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No. 24-1130

In the Supreme Court of the United States

KINGDOM OF SPAIN, PETITIONER

υ.

BLASKET RENEWABLE INVESTMENTS, LLC, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

SUPPLEMENTAL BRIEF FOR PETITIONER

Counsel for Petitioner

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

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TABLE OF AUTHORITIES – continued

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INTRODUCTION

The United States largely confirms that the FSIA question warrants this Court’s review. The govern­ment acknowledges that the decision below is in ten­sion with other circuits’ decisions and that further percolation is unlikely. It recognizes that the immun­ity question is tremendously important to foreign sovereigns, as reflected in the numerous amicus briefs from those sovereigns in support of Spain’s pe­tition. And it agrees that Spain is entitled to have a court “decide for itself de novo” whether a valid arbi­tration agreement exists. U.S. Br. 2.

Despite all that, the government’s punchline is that review should be denied because Spain’s underlying immunity defense might not prevail on remand. (Never mind that—as the government acknowledg­es—the only court to consider that defense de novo agreed with Spain and dismissed.) In short, the gov­ernment asks this Court to leave in place a conceded­ly wrong decision, consigning Spain and other foreign sovereigns to a concededly wrong jurisdictional in­quiry that “will permit withdrawal of [their] sover­eign immunity without a federal court’s ever deter­mining” whether they consented to arbitrate at all, id.—all based on two pages of analysis that breezes past Spain’s lead argument below and ignores the ra­tionale of the one court to evaluate Spain’s immunity defense under the government’s own standard.

The Court should decline that invitation. The gov­ernment’s vehicle objection is unsound, but even if the government were right, the Court should recog­nize that the petition more than satisfies the criteria for certiorari. That is especially so in light of the im­portant foreign-relations implications of this case. While the Executive Branch is apparently content to

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live with those implications for the time being, the federal judiciary may not be. The decision below both encourages more cross-border disputes to be filed in the United States and requires that they consume more judicial and party resources. That alone is a compelling reason for further review, notwithstand­ing the government’s bottom-line suggestion.

The Court should also review the forum non con­veniens question. Here too, the government concedes that the circuits are split, the issue is important, and the D.C. Circuit is wrong. Then, in the final para­graph of its brief, the government halfheartedly an­nounces that the “current record” makes this a poor vehicle because it’s “unclear” whether Spain has “at­tachable assets” in an adequate alternative forum. U.S. Br. 21–22. But it’s hard to take that argument seriously when respondents haven’t raised it— because all three are busy suing Spain elsewhere.

The Court should grant the petition, reverse the D.C. Circuit, and leave remand questions for remand.

I. The FSIA question warrants review.

A. The government all but concedes that the FSIA question is certworthy.

The government largely agrees with Spain. It joins Spain in arguing that the decision below is wrong and that respondents’ efforts to defend it are unsound. It recognizes the “critical” stakes for foreign sover­eigns—the difference between “de novo” review of ju­risdictional issues and “highly deferentia[l]” review (or no review at all) of merits issues. U.S. Br. 2. And while the government tries to minimize the circuit split, it acknowledges the “tension” between the D.C. Circuit and the Second and Fifth Circuits. Id. at 16.

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1. The government’s efforts to downplay the con­flict are unpersuasive. Far from offering “unelaborat­ed assumptions,” U.S. Br. 16, both the Second Circuit and the Fifth Circuit expressly treated consent ques­tions as jurisdictional—precisely the opposite of what the D.C. Circuit did below.

Second Circuit. The government professes confu­sion over Cargill’s remand instructions to “tak[e] the plaintiff’s allegations as true (instead of determining the actual facts).” U.S. Br. 15–16 (citing Cargill Int’l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012 (2d Cir. 1993)). Yet that is exactly what the court would’ve said if it viewed the consent inquiry as jurisdictional. Cf. In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir. 2003) (“We credit a plaintiff’s averments of jurisdictional facts as true.”). This Court has since told district courts to “resolve rele­vant factual disputes” when FSIA questions “turn upon further factual development.” Bolivarian Re­public of Venezuela v. Helmerich & Payne Int’l Drill­ing Co., 581 U.S. 170, 174 (2017). But nothing about the court’s pre-Helmerich statements suggests that it viewed consent as anything other than jurisdictional.

