithstanding the provisions of the tree the answer actually your honor is no because i think those cases are wrongly decided first of all second of all in every one of those cases after going through this long analysis of title seven in every case they harmonize it and they convert national origin discrimination and rac a nation they call it citizenship discrimination and they say in the end it's ok but suppose it was based on age discrimination with japan airlines have been amenable to a lawsuit if mr crawford or mr ventris alleged that the real reason that they were fired was because japan airlines simply decided to lay off older employees so they could replace them with cheaper younger employees well the answer is no your honor but i want to make no no answer is no they would not be amenable even on the federal level but especially on the state level titles including the record nothing to do with the nationality of the employer right because this particular treaty is unconditional and i can i want to point out something that in the earlier cases in one thousand fifty one if you look at the treaty for instance that was passed in the greek case that the whips case that says regardless of nationality it's a grant and then it's a restriction on the grant and it's discussed in that which case they say it's an absolute grant that then they condition the grant two years later the same guy at the state department negotiates a treaty where they take those words out they take out the because of nationality and they make it absolute and in a discussion of all these three languages they say there is national treatment most favored nation streetman and then there's the absolute grants and the absolute crap has the purpose your honor of and this again is from spice it says absolute rules are intended to protect the vital rights and privileges of foreign companies in any from any state laws like the labor relations absolutely are almost all of those plants are incorporated american subsidiaries of toyota so for instance the horton case which we cite made that distinction totem motor corporation of japan w be immune but toyota motor corporation of north america is not the supreme court was very clear that if a japanese company incorporates an american subsidiary they're not protected by the treaty you have to be a branch office you have to be a true in japan it's not a it's not your pan airlines america it's an incorporated japanese subsidiary and the ugly on a case the supreme court case says only if you incorporate an american subsidiary they make a distinction between branch and subsidiary a japanese subsidiary is called a branch an american incorporated subsidiaries call a subsidiary and that's in the if they get out of this your position go further than what we understand from the history of the treaty it was intended to protect and the purpose being to protect the investment ranting in this case the japanese company the privilege of filling key positions in the company with its own nationals notwithstanding any preferential hiring laws federal or state that might otherwise attend to the hiring of people in the united states but beyond that they don't get any extra privileges if they're going to be competing as i soon japan airlines does with domestic american airlines they're going to be susceptible to the same laws as long as it doesn't have to do with the filling of these key positions as any other company doing business in the united states your position seems to be to say no they get a leg up they get an extra benefit that's not available to any competing master company n are and i'd like to just quickly judge goodwin's question about toyota this isn't for all employees it's for a very narrow band of senior executives these guys are senior executives well they're specialists though they're technical experts that has not been challenged on appeal they've acknowledge company can only protect its interests its private investment in america if they used people of their own race from their own country oh no it gives them the right to do that if they wish they don't have to put japanese nationals in those specific and higher american pilots if they want to if they wanted to but beyond that they don't get any special exemption from any other laws that would otherwise pertain whether they be labor and employment law or tax law was whatever it might be the treaty doesn't address any of that does it judge this is only in a narrow area of the employment of these people at the top tier of the company and the answer is yes they do get a special  relationship with this country the whole point of this was to exempt them from the constantly evolving constantly changing rules that our company has for indigenous companies in the area in other words if they do  an american your conditioning their choice you're violating their their absolute right of choice if you say if you hire an american you're going to have to submit to things like whistleblower laws because if that's the if we just replace them with japanese citizens were home free that's institutionalizing racism but more importantly it's institutionalizing take conditioning of choice because we might not want to hire japanese we might decide like  gives i think the problem i'm having is and i think the law draws a distinction between the the initial filling of the position and then the subsequent liability that otherwise attaches to all employee that doesn't have anything to do with nationality or raise and you're trying to say no no it's much broader than that for these key positions not only can we choose anyone we wish whether they be japanese nationals were americans but once they fall into this category the company is blank from the application of any other laws that would otherwise attach to the company you know any law your honor that would impinge upon the choice and what you're proposing here are is that once they're in the position then they're subject to basically lock in and what the creator last case pointed out was that the right to to employ or to engage is what the treaty says is the right to disengage that nobody intended in one thousand fifty three that you have one clean shot you can employ all the people you wanted however you want to select them without regard to american law and then after you selected them you were locked in and any change in terms of terminations or disengagement that employee would somehow fall into the mall of american law again remember the intent of this was to protect japan from being subject to situations that were changed in other words it and if you go all the back to eight hundred twenty one to the isabella case we cite they say that sometimes treaties result in what they call imperfections in difficulties that when you're when you're dealing with a foreign country and you make a deal so that you have you know if your friendship commerce and navigation that's sometimes in achieving friendship in commerce and navigation you yield some right and that leads to imperfections and difficulties and i know the court is sitting in two thousand and seven and trying to apply the fairness and the the sense that everybody deserves a remedy and everybody gets their day in court you know i think what we're trying to do is we're trying to figure out what was behind the treaty in order to interpret this go with the language ok the intent design or stand it again the animating purposes that is described in the case law was to provide a stable platform for international private investment and to do that what they wanted to do was allow at the senior level again they're not running rampant in this country they're not treating blue collar workers wrong they're not engag child labor violations there are few c e o s who would be a child labor situation is that when you've got your c e o s your attorneys your countenance and certain specialist technical people you need to run a technical company pilots and flight engineers in this case at that level indeed they do have special rules at that level a japanese company has the right to engage who they want and to disengage and not get tangled up in american law and that very very important because otherwise you don't want to situation this court does not want to create a situation where after you make a ruling japanese companies say to themselves the only way to stay out of the tangle of american law is to send japanese citizens out to run our companies and to answer judge goodman is that really what the treaty should be meant to say and you want all the westerners who are hired a senior executives in these japanese companies basically terminated in favor of japanese national three points if you get to the merits on the motion for reconsideration the district court was correct in denying it but before that there are two other questions one is whether that order was even a way aviation's motion was a motion to compel the arbitration i'm stuck with her but that's not appeal of that's not right that's not appealed so you're going forward with the arbitration correct with or without japan airline credit and i would like to get at least my car