Procedural Posture and Parties' Submissions

This document is the Decision of the ad hoc Committee on the Kingdom of Spain's application to annul the arbitral award rendered on 31 May 2019 in ICSID Case No. ARB/15/15. Spain sought annulment under Article 52(1) of the ICSID Convention on two primary grounds: (i) manifest excess of powers by the arbitral tribunal, and (ii) failure to state reasons.

Spain argued that the Tribunal manifestly exceeded its powers by improperly asserting jurisdiction over an intra-EU dispute under the Energy Charter Treaty (ECT), contrary to the primacy of EU law as established in the CJEU's Achmea and Komstroy judgments. Spain further contended the Tribunal exceeded its powers by wrongly dismissing its denial of benefits objection and by arbitrarily quantifying damages. On the second ground, Spain alleged a failure to state reasons concerning the applicability of EU law, the denial of benefits, the findings on liability, and the calculation of damages. The Claimant, 9REN Holding S.à.r.l., countered that Spain's application was a disguised appeal on the merits and that the Tribunal's findings were well-reasoned and fell within its jurisdictional mandate and margin of appreciation.

The Committee's Analysis of Annulment Grounds

The Committee systematically analyzed and dismissed each of Spain's grounds for annulment, underscoring the high threshold for annulment and the prohibition against reviewing the merits of an award.

On the alleged manifest excess of powers regarding jurisdiction, the Committee found that the Tribunal's approach was tenable. It distinguished between the addressees of the EU law primacy rule (EU bodies and national courts) and the ECT primacy rule (international arbitral tribunals). The Committee determined that the Tribunal, constituted under the ECT and ICSID Convention, was not a body created by EU Member States and therefore correctly derived its jurisdiction from the plain text of the ECT, which contains no carve-out for intra-EU disputes. The Tribunal's reliance on established ECT jurisprudence was deemed a permissible exercise of its adjudicative function, not a manifest error.

Regarding the quantum of damages, the Committee held that the Tribunal did not decide ex aequo et bono but rather exercised its permissible 'margin of appreciation' in assessing complex evidence. The Committee found that the Tribunal's 20% reduction to the claimed damages was based on explicitly stated factors, and a review of the precise calculation would constitute an impermissible re-examination of the merits.

On the alleged failure to state reasons, the Committee concluded that the Tribunal had provided a sufficient basis for its conclusions on all challenged points. It found the Tribunal had extensively reasoned its position on the applicability of law, had adequately addressed the denial of benefits objection, and had provided a comprehensible, albeit concise, rationale for its findings on both liability and the quantum of damages, thereby meeting the minimum standard required by Article 52(1)(e).

Decision and Costs

The Committee unanimously decided to dismiss Spain's application for annulment in its entirety. Consequently, the stay of enforcement of the Award was terminated. The Committee ordered Spain to bear all costs of the annulment proceedings, including the Committee's fees and ICSID's administrative expenses. Furthermore, Spain was ordered to reimburse the Claimant for 75% of its legal fees, amounting to USD 1,131,803.62, with interest to accrue if not paid within sixty days.

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.

Procedural Posture

This supplemental brief was filed by Respondent Blasket Renewable Investments LLC before the Supreme Court of the United States, urging the Court to deny the Kingdom of Spain's petition for a writ of certiorari. The brief responds to Spain's petition and addresses arguments raised by the U.S. government as amicus curiae concerning the enforcement of an international arbitral award against Spain.

Key Legal Issues and Arguments

The brief advances two primary arguments against granting certiorari.

First, concerning the interpretation of the Foreign Sovereign Immunities Act (FSIA) arbitration exception under 28 U.S.C. § 1605(a)(6), Blasket contends that the D.C. Circuit's decision was correct. It argues that subject-matter jurisdiction is established by the foreign state's agreement to arbitrate with "a private party" in an international treaty, such as the Energy Charter Treaty (ECT). Blasket asserts that the FSIA does not require a U.S. court to conduct a de novo jurisdictional inquiry into whether the specific plaintiff is a "covered investor" under the treaty. Such questions, it maintains, relate to the scope of the arbitration agreement and are properly resolved by the arbitral tribunal, subject to limited judicial review under the standards of the New York or ICSID Conventions. Adopting Spain's position, the brief warns, would improperly transform merits-based issues of treaty interpretation into threshold questions of sovereign immunity, thereby undermining the international arbitration framework.

Second, the brief addresses the circuit split on the applicability of the forum non conveniens doctrine to award enforcement actions. Blasket characterizes the split as "shallow" and "inconsequential," arguing it does not warrant Supreme Court review. The brief posits that even in circuits where the doctrine is available, it is highly unlikely to succeed in an enforcement action against a foreign state, given the summary nature of confirmation proceedings and the inherently international character of investor-state disputes.

Conclusion and Relief Sought

Blasket concludes that the D.C. Circuit's decision is correct on the merits of the FSIA issue and that the forum non conveniens question lacks sufficient practical importance to merit certiorari. Accordingly, the brief requests that the Supreme Court deny Spain's petition.