No. 24-1130
In the
Supreme Court of the United States
KINGDOM OF SPAIN,
Petitioner,
v.
BLASKET RENEWABLE INVESTMENTS, LLC, et al.,
Respondents.
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the D.C. Circuit
BRIEF IN OPPOSITION
|
Matthew S. Rozen |
Matthew D. McGill |
Counsel for Respondent
Blasket Renewable Investments, LLC
August 14, 2025
[Page i]
QUESTIONS PRESENTED
[Page ii]
PARTIES TO THE PROCEEDING
Petitioner is the Kingdom of Spain. Spain was Ap-
pellee in No. 23-7038 below and Appellant in Nos. 23-
7031 and 23-7032.
Respondents are Blasket Renewable Investments,
LLC (Appellant in No. 23-7038), NextEra Energy
Global Holdings B.V. and NextEra Energy Spain
Holdings B.V. (Appellees in No. 23-7031), and 9REN
Holding S.À.R.L. (Appellee in No. 23-7032).
[Page iii]
CORPORATE DISCLOSURE STATEMENT
Pursuant to this Court’s Rule 29.6, undersigned
counsel state that Blasket Renewable Investments,
LLC is a Delaware limited-liability company, 60% of
which is owned by its sole managing member, Trinity
Investments DAC, an Irish designated activity
company, and 40% of which is owned by Blasket
Investments DAC, an Irish designated activity
company, and that no publicly held corporation owns
more than 10% of Blasket.
[Page iv]
[Page 1]
BRIEF IN OPPOSITION
Respondent Blasket Renewable Investments,
LLC (“Blasket”) respectfully submits that the petition
for a writ of certiorari should be denied.
INTRODUCTION
Blasket is one of several parties seeking to enforce
arbitral awards obtained under the Energy Charter
Treaty (“ECT”) against the Kingdom of Spain
(“Spain”). The ECT is a multilateral investment
treaty among both EU-member states and non-EU
member states in which participating nations promise
to treat each others’ investors fairly and provide them
a reliable, efficient remedy for treaty violations
through arbitration. When Spain joined the ECT, it
“unconditional[ly] consent[ed]” to the submission of
investment disputes arising under the treaty to
“international arbitration” at the investor’s election.
ECT art. 26(2), (3)(a), Dec. 17, 1994, 2080 U.N.T.S. 95.
Spain further agreed that arbitral awards issued
under the ECT would be enforceable under the
Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, June 10, 1958, 21 U.S.T.
2517 (“New York Convention”), a treaty signed by the
United States, Spain, and most nations of the world
that obliges signatories to recognize and enforce
international arbitral awards.
The award here was issued to Blasket’s
predecessors-in-interest (“Claimants”) for Spain’s
unlawful actions in retrenching on renewable energy
incentives that Claimants relied upon in investing in
Spain. That award is indisputably final; the highest
court in the country where the arbitration was
[Page 2]
seated—the Swiss Federal Supreme Court—has
dismissed Spain’s application to set aside the Award.
But Spain still has refused to pay, maintaining that
its own unambiguous consent to arbitrate with EU-
based investors under the ECT was “void ab initio”
under European Union (“EU”) law.
Because Spain has not paid the Award and holds
assets in the United States, Claimants brought this
action seeking recognition and enforcement of the
Award under the New York Convention and its
implementing legislation, 9 U.S.C. §§ 201-208. To
overcome Spain’s presumptive immunity from suit
under the Foreign Sovereign Immunities Act (“FSIA”),
28 U.S.C. § 1604, Claimants invoked two exceptions to
immunity: (1) the arbitration exception, which confers
jurisdiction over actions against a foreign state to
“enforce an agreement [to arbitrate] made by the
foreign state with or for the benefit of a private party,”
id. § 1605(a)(6); and (2) the waiver exception, which
allows a foreign state to “waiv[e] its immunity either
explicitly or by implication,” id. § 1605(a)(1). The
district court dismissed the petition, accepting Spain’s
EU-law objection and concluding that without a valid
arbitration agreement, the FSIA’s arbitration and
waiver exceptions did not apply, and that Spain
therefore was immune from suit.
The D.C. Circuit reversed. It held that the
arbitration exception was satisfied because the ECT
constitutes “an agreement ... for the benefit of a
private party to submit” disputes to arbitration, id.
§ 1605(a)(6). Spain’s EU-law objection pertained only
to the scope of the ECT—a merits objection about
whether EU investors were among the ECT’s intended
[Page 3]
beneficiaries, not a jurisdictional objection about
whether Spain acceded to the ECT. Given its holding
that Spain had agreed to arbitrate for the benefit of
private parties in joining the ECT, the D.C. Circuit
declined to consider at the jurisdictional stage the
other potential basis for applying the arbitration
exception—whether Spain had agreed to arbitrate
“with” a private party, id. Citing longstanding circuit
precedent, the court of appeals also rejected Spain’s
defense that Claimants’ action to enforce the Award
by attaching Spain’s U.S.-based assets belonged in a
European forum under the doctrine of forum non
conveniens.
This Court should decline review. Spain’s
principal argument below—that the arbitration
exception requires an arbitration agreement with
private parties, not just for their benefit—is squarely
foreclosed by the FSIA’s plain text. And Spain’s self-
described “key” argument before this Court—that the
arbitration exception requires an agreement to
arbitrate “differences ... between the parties” to the
litigation, Pet. 19 (quoting 28 U.S.C. § 1605(a)(6))—
was never briefed, preserved, or decided below. No
court of appeals has addressed that argument, much
less adopted Spain’s position. There accordingly is no
circuit split on Spain’s first question presented. And
even if there were, it would not warrant this Court’s
review, much less in this case. The D.C. Circuit
correctly determined that who may invoke a foreign
state’s arbitration agreement is a merits question, not
a jurisdictional question under the FSIA. And this
Court should not review that issue in a case where the
petitioner’s “key” argument was never developed or
considered.
[Page 4]
Spain also asks this Court to decide whether
forum non conveniens is available as a defense to the
enforcement of foreign arbitral awards. Any split on
that issue is both shallow and stale. This Court has
twice declined to take up that question in the last
eight years, and nothing has changed to warrant
review now.
The Court should deny the petition.
STATEMENT
A. Spain Induces Claimants’ Investments
and Then Retrenches on Its Incentives
Claimants are Dutch companies that invested
billions of euros in solar energy installations in Spain
in reliance on financial incentives that Spain enacted
to promote the development of renewable energy.
App.6a. Spain reaped the benefits of those incentives:
The influx of foreign investment jump-started its
renewable energy sector, enabling it to compete with
conventional energy sources. Ct. App. Joint Appendix
(“J.A.”) 75-76, 83.1
But Spain’s favorable treatment of renewable
energy investments was short-lived. Beginning in
2010, Spain adopted a series of measures retrenching
on, and eventually revoking, the incentives on which
Claimants had relied, costing them millions of euros
in promised returns. App.6a, 131a.
1 All references to appellate briefing, appendix, and oral ↩
argument refer to D.C. Circuit appeal No. 23-7038, unless
otherwise noted.
