Nos. 25-7136, 25-7158, 25-7174, 25-7210, and 26-7021
In the United States Court of Appeals
for the District of Columbia Circuit
CUBE INFRASTRUCTURE FUND SICAV, ET AL,
Petitioners-Appellees,
v.
KINGDOM OF SPAIN,
Respondent-Appellant,
On Appeal from the United States District Court for the District of Columbia
Nos. 1:20-cv-01708 & 1:18-cv-01753 (Alikhan, J.), 1:20-cv-00817 (Bates, J.),
1:20-cv-01081 (Howell, J.), and 1:19-cv-03783 (Nichols, J.)
| Eamon P. Joyce Simon Navarro Tyler J. Domino SIDLEY AUSTIN LLP 787 Seventh Avenue New York, NY 10019 212.839.5300 |
Carter G. Phillips Counsel of Record Peter A. Bruland Cody M. Akins SIDLEY AUSTIN LLP 1501 K Street, NW Washington, DC 20005 202.736.8000 [email protected] |
Counsel for the Kingdom of Spain
Addendum A: Certificate of Parties and Amici
Addendum B: Disclosure Statement
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Page(s)
Cases
Al Bahlul v. United States,
767 F.3d 1 (D.C. Cir. 2014) ... 5
Allegheny Def. Project v. FERC,
964 F.3d 1 (D.C. Cir. 2020) ... 16, 20
Atl. Marine Constr. Co. v. U.S. Dist. Ct.,
571 U.S. 49 (2013) ... 5
Blasket Renewable Invs., LLC v. Kingdom of Spain,
665 F. Supp. 3d 1 (D.D.C. 2023) ... 8, 17
Brown v. Davenport,
596 U.S. 118 (2022) ... 10
Cargill Int’l S.A. v. M/T Pavel Dybenko,
991 F.2d 1012 (2d Cir. 1993) ... 12
Chevron Corp. v. Ecuador,
795 F.3d 200 (D.C. Cir. 2015) ... 13
Deutsche Telekom, A.G. v. Republic of India,
155 F.4th 694 (D.C. Cir. 2025) ... 4, 16
Engenharia de Projeto Ltda. v. Republic of Peru,
665 F.3d 384 (2d Cir. 2011) ... 6, 19
Exxon Mobil Corp. v. Corporación CIMEX, S.A. (Cuba),
146 S. Ct. 1909 (2026) ... 3
Gulf Oil Corp. v. Gilbert,
330 U.S. 501 (1947) ... 5
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Koster v. (Am.) Lumbermans Mut. Cas. Co.,
330 U.S. 518 (1947) ... 5, 18
LLC SPC Stileks v. Republic of Moldova,
985 F.3d 871 (D.C. Cir. 2021) ... 6
Montgomery v. Rosen,
2021 WL 112524 (D.C. Cir. Jan. 11, 2021) ... 14
NextEra Energy Glob. Holdings B.V. v. Kingdom of Spain,
112 F.4th 1088 (D.C. Cir. 2024) ... 1, 4, 8, 9, 12, 13, 14, 17
Piper Aircraft Co. v. Reyno,
454 U.S. 235 (1981) ... 5
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,
549 U.S. 422 (2007) ... 5
TMR Energy Ltd. v. State Prop. Fund of Ukr.,
411 F.3d 296 (D.C. Cir. 2005) ... 2
Verlinden B.V. v. Cent. Bank of Nigeria,
461 U.S. 480 (1983) ... 3
Statutes
28 U.S.C. §1605(a)(6) ... 1, 3, 10
International Materials
Energy Charter Treaty art. 10 (1994) ... 7
Case C-741/19, Republic of Moldova v. Komstroy, LLC,
ECLI:EU:C:2021:655 (Sep. 2, 2021) ... 6
Other Authorities
Norton Rose Fulbright, The Long Arm of American
Enforcement (May 2026) ... 16
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| FSIA | Foreign Sovereign Immunities Act |
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These consolidated appeals raise two threshold defenses that are currently foreclosed by circuit precedent. As the United States recently explained, that precedent is fundamentally wrong. The full Court should correct course—and it should act now under Federal Rule of Appellate Procedure 40(g), rather than forcing a panel to grapple with complex merits issues that won’t matter if Spain wins on threshold grounds.
