Procedural Posture and Purpose of the Submission

This document is an amicus curiae brief submitted by the United States in the United States Court of Appeals for the District of Columbia Circuit in the appellate proceedings of Yukos Capital Limited v. Russian Federation. The brief was filed at the express invitation of the Court to address complex issues of subject-matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA), specifically concerning the enforcement of a $5 billion arbitral award rendered against the Russian Federation under the Energy Charter Treaty (ECT).

Principal Legal Issues and the United States' Positions

The central jurisdictional issue on appeal is whether the FSIA’s arbitration exception (28 U.S.C. § 1605(a)(6)) applies, which strictly requires the existence of a valid arbitration agreement. Russia contends that it never agreed to arbitrate because the provisional application of the ECT was inconsistent with Russian domestic law, relying heavily on a December 2020 ruling by the Russian Constitutional Court. While the United States expressly declines to take a position on the substantive requirements of Russian law or the ECT's provisional application, it provides authoritative analytical guidance on the proper framework for evaluating foreign sovereign immunity, issue preclusion, and international comity.

First, the United States asserts that the existence of an arbitration agreement is a threshold jurisdictional fact that a U.S. federal court must independently verify to ensure it does not exceed its jurisdiction. Second, the brief addresses the preclusive effect of foreign judgments. It notes that while U.S. courts are not strictly bound by the Swiss Supreme Court’s prior rejection of Russia’s jurisdictional objections in the set-aside proceedings, U.S. courts possess the discretion to afford such foreign judgments preclusive effect. The United States advocates for a searching comity analysis under Hilton v. Guyot before applying standard issue-preclusion doctrines to foreign court determinations of jurisdictional facts.

Third, regarding the deference owed to a foreign sovereign’s interpretation of its own law, the United States emphasizes that under the Supreme Court's standard in Animal Science Products, such views are entitled to "respectful consideration" but are not binding on U.S. courts. The brief suggests that the Court should carefully weigh factors such as the context, purpose, and timing of the Russian Constitutional Court's 2020 ruling, noting it was issued long after the arbitration commenced and seemingly in response to related litigation. Finally, the United States cautions against relying on the FSIA’s implied waiver exception (28 U.S.C. § 1605(a)(1)) based solely on a state's status as a signatory to the New York Convention, arguing that the specific arbitration exception must govern to avoid adverse reciprocal implications for the United States in foreign courts.