[Page 5]
B. Claimants’ Investments Were Protected
by the Energy Charter Treaty and the
New York Convention
Claimants’ investments in Spain were protected
by two international treaties: the Energy Charter
Treaty and the New York Convention.
The ECT is a multilateral investment treaty
adopted in 1998 among 53 nations and regional
organizations to “establis[h] a legal framework [for]
promot[ing] long-term cooperation in the energy field.”
ECT art. 2. Its contracting parties include the EU,
every EU member except Italy (which withdrew in
2016), and 26 nations outside the EU. The ECT
protects investments in the territory of a “Contracting
Party” to the treaty (e.g., Spain) by “Investors” (e.g.,
Claimants) located or incorporated in “other
Contracting Parties” (e.g., the Netherlands). ECT
arts. 1(7), 10(1), 26, 40(2).
To give those protections teeth, the ECT’s
contracting parties “unconditional[ly] consent” to the
submission of investment disputes arising under the
treaty to “international arbitration” at the investor’s
election. ECT art. 26(2), (3)(a). Investors can choose
among several arbitration formats, including the
option Claimants selected here—an “ad hoc
arbitration tribunal established under the Arbitration
Rules of the United Nations Commission on
International Trade Law” (“UNCITRAL Rules”). ECT
art. 26(1), (4)(b). To provide streamlined enforcement
of awards resolving disputes under the ECT, the ECT
permits “any party to the dispute” to insist that
arbitration take place “in a state that is a party to the
New York Convention.” ECT art. 26(5)(b).
[Page 6]
The New York Convention is a multilateral treaty
among 170 nations—including Spain, the
Netherlands, and the United States—that governs
“the recognition and enforcement” of commercial
arbitral awards “made in the territory of a State other
than the State where the recognition and enforcement
of such awards are sought.” New York Convention
art. I(1). Parties to the Convention agree to
“recognize” such awards “as binding and enforce
them.” Id. art. III. Awards thus are immediately
enforceable in any country that is a party to the
Convention, and can be set aside only “by a competent
authority of the country in which, or under the law of
which, ... th[e] award was made.” Id. art. V(1)(e). The
ECT’s incorporation of the New York Convention thus
ensures that ECT awards are widely and
expeditiously enforceable.
C. The Arbitral Tribunal Awards Claimants
Relief
In 2011, Claimants initiated arbitration against
Spain under the UNCITRAL Rules, alleging that
Spain violated the ECT through its legislative actions
that diminished the returns on their investments.
App.7a, 131a. Over the ensuing eight years, an
arbitral tribunal seated in Switzerland (the
“Tribunal”) considered and rejected all of Spain’s
objections to the Tribunal’s jurisdiction and ultimately
awarded relief to Claimants. App.131a-132a.
Before the Tribunal, Spain argued that as a
matter of EU law, the Tribunal could not exercise
jurisdiction over an “intra-EU” dispute between an EU
member state and EU-based investors. App.10a. In a
2014 Preliminary Award on Jurisdiction, the Tribunal
[Page 7]
rejected that argument, finding “no indication in the
text of the [ECT] that the Contracting Parties have
limited their consent to arbitration on the basis that
some” are EU members, and held that EU law could
not “override the [ECT’s] investor-state mechanism
explicitly agreed to by the EU member states and the
EU itself.” J.A. 391, 395 ¶¶ 181, 191 (Preliminary
Award on Jurisdiction, J.A. 335-450). Although Swiss
law allowed Spain to immediately appeal this
jurisdictional ruling to the Swiss Federal Supreme
Court, Spain did not do so.
In 2018, while the arbitral proceedings were
pending, the Court of Justice of the European Union
(“CJEU”), the judicial body created by the EU’s
foundational treaties to interpret those treaties,
decided Case C-284/16, Slovak Republic v. Achmea
BV, ECLI:EU:C:2018:158 (Mar. 6, 2018). Achmea held
that an arbitration provision in a bilateral investment
treaty between two EU member states was
incompatible with EU law because it could lead to the
resolution of EU law outside the EU judicial system,
contravening the Treaty on the Functioning of the
European Union and the Treaty of European Union
(collectively, the “EU Treaties”). Id. ¶¶ 43-55, 60;
App.7a-8a.
Spain asked the Tribunal to revisit its
jurisdictional ruling in light of Achmea. J.A. 69 ¶ 151.
The Tribunal rejected that request, reaffirming its
own jurisdiction. J.A. 70 ¶ 155. In its 2020 Final
Award, the Tribunal held that Spain breached its
obligations under the ECT by depriving Claimants of
a reasonable rate of return on their investments and
directed Spain to pay €26.5 million in damages, plus
[Page 8]
interest. J.A. 192-193, 222, 285-286, 303-304
¶ 909(b)(i), (iii). Spain then initiated proceedings
before the Swiss Federal Supreme Court to set aside
the award, relying primarily on Achmea. In February
2021, the Swiss Federal Supreme Court dismissed
those proceedings, holding that Spain had forfeited its
objection to the arbitral tribunal’s jurisdictional ruling
by failing to timely appeal that ruling. J.A. 452-469.
D. Claimants Seek to Enforce the Award
The Award was due in full upon its rendering,
fully enforceable in the courts of each signatory state
to the New York Convention, and subject to set-aside
proceedings only at the seat of the arbitration—in the
Swiss Federal Supreme Court. Yet after the Swiss
Court denied Spain’s set-aside application, Spain still
refused to pay. Claimants thus commenced this action
to recognize and enforce their award under the New
York Convention and its implementing legislation,
9 U.S.C. §§ 201-208.
Claimants grounded jurisdiction for the suit on
the FSIA’s arbitration and waiver exceptions to
sovereign immunity. See 28 U.S.C. §§ 1330(a),
1605(a)(1), (6). The arbitration exception authorizes a
proceeding against a foreign state “to confirm an
award made pursuant to ... an agreement” to “submit
to arbitration” by the foreign state, “with or for the
benefit of a private party.” Id. § 1605(a)(6). And the
waiver exception subjects a foreign state to
jurisdiction in any case in which it “has waived its
immunity either explicitly or by implication.” Id.
§ 1605(a)(1).
[Page 9]
Spain moved to dismiss the enforcement petition.
App.130a, 135a. Spain argued that its EU-law
objection—the same objection the Tribunal rejected—
raised a question about the existence of an arbitration
agreement that the district court must decide de novo.
In addition to Achmea, Spain relied on a CJEU
decision issued after the arbitration was completed—
Case C-741/19, Republic of Moldova v. Komstroy LLC,
ECLI:EU:C:2021:655 (Sept. 2, 2021)—that applied
Achmea’s holding to intra-EU arbitration under the
ECT. Id. ¶¶ 44, 52. Spain argued that the CJEU’s
recent interpretations of EU law retroactively
undermined its capacity, as an EU member state, to
form an arbitration agreement with the EU-based
Claimants in the ECT when the arbitration was
commenced in 2011. Dist. Ct. Mem. of Law at 16-17
(Dkt. 15-1). Spain also contended that the waiver
exception did not apply because its accession to the
New York Convention could not be construed as an
implied waiver of immunity absent a valid agreement
to arbitrate. Id. at 19-22.