I. The Court should grant initial hearing en banc to overrule NextEra Energy Global Holdings B.V. v. Kingdom of Spain, 112 F.4th 1088 (CADC 2024), which effectively rewrote the Foreign Sovereign Immunities Act’s arbitration exception.
Subject-matter jurisdiction in these cases hinges on the arbitration exception. That provision applies when there is an agreement (1) “made by the foreign state with or for the benefit of a private party” (2) to “submit to arbitration ... differences between the parties.” 28 U.S.C. §1605(a)(6) (emphasis added). The latter clause asks whether the sovereign consented to arbitrate differences between itself and the FSIA plaintiff. But NextEra blue-penciled that language, permitting courts to
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assert jurisdiction whenever the sovereign consented to arbitrate “with or for the benefit of” someone (albeit not necessarily the plaintiff).
The full Court should correct NextEra’s jurisdictional error. NextEra is at odds with precedent from the Supreme Court, this Court, and other circuits. Three members of this Court—including one member of the NextEra panel—have already questioned NextEra’s holding. And the United States has called NextEra flatly wrong. Given that growing chorus, the Court should grant initial hearing en banc, overrule NextEra, and remand these cases for a jurisdictional do-over, obviating the need for a panel to answer complex merits questions. Otherwise, NextEra will continue to wreak jurisdictional and foreign-relations havoc—not only in these cases, but also in those pending below.
II. Initial hearing en banc is independently warranted to overrule TMR Energy Ltd. v. State Property Fund of Ukraine, 411 F.3d 296 (CADC 2005), which categorically forbids courts to consider forum non conveniens in foreign-arbitral-award cases. TMR’s two-tier system— where ordinary litigants are always free to seek forum non conveniens dismissal, but foreign sovereigns aren’t—flouts Supreme Court precedent, created a circuit split, and is still an outlier after two decades. Small
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wonder: as the government recently put it, forum non conveniens is all the more important in cases implicating foreign affairs and comity. Here too, there’s no reason for a panel to decide downstream merits questions when en banc review and vacatur are warranted on antecedent grounds.
A. Legal background
1. Under the FSIA, “courts lack subject-matter jurisdiction over suits against a foreign state ... unless an enumerated exception applies.” Exxon Mobil Corp. v. Corporación CIMEX, S.A. (Cuba), 146 S. Ct. 1909, 1917 (2026). “At the threshold” of every such action, a court “must satisfy itself that one of the [FSIA’s] exceptions applies—and in doing so it must apply the detailed ... standards set forth in the Act.” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493–94 (1983).
These cases involve the arbitration exception. Under that provision, courts have subject-matter jurisdiction to “confirm an award made pursuant to” an agreement “made by the foreign state with or for the benefit of a private party to submit to arbitration ... any differences ... between the parties.” §1605(a)(6).
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In NextEra, a panel of this Court held that the §1605(a)(6) jurisdictional inquiry is “satisfie[d]” whenever the FSIA plaintiff produces an agreement “made by the foreign state with or for the benefit of” a private party. 112 F.4th at 1102–04. By contrast, it held, whether a sovereign defendant consented to arbitrate differences between itself and the FSIA plaintiff is not a jurisdictional question. That question goes instead to “the scope of [an arbitration agreement], not its existence,” so it concerns only “enforceability of the arbitral award on the merits, rather than the district court’s jurisdiction.” Id. at 1103.
Members of this Court and the Executive Branch have since criticized NextEra. In Deutsche Telekom, A.G. v. Republic of India, the Court noted that “the line our immunity precedents have drawn—between cognizable challenges to the existence of an arbitration agreement and noncognizable claims about its scope—is neither self-evidently correct in principle nor obvious in its application to specific cases.” 155 F.4th 694, 704 (CADC 2025) (Katsas, J., joined by Srinivasan, C.J., and Rogers, J.). And the Solicitor General—joined by the State Department—recently told the Supreme Court that NextEra is “incorrect.” CVSG Br. 10, Kingdom of Spain v. Blasket Renewable Invs., LLC, No. 24-1130 (U.S. May 26,
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2026); accord U.S. Br. 13–14, Yukos Cap. Ltd. v. Russian Fed’n, No. 25-7097 (CADC July 20, 2026). Because the issue implicates “relations with foreign states,” id. at 1, “this highest-level Executive Branch deliberation is worthy of respect.” Al Bahlul v. United States, 767 F.3d 1, 25 (CADC 2014) (en banc).
