Procedural Posture and Purpose

This document is a Petition for Initial Hearing En Banc filed by the Kingdom of Spain before the United States Court of Appeals for the District of Columbia Circuit. The petition arises in the context of consolidated appeals concerning the enforcement of intra-EU arbitral awards rendered against Spain under the Energy Charter Treaty (ECT). Spain seeks en banc review to overrule two binding circuit precedents—NextEra and TMR—which currently foreclose its threshold jurisdictional and procedural defenses in award-confirmation proceedings.

Principal Legal Issues and Positions

The petition advances two primary legal challenges. First, Spain argues that the Court should overrule NextEra Energy Global Holdings B.V. v. Kingdom of Spain, which held that the arbitration exception to the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(6), is satisfied whenever a foreign state has agreed to arbitrate with any party, relegating the question of whether the state consented to arbitrate with the specific plaintiff to a merits inquiry. Spain contends that this interpretation improperly blue-pencils the statutory text, departs from prior circuit precedent, and creates a circuit split with the Second and Fifth Circuits. Spain maintains that the existence of a valid arbitration agreement between the sovereign and the specific plaintiff is a threshold jurisdictional requirement that mandates de novo review by the courts.

Second, Spain urges the full Court to overrule TMR Energy Ltd. v. State Property Fund of Ukraine, which established a categorical rule barring the application of forum non conveniens in proceedings to confirm foreign arbitral awards. Spain asserts that this per se ban contravenes Supreme Court precedent, which requires a flexible, fact-specific balancing test, and conflicts with the approach adopted by the Second Circuit. Spain emphasizes that forum non conveniens is particularly critical in these cases, given the profound foreign relations and comity concerns implicated by U.S. courts enforcing intra-EU awards that the Court of Justice of the European Union has declared invalid.

Requested Relief

In its prayer for relief, Spain requests that the D.C. Circuit grant initial hearing en banc to abrogate the NextEra and TMR decisions. Consequently, Spain seeks the vacatur of the underlying district court judgments and a remand of the consolidated cases, thereby allowing the lower courts to evaluate Spain's sovereign immunity and forum non conveniens defenses de novo without the constraints of the challenged precedents.