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Cube Infrastructure and others v. Spain, Petition for Initial Hearing En Banc, August 10, 2026

10 Aug 2026
Cube Infrastructure Fund SICAV and others v. Kingdom of Spain, ICSID Case No. ARB/15/20
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Petition for Initial Hearing En Banc
Document Details:
LISTED PARTICIPANTS
Petition for Initial Hearing En Banc
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
Claimant's counsel
Claimant's law firm
Respondent's counsel
Eamon P. Joyce, Simon Navarro, Tyler J. Domino, Carter G. Phillips, Peter A. Bruland, Cody M. Akins
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
Sidley Austin, Cube Infrastructure Fund SICAV, Spain, European Commission
Country
United States
Print reporter
Document Summary
Petition for Initial Hearing En Banc
This summary note is machine-generated. Always consult the original materials.

Procedural Posture

This document is a Petition for Initial Hearing En Banc filed by the Respondent-Appellant, the Kingdom of Spain, before the United States Court of Appeals for the District of Columbia Circuit. The petition arises from a series of consolidated appeals concerning the enforcement of arbitral awards rendered against Spain under the Energy Charter Treaty (ECT). Spain seeks en banc review to overrule two binding circuit precedents that currently foreclose its threshold defenses regarding subject-matter jurisdiction and forum non conveniens.

Principal Legal Issues and Positions

Spain advances two primary arguments for en banc review. First, Spain contends that the court should overrule NextEra Energy Global Holdings B.V. v. Kingdom of Spain, which interpreted the arbitration exception of the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(6). Spain argues that NextEra improperly blue-penciled the statute by permitting jurisdiction whenever a sovereign has consented to arbitrate with any party, rather than requiring consent to arbitrate specifically with the plaintiff. Spain asserts that this holding departs from the statutory text, conflicts with decisions from the Second and Fifth Circuits, and ignores Supreme Court guidance on determining the validity of arbitration agreements.

Second, Spain urges the full court to overrule TMR Energy Ltd. v. State Property Fund of Ukraine, which established a categorical ban on the application of forum non conveniens in proceedings to confirm foreign arbitral awards. Spain argues that this per se rule flouts Supreme Court precedent, which requires a flexible, fact-specific balancing test, and creates an unwarranted circuit split with the Second Circuit. Spain maintains that restoring the availability of forum non conveniens is critical in cases implicating foreign affairs and international comity.

Relief Sought

Spain requests that the D.C. Circuit grant an initial hearing en banc to overrule both NextEra and TMR. By doing so, Spain seeks to vacate the lower courts' judgments and remand the consolidated cases for a de novo determination of its sovereign immunity defense and a proper assessment of its forum non conveniens arguments, thereby avoiding premature adjudication of complex merits issues.