Hulley Enterprises Ltd. v. Russian Federation

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 18, 2024 Decided August 5, 2025

No. 23-7174

HULLEY ENTERPRISES LTD., ET AL.,

APPELLEES

v.

RUSSIAN FEDERATION,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-01996)

David Riesenberg argued the cause and filed the briefs for

appellant.

Steven M. Shepard argued the cause and filed the brief for

appellees. Zachary Savage entered an appearance.

Before: SRINIVASAN, Chief Judge, WILKINS and RAO,

Circuit Judges.

Opinion for the Court filed by Circuit Judge RAO.

Concurring opinion filed by Circuit Judge WILKINS.

2

RAO, Circuit Judge: From 2003 to 2004, Russia

expropriated the most valuable assets of OAO Yukos Oil

Company (“Yukos”), at the time the largest private oil

company in the Russian Federation. Shareholders of Yukos

challenged the expropriation in arbitration and secured a $50

billion award, which they seek to enforce in federal court.

Russia asserts that sovereign immunity bars the suit and that

the arbitration exception to the Foreign Sovereign Immunities

Act (“FSIA”) does not apply. The district court held it had

jurisdiction under the FSIA, in part because it was bound by

the arbitral tribunal’s conclusion that an arbitration agreement

existed between Russia and the Shareholders.

Whether an arbitration agreement exists is a jurisdictional

fact under the FSIA that must be independently evaluated by

the district court. Because the district court gave binding effect

to the arbitral tribunal’s determination of this jurisdictional

fact, we vacate the judgment. On remand, the district court

must independently consider whether the FSIA’s arbitration

exception to sovereign immunity applies.

I.

The Yukos Shareholders are several companies organized

under the laws of Cyprus and the Isle of Man: Hulley

Enterprises Ltd., Yukos Universal Ltd., and Veteran Petroleum

Ltd. In February 2005, the Shareholders initiated arbitration

proceedings alleging that Russia expropriated Yukos’s assets

in violation of the Energy Charter Treaty (“Treaty”).

Designed to promote international cooperation and

investment in the energy sector, the Treaty generally prohibits

signatory countries from expropriating investments held by

investors from other signatories. See Energy Charter Treaty art.

3

13, Dec. 17, 1994, 2080 U.N.T.S. 95. If disagreements arise,

investors may submit the dispute to arbitration. Id. art. 26(3)(a).

The Treaty requires a country to comply with its terms from the

moment of signature, even before the Treaty is ratified, “to the

extent that such provisional application is not inconsistent with

[the signatory’s] constitution, laws or regulations.” Id. art.

45(1). The Vice Prime Minister of Russia signed the Treaty on

December 17, 1994, but the Russian Parliament never ratified

it. Russia withdrew from the Treaty in 2009.

The arbitration proceedings between Russia and the

Shareholders at The Hague lasted nearly a decade. Russia

consented to the jurisdiction of the arbitral tribunal

(“Tribunal”) to determine arbitrability but maintained

throughout the proceedings that the Tribunal lacked

jurisdiction over the dispute. Russia argued it was not required

to provisionally apply the arbitration clause of the Treaty

because to do so would be inconsistent with Russian law.

Russia also maintained the Shareholders were not investors

within the meaning of the Treaty because the companies are

controlled by Russian citizens and so do not qualify as

investors from another state.

In November 2009, the Tribunal entered interim awards

rejecting Russia’s challenge to its jurisdiction. The Tribunal

concluded that the Shareholders qualified as investors under

the Treaty and that Russia had agreed to arbitrate because the

arbitration clause applied provisionally in Russia at the time of

the expropriation. The Tribunal issued final awards in July

2014, finding that Russia had violated the Treaty and awarding

the Shareholders over $50 billion in damages.

Following the Tribunal’s decision, the dispute continued,

this time in the courts. Russia asked the Hague District Court

(a national Dutch court) to set aside both the interim and final

4

awards. The Dutch Supreme Court ultimately held for the

Shareholders on nearly all issues. It affirmed that the Tribunal

had jurisdiction over the dispute, that provisional application

of the arbitration clause was consistent with Russian law, and

that the Shareholders were investors within the meaning of the

Treaty.

While proceedings were pending in the Dutch courts, the

Shareholders brought suit in the United States District Court

for the District of Columbia to confirm and enforce the final

awards. Russia moved to dismiss the Shareholders’

enforcement suit for lack of subject matter jurisdiction. Russia

asserted sovereign immunity and argued that none of the

FSIA’s exceptions to sovereign immunity applied. In

particular, Russia maintained the arbitration exception did not

apply because there was no valid arbitration agreement

between Russia and the Shareholders. Russia offered the same

arguments it raised before the Tribunal, namely that it was not

required to provisionally apply the arbitration clause and that

the Shareholders were not investors within the meaning of the

Treaty because they were “mere shell companies owned and

controlled by … [Russian] nationals.”

After the Dutch Supreme Court’s decision, the district

court denied Russia’s motion to dismiss. The court concluded

it had subject matter jurisdiction because the FSIA’s arbitration

exception applied. See Hulley Enters. Ltd. v. Russian

Federation, No. 14-cv-1996, 2023 WL 8005099, at *12

(D.D.C. Nov. 17, 2023). The district court explained the “terms

of the [Treaty]” demonstrated “the existence of an agreement

to arbitrate.” Id. at *13. But if there were doubt as to this fact,

the Tribunal’s determination that an arbitration agreement

existed between Russia and the Shareholders was “binding” on

the court. Id. at *16. The district court likewise treated as

5

binding the Tribunal’s holding that Russia was required to

apply the entire treaty provisionally. Id. at *21.

Russia timely appealed. We have jurisdiction under the

collateral order doctrine to review the denial of Russia’s claim

of sovereign immunity. See Process & Indus. Devs. Ltd. v.

Federal Republic of Nigeria, 962 F.3d 576, 581 (D.C. Cir.

2020). We review the district court’s jurisdictional

determination de novo. See Kilburn v. Socialist People’s

Libyan Arab Jamahiriya, 376 F.3d 1123, 1127 (D.C. Cir.

2004).

II.

For the Shareholders to enforce these arbitral awards in

United States courts, Russia “must not enjoy sovereign

immunity from such an enforcement action.”1 Creighton Ltd.

v. Government of the State of Qatar, 181 F.3d 118, 121 (D.C.

Cir. 1999). Foreign sovereigns are “presumptively immune

from the jurisdiction of United States courts.” Saudi Arabia v.

Nelson, 507 U.S. 349, 355 (1993). The FSIA is “the sole basis

for obtaining jurisdiction over a foreign state in the courts of

this country.” Argentine Republic v. