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Procedural Posture
This supplemental brief was filed by Respondent Blasket Renewable Investments LLC before the Supreme Court of the United States, urging the Court to deny the Kingdom of Spain's petition for a writ of certiorari. The brief responds to Spain's petition and addresses arguments raised by the U.S. government as amicus curiae concerning the enforcement of an international arbitral award against Spain.
Key Legal Issues and Arguments
The brief advances two primary arguments against granting certiorari.
First, concerning the interpretation of the Foreign Sovereign Immunities Act (FSIA) arbitration exception under 28 U.S.C. § 1605(a)(6), Blasket contends that the D.C. Circuit's decision was correct. It argues that subject-matter jurisdiction is established by the foreign state's agreement to arbitrate with "a private party" in an international treaty, such as the Energy Charter Treaty (ECT). Blasket asserts that the FSIA does not require a U.S. court to conduct a de novo jurisdictional inquiry into whether the specific plaintiff is a "covered investor" under the treaty. Such questions, it maintains, relate to the scope of the arbitration agreement and are properly resolved by the arbitral tribunal, subject to limited judicial review under the standards of the New York or ICSID Conventions. Adopting Spain's position, the brief warns, would improperly transform merits-based issues of treaty interpretation into threshold questions of sovereign immunity, thereby undermining the international arbitration framework.
Second, the brief addresses the circuit split on the applicability of the forum non conveniens doctrine to award enforcement actions. Blasket characterizes the split as "shallow" and "inconsequential," arguing it does not warrant Supreme Court review. The brief posits that even in circuits where the doctrine is available, it is highly unlikely to succeed in an enforcement action against a foreign state, given the summary nature of confirmation proceedings and the inherently international character of investor-state disputes.
Conclusion and Relief Sought
Blasket concludes that the D.C. Circuit's decision is correct on the merits of the FSIA issue and that the forum non conveniens question lacks sufficient practical importance to merit certiorari. Accordingly, the brief requests that the Supreme Court deny Spain's petition.