While Spain’s motion was pending, Claimants
assigned their interests in the Award to Blasket,
which was substituted for Claimants as the award
petitioner in the district court. J.A. 8.
The district court accepted Spain’s arguments and
dismissed the action. The court held that it lacked
subject matter jurisdiction under both the FSIA’s
arbitration and waiver exceptions. App.147a, 149a.
The court held that both exceptions required the court
to determine de novo whether Spain had validly
consented to arbitrate. App.137a-141a. Departing
from the Tribunal’s ruling, the court then held that “no
[Page 10]
valid agreement to arbitrate existed” between Spain
and Claimants because EU law “invalidat[ed]” Spain’s
consent in the ECT to arbitrate intra-EU disputes.
App.141a.
Blasket’s appeal was coordinated for argument
with two appeals, Nos. 23-7031 (“NextEra”), 23-7032
(“9REN”), involving materially similar award
enforcement actions in which the district court had
reached the opposite conclusion, rejecting Spain’s EU-
law objection.
E. The Court of Appeals Reverses the
District Court
The D.C. Circuit reversed in Blasket and affirmed
in NextEra and 9REN, holding the district court had
jurisdiction under the FSIA’s arbitration exception.
The court of appeals declined to reach the waiver
exception.
The D.C. Circuit began with the arbitration
exception’s text, which requires “‘an agreement made
by the foreign state’—either ‘with’ or ‘for the benefit’ of
a private party—to submit certain disputes to
arbitration.” App.18a-19a (quoting 28 U.S.C.
§ 1605(a)(6)). In disputes under an “investment
treaty” like the ECT, the court explained, both prongs
may be relevant. An investment treaty is a “contract
between nations,” and “the arbitration provision in an
investment treaty may itself be part of a completed
agreement between the signatory countries to
arbitrate certain disputes with investors of the other’s
country.” App.19a-20a (cleaned up). But such a
provision also “operates as a unilateral offer to
arbitrate by each sovereign to investors of the other
[Page 11]
signatory countries.” App.20a (cleaned up).
Accordingly, the treaty “can both (1) constitute an
agreement” between sovereign states “for the benefit”
of a private party; and (2) give rise to a separate
agreement “with” a private party” when an investor
accepts the treaty’s standing offer to arbitrate.
App.19a-20a (quoting 28 U.S.C. § 1605(a)(6)). And
“either type of agreement may support ...
jurisdiction.” App.20a.
Here, the D.C. Circuit reasoned that because
Spain undisputedly signed the ECT, the ECT itself
established the “agreement” between nations “for the
benefit” of private parties required to satisfy the
arbitration exception. App.22a. The court did not
need to resolve—and thus “d[id] not resolve”—the
distinct issue “whether Spain entered into separate
arbitration agreements ‘with’” Claimants. App.22a
(quoting 28 U.S.C. § 1605(a)(6)). Nor did the court
need to resolve “the scope of the ECT’s arbitration
provision”—i.e., whether it “extend[ed] to EU
nationals.” App.25a-26a. Unlike questions about an
arbitration agreement’s existence, the court explained,
“disputes about the scope of an arbitration agreement
... are not jurisdictional questions.” App.18a. Spain’s
attempt to excise “intra-EU” arbitration from the
ECT’s scope was thus irrelevant to jurisdiction.
The D.C. Circuit denied rehearing en banc.
App.151a.
[Page 12]
REASONS FOR DENYING THE PETITION
I. Spain’s FSIA Question Does Not Warrant
Review.
Spain’s first question presented asks if the issue
of “whether the sovereign consented to arbitrate with
the plaintiff is a threshold jurisdictional matter”
under the FSIA’s arbitration exception, 28 U.S.C.
§ 1605(a)(6). Pet. 10. That formulation conflates two
distinct questions: (1) whether the arbitration
exception requires an arbitration agreement with the
plaintiff; and (2) if not, whether it nonetheless
requires an agreement that provides for arbitration
with the plaintiff. Neither question warrants review.
Below, Spain briefed only the first question. It
argued that the FSIA’s arbitration exception requires
proof that “Spain and claimants ... formed an
arbitration agreement” with each other. Spain Ct.
App. Br. 3. The D.C. Circuit easily rejected that
argument because the FSIA does not require an
agreement by Spain “with” a private party. An
agreement “either ‘with’ or ‘for the benefit’ of a private
party” will suffice, and “Spain agree[d] that the ECT
was made ‘for the benefit’ of” private parties. App.18a-
19a, 22a (quoting 28 U.S.C. § 1605(a)(6)). No circuit
has held otherwise.
In this Court, however, Spain pivots to the second
question. Even if the ECT is an agreement “for the
benefit of a private party,” Spain claims it is not an
agreement concerning the arbitration of “differences
... between” the right “parties.” Pet. 19 (quoting 28
U.S.C. § 1605(a)(6)). But Spain’s briefs never raised
that argument in the D.C. Circuit, and the D.C.
[Page 13]
Circuit never addressed it. Nor do Spain’s cases from
other circuits. Indeed, no circuit split exists on either
version of Spain’s argument. And any purported
tension between the circuits would not warrant review
in any event.
A. There Is No Circuit Split
1. The D.C. Circuit’s principal holding is that an
arbitration agreement “‘for the benefit’ of a private
party” suffices, so no “separate arbitration
agreemen[t] ‘with’ private parties” is required to
establish jurisdiction under the arbitration exception,
App.20a, 22a. Spain does not dispute that no other
court has even addressed—much less disagreed with
the D.C. Circuit on—that issue. Nor does Spain
dispute that the FSIA’s text unambiguously
authorizes jurisdiction either when the foreign state
agrees to arbitrate “with” or “for the benefit” of a
private party.
Neither of Spain’s cases—Cargill International
S.A. v. M/T Pavel Dybenko, 991 F.2d 1012 (2d Cir.
1993), nor Al-Qarqani v. Saudi Arabian Oil Co., 19
F.4th 794 (5th Cir. 2021)—addresses the “for the
benefit” standard. And Cargill, if anything, suggests
that an agreement “with” the plaintiff is not required.
The plaintiff there (CBV) was not a party to any
arbitration agreement. Instead, it claimed to be a
“third-party beneficiary” to an affiliate’s arbitration
agreement. 991 F.2d at 1015. Yet the Second Circuit
held that it was error for the district court to dismiss
for lack of jurisdiction under the FSIA’s arbitration
exception without considering that argument. Id. at
1019-20.
[Page 14]
Al-Qarqani, meanwhile, did not involve third-
party beneficiaries at all. Instead, the issue was the
absence of any agreement by the foreign state
defendant (Saudi Aramco) whatsoever. The plaintiffs
invoked an agreement by “the Kingdom of Saudi
Arabia,” but that agreement did not “bind Saudi
Aramco.” 19 F.4th at 801. The only other alleged
agreement—a “1949 agreement between the
purported ancestors of the plaintiffs and the Arabian
American Oil Company”—did not “so much as mention
arbitration.” Id. at 801-02. There was thus no
“agreement made by the foreign state with or for the
benefit” of anyone. 28 U.S.C. § 1605(a)(6).
