UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
|
CUBE INFRASTRUCTURE FUND Plaintiffs-Appellees, v. KINGDOM OF SPAIN, Defendant-Appellant. |
No. 25-7136 |
All parties in the above-captioned cases respectfully submit this joint motion to govern further proceedings, as directed by this Court’s Orders dated February 4, 2026, April 8, 2026, and July 10, 2026. This motion summarizes the procedural history of these consolidated cases and the parties’ differing positions on what should happen next.
The consolidated cases are five appeals by Respondent-Appellant the Kingdom of Spain (“Spain”) from judgments enforcing international arbitral awards rendered by the International Centre for Settlement of Investment Disputes (“ICSID”), in disputes under the Energy Charter
[Page 2]
Treaty (“ECT”). Each of the underlying investment disputes arose between Spain and nationals of states that were members of the European Union at the relevant times. In each case, Spain has argued against enforcement based on the “intra-EU” nature of the underlying investment disputes, among other grounds. The consolidated appeals include: Cube Infrastructure Fund SICAV, et al. v. Kingdom of Spain (“Cube”), No. 25-7136; Blasket Renewable Investments LLC v. Kingdom of Spain (“Watkins”), No. 25-7158; Infrastructure Services Luxembourg S.A.R.L., et al. v. Kingdom of Spain (“Infrastructure Services”), No. 25-7174; Blasket Renewable Investments LLC v. Kingdom of Spain (“InfraRed”), No. 25-7210; and Blasket Renewables Investments, LLC v. Kingdom of Spain (“RREEF”), No. 26-7021.1
1 The original petitioners in Watkins were Watkins Holdings S. R.L. and Watkins (NED) B.V.; the petitioners in InfraRed 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; and the petitioners in RREEF were RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.A.R.L. In these three cases, the original petitioners filed motions to substitute Blasket as petitioner following assignment of the relevant awards. See Mot. to Substitute, Watkins Holdings S. R.L. v. Kingdom of Spain, No. 1:20-cv-01081-BAH (D.D.C. Apr. 26, 2024), Dkt. 66; Mot. to Substitute, InfraRed Env’t Infrastructure GP Ltd. v. Kingdom of Spain, No. 1:20-cv-00817-JDB (D.D.C. Feb. 6, 2023), Dkt. 56; ↩
[Page 3]
On May 11, 2025, before noticing the first of these appeals, Spain petitioned for certiorari from a decision by a panel of this Court in NextEra Energy Global Holdings B.V. v. Kingdom of Spain, 112 F.4th 1088 (D.C. Cir. 2024), which had rejected Spain’s arguments that it was immune from suit under the Foreign Sovereign Immunities Act (“FSIA”) based on its “intra-EU” objection and that forum non conveniens required dismissal. See Petition for Writ of Certiorari, Kingdom of Spain v. Blasket Renewable Invs., LLC, -- S. Ct. --, 2026 WL 1855038 (2026) (No. 24-1130).
On October 16, 2025, Spain moved to consolidate Cube, Watkins, and “forthcoming future related appeals,” and to stay all consolidated appeals pending disposition of Spain’s petition for certiorari. Mot. to Consolidate Related Appeals at 1, Cube, No. 25-7136, Doc. #2140690; Mot. to Stay, No. 25-7136, Doc. #2140691. On February 4, 2026, the Court granted Spain’s motion to consolidate Cube with Watkins and
Mot. to Substitute, RREEF Infrastructure (G.P.) Ltd. v. Kingdom of Spain, No. 1:19-cv-03783-CJN (D.D.C. Feb. 6, 2023), Dkt. 51. The district courts granted the original petitioners’ motions, and Blasket became petitioner in each of the underlying actions. See Watkins Holdings, No. 1:20-cv-01081-BAH (D.D.C. Apr. 29, 2024) (minute order); InfraRed, No. 1:20-cv-00817-JDB (D.D.C. July 12, 2023) (minute order); RREEF, No. 1:19-cv-03783-CJN (D.D.C. Apr. 4, 2025) (minute order).