2. Under the forum non conveniens doctrine, when “a court abroad is the more appropriate and convenient forum for adjudicating [a] controversy,” federal courts may “bypas[s]” jurisdictional questions and dismiss. Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 425, 432 (2007). Factors favoring dismissal include the burden of “untangl[ing]” foreign-law problems and the “interest in having localized controversies decided at home.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508–09 (1947). Courts may also consider forum shopping. See, e.g., Atl. Marine Constr. Co. v. U.S. Dist. Ct., 571 U.S. 49, 65 (2013); Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981). Forum non conveniens “resists formalization.” Koster v. (Am.) Lumbermans Mut. Cas. Co., 330 U.S. 518, 528 (1947). The Supreme Court has never deemed the doctrine off-limits in certain classes of cases and has “repeatedly rejected the use of per se rules.” Am. Dredging, 510 U.S. at 455.
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In TMR, however, this Court adopted the per se rule that “forum non conveniens is not available in proceedings to confirm a foreign arbitral award.” LLC SPC Stileks v. Republic of Moldova, 985 F.3d 871, 876 n.1 (CADC 2021). That is so (TMR announced) because “only U.S. courts can attach foreign commercial assets found within the United States.” Id. (citing TMR, 411 F.3d at 303–04). The Second Circuit has “respectfully disagree[d],” explaining that the adequacy analysis turns on “whether there are some assets of the defendant in the alternative forum, not whether the precise asset located here can be executed upon there.” Figueiredo Ferraz e Engenharia de Projeto Ltda. v. Republic of Peru, 665 F.3d 384, 391 (2d Cir. 2011). The United States has likewise observed that this Court’s “categorical rule is inconsistent with [Supreme Court] precedent.” CVSG Br. 21.
B. Factual and procedural background
1. These cases began amidst the Great Recession. After markets crashed in 2008, Europe teetered toward crisis, and European governments clamored for help. J.A. 215, Blasket Renewable Invs. LLC v. Kingdom of Spain, No. 23-7038 (CADC July 27, 2023). In exchange for emergency relief, EU regulators demanded reforms. J.A. 127–28,
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NextEra, No. 23-7031. Spain agreed to adjust its renewable-energy subsidies, which cost billions of euros each year and were pushing Spain’s electrical system to “the brink of collapse.” J.A. 136, No. 23-7038. While Spain still guaranteed “reasonable rates of return,” id. at 75–76, these reforms affected profits for certain EU energy companies like appellees and their predecessors-in-interest.
Disappointed by their purported losses, the companies filed arbitrations claiming that Spain had violated the Energy Charter Treaty, a multilateral investment treaty whose signatories promise foreign investors “fair and equitable treatment.” Energy Charter Treaty art. 10 (1994). Arbitrators issued awards in their favor.
The companies then faced a dilemma. The natural place for European companies to confirm awards against a European sovereign based on European conduct would be European courts. Yet the European Union’s highest court has held that the Treaty’s arbitration provision is not (and never was) an offer to arbitrate disputes between EU Member States like Spain and EU nationals like appellees and their predecessorsin-interest. Case C-741/19, Republic of Moldova v. Komstroy, LLC, ECLI:EU:C:2021:655, ¶¶ 61, 66 (Sep. 2, 2021). So even the companies’
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home countries would have refused to enforce the awards. E.g., Netherlands Amicus Br. 14, NextEra, No. 23-7031.
2. To avoid defeat in Europe, the companies forum-shopped their way to U.S. courts (and in many cases, assigned their awards to appellee Blasket, which wasn’t party to the underlying arbitrations). But that meant clearing a new hurdle: the FSIA’s arbitration exception. And Blasket Renewable Investments, LLC v. Kingdom of Spain, 665 F. Supp. 3d 1 (D.D.C. 2023), the first such case to reach judgment, dismissed for lack of subject-matter jurisdiction after finding that the arbitration exception didn’t apply. “Declin[ing] to defer to the arbitrator’s ruling that an agreement to arbitrate existed,” Blasket reviewed the Energy Charter Treaty de novo and found that Spain never made a “valid offer to arbitrate as to” EU nationals like the plaintiffs. Id. at 8. No United States court has reviewed de novo and reached a different conclusion.
The NextEra panel reversed sub nom. The panel did “not address” whether Spain consented to arbitrate differences between itself and EU nationals. 112 F.4th at 1104. Instead, it held that Blasket was wrong in deeming that question jurisdictional. In the panel’s view, the arbitration exception was “satisfie[d]” simply because the Treaty is an agreement
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“for the benefit” of at least some private parties (albeit not necessarily the FSIA plaintiffs). Id. at 1102–03. Meanwhile, whether Spain consented to arbitrate differences between itself and the FSIA plaintiffs was merely a “[s]cope questio[n]” about the awards’ “enforceability on the merits.” Id. at 1101, 1103. The Court also rejected Spain’s forum non conveniens defense, citing TMR’s categorical ban on forum non conveniens in arbitral-award cases. Id. at 1105. After Spain sought rehearing, the Court called for a response but ultimately denied review.
Spain petitioned for certiorari, and the Court called for the views of the Solicitor General. The United States acknowledged “tension” between NextEra and other circuits’ FSIA decisions, and it agreed that TMR created a circuit split over forum non conveniens. CVSG Br. 16, 19. It also called both issues “critical” and “important.” Id. at 2–3. And it observed that NextEra is “incorrect” because it departs from “the most natural reading” of §1605(a)(6), and that TMR is “inconsistent with [Supreme Court] precedent.” CVSG Br. 10, 21; accord U.S. Yukos Br. 13–14 (disagreeing with NextEra). Yet despite all that, the United States encouraged the Court to await “more percolation” and a different vehicle, noting that “there may be many cases arising out of the D.C. Circuit” that
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could “provide opportunities” for future review. CVSG Br. 16. The Court ultimately denied cert, a decision that “imports no expression of opinion upon the merits,” Brown v. Davenport, 596 U.S. 118, 142 (2022).
3. These cases reached judgment while Spain’s cert petition was pending. Bound by NextEra, the district courts rejected Spain’s jurisdictional objection that it never consented to arbitrate differences between itself and the FSIA plaintiffs. And bound by TMR, they declined to consider Spain’s forum non conveniens defense. The courts then rejected Spain’s merits arguments and entered judgment for the plaintiffs. Spain appealed, and the Court consolidated the cases.
I. The Court should grant initial hearing en banc to overrule NextEra’s jurisdictional holding.
NextEra blue-penciled the FSIA’s arbitration exception. Under §1605(a)(6), courts lack power over a foreign sovereign unless two jurisdictional requirements are met. First, there must be an agreement “made by the foreign state with or for the benefit of a private party.” §1605(a)(6). And second, the agreement must “submit to arbitration ... differences ... between the parties.” Id. (emphasis added). In other words, the sovereign must have consented to arbitrate differences between itself and “the
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plaintiff to the action.” U.S. Yukos Br. 13. NextEra ignored the second requirement, permitting courts to assert jurisdiction whenever a sovereign has consented to arbitration with someone, but not necessarily the FSIA plaintiff. As the United States has explained, there’s “no sound basis to read the FSIA” that way. CVSG Br. 13. Indeed, “[i]t would be strange—and at odds with the carefully crafted exceptions in the FSIA— for Congress to withdraw a foreign state’s sovereign immunity from a suit brought by one party solely because that state would lack immunity from a suit brought by someone else.” Id. at 10–11.
But NextEra didn’t just rewrite §1605(a)(6)—it also split with the Second and Fifth Circuits, overlooked binding circuit precedent, and is “inconsistent with” Supreme Court precedent on a “critical” question. CVSG Br. 2, 13. Initial hearing en banc is warranted to restore the jurisdictional inquiry that Congress mandated.
A. NextEra created a circuit split, departed from circuit precedent, and ignored Supreme Court guidance.
1. NextEra created a circuit split. Its §1605(a)(6) analysis permits courts to assert jurisdiction whenever they find an agreement with or for the benefit of “some unrelated third party.” CVSG Br. 16. By con-
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trast, the Second and Fifth Circuits ask whether the sovereign has consented to arbitrate differences between itself and the FSIA plaintiff. And while “neither court [has] had occasion to address” this Court’s approach, the government has acknowledged the “tension” NextEra creates. Id.