2. Unable to identify a conflict on the D.C.
Circuit’s principal holding, Spain presses a new
argument—raised for the first time to this Court—
that the FSIA also requires an agreement to settle
“differences ... between” the plaintiff bringing the
lawsuit and the sovereign defendant. 28 U.S.C.
§ 1605(a)(6). But it forfeited that argument below. It
mentioned the language it now calls dispositive just
once—in passing—in only one of the consolidated
appeals. Spain Ct. App. Br. 27. And its single mention
of the language at oral argument, see Ct. App. Oral
Argument at 25:36-27:25 (Feb. 28, 2024), came too late
to preserve the argument. See, e.g., U.S. ex. rel. Davis
v. District of Columbia, 793 F.3d 120, 127 (D.C. Cir.
2015) (“Generally, arguments raised for the first time
at oral argument are forfeited.”).
To be sure, Spain’s briefs below argued that
Spain’s “offer to arbitrate contained in ... the ECT does
not extend to EU nationals.” App.22a. But the
purported upshot of that argument was that
[Page 15]
Claimants could not “accept” the offer, so no
agreement to arbitrate was “formed.” Spain Ct. App.
Br. 29. Spain’s briefs never suggested that the FSIA
imposed a further requirement that even if an
arbitration agreement had been formed, that
agreement must contemplate arbitration specifically
with the plaintiff bringing the lawsuit. Id. at 27-29.
The panel opinion thus did not address such a
requirement.
Regardless, there is no circuit split on Spain’s new
argument because neither Cargill nor Al-Qarqani
held that the arbitration exception requires an
agreement that contemplates arbitration with the
plaintiff.
In Cargill, Spain’s purported requirement was not
litigated because no party disputed it. The district
court found the FSIA’s arbitration exception
inapplicable because the relevant arbitration
agreement “was not signed” by the plaintiff. Cargill
Int’l S.A. v. M/T Pavel Dybenko, 1992 WL 42194, at
*5 (S.D.N.Y. Feb. 27, 1992), rev’d, 991 F.2d 1012 (2d
Cir. 1993). On appeal, the plaintiff countered that
“[t]here is no requirement of signature in ... the FSIA,”
and it could invoke the arbitration exception because
it was a “nonsignatory third party beneficiary.” Br. for
Pls.-Appellants at 17-18, Cargill, 991 F.2d 1012
(No. 92-7876), 1992 WL 12024953. The plaintiff thus
assumed—and no party disputed—that third-party
beneficiary status was necessary to jurisdiction under
the arbitration exception. But the parties failed to
“adequately addres[s] this issue in their briefs,” 991
F.2d at 1020, so the Second Circuit never decided it.
[Page 16]
Rather than analyzing the FSIA’s requirements,
the Second Circuit focused on the district court’s
failure to consider the plaintiff’s arguments. It
explained that “a district court must look at the
substance of the allegations to determine
jurisdiction”—and there, the plaintiff had expressly
premised jurisdiction on the “allegation[]” that it was
a “third party beneficiary” of the arbitration
agreement. Id. at 1019. The Second Circuit thus
assumed that this allegation was “jurisdictional” and
held that the district court was required to decide it as
part of its “‘[j]urisdiction to determine jurisdiction.’”
Id. (quoting 13D Wright & Miller, Federal Practice
and Procedure § 3536 (3d ed.)). By “not assess[ing]”
the “third party beneficiary argument,” the district
court “erred.” Id. at 1018.
“[D]rive-by jurisdictional rulings of this sort”—
where the jurisdictional nature of an issue is “assumed
by the parties ... without discussion by the Court”—
“have no precedential effect.” Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 91 (1998). That is doubly
so when such assumptions are embedded in dicta—a
mere “outlin[e]” of the “proper analysis,” Pet. 11, on an
issue “not adequately addressed” by the parties,
Cargill, 991 F.2d at 1020.
In any event, the Second Circuit’s jurisdictional
assumptions are irrelevant to the arbitration
exception’s “for the benefit” prong. Cargill involved an
agreement the foreign state had made with a private
party (i.e., the plaintiff’s affiliate). The Second Circuit
seemingly viewed the third-party beneficiary question
as jurisdictional because, in the court’s view, an
arbitration agreement’s existence is bound up with its
[Page 17]
enforceability: A district court may not deny a non-
signatory’s motion to compel based on a finding ...
that “no arbitration agreement existed” without first
analyzing whether a non-signatory could “enforce the
agreement as a third party beneficiary.” 991 F.2d at
1020 (emphases added). Whatever the merits of that
assumption about the enforceability of a foreign state’s
agreement made “with” a private party in the context
of a motion to compel arbitration, Cargill plainly does
not conflict with the D.C. Circuit’s jurisdictional
holding about the existence of a foreign state’s
agreement made “for the benefit of” a private party in
the context of an action to confirm an arbitral award.
Al-Qarqani is even further afield. Because the
foreign state defendant there never consented to
arbitrate against anyone, see supra p. 14, the Fifth
Circuit had no occasion to consider whether it
“consented to arbitrate with the plaintiff,” much less
whether such consent “is a threshold jurisdictional
matter.” Pet. 9-10 (emphasis added). There is thus no
split on any aspect of Spain’s first question presented.
3. Even if Spain’s FSIA question were the subject
of any real division of authority, the issue would
benefit from further percolation. On Spain’s telling,
the divide is only two-to-one. Its two cited cases
present no square conflict because neither the Second
nor Fifth Circuits considered the arguments the D.C.
Circuit accepted here. And no court—not even the
D.C. Circuit—has considered Spain’s new arguments
(Pet. 19-21) about the arbitration exception’s text.
Spain insists (Pet. 15) that further percolation is
unlikely because plaintiffs generally may sue foreign
sovereigns in the District of Columbia under 28 U.S.C.
[Page 18]
§ 1391(f)(4). Of course, FSIA cases may be brought in
other jurisdictions, too. E.g. CC/Devas (Mauritius)
Ltd. v. Antrix Corp., 145 S. Ct. 1572 (2025) (reversing
Ninth Circuit). But even if the District of Columbia
henceforth attracted all FSIA suits to enforce arbitral
awards, the D.C. Circuit has yet to be afforded an
opportunity to opine on the argument Spain advances
here.
B. The Decision Below Is Correct
The D.C. Circuit’s straightforward analysis of the
FSIA’s arbitration exception also is correct. Spain’s
argument below ignored the FSIA’s plain text. And its
new argument before this Court both misconstrues the
key language and undercuts the arbitration
exception’s purpose.
1. Spain has largely abandoned its argument
below that the FSIA’s arbitration exception requires
an “agreement between the parties” to the litigation.
E.g., Spain Ct. App. Br. 22. The D.C. Circuit correctly
rejected that argument because the exception is clear:
“‘[A]n agreement made by the foreign state’—either
‘with’ or ‘for the benefit’ of a private party” is
sufficient. App.18a-19a (quoting 28 U.S.C.
§ 1605(a)(6)). Requiring an agreement “with” a
private party would read the phrase “or for the benefit
of” out of the statute. See Duncan v. Walker, 533 U.S.
167, 174 (2001) (“We are ... ‘reluctan[t] to treat
statutory terms as surplusage’ in any setting.”
(quoting Babbitt v. Sweet Home Chapter Communities
for Great Ore., 515 U.S. 687, 698 (1995)).
The D.C. Circuit also correctly applied that
holding to this case. Spain “d[id] not dispute that it is
[Page 19]
a signatory to the [ECT]” or that, “in ratifying the
ECT, Spain provided ‘unconditional consent’ to
arbitrate investment disputes with the investors of at
least some of the other signatory nations.” App.22a
(quoting ECT art. 26(3)(a)). Under the arbitration
exception’s plain text, therefore, the ECT constitutes
“an agreement” “made by [Spain] ... for the benefit of
a private party” to arbitrate “differences ... between
the parties.” 28 U.S.C. § 1605(a)(6). The panel thus
correctly declined to “resolve” the separate issue
“whether Spain entered into separate arbitration
agreements ‘with’” Claimants. App.22a.
2. Spain’s new argument before this Court fares
no better. Spain argues that even if the ECT is an
“agreement made by the foreign state with or for the
benefit of a private party,” it is not the kind of
agreement required by the FSIA: an agreement to
arbitrate “differences ... between the parties.” 28
U.S.C. § 1605(a)(6). According to Spain, “[i]t’s not
enough that the sovereign consented to ‘submit to
arbitration ... differences’ with someone” because the
statute’s reference to “the parties” means that “the
sovereign must have agreed to arbitrate differences ...
between itself and the plaintiff.” Pet. 19 (quoting 28
U.S.C. § 1605(a)(6)) (second emphasis added).
Spain’s argument misconstrues the phrase “the
parties.” The arbitration exception references two
parties: “the foreign state” that “made” the
“agreement to arbitrate” and “a private party” “with or
for the benefit of” whom the agreement was made. 28
U.S.C. § 1605(a)(6). The phrase “the parties,” id.,
naturally refers to those parties, not the parties to the
lawsuit. As a result, as long as the foreign state has
[Page 20]
entered an agreement “with or for the benefit of a
private party” to arbitrate “differences ... between”
itself and that private party, the identity of that party
is not a jurisdictional fact. Id. The FSIA permits suits
to “enforce” that “agreement” and any resulting
“award,” id., and who may do so is a “merits” question.
App.18a.
Nothing in the phrase “an agreement made by the
foreign state with or for the benefit of a private party”
suggests that the “private party” must be the plaintiff.
28 U.S.C. § 1605(a)(6). In ordinary usage, “private
party” simply means a non-governmental entity, not
necessarily a party to litigation. E.g., Republic of
Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992)
(distinguishing “a foreign state” from “a private
party”). And while Congress referred specifically to
“the foreign state” claiming immunity, its reference to
“a private party” is more general. 28 U.S.C.
§ 1605(a)(6) (emphases added). By using an
“indefinite article,” Congress referred to an
“undetermined or unspecified” party, not any
particular person or entity, McFadden v. United
States, 576 U.S. 186, 191 (2015) (quotation marks
omitted).
Spain therefore does not base its argument on the
phrase “a private party.” Instead, it claims “[t]he key
language is ‘differences ... between the parties.’”
Pet. 19 (quoting 28 U.S.C. § 1605(a)(6)). But the
natural referent of “the parties” is to the two parties
mentioned in the preceding clause of the same
provision. The word “‘the’ ... indicat[es] that a
following noun ... has been previously specified by
context.” Nielsen v. Preap, 586 U.S. 392, 408 (2019)
[Page 21]
(quotation marks omitted). The only parties
“previously specified” in the arbitration exception, id.
are “the foreign state” and the “private party” “with or
for the benefit of” whom it contracted. 28 U.S.C.
§ 1605(a)(6). “[T]he plaintiff” is not mentioned.
Pet. 19.
Spain’s attempt to equate “the parties” with the
litigants also flies in the face of the “normal rule of
statutory construction that identical words used in
different parts of the same act are intended to have
the same meaning.” Pereira v. Sessions, 585 U.S. 198,
211 (2018) (quoting Taniguchi v. Kan Pac. Saipan,
Ltd., 566 U.S. 560, 571 (2012)). The arbitration
exception’s first use of the word “party” (“a private
party”) uses that term in its broadest sense (a person
or entity) not narrowly as a synonym for “litigant.”
The exception’s second use of “party” must be given
the same broad meaning.
When Congress wanted to refer to the plaintiff in
an FSIA provision, it knew how to do so. Section
1605(b)(1), for example, refers expressly to “the party
bringing the suit.” If Congress wanted to limit the
arbitration exception to agreements “with or for the
benefit of the party bringing the suit,” it would have
said so.
b. Congress’s decision to leave questions about
who may enforce an arbitration agreement to the
merits phase also accords with the arbitration
exception’s goals. The exception contemplates “the
recognition and enforcement of arbitral awards”
pursuant to a wide range of “treat[ies] ... in force for
the United States.” 28 U.S.C. § 1605(a)(6). Each of
those treaties imposes different standards for
[Page 22]
enforcement. For example, the treaty at issue in
Blasket, the New York Convention—lists a limited
number of grounds for refusing confirmation of an
arbitral award. See New York Convention art. V. By
contrast, the treaty at issue in NextEra and 9REN—
the Convention on the Settlement of Investment
Disputes Between States and Nationals of Other
States, Mar. 18, 1965, 17 U.S.T. 1270 (“ICSID
Convention”)—specifies that the awards it governs
must be treated as “binding” “final judgment[s]” that
are not subject to any appeal or to any other remedy
in any court. ICSID Convention arts. 53(1), 54(1).
“Contracting states’ courts are thus not permitted to
examine an ... ICSID tribunal’s jurisdiction to render
the award; under the Convention’s terms, they may do
no more than examine the judgment’s authenticity
and enforce the obligations imposed by the award.”
Valores Mundiales, S.L. v. Bolivarian Republic of
Venezuela, 87 F.4th 510, 515 (D.C. Cir. 2023) (quoting
Mobil Cerro Negro, Ltd. v. Bolivarian Republic of
Venezuela, 863 F.3d 96, 102 (2d Cir. 2017)).
By avoiding an inquiry into who may enforce an
arbitration agreement at the jurisdictional stage,
Congress ensured that courts would decide that
question consistently with the specific treaty standard
applicable to each award. Otherwise, the FSIA would
pose a barrier to fulfilling the nation’s treaty
obligations. Congress deliberately sought to avoid
that result by specifying that foreign state immunity
is “[s]ubject to existing international agreements.” 28
U.S.C. § 1604. And under settled principles of
interpretation, federal statutes “are always to be
construed”—if ... possible”—“so as to conform to the
provisions of a treaty.” United States v. Forty-Three
[Page 23]
Gallons of Whisky, 108 U.S. 491, 496 (1883). Because
Spain’s interpretation risks defiance of the ICSID
Convention, it must be rejected.
