Opinion

NextEra Energy Global Holdings B.V. v. Kingdom of Spain

112 F.4th 1088

Court: Court of Appeals for the D.C. Circuit
Filed: Aug 16, 2024
Status: Published
Cited by: 34 cases
Authority: More cited than 77.6%

“[A]n investment treaty’s arbitration provision operates as a unilateral offer to arbitrate by each sovereign to investors of the other signatory countries.”

How later courts described this case

“[A]n investment treaty’s arbitration provision operates as a unilateral offer to arbitrate by each sovereign to investors of the other signatory countries.”
“[A]n anti-suit injunction against a foreign sovereign presents more serious comity concerns than one against a private entity.”
finding “comity concerns near their peak” in analogous circumstances
noting that “[t]he waiver issue remains unsettled in our Circuit” and declining to address it

Written by the judges who cited it.

The opinion

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 28, 2024 Decided August 16, 2024

No. 23-7031

NEXTERA ENERGY GLOBAL HOLDINGS B.V. AND NEXTERA

ENERGY SPAIN HOLDINGS B.V.,

APPELLEES

KINGDOM OF SPAIN,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-01618)

Sarah M. Harris argued the cause for appellant. With her

on the briefs were Matthew J. Weldon, Lisa S. Blatt, Jonathan

M. Landy, Benjamin W. Graham, Aaron Z. Roper, and Noah C.

McCullough.

Sally L. Pei argued the cause for amicus curiae the

European Commission in support of appellant. With her on the

brief was R. Stanton Jones.

Donald I. Baker, W. Todd Miller, and Erin Glavich were

on the brief for amicus curiae the Government for the Kingdom

of the Netherlands in support of appellant.

Sharon Swingle, Attorney, U.S. Department of Justice,

argued the cause for amicus curiae United States of America

in support of appellant. With her on the brief were Brian M.

Boynton, Principal Deputy Assistant Attorney General, and

Thomas Pulham, Attorney.

Shay Dvoretzky argued the cause for appellees. With him

on the briefs were Timothy G. Nelson, Bradley A. Klein, Parker

Rider-Longmaid, Sylvia O. Tsakos, David Herlihy, Ashley C.

Parrish, Reginald R. Smith, and Thomas C. Childs.

Peter B. Rutledge was on the brief for amicus curiae the

Chamber of Commerce for the United States of America in

support of appellees.

Paul M. Levine, James J. East, Jr., and Carlos Ramos-

Mrosovsky were on the brief for amicus curiae International

Scholars in support of appellees.

Steven A. Engel and Michael H. McGinley were on the

brief for amicus curiae MOL Hungarian Oil and Gas PLC in

support of appellees.

Matthew D. McGill, Matthew S. Rozen, Jeffrey Liu, and

Lavi M. Ben Dor were on the brief for amicus curiae Blasket

Renewable Investments LLC in support of appellees.

No. 23-7032

9REN HOLDING S.A.R.L.,

APPELLEE

KINGDOM OF SPAIN,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-01871)

Sarah M. Harris argued the cause for appellant. With her

on the briefs were Matthew J. Weldon, Lisa S. Blatt, Jonathan

M. Landy, Benjamin W. Graham, Aaron Z. Roper, and Noah C.

McCullough.

Sally L. Pei argued the cause for amicus curiae the

European Commission in support of appellant. With her on the

brief was R. Stanton Jones.

Sharon Swingle, Attorney, U.S. Department of Justice,

argued the cause for amicus curiae United States of America

in support of appellant. With her on the brief were Brian M.

Boynton, Principal Deputy Assistant Attorney General, and

Thomas Pulham, Attorney.

Shay Dvoretzky argued the cause for appellees. With him

on the briefs were Timothy G. Nelson, Bradley A. Klein, Parker

Rider-Longmaid, Sylvia O. Tsakos, David Herlihy, Ashley C.

Parrish, Reginald R. Smith, and Thomas C. Childs.

Peter B. Rutledge was on the brief for amicus curiae the

Chamber of Commerce for the United States of America in

support of appellees.

Paul M. Levine, James J. East, Jr., and Carlos Ramos-

Mrosovsky were on the brief for amicus curiae International

Scholars in support of appellees.

Steven A. Engel and Michael H. McGinley were on the

brief for amicus curiae MOL Hungarian Oil and Gas PLC in

support of appellees.

Matthew D. McGill, Matthew S. Rozen, Jeffrey Liu, and

Lavi M. Ben Dor were on the brief for amicus curiae Blasket

Renewable Investments LLC in support of appellees.

No. 23-7038

BLASKET RENEWABLE INVESTMENTS LLC,

APPELLANT

KINGDOM OF SPAIN,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cv-03249)

Matthew D. McGill argued the cause for appellant. With

him on the briefs were Matthew S. Rozen, Jeffrey Liu, and Lavi

M. Ben Dor.

Sarah M. Harris argued the cause for appellee. With her

on the brief were Lisa S. Blatt, Jonathan M. Landy, Benjamin

W. Graham, Aaron Z. Roper, and Noah C. McCullough.

Sally L. Pei argued the cause for amicus curiae the

European Commission in support of appellant. With her on the

brief was R. Stanton Jones.

John A. Burlingame, Stephen P. Anway, and Dimitar P.

Georgiev-Remmel were on the brief for amicus curiae the

Republic of Croatia in support of appellee.

Sharon Swingle, Attorney, U.S. Department of Justice,

argued the cause for amicus curiae United States of America

in support of appellant. With her on the brief were Brian M.

Boynton, Principal Deputy Assistant Attorney General, and

Thomas Pulham, Attorney.

Before: PILLARD and PAN, Circuit Judges, and ROGERS,

Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge PILLARD.

Opinion dissenting in part filed by Circuit Judge PAN.

PILLARD, Circuit Judge: A collection of Dutch and

Luxembourgish energy companies made investments in the

Kingdom of Spain in reliance on promised economic subsidies.

Several years later, in the wake of 2008 financial crisis, Spain

withdrew those subsidies to control costs. The companies

challenged Spain’s action. Instead of going to court, they

invoked an arbitration clause in the Energy Charter Treaty, a

multilateral investment treaty whose signatories include most

countries within the European Union, among them Spain, the

Netherlands, and Luxembourg, along with some countries

outside of Europe. The companies prevailed in their respective

arbitrations and secured multi-million-euro awards. The

European Union, however, has taken the position that the

Energy Charter Treaty’s arbitration provision does not apply to

disputes between a national of one EU Member State and

another EU Member State, and so the resulting arbitral awards

are invalid as a matter of EU law. If the companies sought to

enforce the awards in an EU national court, they would lose.

So, the companies came to the United States. Although

the United States is not a signatory to the Energy Charter

Treaty, it is a signatory to other treaties—namely, the ICSID

Convention and the New York Convention—that obligate it to

enforce certain foreign arbitral awards. Invoking those treaties,

the companies filed enforcement petitions in the United States

District Court for the District of Columbia.

Spain defended itself in two ways relevant here. It moved

to dismiss the petitions on the ground that it enjoys sovereign

immunity under the Foreign Sovereign Immunities Act, 28

U.S.C. § 1602 et. seq. And Spain filed its own lawsuits in

Dutch and Luxembourgish courts seeking, among other things,

an anti-suit injunction to prevent the companies from

proceeding with their petitions to enforce their arbitral awards

in United States courts. In response, the companies argued that

the district courts had jurisdiction under the FSIA’s waiver and

arbitration exceptions and asked the district courts for their

own anti-anti-suit injunction to enjoin Spain from seeking in

foreign courts to enjoin the United States court proceedings.

The district courts resolved those motions in opposing

ways. The court presiding over NextEra Energy Global

Holdings B.V. v. Kingdom of Spain, 656 F. Supp. 3d 201

(D.D.C. 2023), and 9REN Holding S.A.R.L. v. Kingdom of

Spain, No. 19-cv-1871, 2023 WL 2016933 (D.D.C. Feb. 15,

2023), held that it had jurisdiction under the FSIA’s arbitration

exception and denied Spain’s motion to dismiss in NextEra. (A

motion to dismiss was not at issue in 9REN.) Exercising that

jurisdiction, the court granted both companies’ requested

injunctions to prevent Spain from seeking anti-suit relief in

foreign courts.

By contrast, in Blasket Renewable Investments, LLC v.

Kingdom of Spain, 665 F. Supp. 3d 1 (D.D.C. 2023), the district

court deemed Spain immune under the FSIA and denied as

moot the companies’ requested injunction. Spain appeals the

adverse decisions in NextEra and 9REN, while a successor to

some of the companies appeals the adverse decision in Blasket.

Because the cases raise similar issues, we heard argument on

the same day and now resolve them in a single opinion.

For the reasons that follow, we hold that the district courts

have jurisdiction under the FSIA’s arbitration exception to

confirm these arbitration awards against Spain, but that the

court in NextEra and 9REN abused its discretion by enjoining

Spain from pursuing anti-suit relief in Dutch and

Luxembourgish courts. We therefore affirm in part and reverse

in part in NextEra; reverse in 9REN and Blasket; and remand

for further proceedings.

These cases concern the relationship between three sets of

multilateral international treaties: (1) the Treaty on the

Functioning of the European Union (TFEU) and the Treaty on

European Union (TEU) (collectively, the EU Treaties), which

created and now govern the European Union; (2) the Energy

Charter Treaty (ECT), an investment treaty adopted to promote

international cooperation in the energy sector; and (3) the

ICSID Convention (also known as the Convention on the

Settlement of Investment Disputes Between States and

Nationals of Other States) and the New York Convention (also

known as the Convention on the Recognition and Enforcement

of Foreign Arbitral Awards), two treaties designed to facilitate

the enforcement of international arbitration awards.

The Energy Charter Treaty was signed in 1994 among 53

nations and regional organizations to promote international

cooperation in the energy sector. See Energy Charter Treaty

art. 2, Dec. 17, 1994, 2080 U.N.T.S. 95. Its initial signatories

(also known as contracting parties) included the EU, most EU

Member States, including Spain, the Netherlands, and

Luxembourg, and 26 nations outside the EU. The United States

is not a signatory. See Int’l Energy Charter, Contracting

Parties and Signatories of the Energy Charter Treaty,

https://perma.cc/XA3F-L2R2.

While these cases were pending, the EU, Spain, and

Luxembourg each announced its intention to withdraw from

the ECT. See NextEra 28(j) Letter dated May 20, 2024;

NextEra 28(j) Letter dated July 9, 2024. Under Article 47 of

the ECT, these withdrawals “shall take effect” one year after

their announcement. ECT art. 47(2). Because the withdrawals

post-date the events in question, we refer to the EU, Spain, and

Luxembourg throughout this opinion as signatories to the ECT.

The ECT protects investments in the territory of a

“Contracting Party” by “Investors” located or incorporated in

“other Contracting Parties.” Id. art. 10; see also id. arts. 1(7),

26. In particular, Article 10(1) mandates that contracting

parties give “fair and equitable treatment” to the investments

of other contracting parties’ investors. Id. art. 10(1). To

effectuate that protection, Article 26 provides that a foreign

investor “may choose to submit” to international arbitration

any “[d]ispute[] between a Contracting Party and an Investor

of another Contracting Party relating to” a covered investment.

Id. art. 26(1), (2). By joining the ECT, a state

“unconditional[ly] consent[s]” to “international arbitration” of

investment disputes at the investor’s election. Id., art. 26(3).

Investors can choose among several arbitral tribunals,

including the International Centre for Settlement of Investment

Disputes (ICSID) or an hoc arbitration tribunal under the

Arbitration Rules of the United Nations Commission on

International Trade Law (UNCITRAL). Id. art. 26(4)(a), (b).

Regardless of arbitral forum, the ECT provides that tribunals

“shall decide the issues in dispute in accordance with this

Treaty and applicable rules and principles of international

law.” Id. art. 26(6). ICSID awards may be enforced under the

ICSID Convention, while UNCITRAL awards may be

enforced under the New York Convention. See ICSID

Convention art. 54(1), opened for signature Mar. 18, 1965, 17

U.S.T. 1270; New York Convention art. III, June 10, 1958, 21

U.S.T. 2517.

NextEra Energy Global Holdings B.V. and NextEra

Energy Spain Holdings B.V. (collectively, NextEra) are Dutch

companies, as are AES Solar Energy Coöperatief U.A. and

Ampere Equity Fund B.V. (collectively, AES). 9REN Holding

S.À.R.L. (9REN) is a Luxembourgish company. Between

2007 and 2012, the companies made investments in solar

power projects in Spain in reliance on that country’s promise

that they could charge subsidized electricity rates, ensuring

profitable returns. NextEra and 9REN invested approximately

€750 million and €211 million, respectively; AES did not detail

the magnitude of its investment, but it was part of a broader

group of investors that cumulatively invested approximately €2

billion.

In the wake of the 2008 financial crisis, Spain withdrew

those subsidies in an effort to control costs. In response, the

companies commenced arbitration under Article 26 of the

ECT. Because Spain, the Netherlands, and Luxembourg are

signatories to the ICSID Convention, NextEra and 9REN

decided to arbitrate before ICSID tribunals in Washington D.C.

AES opted to proceed before an ad hoc UNCITRAL tribunal

seated in Geneva, Switzerland. The companies argued that

Spain failed to give their investments “fair and equitable

treatment” in violation of Article 10(1) of the ECT.

While those arbitral proceedings were ongoing, the Court

of Justice of the European Union—the EU’s court of last

resort—issued two landmark decisions that called into question

the validity of the underlying arbitration agreements. In Slovak

Republic v. Achmea BV, ECLI:EU:C:2018:158, ¶ 60 (Mar. 6,

2018), a Dutch company called Achmea prevailed in

arbitration against the Slovak Republic under the terms of a

bilateral investment treaty. Achmea ¶¶ 7, 12. The Slovak

Republic had unsuccessfully objected in the arbitration to the

arbitral tribunal’s jurisdiction, arguing that “as a result of [the

Slovak Republic’s] accession to the European Union,

[Achmea’s] recourse to an arbitral tribunal provided for in [the

bilateral investment treaty] was incompatible with EU law.”

Id. ¶ 11. Making the same argument in a German national

court, the Slovak Republic sought to set aside the arbitral

award, and that court referred the matter to the Court of Justice

of the European Union. Id. ¶ 12.

The Court of Justice honored the Slovak Republic’s

objection. The court observed that Member States may not

“submit a dispute concerning the interpretation or application

of the [EU] Treaties to any method of settlement other than

those provided for in the Treaties.” Id. ¶ 32 (citing TFEU art.

344). And one such requirement, the court explained, is that a

tribunal “called on to interpret or . . . apply EU law,” id. ¶ 42,

must have the authority to “make a reference to the [Court of

Justice] for a preliminary ruling,” with the “object of securing

uniform interpretation of EU law, thereby serving to ensure its

consistency,” id. ¶¶ 37, 49 (citing TFEU art. 267). The court

reasoned that an arbitral tribunal considering an intra-EU

dispute under an investment treaty “may be called on to

interpret or indeed to apply EU law,” id. ¶ 42, but, unlike

national courts, would lack the authority to refer questions of

EU law to the Court of Justice, id. ¶ 49. As a result, the court

concluded, a binding commitment to submit intra-EU disputes

to arbitration could prevent open legal questions “from being

resolved in a manner that ensures the full effectiveness of EU

law.” Id. ¶ 56.

The Court of Justice therefore held that the EU Treaties

“must be interpreted as precluding a provision in an

international agreement concluded between [EU] Member

States, . . . under which an investor from one of those Member

States may, in the event of a dispute concerning investments in

the other Member State, bring proceedings against the latter

Member State before an arbitral tribunal whose jurisdiction that

Member State has undertaken to accept.” Id. ¶ 60. As a result,

the Court of Justice prohibited EU national courts from

enforcing Achmea’s arbitration award. Id. ¶ 60.

In Republic of Moldova v. Komstroy LLC,

ECLI:EU:C:2021:655 (Sept. 2, 2021), the Court of Justice

applied the logic of Achmea to the Energy Charter Treaty’s

arbitration provision. The Court of Justice first determined

that, because the European Union is a signatory to the ECT,

“the ECT itself is an act of EU law.” Komstroy ¶ 49. A tribunal

constituted under the ECT, therefore, will necessarily be

“required to interpret, and even apply, EU law.” Id. ¶ 50. And

because such a tribunal cannot refer such questions to the Court

of Justice, the Treaty’s arbitration provision could run afoul of

the EU Treaties in just the same way as the provision at issue

in Achmea. Apparently embracing a form of interpretation akin

to our doctrine of constitutional avoidance, the Court of Justice

concluded that Article 26 of the ECT “must be interpreted as

not being applicable to disputes between a Member State and

an investor of another Member State concerning an investment

made by the latter in the first Member State.” Id. ¶ 66.

Separately, the European Commission (EC)—the EU’s

executive branch—identified a different problem with the

awards. Article 107 of the TFEU prohibits Member States

from granting “aid” that “distorts or threatens to distort

competition,” absent the EC’s prior approval. TFEU arts. 107,

108. The EC determined that Spain’s energy subsidies were

unapproved “[s]tate aid.” See Euro. Comm’n Decision on State

Aid, SA.40348, ¶ 88 (Nov. 10, 2017). That meant, according

to the EC, that any arbitral award successfully challenging

Spain’s revocation of the subsidies “would constitute in and of

itself State aid.” Id. ¶ 165. So, even if the companies prevailed

in this appeal, EU law would prohibit Spain from paying the

awards unless and until the EC granted approval to do so. Id.

The EC is currently considering whether to grant such

approval, but it has made no decision to date. See NextEra Eur.

Comm’n Amicus Br. 30.

Both arbitration regimes—ICSID and UNCITRAL—

delegate to the arbitral tribunal the power to decide threshold

issues of arbitrability. See ICSID Convention art. 41(1) (“The

Tribunal shall be the judge of its own competence.”);

UNCITRAL Rules, art. 23(1) (“The arbitral tribunal shall have

the power to rule on its own jurisdiction, including any

objections with respect to the existence or validity of the

arbitration agreement.”). Relying on Achmea and Komstroy,

Spain argued to the arbitral tribunals that they lacked

jurisdiction over the disputes because, as a matter of EU law,

Spain could not lawfully enter into arbitration agreements with

the companies. Spain made two primary arguments: (1) that

Article 26(4) of the ECT (the arbitration provision) does not

cover disputes between an investor in one EU Member State

and another EU Member State; and (2) that, even if it did,

Article 26(6) of the ECT (the choice-of-law provision) requires

the tribunal to apply Achmea and Komstroy to prevent such

intra-EU arbitration.

The tribunals rejected Spain’s jurisdictional objection.

The 9REN tribunal’s analysis is illustrative. First, the tribunal

concluded that “the plain language of the ECT[’s arbitration

provision]” does not exclude “intra-EU disputes from the scope

of ECT.” 9REN J.A. 86. Quoting another tribunal, the 9REN

tribunal observed that “[i]t would have been a simple matter to

draft the ECT so that Article 26 does not apply to disputes

between an Investor of one EU Member State and another EU

Member State as respondent.” 9REN J.A. 86 n.102. But “[t]hat

was not done,” and the tribunal found no other “indication in

the language of the ECT that any such exclusion was intended.”

9REN J.A. 86 n.102.

Second, the 9REN tribunal determined that the ECT, so

construed, does not violate the EU Treaties because the

tribunal’s “jurisdiction and its exercise in the present case rests

upon the ECT (with international law as the applicable law) and

not EU law.” 9REN J.A. at 95-96. And, looking to the ECT’s

choice-of-law provision, the tribunal reasoned that, “[a]s a

matter of international law, the notion that EU law may be

considered only by EU judges is misconceived.” 9REN J.A. at

94. After all, “[i]nternational courts and tribunals are

frequently required to consider the laws of domestic or regional

jurisdictions,” but their conclusions “are not binding on the

courts or tribunals of the home jurisdiction.” 9REN J.A. at 94.

Likewise, “[t]he award of an ECT [arbitral] tribunal does not

in any way represent a threat or challenge to the autonomy or

authority of the . . . the EU and the [Court of Justice].” 9REN

J.A. at 94.

On the merits, the tribunals found that Spain violated the

Energy Charter Treaty and awarded damages in the amount of

€290 million to NextEra, €41 million to 9REN, and €26.5

million to AES. These awards are not anomalous. Amici point

out that “Spain now leads the world in noncompliance with

investor-state awards,” owing “more than $1.3 billion for 16

unpaid investor-state awards.” NextEra Int’l Scholars Amicus

Br. 30 & n.23.

Spain continued to fight these awards through the

processes laid out in the ICSID and New York Conventions.

Spain requested review of NextEra’s and 9REN’s awards under

the ICSID annulment process, arguing that the tribunals

“manifestly exceed[ed] [their] powers”—one of the five

recognized grounds for annulment under Article 52 of the

ICSID Convention. And Spain appealed AES’s award (at issue

in Blasket) to the Federal Supreme Court of Switzerland, as

contemplated by Article V(1)(e) of the New York Convention

and Swiss law. Those challenges were unsuccessful.

Armed with multi-million-euro arbitration awards, the

companies sought to confirm them in the United States.

“Confirmation is the process by which an arbitration award is

converted to a legal judgment.” LLC SPC Stileks v. Republic

of Moldova, 985 F.3d 871, 875 (D.C. Cir. 2021). It is only once

an award is confirmed that the prevailing party may seek to

execute on the resulting judgment “by, for example, attaching

[the sovereign’s] commercial assets in the United States.” Id.

As a signatory to the ICSID Convention, the United States

instructs its federal courts to “enforce[]”—i.e., confirm—

ICSID awards and give them “the same full faith and credit as

if the award were a final judgment of a court of general

jurisdiction of one of the several States.” 22 U.S.C. § 1650a(a).

Likewise, as a signatory to the New York Convention, the

United States instructs its federal courts to confirm

UNCITRAL awards governed by the Convention “unless it

finds one of the grounds for refusal or deferral of recognition

or enforcement of the award specified in the . . . Convention.”

9 U.S.C. § 207.

Spain defended itself in two ways. First, it moved to

dismiss the petitions filed in district court by NextEra and AES

in part on the ground that it enjoyed sovereign immunity under

the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C.

§ 1602 et seq. (Spain initially moved the district court to

dismiss 9REN’s petition, but that motion was denied without

prejudice when the case was held in abeyance pending the

outcome of the ICSID annulment proceedings, and Spain did

not renew its motion to dismiss once the case resumed.)

Second, Spain filed its own lawsuits in the courts of the

Netherlands and Luxembourg seeking, among other things, to

enjoin the companies under EU law from proceeding with their

petitions in the United States (a so-called anti-suit injunction).

The companies responded in kind. They argued that the

district courts had jurisdiction under the FSIA’s waiver and

arbitration exceptions, and they asked the district courts for

their own injunctions—anti-anti-suit injunctions—to stop

Spain from seeking anti-suit injunctions in foreign courts to

enjoin the U.S. court proceedings. And, in an effort to escape

the jurisdictional reach of the Dutch courts, AES transferred its

rights in the award to a Delaware company called Blasket

Renewable Investments LLC (Blasket). Blasket, not AES, is

an appellant here.

The district courts resolved these motions in early 2023.

The district court presiding over NextEra and 9REN held that,

under our binding precedent, Spain’s assertion that it “could

not have entered into the ECT’s arbitration provisions because

EU law . . . does not permit EU members to assign questions of

EU law to arbitration in non-EU tribunals” was a merits

defense to enforcement, not a jurisdictional question under the

FSIA. NextEra Energy Global Holdings B.V. v. Kingdom of

Spain, 656 F. Supp. 3d 201, 213 (D.D.C. 2023) (citing Stileks,

985 F.3d at 878-79; Chevron Corp. v. Ecuador, 795 F.3d 200,

205 & n.3 (D.C. Cir. 2015)); see also 9REN Holding S.À.R.L.

v. Kingdom of Spain, No. 19-cv-1871, 2023 WL 2016933, at

*4-6 (D.D.C. Feb. 15, 2023). The court thus held it had

jurisdiction under the FSIA’s arbitration exception, denied

Spain’s motion to dismiss in NextEra, and granted the

companies’ requested injunctions to prevent Spain from

seeking anti-suit relief in foreign courts. See NextEra, 656 F.

Supp. 3d at 215-21; 9REN, 2023 WL 2016933, at *7-13.

In Blasket, by contrast, the district court granted Spain’s

motion to dismiss, reasoning that, “[b]ecause Spain’s standing

offer to arbitrate was void as to the Companies under the [EU]

law to which both Spain and the Companies are subject and

which applied to the dispute by the terms of the Energy Charter

Treaty itself, no valid agreement to arbitrate exists.” Blasket

Renewable Inv., LLC v. Kingdom of Spain, 665 F. Supp. 3d. 1,

4 (D.D.C. 2023); see id. at 12-13. The Blasket court thus

deemed Spain immune under the FSIA and denied as moot the

companies’ requested injunction. Id. at 14 & n.9.

Spain appeals the adverse decisions in NextEra and 9REN;

Blasket appeals the adverse decision in Blasket.

II.

These appeals raise two primary questions. The first

question is whether the FSIA gives the district courts

jurisdiction to enforce (or decline to enforce) the arbitration

awards against Spain. The NextEra and 9REN district court

answered in the affirmative and denied Spain’s motion to

dismiss NextEra on sovereign immunity grounds; the Blasket

district court said no and granted Spain’s motion to dismiss.

We have jurisdiction to review dismissals for and denials of

sovereign immunity under 28 U.S.C. § 1291, and we do so de

novo. Kilburn v. Socialist People’s Libyan Arab Jamahiriya,

376 F.3d 1123, 1126-27 (D.C. Cir. 2004). The second question

is whether, assuming it had jurisdiction, the district court in

NextEra and 9REN abused its discretion by enjoining Spain

from seeking anti-suit relief under foreign law in foreign

courts. We have jurisdiction to review the grant of a

preliminary injunction under 28 U.S.C. § 1292(a)(1); our

review is for abuse of discretion. Laker Airways Ltd. v.

Sabena, Belgian World Airlines, 731 F.2d 909, 921 (D.C. Cir.

1984); see Elec. Privacy Info. Ctr. v. U.S. Dep’t of Commerce,

928 F.3d 95, 100 (D.C. Cir. 2019).

We begin with jurisdiction. NextEra and 9REN seek to

enforce their arbitration awards against the Kingdom of Spain

under 22 U.S.C. § 1650a (implementing the ICSID

Convention), while Blasket seeks to do so under 9 U.S.C. § 203

(implementing the New York Convention). Invoking the

FSIA, Spain insists that it is immune from the companies’

enforcement suits, so the district courts lack jurisdiction over

them.

The “FSIA codifies a baseline principle of immunity for

foreign states and their instrumentalities.” Turkiye Halk

Bankasi A.S. v. United States, 598 U.S. 264, 272 (2023) (citing

28 U.S.C. § 1604). It then sets out a handful of narrow

exceptions to that principle. See, e.g., 28 U.S.C. § 1605(a).

The companies contend that two of the FSIA exceptions apply

in these cases: the waiver exception and the arbitration

exception. 28 U.S.C. § 1605(a)(1), (6).

The waiver exception provides in relevant part that a

foreign state “shall not be immune from the jurisdiction of

courts of the United States or of the States in any case . . . in

which the foreign state has waived its immunity either

explicitly or by implication.” Id. § 1605(a)(1). The companies

contend that Spain implicitly waived its immunity by ratifying

the ICSID and New York Conventions, since those

conventions provide for enforcement of arbitration awards

against contracting foreign sovereigns in domestic courts of

any convention signatory. By mutually agreeing with other

sovereigns to enforce arbitral awards rendered in disputes to

which any signatory is a party, the logic goes, Spain waived its

immunity defense against such an enforcement action in U.S.

court.

Embracing that logic, the Second Circuit has held that, by

ratifying either convention, a country implicitly waives its

sovereign immunity from suits seeking to enforce awards under

that convention. See Blue Ridge Invs., LLC v. Republic of

Argentina, 735 F.3d 72, 84 (2d Cir. 2013) (ICSID Convention);

Seetransport Wiking Trader v. Navimpex Centrala, 989 F.2d

572, 578-79 (2d Cir. 1993) (New York Convention). The High

Court of Australia recently came to a similar conclusion. See

Kingdom of Spain v. Infrastructure Servs. Luxembourg S.à.r.l.

[2023] HCA 11 ¶ 79 (holding that Spain consented to the

jurisdiction of Australian courts “because the relevant

agreement arose from Spain’s entry into the ICSID

Convention, which included its agreement as to the

consequences of an award rendered pursuant to the ICSID

Convention”).

The waiver issue remains “unsettled” in our Circuit.

Process & Indus. Devs. Ltd. v. Fed. Republic of Nigeria

(P&ID), 27 F.4th 771, 774 (D.C. Cir. 2022). To be sure, we

have twice approvingly cited the Second Circuit’s decision in

Seetransport. In Creighton Ltd. v. Government of State of

Qatar, 181 F.3d 118 (D.C. Cir. 1999), we opined in dicta that

Seetransport “correctly” held that a foreign sovereign waives

sovereign immunity when it joins the New York Convention.

Id. at 123. Then, in Taftneft v. Ukraine, 771 F. App’x 9 (D.C.

Cir. 2019), we held in an unpublished judgment that “a

sovereign, by signing the New York Convention, waives its

immunity from arbitration-enforcement actions in other

signatory states.” Id. at 10. More recently, however, we

emphasized that “[a]lthough we have favorably cited

Seetransport and its reasoning in dicta and in an unpublished

opinion, we have not formally adopted it.” P&ID, 27 F.4th at

774. And the United States urges against doing so in this case.

See NextEra U.S. Amicus Br. 19-25.

We leave clarification of the waiver question for another

day because we conclude that the district courts have

jurisdiction under the FSIA’s arbitration exception, to which

we now turn.

As relevant here, the FSIA arbitration exception

withdraws sovereign immunity:

in any case . . . in which the action is brought, either

to enforce an agreement made by the foreign state

with or for the benefit of a private party to submit to

arbitration all or any differences which have arisen

or which may arise between the parties with respect

to a defined legal relationship, whether contractual

or not, concerning a subject matter capable of

settlement by arbitration under the laws of the United

States, or to confirm an award made pursuant to such

an agreement to arbitrate, if . . . the agreement or

award is or may be governed by a treaty or other

international agreement in force for the United States

calling for the recognition and enforcement of

arbitral awards.

28 U.S.C. § 1605(a)(6).

To proceed under this clause of the FSIA’s arbitration

exception, we have explained, a district court must find three

“jurisdictional facts”: (1) an arbitration agreement, (2) an

arbitration award, and (3) a treaty potentially governing award

enforcement. Chevron Corp., 795 F.3d at 204 & n.2; see also

Stileks, 985 F.3d at 877. In assessing these jurisdictional facts,

we apply a burden-shifting framework. The plaintiff must

initially satisfy a burden of production as to these facts, which

when met requires the foreign sovereign to “establish the

absence of the factual basis by a preponderance of the

evidence.” Chevron, 795 F.3d at 204 (citation omitted). The

United States objects to Chevron’s burden-shifting framework.

In its view, the plaintiff, as the party invoking the federal

court’s jurisdiction, must satisfy both the burden of production

and persuasion. See NextEra U.S. Amicus Br. 9-10 n.2. We

are bound by Chevron, however, and would have no occasion

in any event to revisit the issue because the plaintiff companies

satisfy the burden of persuasion in these cases.

Spain does not dispute that the companies have

demonstrated arbitration awards and a treaty governing the

enforcement of the awards in the United States. The only

jurisdictional fact in dispute here is “the existence of an

arbitration agreement.” Chevron, 795 F.3d at 204. The word

“existence” in this context is significant. It is well established

in this Circuit that disputes about the scope of an arbitration

agreement, such as whether a binding arbitration agreement

covers a particular dispute, are not jurisdictional questions

under the FSIA. See Stileks, 985 F.3d at 878. Scope questions

instead go to the award’s enforceability on the merits. To make

the issue jurisdictional, the sovereign must attack the existence

or validity of the arbitration agreement.

The first step in the analysis, then, is to identify the

relevant arbitration agreement. As mentioned, the FSIA

requires “an agreement made by the foreign state”—either

“with” or “for the benefit” of a private party—to submit certain

disputes to arbitration. 28 U.S.C. § 1605(a)(6).

The most straightforward case is when a sovereign enters

into an arbitration agreement directly “with” a private investor.

Consider, for example, Belize Social Development Limited v.

Government of Belize, 794 F.3d 99 (D.C. Cir. 2015). In that

case, a private company entered into a business agreement

containing an arbitration clause with the prime minster of

Belize, who purported to sign on behalf of the country. Id. at

100-01. A newly elected prime minster later renounced the

agreement, claiming that the previous prime minister lacked

the authority to enter into the agreement. Id. at 101. The

company nonetheless commenced arbitration, prevailed, and,

invoking the FSIA’s arbitration exception, sought to enforce

the resultant award in the United States. Id. Belize resisted

enforcement on the ground that it did not enter into a valid

arbitration agreement with the company. Id. at 102. We treated

Belize’s argument as a jurisdictional one—it was attacking the

validity of the arbitration agreement it signed “with” the private

company—but we rejected the argument because the country

failed to substantiate its claim that the previous prime minister

“lacked authority to enter the agreement to arbitrate.” Id. at

103 (emphasis omitted).

An arbitration provision in an investment treaty works

differently. In itself, an investment treaty “cannot constitute an

agreement to arbitrate with an investor. How could it? No

investor is a party to that Treaty.” BG Grp., PLC v. Republic

of Argentina, 572 U.S. 25, 50 (2014) (Roberts, C.J., dissenting)

(emphasis added). The investment treaty is instead “a

contract . . . between nations.” Id. at 37 (majority op.). As

such, an arbitration provision in an investment treaty can both

(1) constitute an agreement “for the benefit” of a private party;

and (2) give rise to a separate agreement “with” a private party.

28 U.S.C. § 1605(a)(6). Under the plain terms of the FSIA’s

arbitration exception, either type of agreement may support the

exercise of jurisdiction over a foreign sovereign.

The two agreements are related. First, 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.

BG Grp., 572 U.S. at 53 (Roberts, C.J., dissenting) (emphasis

omitted). Such a provision is an agreement made “for the

benefit” of a private party. But it is not a complete agreement

made “with” a private party. “Something else must happen to

create an agreement where there was none before.” Id. at 50

(emphasis omitted). To that end, an investment treaty’s

arbitration provision operates as “a unilateral offer to arbitrate”

by each sovereign to investors of the other signatory countries.

Id. (emphasis omitted). A foreign investor seeking to take

advantage of the investment treaty’s arbitration agreement may

accept the offer by “filing . . . a notice of arbitration,” id. at 42

(majority op.), and thereby create a second arbitration

agreement—this one made by the sovereign “with” a private

party.

In so holding, we recognize that “a sovereign’s consent to

arbitration is important.” Id. at 43. That is especially so where,

as here, the agreement to arbitrate is the basis of a federal

court’s authority to exercise jurisdiction over the sovereign.

An investment treaty may reflect the requisite consent for

purposes of the FSIA’s arbitration exception. When a

sovereign makes “an agreement . . . to submit to arbitration” by

entering an investment treaty with other sovereigns “for the

benefit of” a class of private investors, it is the treaty that

manifests the sovereign’s consent to arbitrate. 28 U.S.C.

§ 1605(a)(6). We therefore may look to the investment treaty

itself to identify the scope of the sovereign’s consent and the

relevant agreement for purposes of the FSIA’s arbitration

exception.

The investment treaty offers powerful reasons to conclude

that the standing offer to arbitrate contained in the ECT’s

arbitration provision extends to EU nationals. The clear terms

of the ECT’s arbitration provision cover “[d]isputes between a

Contracting Party and an Investor of another Contracting

Party.” ECT art. 26(1). Spain is undeniably a “Contracting

Party,” id. art. 1(2), and the companies are undeniably

“Investor[s] of another Contracting Party,” id. art. 26(1),

because the companies are “organized in accordance with the

law applicable in” the Netherlands or Luxembourg, id. art.

1(7). And if the ECT’s drafters nonetheless intended to exempt

intra-EU disputes, they could have done so through a

“disconnection clause”—a provision stating that the treaty does

not govern the relationships between EU Member States.

Indeed, as another ICSID tribunal explained, “during

negotiation of the ECT, the EU had proposed the insertion of a

disconnection clause. However, that clause was ultimately

dropped from the draft treaty.” Vattenfall AB v. Fed. Republic

of Germany, ICSID Case No. Arb/12/12, Decision on the

Achmea Issue, ¶¶ 204-05 (Aug. 31, 2018).

For its part, Spain insists that it did not enter into an

arbitration agreement “with” the companies. It contends that

the standing offer to arbitrate contained in Article 26 of the

ECT did not and could not “extend” to the companies because,

under the Court of Justice’s Komstroy opinion, “the Energy

Charter Treaty does not permit intra-EU arbitration.” NextEra

Appellant Br. 43. Therefore, the country concludes, it “could

not form any arbitration agreement” with the companies as a

matter of EU law. Id. 31.

But we need not and do not resolve whether Spain entered

into separate arbitration agreements “with” private parties

because we conclude that it entered into an arbitration

agreement—the Energy Charter Treaty itself—that is arguably

“for the[ir] benefit.” 28 U.S.C. § 1605(a)(6). Spain does not

dispute that it is a signatory to the Energy Charter Treaty. And

it is common ground 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.

ECT art. 26(3)(a). Thus, as a leading scholar has explained, the

treaty itself “contain[s] the consent of the contracting parties to

submit disputes involving foreign investment to direct

investor-state arbitration.” Christopher Dugan et al., Investor-

State Arbitration 241 (2008). That agreement is “for the

benefit” of the signatory’s investors, and therefore satisfies the

FSIA’s arbitration exception.