In the Second Circuit, whether a sovereign defendant consented to arbitrate differences between itself and the FSIA plaintiff is a threshold jurisdictional question. Cargill International S.A. v. M/T Pavel Dybenko, 991 F.2d 1012 (2d Cir. 1993), makes this clear. The sovereign defendant there undisputedly consented to arbitrate differences between itself and someone (just not necessarily the FSIA plaintiff). E.g., id. at 1014. Under NextEra, that would have “satisfie[d]” §1605(a)(6) and ended the jurisdictional inquiry. 112 F.4th at 1103. But the Second Circuit explained that the “initial determination” of “subject matter jurisdiction” required the district court to analyze whether the sovereign had “intended” the FSIA plaintiff to “enforce the agreement as a third party beneficiary.” 991 F.2d at 1018–19. In other words: whether it consented to arbitrate differences between itself and the FSIA plaintiff.
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The Fifth Circuit took a similar approach in Al-Qarqani v. Saudi Arabian Oil Co., declining to assert jurisdiction under §1605(a)(6) because “there exist[ed] no agreement among th[e] parties.” 19 F.4th 794, 802 (2021) (emphasis added). Here too, it wasn’t enough that the sovereign instrumentality’s predecessor-in-interest agreed to arbitrate with someone. See id. at 800–02. Instead, the court dismissed “for lack of jurisdiction” after finding “no agreement among these parties.” Id. at 802.
2. NextEra also contravenes circuit precedent. Nearly a decade before NextEra was decided, Chevron Corp. v. Ecuador, 795 F.3d 200, 205 (CADC 2015), outlined the §1605(a)(6) “jurisdictional task.” Tracking the very statutory language that NextEra ignored, Chevron explained that the FSIA “requires the District Court to satisfy itself ... of an agreement between the parties”—i.e., between “the sovereign asserting immunity” and “the party challenging” it. Id. at 205 & n.3 (emphasis added). According to Chevron, it is “error” to “esche[w] making this determination as part of [the] jurisdictional analysis.” Id. But that’s exactly what NextEra commands. See 112 F.4th at 1104. NextEra didn’t even try to justify its departure from Chevron’s categorical holding.
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3. Nor can NextEra be squared with Supreme Court precedent. As the United States has observed, “[e]ven in the context of domestic arbitration, where Congress has expressed a strong ‘national policy favoring arbitration,’ courts themselves will resolve any ‘validity challenge to the arbitration clause itself.’” CVSG Br. 12 (quoting Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 298–99 (2010)) (citation modified). That’s precisely the challenge Spain raises here—and the United States agrees that it would “trigger a court’s obligation to determine [validity] for itself” in the domestic award-enforcement context. Id. at 13. “Congress could not have wanted courts to exercise less oversight in cases where the immunity of a foreign sovereign is at stake.” Id. at 3.
B. The jurisdictional question is exceptionally important.
Initial hearing en banc is also warranted because the FSIA question is exceptionally important. See Montgomery v. Rosen, 2021 WL 112524, at *1 (CADC Jan. 11, 2021) (initial hearing en banc to “resolve our circuit law on [an] important question”), vacated, 141 S. Ct. 1232 (2021).
Rewriting the arbitration exception has “critical” consequences for foreign sovereigns. CVSG Br. 2. Spain maintains that it never consented to arbitrate differences between itself and the appellees—especially
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Blasket, a newcomer that wasn’t even party to the arbitrations. If Spain’s objection is jurisdictional (as the government agrees), “a federal court must decide for itself de novo” whether Spain is correct. Id. But if consent is just a “merits question,” NextEra, 112 F.4th at 1104, then the arbitrators’ decision is either “binding” on courts or “reviewed highly deferentially.” CVSG Br. 2. In other words, NextEra “permits withdrawal of [foreign] sovereign immunity without a federal court’s ever determining” whether the sovereign consented to arbitrate as §1605(a)(6) requires. Id. That distinction could make all the difference here, since the only Article III court to review the consent question de novo agreed with Spain.
And that’s just the tip of the iceberg. Treating consent as a merits issue deprives sovereign defendants of an immunity decision “at the outset of the case,” Helmerich, 581 U.S. at 179, threatening them with “significant, burdensome discovery,” Poland Br. 10, Blasket, No. 24-1130 (U.S. June 4, 2025). It also strips away the “procedural protection” of interlocutory review, Bulgaria Br. 7, Blasket, No. 24-1130 (U.S. June 4, 2025), likewise producing “the very friction the FSIA was designed to avoid.” Id. at 12. Nor is the blast radius limited to a single treaty: under NextEra, “hundreds” of investment treaties will now satisfy §1605(a)(6)
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“in and of themselves.” European Commission Br. 22, Blasket, No. 24-1130 (U.S. June 4, 2025). Yet again, NextEra analyzed none of this.