Fifth Circuit. According to the government (at 15– 16), any conflict between Al-Qarqani and the decision below is “tenuous at best” because the basis for the Fifth Circuit’s decision is “unclear.” U.S. Br. 15–16 (citing Al-Qarqani v. Saudi Arabian Oil Co., 19 F.4th 794 (5th Cir. 2021)). Hardly. The Fifth Circuit held that §1605(a)(6) “d[id] not apply” because “there ex­ist[ed] no agreement among the parties to arbitrate.” 19 F.4th at 802. It did not reach that conclusion be­cause “arbitration proceedings there had been a ‘sham.’” U.S. Br. 16. Had it done so, the court would have affirmed the district court, which denied the pe­

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tition on that very basis. See Al-Qarqani v. Arab Am. Oil Co., 2020 WL 6748031, at *11 (S.D. Tex. Nov. 17, 2020) (citing New York Convention art. V(1)(d)). In­stead, the Fifth Circuit vacated the judgment and or­dered the case “dismissed for lack of jurisdiction.” 19 F.4th at 802. The United States recognized as much in its amicus brief below. See U.S. C.A. Br. 13–14.

2. Eventually, the government changes tack and urges the Court to allow “further percolation.” U.S. Br. 16. But it immediately concedes that venue rules make that “less likely.” Id. The government is right: now that it is so easy to bypass sovereign immunity in the D.C. Circuit, why (absent malpractice) would an FSIA plaintiff file anywhere else?

B. This case is the ideal vehicle.

1. The government identifies no vehicle defects that would frustrate review. The FSIA question was squarely decided, is cleanly presented, and has been extensively briefed by the parties and amici. There are no factual disputes or alternative holdings. And the government evidently disagrees with most of re­spondents’ vehicle objections. It doesn’t think the ar­bitrators’ decisions are “controlling.” Contra Blasket Br. 24–25. It doesn’t deny that Spain’s arguments were pressed and passed on. Contra Blasket Br. 24. And it has always agreed with Spain that this case hinges on the FSIA’s arbitration exception. See U.S. C.A. Br. 19–25 (waiver exception doesn’t apply).

If anything, the invitation brief highlights what makes this case a compelling vehicle. As the govern­ment acknowledges (at 16–17), this is the first of “many cases arising out of the D.C. Circuit” involving the same issues. If the government is right, the deci­sion below will warp the jurisdictional analysis in all

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of those cases—“permit[ting] withdrawal of [foreign] sovereign immunity without a federal cour[t] ever” assessing immunity under the correct legal standard. U.S. Br. 2. The D.C. Circuit has already denied en banc review, and the government doesn’t claim it will reconsider. And while the government offers vague generalities about “other investment treaties,” U.S. Br. 16, it identifies no vehicle better positioned (let alone better briefed) than this one. In short: this case is likely the Court’s best-ever opportunity to review an important issue that affects not only Spain but al­so every other EU Member State.

2. Despite all that, the government urges denial because “the courts below would likely” disagree with Spain “on remand.” U.S. Br. 8, 17. That’s a bold pre­diction, based purely on guesswork. Before the deci­sion below took circuit precedent off the rails, the dis­trict court in Blasket analyzed Spain’s immunity ob­jections under the de novo standard the government now endorses. As the government quietly admits (at 6), that court agreed with Spain’s defenses, found Spain immune, and dismissed. The government never engages the district court’s rationale. Instead, it in­vites this Court to speculate about whose “view” the D.C. Circuit panel “appeared to favor.” U.S. Br. 18. There is no basis for doing so. The panel took “no po­sition on the ultimate enforceability of these awards,” App. 27a, and the government overlooks the tea leaves that spoil its reading. See App. 38a (respond­ents “may struggle” because “treaty signers reject” their interpretation).

Regardless, the government’s vehicle objection is a nonstarter. While this case would be certworthy in all events, the government’s objection is also unsound and provides no basis to deny review.

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a. The government’s objection is immaterial.

This Court routinely dismisses bottomside predic­tions that the petitioner will lose on remand. Take Barnes v. Felix, where the respondents urged the Court to deny cert because the officer would ultimate­ly win on qualified-immunity grounds. See BIO at 20–23, Barnes v. Felix, 605 U.S. 73 (2025) (No. 23-1239); Barnes v. Felix, 152 F.4th 669, 677 (5th Cir. 2025) (bearing this out). But the Court granted re­view anyway. It has done likewise despite similar predictions in the FSIA context. Compare BIO at 30, Cassirer v. Thyssen-Bornemisza Collection Found., 596 U.S. 107 (2022) (No. 20-1566), with Cassirer v. Thyssen-Bornemisza Collection Found., 142 S. Ct. 55 (2022) (mem.). And it takes the government’s warn­ings with a grain of salt too. Compare, e.g., U.S. BIO at 24, United States ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419 (2023) (No. 21-1052), with United States ex rel. Polansky v. Exec. Health Res., Inc., 142 S. Ct. 2834 (2022) (mem.). This case meets all the criteria for certworthiness, so speculation about remand is no reason to deny review.

b. The government’s objection is also unsound.