Spain agrees that the ECT was made “for the benefit” of

some investors—just not those within the European Union. 28

U.S.C. § 1605(a)(6). Spain’s view, again, is that the standing

offer to arbitrate contained in Article 26 of the ECT does not

extend to EU nationals like the companies; it extends only to

the nationals of ECT signatories outside the European Union,

like Japan. NextEra Appellant Br. 31, 42-44. That, however,

is an argument regarding the scope of the Energy Charter

Treaty, not its existence. It goes to whether the ECT’s

arbitration provision applies to these disputes. And our binding

precedent holds that the question “[w]hether the ECT applies

to [a] dispute” is not “a jurisdictional question under the FSIA.”

Stileks, 985 F.3d at 878-79 (emphasis omitted) (citing Chevron,

795 F.3d at 205-06).

In Chevron and Stileks, the sovereigns argued that they

never agreed to arbitrate because the scope of the relevant

investment treaties’ arbitration provisions did not extend to the

disputes that the companies sought to arbitrate. In each case,

we held that the sovereign’s argument went to the

enforceability of the arbitral award on the merits, rather than

the district court’s jurisdiction to enforce the award under the

FSIA.

Chevron concerned a contractual dispute between

Chevron, an American company, and the Republic of Ecuador.

795 F.3d at 202. After Chevron’s lawsuits against Ecuador

languished in Ecuador’s courts, Chevron commenced

arbitration and prevailed under an arbitration provision

contained in a bilateral investment treaty between the United

States and Ecuador. Id. at 202-03. Under that treaty, “Ecuador

made a standing offer to American investors to arbitrate

disputes involving investments that existed on or after the

treaty’s effective date.” Id. at 202. Invoking the FSIA’s

arbitration exception, Chevron petitioned to enforce the award

in the United States under the New York Convention. Id. at

203. Ecuador argued the arbitration exception did not apply

because its “offer to arbitrate in the [investment treaty] [did

not] encompass[] Chevron’s breach of contract claims.” Id. at

205. “According to Ecuador, if Chevron’s claims [were] not

covered by the [investment treaty], then Ecuador never agreed

to arbitrate with Chevron, and the District Court consequently

lacked jurisdiction.” Id. The panel rejected that argument,

holding that “[t]he dispute over whether the lawsuits were

‘investments’ for purposes of the treaty” is not a jurisdictional

question under the FSIA; rather it “is properly considered as

part of review under the New York Convention.” Id. at 206.

Stileks applied the reasoning of Chevron to the Energy

Charter Treaty’s arbitration provision. A Ukrainian company

called Energoalliance contracted to sell electricity to the

Republic of Moldova. 985 F.3d at 874-75. But Energoalliance

did not sell directly to Moldova; instead, it sold the electricity

to a British Virgin Islands entity called Derimen Properties,

which in turn provided the electricity to Moldova. Id. at 875.

When Moldova fell behind on payments, “Derimen assigned

the debt to Energoalliance,” which commenced arbitration

under Article 26 of the Energy Charter Treaty. Id.

Energoalliance secured an arbitral award and sought to enforce

the award in the United States under the New York

Convention. Id.

Like Chevron, Energoalliance invoked the FSIA’s

arbitration exception. Id. at 877. And, like Ecuador, Moldova

argued that the arbitration exception did not apply. It reasoned

that “Derimen’s claim against [Moldova] was not an

investment within the meaning of the ECT because Derimen, a

[British Virgin Islands] entity, was not a qualifying investor.”

Id. at 878. So, “[a]lthough the ECT may establish that Moldova

agreed to arbitrate certain disputes, it does not prove that it

agreed to arbitrate this particular dispute.” Id. Following

Chevron, the panel in Stileks held “that the arbitrability of a

dispute is not a jurisdictional question under the FSIA,” and it

“construe[d] Moldova’s arbitrability argument as a defense

under [the New York] Convention.” Id.

What was true in Stileks is true here. Like Moldova, Spain

argues that the ECT’s arbitration provision does not cover the

companies’ claims. Moldova said that was because

Energoalliance’s claims were not covered investments under

the ECT; Spain argues it is because the EU companies are not

covered investors under the ECT. Both claims go to the scope

of the ECT’s arbitration provision—in the former case, which

disputes are covered; in the latter, which investors are covered.

In Stileks, we squarely held that the question “[w]hether the

ECT applies to the dispute” is not “a jurisdictional question

under the FSIA.” 985 F.3d at 878-79. It does not matter why

the ECT may not apply to the dispute. For jurisdictional

purposes, the FSIA’s arbitration exception requires that the

arbitral tribunal “purported to make an award pursuant to the

ECT, not that it in fact did so.” Id. at 878. Therefore, the

companies showed Spain’s agreement to arbitrate, for purposes

of the FSIA, by “produc[ing] copies of the ECT.” Id. at 877.

Two limits of our holding bear emphasis. First, not every

arbitration provision in an investment treaty represents a

completed agreement “for the benefit” of a private party. 28

U.S.C. § 1605(a)(6). That is because not all investment treaties

“supply the requisite state consent to arbitration.” Dugan,

Investor-State Arbitration at 241. Some investment treaties

contain “a mere agreement to agree”; they provide, for

example, that a dispute “shall upon the agreement by both

parties be submitted for arbitration.” Id. at 237 (quoting

Agreement Between the Government of Sweden and the

Government of Malaysia Concerning the Mutual Protection of

Investments art. 6, Mar. 3, 1979, 1254 U.N.T.S. 315). Unlike

the ECT’s arbitration provision, such a provision does not itself

“constitute consent to arbitration by the States concerned.” Id.

(internal quotation omitted).

Second, we hold only that the district courts have

jurisdiction to enforce these arbitration awards. That does not

mean they must or should do so. By basing jurisdiction on the

Energy Charter Treaty as an agreement “for the benefit” of

foreign investors, we do not address the merits question

whether that Treaty’s arbitration provision extends to EU

nationals and thus whether Spain ultimately entered into legally

valid agreements with the companies.

Our holding that the FSIA’s arbitration exception

authorizes enforcement of these arbitral awards makes it

unnecessary for us to reach another issue that Blasket raised in

an amicus brief it filed in NextEra and 9REN. The FSIA grants

sovereign immunity to foreign states, but that grant is explicitly

“[s]ubject to existing international agreements to which the

United States [was] a party” before FSIA’s enactment in 1976.

28 U.S.C. § 1604. Because the United States ratified the ICSID

Convention in 1966, the FSIA’s carve-out for “existing

international agreements,” id., may include that convention,

depending on whether it “expressly conflict[s] with the

[FSIA’s] immunity provisions.” Argentine Republic v.

Amerada Hess Shipping Corp., 488 U.S. 428, 442 (1989)

(formatting modified). Since we hold that district courts have

jurisdiction to enforce these awards under the FSIA’s

arbitration exception, we see no express conflict between the

FSIA’s immunity provisions and the ICSID Convention. See

Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venez., 863

F.3d 96, 113-14 (2d Cir. 2017).

In sum, we take no position on the ultimate enforceability

of these awards. We hold only that district courts have

jurisdiction to enforce them under the FSIA’s arbitration

exception.

Finally, Spain contends that, even if the district courts had

jurisdiction under the FSIA, they should have alternatively

dismissed the petitions based on the doctrine of forum non

conveniens. As Spain acknowledges, however, binding circuit

precedent dictates that “forum non conveniens is not available

in proceedings to confirm a foreign arbitral award because only

U.S. courts can attach foreign commercial assets found within

the United States.” See Stileks, 985 F.3d at 876 n.1 (citing TMR

Energy Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296, 303-

04 (D.C. Cir. 2005)). We therefore reject that challenge.

We now consider the propriety of the district court’s anti-

suit injunctions in NextEra and 9REN. After asserting

jurisdiction over the disputes, the district court preliminarily

enjoined Spain from pursuing relief in the Netherlands or

Luxembourg that would interfere with the district court’s

jurisdiction.

On appeal, Spain contends that the injunctions were an

abuse of discretion. Spain’s primary argument is that the

injunctions violate the principle of international comity—i.e.,

“the recognition which one nation allows within its territory to

the legislative, executive or judicial acts of another nation.”

Usoyan v. Republic of Turkey, 6 F.4th 31, 48 (D.C. Cir. 2021)

(quoting Hilton v. Guyot, 159 U.S. 113, 164 (1895)). In an

amicus brief, the Netherlands stresses the same theme. See

NextEra Netherlands Amicus Br. 15-17. As does the United

States, which submitted an amicus brief and participated in oral

argument at our invitation. See NextEra U.S. Amicus Br. 25-

30.

We agree that the injunctions were an abuse of discretion.

We start with some context. There are two types of anti-

suit injunctions: offensive (seeking to defeat another court’s

jurisdiction) and defensive (seeking to protect the ordering

court’s own jurisdiction). Some examples are useful to

understand the difference. Suppose X sues Y in Country A. If

Y turns to courts in Country B to obtain an injunction against

the proceeding in Country A, that’s an offensive anti-suit

injunction: “Its only purpose is to destroy [Country A’s]

jurisdiction.” Laker Airways Ltd., 731 F.2d at 933 n.81. If X

responds by seeking in Country A an injunction to put a stop to

the Country B proceeding, that’s a defensive anti-suit

injunction: It is “designed to protect [Country A’s] jurisdiction

to proceed with the case.” Id.

We affirmed a defensive anti-suit injunction in Laker

Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909

(D.C. Cir. 1984). There, British company Laker Airways sued

other British, American, and foreign companies in U.S. district

court for anticompetitive behavior. See id. at 917-18. The

British and some of the foreign defendant airlines went to

British court and obtained an offensive anti-suit injunction,

prohibiting Laker from proceeding in the U.S. court. Id. at 918.

Laker responded by preemptively seeking in U.S. court

defensive anti-suit injunctions against the U.S. airlines and the

two foreign airlines that had not yet sought anti-suit relief in

British court. Id.

The Laker district court granted the defensive anti-suit

injunctions against those airlines, preventing them from

“taking any action before a foreign court or governmental

authority that would interfere with the district court’s

jurisdiction over the matters alleged in the complaint.” Id. at

919. Those foreign airlines—one Dutch, the other Belgian—

appealed. Id. at 919, 954 n.175. They did not “dispute the

power of the United States District Court to issue the

injunction.” Id. at 934. Rather, they argued that the district

court abused its discretion because the injunction “violate[d]

their right to take part in the ‘parallel’ actions commenced in

the English courts,” in contravention of “international

principles of comity.” Id. at 921. They also argued that the

injunction “ignored Britain’s ‘paramount right’ to apply British

law to Laker, which is a British subject.” Id.

A divided panel affirmed the injunction. Id. at 916. The

majority emphasized that an anti-suit injunction should issue

only after a case-specific evaluation of the equities makes clear

that it is necessary “to prevent an irreparable miscarriage of

justice.” Id. at 927. Anything less than “the most compelling

circumstances” is not enough. Id.

The Laker panel approved the injunction because “the sole

purpose of the English proceeding [was] to terminate the

American action.” Id. at 930 (emphasis in original). It ruled

that the “injunctions of the United Kingdom courts [were] not

entitled to comity” because the “action before the United

Kingdom courts [was] specifically intended to interfere with

and terminate Laker’s United States antitrust suit.” Id. at 938.

In other words, the “district court’s anti-suit injunction was

purely defensive,” whereas the “English injunction [was]

purely offensive.” Id. The majority also reasoned that the

district court exhibited comity by offering to narrow the scope

of the injunction to permit the foreign airlines “to proceed in

Great Britain without leaving them free to secure orders which

would interfere with the district court’s pending litigation.” Id.

at 942. The dissenting opinion would have held the injunction

too broad but would have approved an injunction that

authorized the foreign airlines to seek declaratory relief. Id. at

958 (Starr, J., dissenting).

Here, the district court took Laker as its starting point.

NextEra, 656 F. Supp. 3d at 215. (Because the district court’s

analysis is substantially the same in NextEra and 9REN, we cite

only to the published opinion in NextEra.) The district court

concluded that anti-suit injunctions were warranted because,

like the injunction in Laker, the injunctions requested here were

defensive anti-suit injunctions. The court found that Spain’s

“express and primary purpose” for initiating the Dutch and

Luxemburgish suits was to terminate the ongoing district court

actions. Id. at 215-16. And the district court permitted Spain

to continue to seek declaratory relief to “vindicat[e] its

interpretation of EU law.” Id. at 217; cf. Laker Airways, 731

F.2d at 958 (Starr, J., dissenting). After considering the

equitable factors Laker identifies as bearing on the propriety of

anti-suit injunctions, the district court applied the traditional

four-factor test for preliminary injunctions. See NextEra, 656

F. Supp. 3d at 214-21. It then issued the anti-suit injunctions,

prohibiting Spain from pursuing relief in the Netherlands or

Luxembourg that would interfere with the district court’s

jurisdiction. See NextEra J.A. 833-34.