NextEra is also taking a toll on courts. By rewriting the FSIA’s jurisdictional standard, the decision makes it easy to survive a 12(b)(1) motion. That means district judges in this Circuit are being forced to reach the merits of complex international-arbitration disputes that wouldn’t get off the ground elsewhere. And the burden will only grow. NextEra has “elevated the federal DC courts as a global destination” for foreign investors whose home countries would reject their claims—inviting a deluge of award-enforcement cases. Norton Rose Fulbright, The Long Arm of American Enforcement (May 2026), bit.ly/Magnet_Forum; cf. CVSG Br. 16 (“there may be many cases arising out of the D.C. Circuit”).
C. The full Court should overrule NextEra now.
It is “appropriate for the en banc court to set aside circuit precedent” when “the panel’s holding on an important question of law was fundamentally flawed.” Allegheny Def. Project v. FERC, 964 F.3d 1, 18 (CADC 2020) (en banc) (citation omitted). NextEra fits that description, and there is no reason to postpone its fate. That the Court declined to rehear NextEra en banc two years ago, see 2024 WL 4940503 (CADC Dec.
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2, 2024), is no basis to decline now. Since then, three members of the Court—including one member of the NextEra panel—have recognized that NextEra’s jurisdictional holding is “neither self-evidently correct in principle nor obvious in its application to specific cases.” Deutsche Telekom, 155 F.4th at 704 (Katsas, J., joined by Srinivasan, C.J., and Rogers, J.). And the United States has gone further still, calling NextEra flatly “incorrect.” CVSG Br. 10; accord U.S. Yukos Br. 10 (“jurisdictional inquiry” “depends on whether the arbitration agreement is with or for the benefit of” FSIA plaintiff). Given these developments, a panel shouldn’t have to slog through complex merits issues when there are ample grounds for the full Court to overrule NextEra’s jurisdictional holding.
These cases are the ideal vehicle for doing so. This petition doesn’t ask the full Court to reach the merits of Spain’s immunity defense—just to clear the way for the lower courts to consider that defense de novo. Once they do, however, these cases should be over. To date, the one district court to evaluate Spain’s defense for itself agreed with Spain and found “no agreement to arbitrate ever existed.” Blasket, 665 F. Supp. 3d at 14. The EU’s highest court shares that view, as do the European Commission, 26 EU Member States—including the home countries of most
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appellees (or their predecessors-in-interest)—and multiple arbitral panels. See Blasket Petition 14, bit.ly/Cert_Petition (collecting authorities). And no federal court has reviewed de novo and disagreed. Cf. NextEra, 112 F.4th at 1105 (taking “no position on the ultimate enforceability of th[e] awards”). That alone should give the Court pause before letting NextEra insulate such an important issue from de novo review.
II. The Court should grant initial hearing en banc to overrule TMR’s categorical ban on forum non conveniens.
Initial en banc review is independently warranted to overrule TMR. In every other area of civil litigation, defendants are free to seek dismissal when a different forum would be more appropriate. But TMR invented an ad hoc exception in award-confirmation suits—defying Supreme Court precedent and splitting with the Second Circuit. As the United States now agrees, that approach is backwards. “[T]he foreignaffairs and comity concerns that arise” in such cases “make it all the more important” to keep forum non conveniens available. CVSG Br. 20. To save courts from becoming mired in foreign disputes that belong elsewhere, the full Court should overrule TMR and hold that forum non conveniens does not confer least-favored-nation status on foreign sovereigns facing nine-figure arbitral awards.
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A. TMR flouts Supreme Court precedent, created a circuit split, and remains an outlier.
As the government has recognized, TMR is “inconsistent with” Supreme Court precedent. CVSG Br. 21. The Court has “repeatedly rejected the use of per se rules in applying the doctrine,” Am. Dredging, 510 U.S. at 455, yet TMR gave “dispositive weight” to a single factor—that foreign courts can’t attach U.S.-based property. CVSG Br. 20–21. That was wrong. Because “each case turns on its facts,” Am. Dredging, 510 U.S. at 455, courts ought to “balanc[e]” a plaintiff’s preferred remedy against “other relevant considerations (including the availability of alternative equivalent remedies),” just as they do in other contexts. CVSG Br. 21.