The government assumes that the Vienna Conven­tion on the Law of Treaties resolves this case, but the parties dispute that premise, and no court has squarely resolved it. Even on its own terms, however, the government’s analysis fails to do business with the arguments that Spain and its amici raised below, let alone the overwhelming weight of authority that favors Spain’s position.

i. Like respondents, the government begins in the weeds of international law. But that skips over the FSIA itself and the threshold questions under

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§1605(a)(6). Spain briefed these issues extensively below, but the government engages none of its argu­ments. That alone should make the Court hesitate.

This case arises under the FSIA, not the Energy Charter Treaty or the Vienna Convention (neither of which the United States has joined). Under the FSIA, Spain’s immunity turns on whether it formed an “agreement,” as §1605(a)(6) uses that term. But the FSIA “provides no guidance on how covered agree­ments can be made.” TIG Ins. Co. v. Republic of Ar­gentina, 110 F.4th 221, 234 (D.C. Cir. 2024). So the D.C. Circuit has analogized to this Court’s domestic-arbitration precedents and looked to “an external body of law.” Id. (citation omitted).

What body of law should inform the §1605(a)(6) analysis? The Vienna Convention is unsurprisingly mum on that federal-courts question, and the gov­ernment doesn’t analyze it either. But the answer is obvious. When federal courts confront a contract-formation issue that involves an EU Member State and EU investors and stems from a dispute that arose in the EU and a treaty that governs “bilateral relationships between” EU Member States, E.C. Br. 6 (cleaned up), EU law is the natural place to turn. Cf. Vienna Convention art. 31(3)(c) (mandating consider­ation of international-law rules “applicable in the re­lations between the parties”)

If the lower courts consult EU law on remand, this case will be over. EU law is “crystal clear” that Spain “did not—and could not—offer to arbitrate the dis­putes that led to the awards in these cases.” E.C. Br. 11. (The government contests none of this—again parting ways with respondents.) And if “[n]o arbitra­tion agreement was ever formed,” then §1605(a)(6) doesn’t apply. This was Spain’s lead argument below,

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e.g., C.A. Br. for Appellee 40–44 (No. 23-7038), yet the government offers no response.

ii. In all events, the government’s international-law analysis fails on its own terms. The government begins (at 17) by plucking the phrase “unconditional consent” from the Energy Charter Treaty. It then brandishes the Vienna Convention and insists that Spain can’t invoke “internal law” to justify “failure to perform” or to “invalidate its consent.” U.S. Br. 17.

First some low-hanging fruit. No one is trying to justify nonperformance or invalidate consent: Spain, the EU, and its other Member States say there was never a valid agreement ab initio. If they are right about that first-order formation question, second-order performance questions never arise. Nor is Spain relying on “internal law.” Contra U.S. Br. 18. As the Court of Justice has explained (and the dis­trict court in Blasket recognized, App. 143a), EU law “deriv[es] from an international agreement between the Member States,” Slovak Republic v. Achmea B.V., Case C-284/16, EU:C:2018:158, ¶ 41 (Mar. 6, 2018). See also Statute of the International Court of Justice, art. 38(1) (recognizing “international conventions, whether general or particular” as among the sources of international law). EU law thus is “public interna­tional law” that governs relationships “between all Member States.” E.C. Blasket C.A. Br. 24.

Now turn to the text of the Energy Charter Treaty itself (the part the government omits). Article 26 gov­erns “[d]isputes between a Contracting Party and an Investor of another Contracting Party relating to an Investment of the latter in the Area of the former” (emphasis added). In short, the investor bringing the claim must be from a Contracting Party other than the one it has sued. Meanwhile, “Contracting Party”

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includes a “Regional Economic Integration Organisa­tion” like the EU. Art. 1(2); see also Art. 1(3) (states may “transf[er] competence over certain matters” to a “Regional Economic Integration Organisation”). And with respect to such Organisations, “Area means the Areas of the member states.” Art. 1(10). Thus, in an intra-EU dispute, the relevant Contracting Party on both sides is the EU itself; the investor is not from “another” Contracting Party as Article 26 requires. That makes sense: the Treaty was “an instrument of the EU’s external energy policy,” not an internal dis­pute-resolution mechanism. E.C. Blasket C.A. Br. 8.