Spain’s reliance on “[b]ackground arbitration
principles” fails for the same reason. Pet. 21. Which
“arbitration principles” apply to a given award against
a foreign state depends on the treaty that governs its
enforcement. Even if the background principles
applicable to private commercial arbitrations were
relevant, moreover, they would cut against Spain’s
argument. Spain claims “‘courts must resolve’”
whether an arbitration agreement was “‘formed.’”
Pet. 22 (brackets omitted) (quoting Granite Rock Co.
v. Int’l Bhd. of Teamsters, 561 U.S. 287, 299-300
(2010)). But no one disputes that the applicable
agreement here—the ECT—was formed. As the
decision below recognized, the issue here is the “scope”
of that agreement, not its “existence.” App.22a-25a
(emphasis omitted). That decision accords with the
decisions of other courts holding that questions about
who may benefit from an arbitration agreement go to
scope, not existence. E.g., Swiger v. Rosette, 989 F.3d
501, 506-07 (6th Cir. 2021); Brittania-U Nigeria, Ltd.
v. Chevron USA, Inc., 866 F.3d 709, 714-15 (5th Cir.
2017); Contec Corp. v. Remote Sol., Co., 398 F.3d 205,
209-11 (2d Cir. 2005). “Arbitration is ... ‘a matter of
consent,’” Granite Rock, 561 U.S. at 299 (quoting Volt
Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr.
Univ., 489 U.S. 468, 479 (1989)), and there is no
principled reason why Party A cannot express its
consent, in an arbitration agreement with Party B, to
have an arbitrator decide which other parties may
benefit from the agreement. If anything, therefore,
[Page 24]
background arbitration principles support the D.C.
Circuit’s decision here.
C. This Case Is a Poor Vehicle and Does Not
Otherwise Merit the Court’s Review
1. Even if this Court were nonetheless inclined to
consider Spain’s first question presented, this case
presents a poor vehicle for three reasons.
First, Spain’s central textual argument was never
briefed in the D.C. Circuit. See supra pp. 12-15. This
Court “will not consider” arguments that were
“inadequately preserved in the prior proceedings.”
Auer v. Robbins, 519 U.S. 452, 464 (1997). “In the
ordinary course, prudence ‘dictates awaiting a case in
which the issue was fully litigated below,’” so that this
Court has “the benefit of developed arguments on both
sides and lower court opinions squarely addressing
the question.’” FDA v. R.J. Reynolds Vapor Co., 145
S. Ct. 1984, 1996 (2025) (cleaned up) (quoting Yee v.
City Escondido, 503 U.S. 519, 538 (1992)).
Second, because Spain never presented its textual
argument below, no Court has yet considered it. This
Court is “a court of review, not of first view,” and it
should not grant certiorari to review arguments that
“were not addressed by the Court of Appeals,” or any
other appellate court. Cutter v. Wilkinson, 544 U.S.
709, 718 n.7, 719 (2005).
Third, review would accomplish nothing in this
case because the outcome in favor of Blasket is
foreordained. Spain’s question is anything but
“outcome-determinative.” Pet. 13-14. Even if the
question whether Spain consented to arbitrate with
Claimants were jurisdictional, courts must still defer
[Page 25]
to the Tribunal’s determination about Spain’s consent
to arbitrate. It is settled that “parties may agree to
have an arbitrator decide ... ‘gateway questions of
arbitrability,’” including “whether the parties have
agreed to arbitrate or whether their agreement covers
a particular controversy.” Henry Schein, Inc. v.
Archer & White Sales, Inc., 586 U.S. 63, 67-68 (2019)
(quoting Rent-A-Center, W., Inc. v. Jackson, 561 U.S.
63, 68-69 (2010)). When a question of arbitrability has
been clearly and unmistakably delegated to the
arbitral tribunal, the court “possesses no power to
decide the arbitrability issue,” and the arbitral
tribunal’s decision is binding even if it is “wholly
groundless.” Id. at 68 (emphasis added). Here, Spain
and Claimants clearly and unmistakably agreed to
arbitrate the question whether Spain agreed to
arbitrate because the ECT’s arbitration provisions
incorporate the UNCITRAL Rules, which empower
the tribunal “to rule on its own jurisdiction.” LLC SPC
Stileks v. Republic of Moldova, 985 F.3d 871, 878-79
(D.C. Cir. 2021) (quotation marks omitted). In
ratifying the ECT, Spain thus delegated to the
Tribunal the power to rule on any objection to its
jurisdiction, including “objections with respect to the
existence or validity of the arbitration agreement.”
UNCITRAL Rules art. 23(1). So the Tribunal’s finding
is controlling, regardless of how Spain’s FSIA question
is resolved.
The Tribunal’s finding is doubly controlling
because Spain affirmatively submitted its intra-EU
objection to the Tribunal and asked it to decide the
issue. J.A. 351-352, 620. “[A]fter an arbitral award,”
a party “cannot argue ... that the arbitrator lacked
authority to decide a jurisdictional or arbitrability
[Page 26]
issue the party itself submitted.” JCI Commc’ns, Inc.
v. Int’l Bhd. of Elec. Workers, Loc. 103, 324 F.3d 42, 50
(1st Cir. 2003). That makes this case a uniquely
unsuitable vehicle for deciding Spain’s FSIA question.
The Tribunal’s decision was also correct. The
ECT unambiguously provides for intra-EU
arbitration, and nearly 50 arbitral tribunals have
rejected Spain’s EU-law objection. See Decl. of A.
Bjorklund ¶ 165, BayWa r.e. AG v. Kingdom of Spain,
No. 1:22-cv-2403 (D.D.C. Jan. 30, 2023), Dkt. 21.
These tribunals include many of the world’s leading
experts on international law, most operating under
the auspices of the World Bank’s International Center
for Settlement of Investment Disputes. Id.; J.A. 679
¶ 127 & n.85. And these tribunals have uniformly
rejected Spain’s objection. Foreign courts have done
the same: As the United Kingdom’s High Court has
recognized, “[t]he EU treaties do not trump” Spain’s
“pre-existing treaty obligations under ... the ECT.”
Infrastructure Services Luxembourg S.À.R.L. v.
Kingdom of Spain, [2023] EWHC 1226, ¶ 67 (Comm),
bit.ly/45wjoL2; see also, e.g., Kingdom of Spain v.
Infrastructure Servs. Luxembourg S.à.r.l [2023] HCA
11 ¶¶ 10, 78, 82 (Austl.); EDF Energies Nouvelles, S.A.
v. Kingdom of Spain, Federal Supreme Court, Apr. 3,
2024, No. 4A_244/2023 (Switz.).
2. Nor is the question presented otherwise worthy
of review. To begin with, Spain fails to demonstrate
that its question presented bears any practical import.
The D.C. Circuit has already held in Tatneft v.
Ukraine, 771 F. App’x 9, 10 (D.C. Cir. 2019) (per
curiam), that a foreign sovereign waives immunity
from suit by ratifying the New York Convention. See
[Page 27]
28 U.S.C. § 1605(a)(1). The same principle applies to
the enforcement convention at issue in NextEra and
9REN, the ICSID Convention. See Blue Ridge Invs.,
L.L.C. v. Republic of Argentina, 735 F.3d 72, 84 (2d
Cir. 2013). Granting certiorari in these cases would
not change whether Spain is subject to jurisdiction
under the FSIA.
Although the D.C. Circuit below chose to leave
“waiver ... for another day,” App.17a, Tatneft is correct
and accords with other D.C. Circuit decisions,
Creighton Ltd. v. Government of State of Qatar, 181
F.3d 118, 123 (D.C. Cir. 1999); the rule in other
circuits, Seetransport Wiking Trader
Schiffarhtsgesellschaft MBH & Co. v. Navimpex
Centrala Navala, 989 F.2d 572, 578-79 (2d Cir. 1993),
as amended (May 25, 1993); and foreign courts’
interpretations of both the New York Convention, see,
e.g., CCDM Holdings, LLC v. Republic of India (No 3)
[2023] FCA 1266 ¶¶ 35, 41, 51, 103 (Austl.), and the
ICSID Convention, see, e.g., Infrastructure Servs.,
[2023] EWHC 1226 ¶¶ 67, 91-103; Sodexo Pass Int’l
SAS v. Hungary, CIV-2020-485-734 [2021] NZHC 371
¶¶ 23, 25 (N.Z.); Société Africiane des Bétons
Industriels (SOABI) v. Senegal Cour de Cassation (11
June 1991) 2 ICSID Reports 341 (Fr.). Spain and most
nations of the world are parties to those treaties—the
principal treaties governing enforcement of arbitral
awards against foreign states. The waiver exception
thus establishes jurisdiction regardless of the
arbitration exception.
Review of this case would also change nothing on
the ground. As the European Commission admitted
below, “[m]ost of the known intra-EU awards against
[Page 28]
States are already the subject of enforcement actions
here.” European Comm’n Reh’g Amicus Br. 12
(emphasis added). Spain’s concerns about facing the
“burdens of litigation” and “appellate consequences,”
Pet. 16, are thus largely moot. Even if Spain had a
“meritorious immunity defense,” id., it would not
retroactively protect Spain “from the inconvenience” of
suits already filed, Bolivarian Republic of Venezuela v.
Helmerich & Payne Int’l Drilling Co., 581 U.S. 170,
179 (2017) (quoting Dole Food Co. v. Patrickson, 538
U.S. 468, 479 (2003)).
Spain fares no better in invoking “reciprocity
concerns for our own government.” Pet. 17. A ruling
that the FSIA is not satisfied would amount to a
failure to fulfill the United States’ own international
treaty obligations under the ICSID Convention and
the New York Convention. See supra pp. 21-23. These
treaties sought “to encourage the recognition and
enforcement of commercial arbitration agreements in
international contracts and to unify the standards by
which agreements to arbitrate are observed and
arbitral awards are enforced in the signatory
countries.” Scherk v. Alberto-Culver Co., 417 U.S. 506,
520 n.15 (1974); see also Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631
(1985) (in ratifying New York Convention, United
States sought to advance the “emphatic federal policy
in favor of arbitral dispute resolution,” which applies
with “special force in the field of international
commerce”). If anything, therefore, reciprocity
concerns support the D.C. Circuit’s decision and
counsel against review.
[Page 29]
Spain’s amicus the European Commission adds that the decision below will encourage intra-EU arbitration, which is “incompatible with the very structure of the EU legal order.” European Comm’n Amicus Br. 9, 13-17 (U.S.). But the D.C. Circuit made clear that it was “not address[ing] the merits question whether [the ECT’s] arbitration provision extends to EU nationals.” App.26a. And whatever the courts below may ultimately hold on that merits issue, award holders remain free to enforce their intra-EU awards in other New York Convention signatory countries that have already rejected Spain’s intra-EU objection, including the U.K. See, e.g., Infrastructure Servs., [2023] EWHC 1226 ¶¶ 93-95. The decision below in no way disturbs the “EU legal order.”
Spain also contends that review is warranted to resolve a split on whether forum non conveniens is an available defense in arbitral award enforcement cases. But Spain overstates the depth of the circuit split on that issue. In truth, only the Second and D.C. Circuits have weighed in, and there is little daylight between those two circuits’ approaches: Forum non conveniens is categorically inapplicable in international arbitral award enforcement actions against foreign sovereigns in the D.C. Circuit, while it is almost categorically inapplicable in such actions in the Second Circuit. Accordingly, this Court has denied review on Spain’s forum non conveniens issue twice in the last eight years. See Government of Belize v. Belize Soc. Dev. Ltd., 580 U.S. 1046 (2017) (mem.); Ukraine v. PAO
[Page 30]
Tatneft, 143 S. Ct. 290 (2022) (mem.). Nothing has changed to warrant review now.
1. Spain greatly exaggerates the divide among the courts of appeals and the practical importance of any such disagreement. In the D.C. Circuit, forum non conveniens is not available in proceedings to confirm a foreign arbitral award against a foreign sovereign because “only a court of the United States (or of one of them) may attach the commercial property of a foreign nation located in the United States.” TMR Energy Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296, 303 (D.C. Cir. 2005) (citing 28 U.S.C. §§ 1609, 1610(a)(6)). The D.C. Circuit, however, has applied that rule only to “actions in the United States to enforce arbitral awards against foreign nations.” BCB Holdings Ltd. v. Government of Belize, 650 F. App’x 17, 19 (D.C. Cir. 2016) (emphasis added). It has had no occasion to consider whether forum non conveniens is available as a defense in actions to enforce foreign arbitral awards against private parties. Cf. TMR, 411 F.3d at 303 (citing the FSIA’s attachment and execution provisions).
Only the Second Circuit has adopted a contrary rule concerning the doctrine’s application to award enforcement actions against a foreign state. But in practice, the Second Circuit’s approach largely overlaps with the D.C. Circuit’s, as evidenced by the fact that the Second Circuit has not dismissed an enforcement action against a foreign state on forum non conveniens grounds in over a decade—not since Figueiredo Ferraz e Engenharia de Projecto Ltda. v. Republic of Peru, 665 F.3d 384 (2d Cir. 2011). In Figueiredo, the Second Circuit “disagree[d]” with TMR
[Page 31]
to the extent it “considered a foreign forum inadequate because the foreign defendant’s precise asset in this country can be attached only here.” Id. at 391.
The Second Circuit, however, has since limited Figueiredo’s holding, affirming the denial of a forum non conveniens defense in an award enforcement action against Nigeria because the “summary nature” of such actions weighs heavily against applying the doctrine. Esso Expl. & Prod. Nigeria Ltd. v. Nigerian Nat’l Petroleum Corp., 40 F.4th 56, 71 (2d Cir. 2022). Esso also underscored that the award holder’s “choice of forum in the United States was owed deference,” even though “all parties” were “incorporated” in Nigeria. Id. Given Esso’s rationale, it is largely irrelevant whether a court applies the Second Circuit’s approach to forum non conveniens or the D.C. Circuit’s: Either way, award enforcement actions against foreign sovereigns may proceed.
