Procedural Posture and Purpose

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—NextEra Energy Global Holdings B.V. v. Kingdom of Spain and TMR Energy Ltd. v. State Property Fund of Ukraine—which currently foreclose Spain's threshold jurisdictional and procedural defenses.

Principal Legal Issues and Positions

The petition advances two primary legal challenges. First, Spain argues that the full Court must overrule NextEra, 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 sovereign has consented to arbitrate with any party, relegating the question of whether the sovereign consented to arbitrate with the specific plaintiff to a merits inquiry. Spain contends that this interpretation effectively rewrites the FSIA, departs from prior circuit precedent, and creates a circuit split with the Second and Fifth Circuits, which properly treat the existence of an agreement between the specific parties as a threshold jurisdictional requirement.

Second, Spain challenges the categorical rule established in TMR, which prohibits the application of the forum non conveniens doctrine in proceedings to confirm foreign arbitral awards. Spain asserts that this per se ban contravenes Supreme Court jurisprudence requiring a flexible, fact-specific balancing test and conflicts with the approach adopted by the Second Circuit. Spain emphasizes that ordinary litigants are permitted to seek forum non conveniens dismissals, and foreign sovereigns should not be uniquely deprived of this defense, particularly in cases implicating significant foreign affairs and international comity concerns.

Requested Relief

In its prayer for relief, Spain requests that the D.C. Circuit grant an initial hearing en banc to abrogate the NextEra and TMR decisions. By overruling these precedents, Spain seeks a vacatur of the underlying district court judgments and a remand to allow the lower courts to conduct a de novo review of Spain's jurisdictional immunity defense and to properly consider its forum non conveniens arguments before reaching the merits of the award enforcement actions.