Despite the district court’s careful analysis, we conclude

that it abused its discretion in issuing the anti-suit injunctions.

A district court abuses its discretion when it “fail[s] to consider

a relevant factor” or “relie[s] on an improper factor.” Standing

Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 985 F.3d 1032,

1053 (D.C. Cir. 2021) (quotation marks omitted); see also

Weyerhaeuser v. U.S. Fish & Wildlife Serv., 586 U.S. 9, 25

(2018) (explaining that, on abuse-of-discretion review, a court

must ensure that the decisionmaker “appropriately consider[s]

all of the relevant factors”). A district court also abuses its

discretion if, “upon a weighing of the relevant factors,” it

commits “a clear error of judgment.” Truckers United for

Safety v. Mead, 329 F.3d 891, 894 (D.C. Cir. 2003) (quotation

marks omitted). And, of course, a district court abuses its

discretion when it commits a “material error of law.”

Musgrave v. Warner, 104 F.4th 355, 365 (D.C. Cir. 2024)

(quotation marks omitted).

Before issuing an anti-suit injunction, a court “should

focus on (1) whether an action in the foreign jurisdiction

prevents United States jurisdiction or threatens a vital United

States policy, and (2) whether the domestic interests outweigh

concerns of international comity.” Goss Int’l Corp. v. Man

Roland Druckmaschinen Aktiengesellschaft, 491 F.3d 355, 361

& n.4 (8th Cir. 2007) (citing Laker, 731 F.2d at 909-59). The

district court made two errors in its evaluation of these factors. 1

As mentioned, in addition to evaluating these specific anti-

suit injunction factors, the district court also considered the

four traditional injunction factors. Other circuits appear to be

First, the district court did not address the fact that the anti-

suit injunctions run against a foreign sovereign. “[A] district

court’s power to sanction or exercise other forms of judicial

control over a foreign sovereign is not coterminous with its

power to regulate or punish other litigants.” Republic of

Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 72-73 (3d

Cir. 1994). In general, anti-suit injunctions strain the “crucial

principles of comity that regulate and moderate the social and

economic intercourse between independent nations.” Laker,

731 F.2d at 937. An anti-suit injunction against a foreign

sovereign puts these comity concerns “near their peak.” BAE

Sys. Tech. Sol. & Servs., Inc. v. Republic of Korea’s Def.

Acquisition Program Admin., 884 F.3d 463, 480 (4th Cir.

2018).

The district court reasoned that anti-suit injunctions were

justified by the need to protect its jurisdiction to enforce

NextEra’s and 9REN’s awards. While such a concern could

support an injunction against private parties, see, e.g., Laker,

731 F.2d at 927-31, it alone does not account for all of the

divided on whether those factors apply to anti-suit injunctions.

Compare In re Millenium Seacarriers, Inc., 458 F.3d 92, 97-98

(2d Cir. 2006) (per curiam) (evaluating traditional injunction

factors in addition to equitable factors specific to the propriety

of an anti-suit injunction), with, e.g., Goss, 491 F.3d at 361 n.4.

(holding anti-suit injunction factors displace traditional

injunction factors). Because we conclude that the district court

erred in its evaluation of the anti-suit injunction factors, we

need not reach the question whether, in addition to those

factors, a district court considering whether to issue an anti-suit

injunction must also consider the four traditional injunction

factors.

implicated interests when relief is sought against a foreign

sovereign.

The injunctions here would “impinge on the sovereignty”

of both the Spanish government to litigate and the Dutch and

Luxembourgish courts to decide an issue that Spain and the

European Union view as an important question of European

Union law. BAE, 884 F.3d at 480; see NextEra Eur. Comm’n

Amicus Br. 11-12.

These are not abstract concerns. “Actions against foreign

sovereigns in our courts raise sensitive issues concerning the

foreign relations of the United States,” Verlinden B.V. v. Cent.

Bank of Nigeria, 461 U.S. 480, 493 (1983), and can have

serious “diplomatic implications,” Republic of Sudan v.

Harrison, 587 U.S. 1, 19 (2019). Indeed, the United States

warns that the injunctions here “ha[ve] the potential to cause

significant harm to the United States.” NextEra U.S. Amicus

Br. 29. That is because “there is a real risk that issuance of an

antisuit injunction in cases like this could prompt reciprocal

injunctions against the United States.” Id. at 30.

It is thus no surprise that an anti-suit injunction against a

foreign sovereign is virtually unprecedented. The injunction in

Laker ran against private companies, and we emphasized there

were “[n]o facts . . . presented . . . suggesting that the antitrust

suit adversely affects the operations of foreign governments.”

Laker, 731 F.2d at 942. And, in sustaining anti-suit injunctions

against private entities, other courts also stress the fact that

foreign sovereigns are not involved in the lawsuit. See, e.g., E.

& J. Gallo Winery v. Andina Licores S.A., 446 F.3d 984, 994

(9th Cir. 2006) (“There is no indication that the government of

Ecuador is involved in the litigation.”). Indeed, the only case

that we could find in which an appellate court was presented

with a similar injunction deemed the injunction an abuse of

discretion because the district court “failed to recognize [its]

extraordinarily intrusive nature.” See Westinghouse Elec. Co.,

43 F.3d at 80-81 (vacating injunction against foreign sovereign

prohibiting the sovereign from harassing witnesses who had

testified against it in a suit it had brought in federal court in the

United States).

The district court thus erred in issuing the injunctions

without considering Spain’s sovereign status.

Our partially dissenting colleague does not dispute that

Spain’s status as a foreign sovereign is an important part of the

problem. She concludes, however, that the district court did

reckon with “Spain’s status as a sovereign nation.” Partial

Dissent 11. For support, she points to the district court’s

statement that general “[c]onsiderations of comity” weigh

against the anti-suit injunctions. Id. (quoting NextEra, 656 F.

Supp. 3d at 216-17). But that is true of all foreign anti-suit

injunctions, regardless of whether they target private entities or

foreign sovereigns.

Our dissenting colleague also suggests that we cannot

consider the views of the United States because they were “not

before the district court when the anti-suit injunctions were

litigated.” Id. at 14-15. She contends that, at most, we “should

remand for the district court to consider the[] [United States’

views] in the first instance.” Id. at 15. We disagree.

For one thing, the views of the United States were before

the district court when the anti-suit injunctions were litigated.

In opposing the injunctions before the district court, Spain

pointed to the United States’ amicus brief in BAE System

Technology Solution & Services, 884 F.3d 463, a 2018 case in

which the Fourth Circuit affirmed a district court’s denial of an

anti-suit injunction against the Republic of Korea. See NextEra

ECF No. 81 at 15. In a portion of the amicus brief that Spain

quoted to the district court, the United States stressed—in

language it echoes in its brief in this case—that “an antisuit

injunction, barring a foreign sovereign from invoking the

jurisdiction of its own courts, would be a truly extraordinary

remedy with significant consequences for international comity,

and its issuance could have significant negative consequences

for the U.S. government.” See Brief for the United States as

Amicus Curiae, BAE Sys. Tech. Sol. & Servs., 884 F.3d 463

(4th Cir. 2018) (No. 17-1070), 2018 WL 551803, at *2; cf.

NextEra U.S. Amicus Br. 25 (“Enjoining a foreign sovereign

from bringing suit in a foreign court is an extraordinary remedy

that would rarely (and possibly never) be justified.”). So, the

district court was aware of the United States’ position on the

propriety of anti-suit injunctions against foreign sovereigns, at

least as of 2018.

If the interests of the United States were not clear to the

district court, it could have invited the United States to file an

amicus brief to clarify its position. Indeed, no party expressed

surprise at, or objected to, our invitation to the United States to

participate as amicus curiae; all undoubtedly recognize that

U.S. courts addressing matters touching foreign affairs give

substantial respect to the views of the United States

government. Restatement (Third) of Foreign Relations Law

§ 112, cmt. c (Am. L. Inst. 2024). And, although they took the

opportunity to respond to the views of the United States, the

companies did not request that, if we were unable to sustain the

injunctions, we should remand them to the district court.

In any event, our holding does not turn on the views of the

United States. Those views are important, to be sure. But, even

without them, we would conclude that an anti-suit injunction

against a foreign sovereign presents more serious comity

concerns than one against a private entity. The district court’s

failure to recognize that difference was an error. So, we would

vacate and remand the injunctions even if the United States had

not filed an amicus brief in this case asking us to do so.

Second, with comity concerns near their peak, the district

court failed to identify domestic interests strong enough to

warrant the anti-suit injunctions.

In approving the injunction in Laker, we emphasized that

the injunction served substantial interests of the United States.

731 F.2d at 922-26. Although the enjoined party there was a

foreign corporation, it was in liquidation and its “principal

creditors [were] Americans.” Id. at 924. In addition, the case

implicated the enforcement of American antitrust laws, which

would have “directly benefit[ed] American consumers,” since

the anticompetitive behavior was alleged to “raise fares for

United States passengers.” Id.

The only domestic interest the district court identified here

is a public interest in encouraging arbitration. NextEra, 656 F.

Supp. 3d at 221. That important interest is codified at 22

U.S.C. § 1650a(a), the federal statute implementing the ICSID

Convention. Under that Convention, the United States must

open the doors of its courthouses to foreign investors seeking

to enforce such awards. But neither the treaty nor the statute

requires the United States to remove obstacles in other

countries that might make it harder for foreign investors to find

their way to our courts.

These cases are a far cry from Laker. The United States

has no direct interest in the underlying disputes between the

Dutch and Luxembourgish companies and Spain. There is no

suggestion that U.S. law governs that underlying dispute. Nor

does the United States have a direct interest in the interpretation

of the Energy Charter Treaty, a treaty to which it does not

belong. The European Union asserts that “the question of

Article 26’s intra-EU application is a matter internal to the EU

and does not implicate the rights of third countries that are also

contracting parties to the Energy Charter Treaty.” NextEra

Eur. Comm’n Amicus Br. 17; see NextEra U.S. Amicus Br. 28

(noting with approval that “[t]he submission of the EU explains

that these questions are of extraordinary importance to that

body because they ‘implicat[e] the structure of the EU legal

order, the role and jurisdiction of EU courts, the interpretation

of EU law by non-EU adjudicatory bodies, and the future of the

Energy Charter Treaty and investor-State arbitration within the

EU.’” (quoting NextEra Eur. Comm’n Amicus Br. 26)).

Our partially dissenting colleague suggests that we “give

insufficient weight to the United States’ obligation to uphold

the ICSID Convention and its strong interests in doing so.”

Partial Dissent 17. But the United States itself tells us those

interests “are far outweighed by the interests in allowing the

foreign litigation to proceed.” NextEra U.S. Amicus Br. 25.

In any event, we disagree that Spain’s tactics threaten to

“undermine[] the whole process envisioned by the ICSID

Convention.” Partial Dissent 17. After all, the ICSID

Convention explicitly offers recourse to signatory countries

objecting that another signatory country is improperly

interfering with ICSID enforcement proceedings. Under

Article 64, a signatory country may refer a dispute “concerning

the interpretation or application of this Convention” to the

International Court of Justice. ICSID Convention art. 64. If

the Netherlands or Luxembourg concluded that Spain’s

treatment of their nationals was in violation of the ICSID

Convention, they could refer the dispute to the International

Court of Justice. Our colleague suggests the ICSID

Convention’s remedy is too “cumbersome,” but that is neither

here nor there: It is the remedy “envisioned by the ICSID

Convention.” Partial Dissent 17-18. Not only has the

Netherlands declined to pursue that remedy, it urges us to

vacate the injunctions. See Netherlands Amicus Br. 17.

That last point bears emphasis. The companies argue that

Spain is breaching the commitments it made to the Netherlands

and Luxembourg in the Energy Charter Treaty and the ICSID

Convention to arbitrate disputes with their nationals before an

ICSID tribunal. If the Netherlands or Luxembourg agreed with

the companies, they might try to put a stop to Spain’s tactics.

They could refer the issue to the International Court of Justice.

Or their courts could simply deny Spain’s requests for anti-suit

relief. The countries have not taken these steps, likely because

they agree with Spain that the Energy Charter Treaty “cannot

and never could serve as a legal basis for intra-EU arbitration

proceedings.” NextEra 28(j) Letter dated July 9, 2024. In other

words, those countries do not understand the agreement they

made with Spain to obligate Spain to arbitrate with their

nationals. One reason the companies may struggle to enforce

their arbitration awards is that the awards are based on an

interpretation of an international treaty that the treaty signers

reject.

