Procedural Posture and Recommendation

This document is a brief filed by the United States as amicus curiae before the U.S. Supreme Court. It was submitted in response to the Court's invitation to express its views on a petition for a writ of certiorari filed by the Kingdom of Spain. The petition seeks review of a decision by the U.S. Court of Appeals for the District of Columbia Circuit concerning the enforcement of arbitral awards rendered against Spain under the Energy Charter Treaty (ECT). The United States recommends that the Supreme Court deny the petition for a writ of certiorari.

Analysis of the FSIA Arbitration Exception

The brief addresses two principal questions. The first concerns the interpretation of the arbitration exception to the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(6). Spain argues that because European Union (EU) law prohibits intra-EU investment arbitration, it lacked the legal capacity to form a valid arbitration agreement with the respondent investors, who are nationals of other EU member states. Spain contends this issue goes to the very *existence* of an arbitration agreement, a jurisdictional question that a U.S. court must decide de novo. The D.C. Circuit held it was a question of the agreement's *scope*, properly decided by the arbitrators.

The United States agrees with Spain that the D.C. Circuit's reasoning was incorrect. It posits that whether a foreign state has a valid arbitration agreement "with or for the benefit of" the specific plaintiff is a jurisdictional prerequisite for a court to determine, not a matter of scope delegable to an arbitral tribunal. However, the United States argues that this error does not warrant the Court's review because, even on a de novo analysis, Spain's argument would likely fail. Citing the Vienna Convention on the Law of Treaties, the brief asserts that Spain cannot invoke its internal law (including its obligations under EU law) to invalidate its unequivocal and "unconditional consent" to arbitration as expressed in the ECT.

Analysis of Forum Non Conveniens

The second question presented is whether a suit to confirm a foreign arbitral award against a foreign state may be dismissed on grounds of *forum non conveniens*. The D.C. Circuit has a categorical rule precluding such dismissals, creating a conflict with the Second Circuit. While acknowledging the importance of the issue, the United States contends that the present case is a poor vehicle for its resolution. The brief notes that the factual record is undeveloped as to whether an adequate alternative forum exists where the respondents could obtain relief, particularly given the legal standoff between EU courts and arbitral tribunals on the validity of intra-EU investment awards. Consequently, the outcome of Spain's motion to dismiss might be the same under any circuit's rule, rendering the case unsuitable for resolving the circuit split at this time.