dissenting.
The undersigned joins the majority except for a substantive concern pursued by appellants which has not been considered by either the District or this Appellate Court.
Plaintiffs’ belatedly presented an affidavit on German law as a basis for their motion to reconsider the District Court’s order of dismissal. In citing German Code of Civil Procedure § 38 appellants continue to argue that if the German forum selection clauses are enforced as ruled by the District Judge, plaintiffs will be deprived of their day in court. They contend that Refco will be unreachable by these plaintiffs because German law prohibits a non-party to a contract containing a forum selection clause from being bound by that clause and Refco will simply assert the Chicago forum selection clause when sued in Germany rendering it immune from suit by plaintiffs in all jurisdictions. In response Refco says in effect we don’t know and we don’t care — too late. Footnote 15 of Appellees brief states: Because the affidavit was submitted belatedly, the Court cannot know whether a counter-affidavit would have demonstrated conclusively that plaintiffs’ affidavit was incorrect in its description of German law. Counsel’s comments were no more helpful at oral argument.
The majority recognizes the importance of plaintiffs’ argument and agrees that unless the forum selection clause is enforceable against Refco, Refco might not be suable in Germany at all, in which event the clause by its own terms would authorize the plaintiffs to sue Refco elsewhere.
Having said all this let it be understood that the undersigned is in agreement with the majority that the district judge was not obliged to consider this belatedly considered affidavit and if “such a procedure were countenanced, some law suits really might never end, rather than just seeming endless.”
Nevertheless, an exception should be made where plaintiffs may be deprived of their access to court altogether, or are sent to Germany and return for that eventual relief to which they may be entitled. This could be avoided where the single, significant issue could be resolved at this time by either sending it a few floors down for limited remand with directions or providing a supplemental briefing schedule for consideration by this Court.
It is fundamental that on appeal to this court a litigant is restricted to those arguments which already have been raised at the district court level. There are narrow exceptions to this rule, “where jurisdictional questions are presented or where, in exceptional eases, justice demands more flexibility.” International Travelers Cheque Co. v. BankAmerica Corp., 660 F.2d 215, 225 (7th Cir.1981).
Old Republic Ins. Co. v. Federal Crop Ins. Corp., 947 F.2d 269, 276 (7th Cir.1991).
Although the argument pursued by plaintiffs may not be jurisdictional, nonetheless, the circumstances of this appeal appear to be exceptional.
The general rule is that an appellate court will not consider an issue not raised in the trial court except where the obvious result would be a miscarriage of justice or where failure to consider the issue would be inconsistent with substantial justice. See Gregory ex rel. Gregory v. Honeywell, Inc., 835 F.2d 181, 184 (8th Cir.1987).
Estate of Vak v. C.I.R., 973 F.2d 1409, 1412 (8th Cir.1992).
Believing this to be an exceptional case and that failure to consider the issue of German law would be inconsistent with substantial justice where that determination could be readily resolved by either this or the District Court, I dissent.