Procedural Posture and Purpose

This document is an amicus curiae brief filed by the Republic of Bulgaria before the Supreme Court of the United States. Bulgaria submits this brief in support of the Kingdom of Spain's Petition for a Writ of Certiorari, which seeks review of a decision by the U.S. Court of Appeals for the D.C. Circuit. Bulgaria, facing similar litigation in U.S. courts concerning the enforcement of an intra-EU investment treaty award, asserts a compelling sovereign interest in the resolution of the questions presented in Spain's petition.

Arguments in Support of Certiorari

The brief advances two principal arguments for granting certiorari. First, it contends that the D.C. Circuit incorrectly interpreted the arbitration exception to sovereign immunity under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(6). Bulgaria argues that the appellate court's holding—that an arbitration agreement exists for FSIA purposes merely upon the production of an investment treaty containing an arbitration clause—is erroneous. It posits that, under established principles of contract law and EU law as determined by the Court of Justice of the European Union (CJEU), the Energy Charter Treaty (ECT) does not contain a valid, standing offer of arbitration from one EU Member State to investors of another EU Member State. The D.C. Circuit's failure to conduct a threshold analysis of the actual existence of an agreement, treating it instead as a question of scope, is presented as a critical legal error. Furthermore, the brief argues the D.C. Circuit improperly resurrected the 'nonfrivolous-argument' standard for jurisdictional determinations, which was expressly abrogated by the Supreme Court in Helmerich & Payne Int'l Drilling Co. v. Bolivarian Republic of Venezuela.

Second, the brief argues for review of the D.C. Circuit's blanket prohibition on the doctrine of forum non conveniens in actions to confirm and enforce foreign arbitral awards. Bulgaria highlights a circuit split on this issue and contends that the D.C. Circuit's inflexible rule is inconsistent with the FSIA's principles of comity and the Supreme Court's precedents favoring a flexible, case-specific analysis. This prohibition is particularly problematic in the context of intra-EU awards, which involve complex and dispositive questions of EU law that are more appropriately adjudicated by EU national courts and the CJEU.

Relief Sought

Bulgaria respectfully requests that the Supreme Court grant the Petition for a Writ of Certiorari to resolve these significant and recurring issues of foreign sovereign immunity and federal court jurisdiction.