One final note about what is—and is not—at stake with

these anti-suit injunctions. Our dissenting colleague laments

that, without the injunctions, “[o]ur affirmance of the district

court’s jurisdictional rulings is a hollow victory for the

[companies]” because they “will be enjoined by foreign courts

from ever confirming their hard-won awards.” Partial Dissent

21. But the injunctions are one small piece of a complex

international puzzle. The injunctions might help the companies

confirm their awards, but—as the district court made clear—

they would not stop Spain from continuing to seek declaratory

and monetary relief in foreign courts that could ultimately

prevent the companies from securing the money they seek. See

NextEra, 656 F. Supp. 3d at 217.

For example, in addition to seeking an injunction, Spain

asked the Dutch court for a monetary award of “[€]300 million

or an amount equivalent to the amount obtained by NextEra . . .

through the execution, whichever is lower.” NextEra J.A. 800.

Even if we sustained the injunctions, Spain would be free to

pursue an order from the Dutch courts requiring the companies

to return whatever money NextEra obtained through this

enforcement action. Indeed, Laker itself recognized that

foreign courts “can sanction their citizens for resorting to

United States . . . remedies.” 731 F.2d at 936. One way or

another, then, the companies will have to reckon with their

national courts and EU law. The injunctions might help the

companies confirm their arbitral awards, but they would not

help them keep the awards. At the very least, all agree that is a

matter of EU law.

In sum, the district court’s careful analysis overlooked the

fact that anti-suit relief was sought against a foreign sovereign

and the nature of the United States’ ICSID obligations. In so

holding, we do not categorically foreclose anti-suit injunctions

against foreign sovereigns. In this context and on this record,

however, we must vacate the anti-suit injunctions.

III.

We hold that the district courts have jurisdiction to confirm

these arbitration awards under the FSIA’s arbitration

exception, and that the preliminary injunctions in NextEra and

9REN are an abuse of discretion. We therefore affirm in part

and reverse in part in NextEra; reverse in 9REN and Blasket;

and remand for further proceedings.

So ordered.

PAN, Circuit Judge, dissenting in part:

I concur with the court’s holding that the district court has

jurisdiction under the Foreign Sovereign Immunities Act to

hear the instant cases and to confirm the arbitration awards at

issue. But I believe that the majority errs in vacating the anti-

suit injunctions imposed by the district court. I disagree with

the majority’s approach to applying the abuse-of-discretion

standard of review: The majority appears to perform its own

balancing of interests and to substitute its own judgments for

those of the district court. In so doing, the majority opinion

gives insufficient weight to the United States’ interest in

upholding the ICSID Convention, overlooks Spain’s lack of

comity and apparent bad faith, and ignores the district court’s

finding that the injunctions were necessary to prevent

irreparable harm to NextEra and 9REN. Because reasonable

minds evidently differ on how to weigh the competing factors,

the majority’s conclusions are, at best, only arguably correct.

Thus, the applicable standard of review requires us to uphold

the district court’s discretionary calls, which were within its

“range of choice” and were “not influenced by any mistake of

law.” Morrissey v. Mayorkas, 17 F.4th 1150, 1156 (D.C. Cir.

2021). I therefore respectfully dissent as to Part II.B of the

court’s opinion.

The Energy Charter Treaty (“ECT”) is a multilateral treaty

that facilitates foreign investments in the energy sectors of

participating nations. See Maj. Op. 8–9. A key feature of the

ECT is its guarantee to foreign investors that the participating

nations will agree to resolve disputes arising from the foreign

investments in a neutral arbitral forum. See id. at 9.

Specifically, the ECT provides that each nation “gives its

unconditional consent to the submission of [a] dispute to

international arbitration.” See Energy Charter Treaty 16 art.

26(3), Dec. 17, 1994, 2080 U.N.T.S. 95. An investor who

elects to arbitrate can proceed before the International Centre

for Settlement of Investment Disputes (“ICSID”). Id. at art.

26(3)–(5). The ICSID Convention is a multilateral treaty that

authorizes ICSID “to convene arbitration, mediation, and fact-

finding panels to address disputes between international

investors and Contracting States.” Valores Mundiales, S.L. v.

Bolivarian Republic of Venezuela, 87 F.4th 510, 514 (D.C. Cir.

2023). Signatory nations are obligated to enforce any

arbitration award conferred by an ICSID tribunal as if the

award “were a final judgment of a court in that [signatory

nation].” See ICSID Convention, art. 54; see also Maj. Op. 15;

22 U.S.C. § 1650a(a).

The ECT’s arbitration provision, which includes the

promise of recourse under the ICSID framework, plays an

important role in encouraging foreign investments: It

ameliorates the risk to private companies of doing business

with a sovereign nation by ensuring that there will be a fair

procedure for resolving any disputes arising from the

companies’ investments. Spain is a signatory of the ICSID

Convention, and at the relevant time was a signatory of the

ECT. The United States is a signatory of the ICSID

Convention.

NextEra and 9REN (the “Investors”) are energy

companies from the Netherlands and Luxembourg,

respectively. See Maj. Op. 10. They both invested in the

Spanish energy sector with the understanding that they could

avail themselves of the arbitration provisions in the ECT and

the ICSID Convention if necessary. Spain accepted the capital

investments made by NextEra and 9REN, but nevertheless

broke its promise to provide energy subsidies that would have

benefited the Investors. See id.

In response to Spain’s breach of its commitments, NextEra

and 9REN followed the procedures outlined in the ECT and the

ICSID Convention. See Maj. Op. 10. They participated in

lengthy arbitration proceedings with Spain, in which all of

Spain’s arguments were fully aired. The Investors each

secured significant monetary awards that were upheld pursuant

to ICSID’s internal appeal process. See id. at 14–15. They then

sought to confirm their arbitral awards in a United States

district court, as permitted by the ICSID Convention. See id.

at 15. The district court ruled that it had jurisdiction to confirm

the arbitral awards. See NextEra Energy Glob. Holdings B.V.

v. Kingdom of Spain, 656 F. Supp. 3d 201, 214 (D.D.C. 2023);

9REN Holding S.À.R.L. v. Kingdom of Spain, Civ. No. 19-

01871, 2023 WL 2016933, at *3 (D.D.C. Feb. 15, 2023). We

unanimously affirm the district court’s jurisdictional rulings

and remand for further proceedings so that the Investors may

litigate the confirmation of their awards. But all the Investors’

efforts to date may have been for naught because the majority

opinion vacates the district court’s anti-suit injunctions, which

protected the Investors’ ability to enforce their arbitral awards

under the ICSID framework.

Spain has argued in this case and elsewhere that it is not

obligated to arbitrate with EU nationals — such as NextEra and

9REN — because the EU’s highest court has prohibited EU-

member nations from making treaty commitments to arbitrate

intra-EU disputes. See Maj. Op. 24 (citing Republic of

Moldova v. Komstroy LLC, ECLI:EU:C:2021:655 (Sept. 2,

2021)). Based on the EU court’s ruling, Spain claims that it

could not have lawfully entered into arbitration agreements

with the Investors, even though Spain became a signatory to

the ECT and the ICSID Convention long before that ruling was

made. See id. at 10, 13, 25. Spain advanced those arguments

to oppose jurisdiction in this forum, even though dozens of

arbitral tribunals and non-EU courts have ruled against Spain

when presented with similar claims. See Int’l Scholars Amicus

Br. 13 n.7 (collecting examples); Infrastructure Servs.

Luxembourg S.À.R.L v. Kingdom of Spain, [2023] EWHC 1226

(Comm) ¶ 67 (decision by the English High Court of Justice

holding that “[t]he EU treaties do not trump [Spain’s

obligations under the ICSID Convention and the ECT], nor do

they override the relevant domestic law mechanism in the

United Kingdom”). Notably, Spain currently owes more than

$1.3 billion for sixteen unpaid arbitral awards won by

investors. See Int’l Scholars Amicus Br. 30 n.23 (citing Nikos

Lavranos, Updated Report concerning Spain’s Compliance

with Investment Treaty Arbitration Awards 2023, Int’l L.

Compliance (June 2023)).

In these cases, faced with the prospect of losing on the

merits yet again, Spain resorted to a procedural gambit to block

the Investors from using the ICSID framework to enforce their

arbitral awards: Spain sued NextEra and 9REN in their home

countries to enjoin the Investors from confirming their awards

in the United States. In the Dutch action, Spain sought an order

requiring NextEra to “take all actions necessary to suspend the

proceedings currently pending before the United States District

Court . . . under penalty of a daily payment of EUR 30,000 for

each day.” NextEra J.A. 798. Spain also requested an

injunction prohibiting NextEra from trying to enforce its award

anywhere in the world. Id. at 798–99. Likewise, Spain asked

the Luxembourgish court to order 9REN to “cease any

enforcement of the Arbitral Award” or be subject to a penalty

of EUR 100,000 per day. 9REN J.A. 411.

The extreme remedies requested by Spain in the foreign

actions were designed to deter the Investors from exercising

their rights under the ECT and the ICSID Convention — even

though Spain signed those treaties and thereby consented to the

procedures followed by the Investors. To escape its obligations

under the governing treaties and arbitrations, Spain would like

to re-litigate the issues already resolved by the ICSID arbitral

panels in friendlier forums in the EU: Spain apparently

believes that because the Netherlands and Luxembourg are EU

countries, their courts will be more receptive to Spain’s

arguments, which are based on a ruling of the EU Court of

Justice. In short, Spain is forum-shopping.

In a pair of well-reasoned opinions, the district court

granted the Investors’ requests to enjoin Spain from pursuing

anti-suit injunctions in the Netherlands and Luxembourg that

would interfere with the district court’s jurisdiction to provide

relief to the Investors. See NextEra, 656 F. Supp. 3d at 214;

9REN, 2023 WL 2016933, at *7.1 The district court

emphasized that the express purpose of Spain’s foreign

lawsuits was “to terminate [the U.S.] action[s]” by “ordering

[the Investors] to withdraw [their] suit[s], imposing penalties

upon failure to do so, and issuing [] worldwide injunction[s]

preventing [the Investors] from taking any action to confirm

the Award[s].” NextEra, 656 F. Supp. 3d at 216 (emphasis in

original). Moreover, Spain did not provide “any prior notice”

that it was seeking the injunctions, “apparently planning to

simply later advise the court of the ‘fait accompli . . . which

would have virtually eliminated the court’s effective

jurisdiction over [the Investors’] facially valid claim[s].’” Id.

(first and second alteration in original) (quoting Laker Airways

Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 930–31

(D.C. Cir. 1984)). Noting that U.S. courts have a “duty to

protect their legitimately conferred jurisdiction to the extent

The district court’s opinions in NextEra and 9REN are

substantially identical in their analysis of the issues, and I therefore

cite only to the published NextEra opinion.

necessary to provide full justice to litigants,” the court

determined that these “most compelling circumstances”

required it to “to meet the force of Spain’s attempt to deprive

this court of jurisdiction.” Id. at 215–17 (first and second

quoting Laker Airways, 731 F.2d at 927).

In reaching that conclusion, the district court considered

Spain’s “strenuous[]” arguments that “principles of comity”

precluded the issuance of the injunctions, while acknowledging

its duty to take Spain’s claims “seriously.” NextEra, 656 F.

Supp. 3d at 216 (quoting Laker Airways, 731 F.2d at 937). But

the district court refused to “countenance [Spain’s] hypocrisy,”

observing that Spain’s “claims of comity . . . come burdened

with the failure of Spain to recognize comity,” and that “[t]he

comity concerns that Spain laments are of its own making.” Id.

at 217 (cleaned up). And further, the court held that “relief

against Spain is warranted in the form of a preliminary

injunction” because “there is a public interest in encouraging

arbitration and the enforcement of international arbitration law

as an efficient means of settling disputes,” as well as “an

expectation on the part of Congress that actions to enforce

ICSID awards would not be protracted, much less permanently

halted by collateral attacks in foreign courts.” Id. at 217, 221

(cleaned up). Finally, the district court found that the Investors

would be irreparably harmed if it did not issue the injunctions

because the Investors would likely be permanently enjoined

from enforcing their awards. Id. at 220. The district court

therefore held that the balance of equities “strongly” favored

the Investors. Id. But the court tailored its relief to preserve

Spain’s ability to seek a declaration from the Dutch and

Luxembourgish courts “vindicating its interpretation of EU

law.” Id. at 217.

II.

It is undisputed that the district court had the authority to

issue the anti-suit injunctions at issue in these cases. “It is well

settled that . . . American courts have power to control the

conduct of persons subject to their jurisdiction to the extent of

forbidding them from suing in foreign jurisdictions.” Laker

Airways, 731 F.2d at 926; see also BAE Sys. Tech. Sol. &

Servs., Inc. v. Republic of Korea’s Def. Acquisition Program

Admin., 884 F.3d 463, 479 (4th Cir. 2018). That power may be

exercised with respect to a foreign sovereign, and there is

precedent for issuing an anti-suit injunction against a foreign

sovereign. See BAE, 884 F.3d at 479 (noting that the district

court “lifted a preliminary injunction it had previously

imposed” against South Korea). “There are no precise rules

governing the appropriateness of antisuit injunctions.” Laker

Airways, 731 F.2d at 927. Rather, we must “carefully

examine[]” the “equitable circumstances surrounding each

request for an injunction” and determine whether the injunction

is necessary “to prevent an irreparable miscarriage of justice.”