[Page 4]
Infrastructure Services and held all three cases in abeyance pending disposition of Spain’s petition for certiorari. No. 25-7136, Doc. #2157540. On April 8, 2026, and July 10, 2026, the Court granted Spain’s motions to add InfraRed and RREEF, respectively, to the consolidated appeal. No. 25-7136, Docs. #2167665 & #2182752.2 This Court’s July 10 order directed the parties to file “motions to govern in these consolidated cases” by August 3, 2026, in light of the Supreme Court’s denial of Spain’s petition for certiorari. Order at 2, No. 25-7136, Doc. #2182752; Kingdom of Spain v. Blasket Invs. LLC, -- S. Ct. --, 2026 WL 1855038 (June 29, 2026) (mem.). Below are the parties’ respective positions on what should happen next.
2 A sixth appeal raising similar issues has recently been docketed, and Spain will move to consolidate it with the others. See Blasket Renewable Invs. LLC v. Kingdom of Spain (“BayWa”), No. 26-7147. The original petitioner in Baywa was Baywa R.E. AG. On June 20, 2023, the original petitioner filed a motion to substitute Blasket as petitioner following the assignment of the relevant award. See Mot. to Substitute, Baywa R.E. AG v. Kingdom of Spain, No. 1:22-cv-02403-APM (D.D.C. June 20, 2023), Dkt. 25. The district court granted the original petitioner’s motion, and Blasket became petitioner in this action. Baywa, No. 1:22-cv-02403-APM (D.D.C. Aug. 17, 2023) (minute order). ↩
[Page 5]
Pursuant to Federal Rule of Appellate Procedure 40(g), Spain will shortly file a petition for initial en banc review of two dispositive, threshold issues—application of the FSIA and availability of forum non conveniens—presented in these consolidated appeals.3 Initial en banc is warranted because, absent en banc review, a panel arguably would be constrained from reaching them given the prior panel opinion in NextEra, 112 F.4th 1088, of which Spain sought review in the Supreme Court. While the Supreme Court did not grant review, the United States government—in a brief signed by the Solicitor General and joined by the Department of State—unequivocally stated that the NextEra panel wrongly decided both questions presented. See Br. for the United States as Amicus Curiae, Kingdom of Spain v. Blasket Renewable Investments, LLC, No. 24-1130, at 8 (U.S. May 26, 2026) (“On the first question
3 Contrary to the implication in Appellee’s position, infra, the D.C. Circuit Handbook actually states that initial en banc petitions “ideally should be filed within the first 30 days after docketing, but in no event later than the date on which that party’s brief is due.” Handbook of Practice and Internal Procedures ¶ XIII.B.2 (emphasis added). When Spain initially noticed the first appeal, its cert. petition in separate cases raising the same threshold issues was pending, and the Supreme Court called for the views of the Solicitor less than a month later. Filing an en banc petition then would have made no sense. ↩
[Page 6]
presented, about the FSIA’s arbitration exception, the court of appeals erred in holding that arbitrators rather than courts should decide whether Spain has an arbitration agreement that is ‘with or for the benefit of respondents, 28 U.S.C. 1605(a)(6).”); id. at 19–21 (“The decision below applied circuit precedent . . . in holding that forum non conveniens is categorically unavailable in suits seeking to confirm foreign arbitral awards.... Nothing in the FSIA, however, purports to categorically preclude the application of forum non conveniens. . . . The D.C. Circuit’s categorical rule is inconsistent with [Supreme Court] precedent.”). The government has since reiterated its position directly to this Court regarding its erroneous interpretation of the FSIA. See Br. for the United States, Yukos Cap. Ltd. v. Russian Federation, No. 25-7097, Doc. # 2184040 at 13–14 (filed July 20, 2026) (discussing NextEra).
Spain, therefore, proposes that any panel briefing on the merits be held in abeyance during the en banc Court’s disposition of that petition.
This Court’s denial of en banc review of the panel opinion in NextEra nearly two years ago, see Order, No. 23-7031, Doc. #208774 (Dec. 2, 2024) (en banc), is no obstacle to now hearing these threshold issues en banc in these consolidated appeals. There have been two important
[Page 7]
developments since that prior order declining to take the NextEra decision en banc. First, as detailed above, the United States fully endorsed Spain’s position that the panel opinion in NextEra is simply wrong in how it decided both threshold issues. See Br. for the United States, at 2, 10, 19–21 (U.S.). On both issues, which implicate international law and foreign relations, “this highest-level Executive Branch deliberation is worthy of respect.” Al Bahlul v. United States, 767 F.3d 1, 25 (D.C. Cir. 2014) (en banc); see also id. (“Attorney General opinions not binding but ‘entitled to some deference, especially where judicial decisions construing a statute are lacking”) (quoting Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 780 n.6 (D.C. Cir. 1984) (Edwards, J., concurring))). The United States did not participate in proceedings on Spain’s en banc petition in NextEra, let alone conclusively state that the panel had doubly erred.