TMR also created a “conflict with the Second Circuit.” CVSG Br. 19; e.g., In re Arb. between Monegasque de Reassurances S.A.M. v. Nak Naftogaz of Ukraine, 311 F.3d 488 (2d Cir. 2002). And two decades on, no other circuit has adopted TMR’s two-tier system for foreign sovereigns. To the contrary: the Second Circuit carefully assessed TMR and “respectfully disagree[d].” Figueiredo, 665 F.3d at 391. In its view, “the adequacy of [an] alternative forum depends on whether there are some assets of
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the defendant in the alternate forum, not whether the precise asset located here can be executed upon there.” Id. District courts are well-positioned to make that call—with no need for “rigid” rules. CVSG Br. 21.
B. The full Court should overrule TMR now.
TMR is “fundamentally flawed,” Allegheny, 964 F.3d at 18, and this Court shouldn’t keep it around amidst a flood of forum-shopped confirmation cases. Nor should the Court sit on the sidelines while a panel grapples with complex merits questions. Overruling TMR would lead to vacatur and remand for the district courts to consider forum non conveniens in the first instance. In that case, a panel’s merits determinations could be for nought. The sounder course is to revisit TMR now.
The Court should grant initial hearing en banc.
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| August 10, 2026 | Respectfully submitted, |
| Eamon P. Joyce Simon Navarro Tyler J. Domino SIDLEY AUSTIN LLP 787 Seventh Avenue New York, NY 10019 212.839.5300 |
Signature Carter G. PhillipsCounsel of Record Peter A. Bruland Cody M. Akins SIDLEY AUSTIN LLP 1501 K Street, NW Washington, DC 20005 202.736.8000 [email protected] |
Counsel for the Kingdom of Spain
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This petition complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and type-style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point Century Schoolbook font. It complies with the type-volume requirements of Federal Rule of Appellate Procedure 40(d)(3)(A) because it contains 3,893 words, not counting the parts excluded by Federal Rule of Appellate Procedure 32(f) and Circuit Rule 32(e)(1).
Signature
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I certify that on August 10, 2026, I electronically filed the foregoing petition and following addenda with the Clerk of the Court using the CM/ECF System, which will send notice to all registered CM/ECF users.
Signature
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A. Parties
No. 25-7136. Petitioner the Kingdom of Spain was the defendant in the district court and is the appellant in this Court. Cube Infrastructure Fund SICAV, Cube Infrastructure Managers S.A., Cube Energy S.C.A. (now known as Cube Energy S.À.R.L.), Demeter Investment Managers S.A., and Demeter 2 FPCI were the plaintiffs in the district court and are the appellees in this Court.
No. 25-7158. Spain was the respondent in the district court and is the appellant in this Court. The original petitioners in the district court were Watkins Holdings S.à.r.l. and Watkins (NED) B.V., which have since substituted out of the case. Blasket Renewable Investments LLC substituted into the case as petitioner and is the appellee in this Court.
No. 25-7174. Spain was the respondent in the district court and is the appellant in this Court. Infrastructure Services Luxembourg S.A.R.L. and Energia Termosolar B.V. were the petitioners in the district court and are the appellees in this Court.
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No. 25-7210. Spain was the defendant in the district court and is the appellant in this Court. The original plaintiffs in the district court were InfraRed Environmental Infrastructure GP Limited, European Investments (Moron) 1 Limited, European Investments (Moron) 2 Limited, European Investments (Olivenza) 1 Limited, and European Investments (Olivenza) 2 Limited, which have since substituted out of the case. Blasket Renewable Investments LLC substituted into the case as plaintiff and is the appellee in this Court.
No. 26-7021. Spain was the respondent in the district court and is the appellant in this Court. The original petitioners in the district court were RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.A.R.L., which have since substituted out of the case. Blasket Renewable Investments LLC substituted into the case as petitioner and is the appellee in this Court.
B. Amici
The European Commission appeared as an amicus curiae in each of the cases below. To date, no amici have appeared in this Court.
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Petitioner the Kingdom of Spain is a sovereign government not subject to the disclosure requirement of Circuit Rule 26.1.