Id. We have explained that “[i]njunctions are most often

necessary to protect the jurisdiction of the enjoining court, or

to prevent the litigant’s evasion of the important public policies

of the forum.” Id. An anti-suit injunction is extraordinary

relief that should be granted only under compelling

circumstances. Id.; BAE, 884 F.3d at 480.

We review the district court’s issuance of the anti-suit

injunctions for abuse of discretion. See Laker Airways, 731

F.2d at 916, 921. “The abuse of discretion standard means that

the district court has a range of choice, and that its decision will

not be disturbed as long as it stays within that range and is not

influenced by any mistake of law.” Morrissey, 17 F.4th at 1156

(cleaned up). In other words, we ask whether the district

court’s decision was “at least within the zone of

reasonableness, even if we might disagree with the decision[.]”

Morley v. CIA, 894 F.3d 389, 391 (D.C. Cir. 2018). If we

merely disagree, “[w]e may not substitute our judgment for that

of the trial court,” especially when our review involves a multi-

factor balancing of interests. Morrissey, 17 F.4th at 1156,

1159–60. Indeed, “it will be the rare case when we can reverse

a district court’s balancing of [] factors.” Morley, 894 F.3d

at 391. Our review must be guided by “appellate restraint, a

principle faithful to the reality that appellate tribunals cannot

hope to have the entire range of considerations as readily at

hand as the court charged with the case in the first instance.”

Founding Church of Scientology, Inc. v. Webster, 802 F.2d

1448, 1457 (D.C. Cir. 1986); see id. (“The abuse-of-discretion

standard calls on the appellate department, in a spirit of

humility occasioned by not having participated in what has

gone before, not just to scrutinize the conclusion but to

examine with care and respect the process that led up to it.”).

III.

In my view, the district court did not abuse its discretion

in granting the Investors’ requests for anti-suit injunctions

against Spain under the “equitable circumstances” presented.

Laker Airways, 731 F.2d at 927. The district court’s decisions

(1) properly applied our precedent in Laker Airways, a case in

which we upheld an anti-suit injunction in a similar posture;

(2) considered the United States’ interests in protecting the

jurisdiction of its courts and upholding the ICSID framework;

(3) assessed Spain’s actions and prerogatives in a detailed

discussion of “comity” concerns; and (4) gave appropriate

weight to the irreparable harm that would be done to the

Investors if the requested injunctions were denied.

In Laker Airways, we considered dueling requests for

injunctions, much like the ones at issue here. There, some

defendants in an antitrust case in the United States successfully

halted the proceedings against them by securing an anti-suit

injunction in the United Kingdom. In response, the plaintiff

obtained an “anti-anti-suit injunction” from the district court to

prevent the remaining defendants from joining the U.K.

litigation to secure similar injunctions that would have impeded

the U.S. antitrust case. See Laker Airways, 731 F.2d at 918;

Maj. Op. 30–32. We upheld the anti-anti-suit injunction,

reasoning that “where the foreign proceeding is not following

a parallel track but attempts to carve out exclusive jurisdiction

over concurrent actions, an injunction may be necessary to

avoid the possibility of losing validly invoked jurisdiction” and

to protect “the court’s ability to render a just and final

judgment.” Laker Airways, 731 F.2d at 930. In reaching that

conclusion, we considered the defendants’ “strenuous[]”

argument “that the district court’s injunction violates the

crucial principles of comity that regulate and moderate the

social and economic intercourse between independent

nations.” Id. at 937. But we held that “the obligation of comity

expires when the strong public policies of the forum are vitiated

by the foreign act.” Id.

We considered three factors important in upholding the

district court’s anti-suit injunction: (1) the foreign lawsuit was

brought with “the sole purpose . . . [of] terminat[ing] the

American action,” Laker Airways, 731 F.2d at 930 (emphasis

in original); (2) defendants sought to “evade culpability under

statutes of admitted [] importance to the United States which

[were] specifically applicable . . . and upon which [the

plaintiff] may have legitimately relied,” id. at 932; and (3) any

comity concerns were a product of defendants’ own efforts “to

generate interference with the American courts,” id. at 939–40.

Here, the district court appropriately weighed the factors

that we identified in Laker Airways. First, it considered the

type of foreign suit to be enjoined: Spain’s requested relief in

the Dutch and Luxembourgish courts was specifically targeted

to interfere with the enforcement of the arbitral awards by the

district court. The district court recognized that Spain filed its

foreign lawsuits with the sole intention of depriving a U.S.

court of jurisdiction to provide justice to parties that were

properly before it. See NextEra, 656 F. Supp. 3d at 215–16.

The nature of the competing foreign action weighed strongly in

favor of issuing an anti-suit injunction under Laker Airways.

Second, the district court considered other interests of the

United States, specifically “encouraging arbitration and the

enforcement of international arbitration law as an efficient

means of settling disputes.” NextEra, 656 F. Supp. 3d at 221

(internal quotations omitted). Although Laker Airways gave

weight to the district court’s obligation to enforce U.S. antitrust

laws — and such purely domestic laws are not at issue here —

there is a strong analogous U.S. interest in enforcing the ICSID

Convention, an international arbitration treaty that the United

States ratified, and that Congress enacted into federal law. See

Laker Airways, 731 F.2d at 932 (upholding the anti-suit

injunction that “properly prevented appellants from attempting

to escape application of [governing] laws”). We have a

statutory obligation to enforce ICSID awards with “the same

full faith and credit as if the award were a final judgment of a

court of general jurisdiction of one of the several States.”

22 U.S.C. § 1650a(a). Moreover, the United States benefits

from its membership in ICSID because American companies

also enforce arbitral awards issued pursuant to the ICSID

Convention. In fact, there have been at least 150 ICSID

arbitrations brought by American investors. See Int’l Scholars

Amicus Br. 19 n.14.

Third, the district court recognized the importance of

comity: It understood that Spain’s status as a sovereign nation

weighed in favor of restraint. See NextEra, 656 F. Supp. 3d at

216–17 (recognizing that “[c]onsiderations of comity” are

“deserving [of] substantial respect,” but rejecting the argument

that “‘comity compels us to recognize a decision by a foreign

government that this court shall not apply its own laws’”

(quoting Laker Airways, 731 F.2d at 939) (emphasis in

original)). Here, Spain’s claim to comity is greatly diminished

by its own disregard for the comity due to the U.S. district

court, which properly exercised its jurisdiction to hear the

Investors’ facially valid claims. See id. at 217. It was Spain

that filed the first requests for anti-suit injunctions in the

Netherlands and Luxembourg, in a bold attempt to interfere

with the Investors’ cases before the district court. In short,

Spain is in a weak position to demand comity when it declines

to practice what it preaches.

Fourth, the district court properly weighed the prospect of

irreparable harm to the Investors. The district court

emphasized that “[i]f Spain receives the relief it seeks in the

[foreign] action[s], [the Investors] will be permanently

enjoined from enforcing the Award[s], both in this court and

around the world.” NextEra, 656 F. Supp. 3d at 220. The court

found that this was “precisely the kind of irreparable harm

identified by the district court, and affirmed by the D.C.

Circuit, in Laker Airways[.]” Id. It was well within the district

court’s discretion to consider the harm to the Investors caused

by Spain’s actions, and to find that the balance of equities

“strongly” favored the Investors. Id.

Despite the district court’s careful application of Laker

Airways, and the equities that strongly favor granting relief to

the Investors, the majority opinion holds that the district court

abused its discretion in issuing anti-suit injunctions that “run

against a foreign sovereign,” rather than a private litigant. Maj.

Op. 34. The majority opinion states that “comity concerns [are]

near their peak,” id. at 38, and the “only domestic interest the

district court identified here is a public interest in encouraging

arbitration,” which does not involve the enforcement of

American laws or affect the interests of American creditors or

consumers, see id. Moreover, the majority opinion asserts that

the district court “did not address the fact that the anti-suit

injunctions run against a foreign sovereign,” and “failed to

identify domestic interests strong enough to warrant the anti-

suit injunctions.” Id. at 34, 38. Thus, the majority opinion

emphasizes the factors that it believes are most important,

performs its own weighing of interests, and reaches a different

conclusion from that of the district court. I disagree with the

majority’s approach to reviewing the district court’s exercise

of discretion.

The majority opinion’s independent balancing of factors

understandably gives great weight to respecting the

sovereignty of other nations. Its analysis, however, overlooks

the narrow scope of the anti-suit injunctions issued by the

district court. The majority opinion states that the injunctions

“impinge on the sovereignty of both the Spanish government

to litigate and the Dutch and Luxembourgish courts to decide

an issue that Spain and the European Union view as an

important question of European Union law.” Maj. Op. 35

(cleaned up). But the district court tailored its injunctions to

allow Spain to obtain a ruling on that issue of EU law from the

foreign courts: The district court enjoined Spain only from

seeking relief from the foreign courts that would require the

Investors to “suspend, hold in abeyance, or withdraw” their

actions before the district court — i.e., Spain could still litigate

its claims in the Netherlands and Luxembourg to seek

declaratory relief. NextEra, 656 F. Supp. 3d at 217, 222

(preserving Spain’s ability to seek a declaration from Dutch

and Luxembourgish courts “vindicating its interpretation of EU

law”). In effect, the district court’s injunctions impinged only

on Spain’s efforts to block the district court from hearing the

Investors’ claims. As a result, the injunctions at issue here are

far less intrusive than the ones described in other cases cited by

the majority opinion. See Republic of Philippines v.

Westinghouse Elec. Co., 43 F.3d 65, 73 (3d Cir. 1994)

(vacating injunction that “purport[ed] to supervise and control

the law enforcement activities of a foreign sovereign nation

against its own citizens on its own soil”); BAE, 884 F.3d at 480

(upholding denial of permanent injunction against South Korea

in part because “comity concerns are far greater where an

injunction would bar a foreign sovereign . . . from litigating a

dispute in its own courts”). Indeed, it is questionable whether

Spain’s interference with a lawsuit in the United States can

even be considered a “sovereign” prerogative.

The majority faults the district court for not paying enough

attention to the two factors that the majority finds most

compelling. But the district court properly considered both

Spain’s status as a foreign sovereign and the interests of the

United States, which are not limited to purely “domestic”

concerns. First, the district court recognized that only

“sufficiently unusual circumstances” would warrant “a

preliminary, anti-suit injunction against a foreign sovereign,”

NextEra, 656 F. Supp. 3d at 214 (emphasis added): The district

court plainly was aware that Spain is a sovereign nation and

that Spain’s sovereignty raised serious comity concerns.

Second, the district court understood that the facts before it

implicated both domestic and international interests of the

United States — it expressly noted the importance of

international arbitration, as well as the fact that Congress has

passed a statute codifying key terms of the ICSID Convention,

which assures prompt confirmation of arbitral awards. See id.

at 217, 221 (recognizing the “public interest in encouraging

arbitration and the enforcement of international arbitration law

as an efficient means of settling disputes,” as well as “an

expectation on the part of Congress that actions to enforce

ICSID awards [will] not be protracted, much less permanently

halted by collateral attacks in foreign courts” (cleaned up)). In

sum, the district court did not “fail[] to consider” either of the

factors singled out by the majority opinion — the majority

simply disagrees with the weight that the district court assigned

to them. Maj. Op. 33 (district court abuses its discretion when

it “fails to consider a relevant factor” (emphasis added)

(cleaned up)). Nor did the district court make a “clear error of

judgment” when it performed the requisite balancing — the

evident disagreement among members of this panel

demonstrates that if there was error, it was not “clear.” Id.

(district court abuses its discretion when it “commits a clear

error of judgment” (emphasis added) (cleaned up)).

The majority opinion relies most heavily on “international

comity” and is influenced by amicus briefs filed in this court

by the United States and the Netherlands. See Maj. Op. 30, 35–

37.2 But the positions expressed by those amici were not before

The majority opinion notes that (1) the Netherlands and the

United States “stress[]” the theme of international comity, Maj.

Op. 30 (citing amicus briefs of the Netherlands and the United

States); (2) the United States “warns that the injunctions here ‘have

the potential to cause significant harm to the United States,’” id. at 35

(quoting amicus brief of the United States) (cleaned up); (3) the

views of the United States “are important, to be sure,” id. at 37; (4)

the district court when the anti-suit injunctions were litigated

and therefore should not be considered here. When applying

an abuse-of-discretion standard of review, it is a

“commonsense notion” that we should “only examine those

parts of the record that were properly before the decisionmaker

at the time the question was considered.” See Sanderlin v.