Were that not enough, months before the Executive’s filing in the Supreme Court, another panel of this Court questioned the NextEra panel’s disposition of the first question. Deutsche Telekom, A.G. v. Republic of India, 155 F.4th 694, 704 (D.C. Cir. 2025). The Deutsche Telekom panel explained that “the line [this Court’s] immunity
[Page 8]
precedents have drawn—between cognizable challenges to the existence of an arbitration agreement and non-cognizable claims about its scope— is neither self-evidently correct in principle nor obvious in its application to specific cases.” Id. (citing Spain’s petition for certiorari and noting that it was “supported by four European sovereigns and the European Commission itself”).
Given that NextEra has fundamentally been called into question, it would save time and court resources for the full en banc court to hear the FSIA and forum non conveniens issues now before any briefing on the merits questions that only district courts within this Circuit have decided (in conflict with one another, moreover).
In the event that the Court does not defer panel briefing pending a ruling on Spain’s petition for initial hearing en banc, Spain proposes the following schedule:
[Page 9]
Separately, Spain has recently appealed another related case (BayWa) and will seek to consolidate it with these appeals. See supra at 4 n.2. For the reasons explained in that motion to consolidate, the BayWa appeal should follow any schedule put in place here.
Appellees are mindful of the Court’s admonition in each of its consolidation orders that “the court looks with extreme disfavor on repetitious submissions and will, where appropriate, require a joint brief of aligned parties with total words not to exceed the standard allotment for a single brief” and that the parties “must provide detailed justifications for any request to file separate briefs or to exceed in the aggregate the standard word allotment.” Orders at 2, Cube, No. 25-7136, Doc. #2157540, Doc. #2167665, Doc. #2182752 (emphasis in original). Accordingly, Appellees request the following briefing schedule and format, which are in line with the Federal Rules of Appellate Procedure’s standard word allotments and briefing schedule, starting from the date of this motion:
[Page 10]
See Fed. R. App. 31(a)(1); see also D.C. Cir. R. 31(a) (“Parties must serve and file their briefs in accordance with the scheduling order issued by the court.”); D.C. Cir. Handbook of Practice and Internal Procedures ¶ IX.A.1 (“In general, the appellee’s or respondent’s brief is due 30 days after the appellant’s or petitioner’s brief. A reply brief is due 21 days later.”).
Rather than follow the default schedule, Spain seeks either an indefinite stay of panel briefing pending the resolution of its forthcoming petition for initial hearing en banc, or in the alternative an extended panel briefing schedule under which panel briefing would not be complete until January 2027. Neither the further stay Spain seeks, nor the elongated schedule that it proposes in the alternative, is warranted.
First, this Court should not hold panel briefing in abeyance pending Spain’s en banc petition in these appeals. Initial hearing en banc is
[Page 11]
extraordinarily rare; “initial hearing en banc is not favored and ordinarily will not be ordered.” Fed. R. App. P. 40(g). And Spain’s petition seems to be a particularly unlikely candidate given that Spain evidently plans to seek an initial hearing en banc on the very questions that this Court refused to hear en banc less than two years ago, see NextEra Energy Glob. Holdings B.V. v. Kingdom of Spain, No. 23-7031 (Dec. 2, 2024), Doc. #208774, and which the Supreme Court declined to review less than two months ago, Kingdom of Spain v. Blasket Invs. LLC, -- S. Ct. --, 2026 WL 1855038 (June 29, 2026) (mem.).