Nor was there any need for a “disconnection clause.” Contra U.S. Br. 18. When the EU joined the Treaty as the only Regional Economic Integration Organisation (after proposing that term), that made it clear that EU law governed relations between Member States. See E.C. Blasket C.A. Br. 18-19.

That is how the Energy Charter Treaty’s EU signa­tories understand their agreement. See generally Medellín v. Texas, 552 U.S. 491, 507 (2008) (consult­ing “‘postratification understanding’ of signatory na­tions” as an “ai[d]” to treaty interpretation); Vienna Convention art. 31(3)(a) (mandating consideration of postratification agreements regarding treaty inter­pretation). The EU and 26 Member States have for­mally reaffirmed their “common understanding” that Article 26 of the Treaty “cannot and never could serve as a legal basis for intra-EU arbitration proceedings.” E.C. Br. 11. (The government’s brief omits this detail too.) Nor are they the only ones. The district court in Blasket shares Spain’s view. So do the Court of Jus­tice of the European Union and Germany’s highest court. See Pet. 14; Slovak Republic v. Achmea B.V. Case I ZB 2/15, ¶ 32 (Oct. 31, 2018). The European

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Commission agrees, as do the home countries of Nex­tEra, 9REN, and Blasket’s predecessors-in-interest, along with multiple arbitral panels. Pet. 14. That should make the Court pause before allowing the de­cision below to insulate an issue of such sweeping importance from de novo judicial review.

II. The forum non conveniens question warrants review.

The government admits that the forum non conven­iens question is certworthy: the circuits are split, the issue is important, and the decision below is wrong. See U.S. Br. 19–21. And while respondents spend pages insisting that Spain would lose on remand, the government conspicuously declines to join those ar­guments. The government does not claim that “the public and private interest factors ... weigh against dismissal.” NextEra Br. 31; Blasket Br. 32. Nor is it concerned that forum non conveniens dismissal might require respondents to “pursue a different action” abroad. Blasket Br. 34. And it evidently disagrees that forum non conveniens is inapplicable “in actions to enforce ICSID or New York Convention awards.” NextEra Br. 34; Blasket Br. 35.

But the government’s brief then pulls a rabbit out of its hat and presents a vehicle argument that re­spondents declined to raise. The government newly worries that “the record” is not “clear” as to Spain’s “attachable assets” in “plausibly available” fora. U.S. Br. at 22; see id. at 21 (claiming it “unclear” whether Spain “could prevail” on remand “[a]t least on the current record”). So the Court should deny cert be­cause Spain “might well” still lose after a favorable decision, at least “as the record now stands.” Id. at 22. The idea seems to be that an otherwise certwor­thy question about the availability of a given defense

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should be denied unless “the record” available at the cert stage “clear[ly]” establishes all factual predicates needed to prevail on that defense. Id.

The first problem with that argument is that this Court routinely decides such threshold questions— even when the “record” makes it “unclear” who will win on remand. E.g., Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., 590 U.S. 405, 410–11 (2020); Dupree v. Younger, 598 U.S. 729, 738 (2023).

Nor does the government say what record develop­ment it envisions. No better-developed factual record will arise from the D.C. Circuit, where forum non conveniens defenses are dead on arrival. And it doesn’t suggest that the Court hold its breath for a petition from another circuit where such defenses can proceed. (Small wonder, given the venue rules and incentives that channel “cases against foreign states” to D.C. U.S. Br. 21.)

The government’s fears are also baseless. The ques­tion is “whether a party can bring a claim in the al­ternate forum,” not whether it will “ultimately pre­vail.” Aenergy, S.A. v. Republic of Angola, 123 F.4th 1351, 1359 (D.C. Cir. 2024). So contra the govern­ment (at 22), the courts below will be free to consider dismissal to a European forum. And anyhow, the gov­ernment’s concerns about “unresolved factual issues” ring especially hollow when respondents—who are all currently suing Spain in Australia—profess no trou­ble finding a “non-European forum.” U.S. Br. 4, 22; see NextEra Supp. Br. 1–3.

CONCLUSION

The Court should grant the petition.

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Respectfully submitted,

June 8, 2026