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Procedural Posture and Relief Sought
This document is an application submitted by the Kingdom of Spain to the Chief Justice of the United States Supreme Court, in his capacity as Circuit Justice for the D.C. Circuit. Spain seeks a 60-day extension of time, until May 2, 2025, to file a petition for a writ of certiorari. The petition would seek review of an August 16, 2024 judgment of the U.S. Court of Appeals for the D.C. Circuit, which concerned the enforcement of arbitral awards rendered against Spain in disputes initiated by several European Union-based energy companies under the Energy Charter Treaty.
Grounds for Supreme Court Review
Spain argues that Supreme Court review is warranted to resolve two significant circuit splits. The first concerns the arbitration exception to the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(6). Spain contends that the D.C. Circuit erred by treating its objection to the very existence of a valid arbitration agreement—an objection premised on European Union law holding that the ECT's arbitration clause does not constitute a valid offer to arbitrate between EU Member States and EU investors—as a merits question for arbitrators, rather than a threshold jurisdictional issue for the court to decide independently. This approach, Spain asserts, conflicts with that of the Second and Fifth Circuits, which treat the existence of an agreement as a jurisdictional prerequisite under the FSIA.
The second issue involves a circuit split on the availability of the forum non conveniens doctrine in actions to confirm foreign arbitral awards. Spain notes that the D.C. Circuit maintains a categorical prohibition against this defense, a position with which the Second Circuit has expressly disagreed. Spain highlights that both issues implicate critical U.S. foreign relations concerns, particularly as enforcement of the awards could compel Spain to violate European Union law regarding State aid.
Justification for Extension
The application justifies the request for an extension based on counsel's competing professional obligations, including briefing and oral arguments in other matters, and the need for counsel to become fully familiar with the factual and legal record following their retention at the en banc stage of the proceedings.