Spain’s suggestion that the invitation brief of the United States warrants en banc review is meritless. While the United States disagreed with aspects of the NextEra panel’s immunity analysis, it ultimately concluded that “Spain would not be entitled to relief” in any event because its lately discovered “intra-EU” objection could not, as a matter of law, invalidate its pre-existing agreement to arbitrate in the Energy Charter Treaty. U.S. Br. 8, 10, Blasket, -- S. Ct. --, 2026 WL 1855038 (No. 24-1130); see also id. at 17 (“The court of appeals on remand would therefore be likely to reject Spain’s reliance on EU law to justify its failure to honor the ‘unconditional’ promise reflected in the Treaty’s plain
[Page 12]
text.” (quoting Energy Charter Treaty art. 26(3)(a), Dec. 17, 1994, 2080 U.N.T.S. 121)). And the United States likewise recommended that further review of Spain’s forum non conveniens arguments be denied after observing that “it is unclear that Spain’s forum non conveniens argument could prevail in any circuit.” Id. at 21.
Deutsche Telekom, A.G. v. Republic of India, 155 F.4th 694 (D.C. Cir. 2025), likewise casts no doubt on NextEra. The Court there merely held that India’s immunity defense was sufficiently “colorable” that raising it did not waive India’s right to bring later merits defenses. Id. at 703. Although India’s defense was “foreclosed” by NextEra, the panel found it colorable because Spain’s petition for certiorari challenging NextEra was pending at the time and NextEra was not so “self-evidently correct” as to make India’s defense “wholly insubstantial and frivolous.” Id. at 704 (quoting Bell v. Hood, 327 U.S. 678, 682–83 (1946)). The panel did not otherwise analyze NextEra’s merits, and none of the judges that joined it voted for rehearing in NextEra or even called for a response to Spain’s rehearing petition. In that context, the panel’s statement does not remotely suggest it viewed any argument for overruling NextEra to be meritorious.
[Page 13]
Instead of further delaying the final disposition of these consolidated cases, Spain should file its petition and brief its appeals from the judgments in the consolidated cases in parallel. In the exceedingly unlikely event that this Court grants initial hearing en banc, Spain will have ample time to prepare a brief that re-argues the positions that the panel in NextEra unanimously rejected and on which en banc review was denied with no recorded dissent. Having already delayed the resolution of these appeals while it asked the Supreme Court to review those issues, Spain should not be able to delay yet further their resolution while it (again) asks the en banc Court to immediately revisit them after having recently declined to do so.
Indeed, although those issues are implicated in this case, Spain moved to consolidate these matters primarily by highlighting other legal issues that were addressed by the courts below, noting the issues on which it intends to seek en banc only in a footnote. See, e.g., Mot. to Consolidate at 3 & n.3, RREEF, No. 26-7021 (D.C. Cir. Apr. 6, 2026), Doc. #2167333. Specifically, Spain argued that these appeals raise two issues that would not be implicated by its en banc petition: “Whether an arbitral award by the International Centre for Settlement of Investment
[Page 14]
Disputes (“ICSID”) is entitled to full faith and credit without the court first determining whether the parties before it in fact agreed to arbitrate,” and “[w]hether enforcement of an arbitral award would violate the foreign sovereign compulsion doctrine.” Id. at 3. A panel of the Court should address those issues that Spain has presented on appeal; there is no reason for the full Court, before a panel even decides these cases, to revisit other issues settled by this Court just two years ago in NextEra.
Spain’s intention to seek initial en banc hearing is simply a disguised excuse to delay resolution of these appeals to the detriment of its creditors. Spain has repeatedly argued in pending postjudgment enforcement proceedings below that these appeals forestall findings by district courts under 28 U.S.C. § 1610(c) that a reasonable period of time has elapsed since judgment such that Spain’s creditors may attach and execute on Spain’s assets in satisfaction of the judgments entered against it.4 Spain has also cited these appeals as a basis to halt postjudgment
4 See, e.g., Opposition to Blasket’s Motion for Relief Pursuant to 28 U.S.C. § 1610(c) and 28 U.S.C. § 1963, at 5–6, Watkins, No. 1:20-cv-01081-BAH (D.D.C. Jan. 5, 2026), Dkt. 121; Opposition to Petitioners’ Motion for Relief Pursuant to 28 U.S.C. § 1610(c) and 28 U.S.C. § 1963, at 7–8, Infrastructure Servs. Luxembourg S.A.R.L. v. Kingdom of Spain, No. 1:18-cv-01753-LLA (D.D.C. Jan. 2, 2026), Dkt. 126-1 (“Infrastructure Servs. Mem.”). ↩
[Page 15]
enforcement proceedings altogether, including discovery into attachable assets.5 Further, 28 U.S.C. § 1963 bars registration of judgments against Spain outside of the issuing district while these appeals are pending absent leave. While some district courts have granted creditors limited relief under §§ 1610(c) and 1963,6 in other proceedings those requests are still pending.7 Proceeding expeditiously with these appeals would place all creditors on more equal footing and limit Spain’s global strategy of hindering collection efforts across the board by delaying these proceedings.
