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Cube Infrastructure and others v. Spain, Memorandum Opinion of the United States District Court for the District of Columbia, August 14, 2025

14 Aug 2025
Cube Infrastructure Fund SICAV and others v. Kingdom of Spain, ICSID Case No. ARB/15/20
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Memorandum Opinion of the United States District Court for the District of Columbia
Document Details:
LISTED PARTICIPANTS
Memorandum Opinion of the United States District Court for the District of Columbia
Participants listed are for this document only and may not include all participants involved in the entire case. Always consult the original documents.
Claimant appointee
Respondent appointee
Tribunal/Panel chair
Arbitrator(s)
Sole Arbitrator
ICSID Annulment Committee president
ICSID Annulment Committee members
WTO Appellate Body members
WTO Appellate Body chair
Judges
Loren L. AliKhan, Moxila A. Upadhyaya, Emmet Gael Sullivan
Claimant's counsel
Claimant's law firm
Respondent's counsel
Respondent's law firm
Other counsel
Claimant's expert
Claimant's expert firm
Respondent's expert
Respondent's expert firm
Claimant's witness
Respondent's witness
Other witnesses
Tribunal secretary
Tribunal assistant
Third-party funder
Entities
Cube Infrastructure Fund SICAV, Spain, European Commission
Country
United States
Print reporter
Document Summary
Memorandum Opinion of the United States District Court for the District of Columbia
This summary note is machine-generated. Always consult the original materials.

Procedural Posture

This Memorandum Opinion, issued by the United States District Court for the District of Columbia, addresses the plaintiffs' action to confirm a €33.7 million ICSID arbitral award rendered against the Kingdom of Spain under the Energy Charter Treaty (ECT). The Court reviewed the Magistrate Judge’s Report and Recommendation (R&R), Spain’s objections thereto, and supplemental briefing concerning the impact of the D.C. Circuit’s binding decision in NextEra Energy Glob. Holdings B.V. v. Kingdom of Spain.

Jurisdiction and the FSIA

The principal legal issue concerned the Court's subject-matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA). Spain objected to the application of the FSIA’s arbitration exception, arguing that the ECT does not apply to intra-EU disputes and that EU law should govern. Relying on the D.C. Circuit’s precedent in NextEra, the Court affirmed that the FSIA’s arbitration exception applies, a jurisdictional point Spain ultimately conceded in its supplemental briefing.

Enforcement Defenses and Tribunal Reasoning

Spain further resisted enforcement by challenging the ICSID tribunal's jurisdiction to enter the award and invoking the foreign sovereign compulsion doctrine. The Court firmly rejected these arguments, emphasizing that under 22 U.S.C. § 1650a and Article 54 of the ICSID Convention, a domestic enforcing court is strictly prohibited from reviewing an ICSID award’s merits or the tribunal's underlying jurisdictional determinations. The Court also dismissed Spain's forum non conveniens defense, citing established D.C. Circuit precedent that such a defense is unavailable in proceedings to confirm a foreign arbitral award because only U.S. courts can attach foreign commercial assets located within the United States.

Decision

Finding no clear error in the Magistrate Judge's R&R, the Court adopted it in full. Consequently, the Court denied Spain’s motion to dismiss, denied the plaintiffs’ motion for judgment on the pleadings, and granted the plaintiffs’ alternative motion for summary judgment, thereby confirming the arbitral award.