Spain’s efforts to widen the split fall flat. The decision below does not conflict with the Ninth Circuit’s decision in Melton v. Oy Nauror Ab, 161 F.3d 13, 1998 WL 613798, at *1 (9th Cir. Sept. 4, 1998) (table). Melton involved private parties, not a foreign sovereign, so there is no inconsistency with the D.C. Circuit’s holding, which arose in an FSIA case and has not yet been applied in a case involving only private parties. Regardless, because Melton is unpublished and does not bind future Ninth Circuit panels, it cannot be the subject of any split. See 9th Cir. R. 36-3.
Nor does the decision below conflict with Spain’s Fourth Circuit case, Estate of Ke v. Yu, 105 F.4th 648 (4th Cir. 2024). Like Melton, that case involved
[Page 32]
private parties. And the Fourth Circuit expressly declined to take sides in the narrow disagreement between the Second and D.C. Circuits, because it could reject the defense in light of “the circumstances of th[e] case.” Id. at 656-57 (“While it might well be that the defense of forum non conveniens is not available under the Convention,” the Court “need not decide that question in the context of this particular proceeding[.]”).
Any split on Spain’s forum non conveniens question is both shallow and stale. It does not merit review.
2. Certiorari is also unwarranted because the purported split is neither “outcome-determinative” nor “important.” Pet. 29-30, 32-33. As noted above, the Second Circuit has not applied forum non conveniens in an arbitral award enforcement action against a foreign sovereign in nearly fifteen years, and its most recent decision in Esso strongly signaled that such defenses are rarely meritorious. Because even courts “willing to entertain [forum non conveniens] motions ... rarely gran[t] them,” Restatement (Third) U.S. Law of Int’l Comm. Arb. § 4.27 reporters’ note b(ii) (2023), the forum non conveniens question is of little practical importance. The Fourth Circuit’s decision in Yu is illustrative: In most cases, it will be unnecessary to decide whether “forum non conveniens is not available under the [New York] Convention.” 105 F.4th at 656.
This case, too, exemplifies the point. Both the private- and public-interest factors favor denial of Spain’s forum non conveniens defense. Spain asserts (Pet. 32) that the “private interests are a wash,” but
[Page 33]
even the Second Circuit has recognized that the plaintiff’s choice of forum in award enforcement actions should control. Supra p. 31. Spain argues (Pet. 32) that the public-interest factors favor a European forum, but Spain’s consent to arbitrate is governed by customary international law—not EU law. See, e.g., J.A. 845. And Spain’s effort to downplay the United States’ interests flies in the face of the “emphatic federal policy in favor of arbitral dispute resolution,” Mitsubishi, 473 U.S. at 631, and our nation’s treaty obligations under both the ICSID Convention and the New York Convention. The “flexib[le]” analysis Spain seeks (Pet. 32-33) would thus lend it no support in any event.
3. The D.C. Circuit’s longstanding rule is sound. As this Court has explained, forum non conveniens applies only if “there exists an alternative forum” that is “adequate.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981). If other forums “d[o] not permit litigation of the subject matter of the dispute” or the “remedy” they offer is “clearly unsatisfactory,” the defense is unavailable. Id. That is the case in actions to enforce arbitral awards against foreign sovereigns: “[O]nly a court of the United States ... may attach the commercial property of a foreign nation located in the United States.” TMR, 411 F.3d at 303; see 28 U.S.C. § 1610(a)(6) (permitting attachment of foreign sovereign’s commercial property in the United States upon a judgment entered by a court of the United States). A court in Europe cannot provide that relief.
Spain’s rejoinder—that the D.C. Circuit’s rule is inconsistent with “the doctrine’s hallmark flexibility,” Pet. 33—fundamentally misunderstands the doctrine.
[Page 34]
That flexibility comes into play only after clearing the threshold adequate-alternative-forum hurdle. Piper Aircraft, 454 U.S. at 255. And there is no need to balance the “public and private interest[s]” for each forum, id., in foreign-arbitral-award enforcement cases against foreign sovereigns because there is never an adequate forum outside the United States, TMR, 411 F.3d at 303.
Spain also contends that its European assets “will do just as well as” its U.S. assets in a New York Convention action. Pet. 3, 30. But that misunderstands the nature of Blasket’s cause of action. In confirmation actions under the New York Convention, the award holder “seek[s] to enforce an arbitral award against a [debtor] in the United States” precisely because the debtor “will have assets here” that can be attached to satisfy the debt. Devas Multimedia Private Ltd. v. Antrix Corp., 2023 WL 4884882, at *4 (9th Cir. Aug. 1, 2023) (Miller, J., concurring) (emphasis added), rev’d, 145 S. Ct. 1572 (2025). Blasket’s effort to convert the Award to a judgment is merely a step in a single action aimed ultimately at attaching Spain’s U.S.-based assets to satisfy the Award. See Mobil Cerro, 863 F.3d at 118 n.18 (“an award-creditor need file only a single action to enforce the foreign New York Convention award under the FAA,” reducing the award “into a federal judgment on which execution (attachment, imposition of a lien, garnishment) may occur”). Spain’s argument is thus not that Blasket should pursue the same action elsewhere—an impossibility—but that it should pursue a different action altogether. That is not an argument for forum non conveniens.
[Page 35]
Spain’s submission would also fundamentally undercut the New York Convention’s policies. The Convention’s basic purpose is to spare investors the burden of pursuing their claims in the unfriendly fora of a foreign state defendant’s national courts. See Stefan Kröll, Enforcement of Awards, in Marc Bungenberg et al., International Investment Law: A Handbook 1483 (2015) (observing that a state’s refusal to pay an award is “usually coupled with an inability of the investor to find judicial or administrative support for enforcement in that country itself”); Leonard V. Quigley, Accession by the United States to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 70 Yale L.J. 1049, 1051 (1961) (noting “discrimination against foreign awards” in “national courts”). The New York Convention guarantees “the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought.” New York Convention art. I(1). And Congress implemented the Convention in mandatory terms: Such awards “shall” be enforced in United States courts. 9 U.S.C. § 207.
In implementing the New York Convention, the Executive Branch and Congress thus recognized this country’s interest in fulfilling its binding treaty commitment to enforce arbitral awards. Spain’s efforts to seek a home court advantage are understandable. But that is the very advantage the New York Convention sought to neutralize. Forum non conveniens is “not a principle of universal applicability” and cannot be used to subvert this “right of choice” of a U.S. forum guaranteed by Congress.
[Page 36]
United States v. Nat’l City Lines, Inc., 334 U.S. 573, 596-97 (1948).
For the foregoing reasons, the petition for a writ of certiorari should be denied.
|
Matthew S. Rozen |
Respectfully submitted, Matthew D. McGill |
Counsel for Respondent
Blasket Renewable Investments, LLC
August 14, 2025