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Procedural Posture and Issues Presented
This document is a Brief in Opposition to a Petition for a Writ of Certiorari, filed by Respondent Blasket Renewable Investments, LLC (“Blasket”) before the Supreme Court of the United States. The brief requests the Court to deny the petition filed by the Kingdom of Spain, which seeks review of a decision by the U.S. Court of Appeals for the D.C. Circuit concerning the enforcement of an international arbitral award.
The petition presents two principal questions for review: (1) whether a sovereign's consent to arbitrate in an investment treaty constitutes an "agreement ... for the benefit of a private party" that waives sovereign immunity under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(6); and (2) whether the doctrine of forum non conveniens is an available defense for a foreign sovereign in arbitral award enforcement proceedings in the United States.
Respondent's Arguments for Denial of Certiorari
Blasket argues that certiorari should be denied because the D.C. Circuit's decision is correct and does not create a circuit split warranting the Supreme Court's review. On the FSIA issue, Blasket contends that the D.C. Circuit properly applied the plain text of the statute, which recognizes an exception to immunity for agreements made either "with" or "for the benefit of" a private party. Blasket asserts that Spain’s accession to the Energy Charter Treaty (ECT) undisputedly created an agreement for the benefit of investors, thereby satisfying the jurisdictional requirement. It further argues that Spain’s primary textual argument before the Supreme Court was not preserved in the lower courts.
Regarding the forum non conveniens defense, Blasket characterizes the circuit split as "shallow and stale," noting that the Supreme Court has twice declined to review the issue in recent years. Blasket supports the D.C. Circuit's position that the defense is unavailable in award enforcement actions against sovereigns because U.S. courts provide a unique and necessary remedy—the attachment of a sovereign's U.S.-based commercial assets—for which no adequate alternative forum exists. The brief concludes that the D.C. Circuit's decision is consistent with U.S. treaty obligations and the federal policy favoring arbitration, and that review by the Supreme Court is unwarranted.