That Spain’s successive stay request is only yet another effort to delay disposition of these cases is made only more obvious by the fact that Spain could have filed its forthcoming en banc petition months ago. This Court’s procedures provide that a petition for initial hearing en banc “should be filed within the first 30 days after docketing.” D.C. Cir. Handbook of Practice and Internal Procedures ¶ XIII.B.2. Spain’s
5 Infrastructure Servs. Mem. at 13–14. ↩
6 See, e.g., Memorandum Opinion, Watkins, No. 1:20-cv-01081-BAH, Dkt. 126. ↩
7 See Petition, Infrastructure Servs., No. 1:18-cv-01753-LLA (D.D.C. July 27, 2018). ↩
[Page 16]
petition, which still has not been filed, is already far beyond that 30-day guidance for any of the consolidated appeals. Nor can Spain justify its delay by reliance on the United States’s amicus brief before the Supreme Court in NextEra, or even the Supreme Court’s denial of certiorari in NextEra, both of which took place more than 30 days ago. Spain’s untimely and still-not-filed petition should not be permitted to delay further the resolution of these consolidated appeals.
Second, this Court should also not elongate the briefing schedule in the manner Spain suggests. Assuming the Court does not hold panel briefing in abeyance, Spain provides no justification whatsoever for the extension beyond the standard briefing timeline. And for the reasons just articulated, Appellees would be prejudiced by further delay. Spain has stalled long enough, and briefing in this matter should now proceed on the standard schedule.
Finally, Spain notes that it will move to consolidate an additional appeal (BayWa). Appellees do not object to consolidation, provided consolidation does not serve as a basis for an extension of the briefing schedule. Where the parties, issues, and counsel overlap, there is no
[Page 17]
reason the consolidation of an additional case warrants further delaying briefing in this matter.
For the reasons above, Spain respectfully requests that the Court defer entering a briefing schedule pending the outcome of Spain’s petition for initial en banc review, whereas petitioners request that the foregoing briefing schedule be entered in these consolidated appeals.
[Page 18]
Dated: August 3, 2026
Respectfully submitted,
|
/s/Eamon P. Joyce
Counsel for Appellant |
/s/Matthew D. McGill
Christopher M. Ryan
Ifeoluwa Atinuke Kolade
Counsel for Blasket Renewable |
[Page 19]
/s/Miguel A. Estrada
Miguel A. Estrada
Matthew S. Rozen
Jeff Liu
Gibson, Dunn & Crutcher LLP
1700 M Street, N.W.
Washington, D.C. 20036
(202) 955-8257
[email protected]
Counsel for Infrastructure Services
Luxembourg S.A.R.L. and Energia
Termosolar B.V.
/s/James E. Berger
James E. Berger
Charlene C. Sun
DLA PIPER LLP (US)
1251 Avenue of the Americas
New York, New York 10020
Tel: (212) 556-2200
Fax: (212) 556-2222
[email protected]
[email protected]
Counsel for Cube Infrastructure
Fund SICAV, Cube Infrastructure
Managers S.A., Cube Energy S.C.A.
now known as Cube Energy
S.A.R.L., Demeter Investment
Managers S.A., and Demeter 2 FPCI
[Page 20]
I hereby certify that:
Dated: August 3, 2026
/s/Matthew D. McGill
Matthew D. McGill
Counsel for Blasket Renewable
Investments LLC
[Page 21]
I hereby certify that on August 3, 2026, I electronically filed the foregoing document with the Clerk of the Court for the United States Court of Appeals for the District of Columbia Circuit using the appellate CM/ECF system. I certify that service will be accomplished by the CM/ECF system on all registered CM/ECF users.
/s/Matthew D. McGill
Matthew D. McGill
Counsel for Blasket Renewable
Investments LLC