United States, 794 F.2d 727, 734 (D.C. Cir. 1986). Thus, if the

views of the United States and the Netherlands are important

to the analysis at hand, we should remand for the district court

to consider them in the first instance. Indeed, the cited amicus

briefs provide us with the official positions of the United States

and the Netherlands, and the interests of those nations are

directly relevant to the weighing of international comity. That

those amici feel strongly about how this case should be

resolved is a fact that might have swayed the district court, just

as it has swayed the majority. On appeal, our task is to

determine “whether, in light of the particular factual

circumstances, the trial court erred in applying or weighing the

factors limiting its discretion.” Edwards & Elliott, Federal

Standards of Review: Review of District Court Decisions and

Agency Actions 72 (3d ed., 2023 Update) (emphasis added).

Because the positions of the United States and the Netherlands

were never put before the district court and thus could play no

role in that court’s exercise of discretion, I believe that the

the United States “tells us th[e] interests [in upholding the ICSID

Convention] ‘are far outweighed by the interests in allowing the

foreign litigation to proceed,’” id. at 39 (quoting amicus brief of the

United States); (5) the Netherlands has not only declined to refer

Spain to the International Court of Justice, but it “urges us to vacate

the injunctions,” id. at 39–40 (citing amicus brief of the

Netherlands); and (6) it “bears emphasis” that the Netherlands and

Luxembourg likely “agree with Spain” in the underlying legal

dispute, id. at 40.

majority opinion errs in relying on those amicus briefs — the

information they provide simply is not in the record on review.

The majority opinion insists that the views of the United

States “were before the district court” because Spain, in its

briefing below, quoted an amicus brief filed in 2018 by the

United States in an unrelated and factually distinguishable

case. Maj. Op. 36–37 (emphasis in original) (relying on

Spain’s citation and quotation of Brief for the United States as

Amicus Curiae, BAE, 884 F.3d 463 (No. 17-1070) 2018 WL

551803, at *2).3 Of course, Spain had no authority to speak for

the United States and certainly could not do so by citing a brief

from a different case that is on Westlaw. Only the United

States itself could state its position regarding the unique

circumstances presented here. Moreover, the majority states

that “[i]f the interests of the United States were not clear to the

district court, it could have invited the United States to file an

amicus brief to clarify its position.” Maj. Op. 37. That

statement expresses how the majority would have liked to see

the district court handle this case but does not identify any

The dispute in BAE had nothing to do with arbitration, ICSID,

or an anti-suit injunction instigated by a foreign sovereign to deprive

a U.S. court of its statutorily conferred jurisdiction. Thus, the United

States took no position on any of those interests in the amicus brief

it filed in that case. BAE involved a contract dispute between a

defense contractor and the Republic of Korea, where the defense

contractor sought an anti-suit injunction barring Korea from pursuing

a parallel contract suit in Korean courts. See BAE, 884 F.3d at 467.

Indeed, the language that the majority opinion quotes from the

United States’ amicus brief in BAE demonstrates how that case is

inapposite: It characterizes as “extraordinary” “an antisuit injunction

barring a foreign sovereign from invoking the jurisdiction of its own

courts.” Maj. Op. 37 (emphasis added) (quoting Brief for the United

States as Amicus Curiae, BAE, 884 F.3d 463 (No. 17-1070) 2018 WL

551803, at *2). Here, the anti-suit injunctions do not interfere with

Spain’s invocation of the jurisdiction of its own (Spanish) courts.

abuse of discretion: The district court was not required to

invite the United States to file an amicus brief and therefore

acted within its range of choices when it did not do so. The

district court was allowed to consider the United States’

interests without that formal input.

In my view, the majority opinion errs by focusing only on

the factors that it deems most important while failing to address

or glossing over several important considerations relied upon

by the district court. The majority opinion overlooks important

aspects of the district court’s ruling and cites no authority to

support its incomplete review of the district court’s reasoning.

First, the majority opinion seems to give insufficient

weight to the United States’ obligation to uphold the ICSID

Convention and its strong interests in doing so. See supra

at 10–11. Importantly, Spain’s strategy of interfering with the

Investors’ ability to confirm their awards undermines the whole

process envisioned by the ICSID Convention and the ECT.

Both of those treaties facilitate foreign investments by

guaranteeing investors a neutral arbiter in disputes with

sovereign nations. Spain turns the framework on its head by

forcing the Investors to litigate in forums of the sovereign’s

choice. Moreover, if Spain succeeds in blocking enforcement

actions under the ICSID Convention by obtaining anti-suit

injunctions in foreign jurisdictions that are friendly to it, other

signatory states can follow the same playbook, thereby

threatening the viability of the entire ICSID framework.

Today’s majority opinion makes the United States an

inhospitable forum for enforcing ICSID awards: It permits a

foreign sovereign with assets in the United States who does not

wish to honor an ICSID award to stymie any U.S. enforcement

proceeding by filing for an anti-suit injunction in another

nation. In this case, Spain chose to litigate in the Investors’

home countries, but nothing stops a foreign sovereign from

requesting an anti-suit injunction from one of its own national

courts — exactly the type of situation that the ECT and the

ICSID Convention guard against. The majority opinion

appears to greenlight such tactics. See Maj. Op. 38 (stating that

the United States is not required to “remove obstacles in other

countries that might make it harder for foreign investors to find

their way to our courts”). The majority’s suggestion that the

Investors could instead rely on the Netherlands and

Luxembourg to refer “Spain’s treatment of their nationals” to

the International Court of Justice, see id. at 39, misses the

point: The Investors should not have to seek such a

cumbersome remedy that affords them no immediate monetary

compensation when the ICSID Convention and U.S. law give

them a streamlined way to enforce their multi-million-euro

arbitral awards in the United States.

Next, the majority opinion overlooks Spain’s own lack of

comity: As the district court pointed out, it is Spain that

precipitated a clash of international interests by “seeking to

frustrate the operation of U.S. law.” NextEra, 656 F. Supp. 3d

at 217; supra at 11. Indeed, a strong case can be made that

Spain has acted in bad faith and that the district court made a

finding to that effect. Spain attempts to bully the Investors into

withdrawing their legitimate lawsuits in the United States by

requesting fines against them of EUR 30,000 or 100,000 per

day; and it seeks foreign injunctions that plainly are intended

to disrupt and hamper the cases before the district court. See

Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991) (“[A] party

shows bad faith by delaying or disrupting the litigation or by

hampering enforcement of a court order.” (cleaned up)).

Although the district court did not use the words “bad faith,” it

criticized Spain’s conduct and emphasized Spain’s attempt to

“virtually eliminate[] the court’s effective jurisdiction” without

“any prior notice.” See NextEra, 656 F. Supp. 3d at 216

(quoting Laker Airways, 731 F.2d at 930–31); see also id. at

217, 221 (noting Spain’s “hypocrisy” and that Spain’s

representations “verge on disingenuous”). Thus, the facts in

the record speak for themselves and the district court both

referred to and relied on Spain’s arguably bad-faith actions.

See LaPrade v. Kidder Peabody & Co., 146 F.3d 899, 906

(D.C. Cir. 1998) (It is “an empty formalism to find an abuse of

discretion simply because the district court failed to invoke the

magic words ‘bad faith.’”). Spain’s lack of comity and

arguable bad faith support the anti-suit injunctions issued by

the district court but are not addressed by the majority opinion.

Furthermore, the majority opinion does not mention the

district court’s finding that the anti-suit injunctions were

necessary to prevent irreparable harm to the Investors. See

supra at 11. The lawsuits that Spain brought in the Netherlands

and Luxembourg seek to block the Investors from enforcing

their arbitral awards in any forum in the world. And to be clear,

NextEra and 9REN are the injured parties here. They invested

in Spain’s energy sector after Spain promised to provide energy

subsidies and that the Investors would be guaranteed a neutral

arbitral forum if any disputes with Spain arose. When Spain

breached its commitments, the Investors dutifully followed the

procedures prescribed by the ECT and the ICSID Convention.

Spain has fought them every step of the way. Thus, the

Investors have expended substantial time and resources to

participate in lengthy arbitration proceedings and to defend

their sizeable arbitral awards in ICSID’s internal appeal

process. They now seek only to confirm and enforce the

awards in U.S. courts, as they are entitled to do under the ICSID

Convention and U.S. law. Allowing Spain to extinguish the

Investors’ rights and claims by obtaining foreign injunctions

that forbid the Investors from ever confirming their awards is

manifestly unfair. But the majority appears to conclude that

the district court’s finding of irreparable harm to the Investors

is irrelevant.4

I also believe that the majority opinion goes astray by

focusing on the parties’ “underlying disputes” and on matters

related to the interpretation or implementation of European

law. See, e.g., Maj. Op. 38–39. Although the “underlying

disputes” between Spain and the Investors do involve EU law,

those disputes already have been resolved by ICSID arbitral

panels. As a result, all that remains in the cases before us is the

straightforward confirmation of the ICSID arbitral awards. In

such cases, the district court’s scope of review is “below even

the ‘extremely limited’ review available under the [Federal

Arbitration Act],” and the district court may not consider the

merits of the parties’ positions before the arbitral tribunal. See

Valores, 87 F.4th at 520; see id. at 515 (“Contracting states’

courts are [] not permitted to examine an ICSID award’s merits,

In each of the two cases before us, the district court issued an

injunction that relied on both the Laker Airways discussion of anti-

suit injunctions and traditional preliminary-injunction factors. See

NextEra, 656 F. Supp. 3d at 214–21. In other words, the district court

applied two sets of factors in issuing a single injunction. Thus, both

parts of the district court’s analysis are relevant to our evaluation of

how the district court exercised its discretion to issue each injunction.

Indeed, the district court undoubtedly relied on its findings of

irreparable harm when it issued the injunctions at issue. See id. at

220. But the majority opinion appears to limit its review to the anti-

suit injunction factors discussed in Laker Airways, leaving its

analysis incomplete. The majority opinion apparently takes this

approach because the majority believes that it need not decide in this

case whether a district court is required to consider the “four

traditional injunction factors” in this context. Maj. Op. 33 n.1. Yet,

even if we need not address whether the preliminary-injunction

factors must be analyzed under the circumstances presented, we still

are obligated to review what the district court actually did in this

case.

its compliance with international law, or the ICSID tribunal’s

jurisdiction to render the award.” (cleaned up)). “Under the

[ICSID] Convention’s terms, [the district court] may do no

more than examine the judgment’s authenticity and enforce the

obligations imposed by the award.” Id. Thus, we need not

dwell on the “complex international puzzle” described by the

majority opinion. See Maj. Op. 40. Rather, we should keep

our eye on the ball and simply uphold the treaty obligation and

the U.S. statute that require the district court to enforce any

ICSID arbitration award as if the award “were a final judgment

of a court in [the United States].” See ICSID Convention,

art. 54; 22 U.S.C. § 1650a(a) (ICSID awards are entitled to “the

same full faith and credit as if the award were a final judgment

of a court of general jurisdiction of one of the several States.”).

Unlike the majority, I am unable to reconcile our

obligation to give full faith and credit to ICSID awards and to

enforce them like final judgments with a ruling that allows

Spain to block access to U.S. courts in a gambit to prevent the

confirmation and enforcement of those very same awards. See

Maj. Op. 38 (“[T]he United States must open the doors of its

courthouses to foreign investors seeking to enforce such

awards. But neither the treaty nor the statute requires the

United States to remove obstacles in other countries that might

make it harder for foreign investors to find their way to our

courts.”). Our affirmance of the district court’s jurisdictional

rulings is a hollow victory for the Investors if they nevertheless

will be enjoined by foreign courts from ever confirming their

hard-won awards.

For the foregoing reasons, I cannot agree with the

majority’s approach or analysis in vacating the anti-suit

injunctions. But whether my arguments are persuasive or not,

the conflicting views expressed by members of this panel

demonstrate that there is no objectively correct answer to the

question of whether those injunctions should have been

granted. Because there is more than one reasonable way to

resolve these cases, the abuse-of-discretion standard requires

us to affirm the choices made by the district court. See

Morrissey, 17 F.4th at 1156 (“The abuse of discretion standard

means that the district court has a range of choice, and that its

decision will not be disturbed as long as it stays within that

range and is not influenced by any mistake of law.” (cleaned

up)); Morley, 894 F.3d at 391 (“[I]t will be the rare case when

we can reverse a district court’s balancing of [] factors.”).

* * *

Even though the district court did not take the path

preferred by the majority, it acted well within its discretion

when it evaluated the equities in the way that it did. The

majority opinion does not identify any relevant factor that the

district court failed to consider or any mistake of law that it

made. Instead, the majority disagrees with the district court’s

weighing of interests and substitutes its own judgments for

those of the district court. Because the majority opinion

misapplies the required standard of review, I respectfully

dissent as to Part II.B of the court’s opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.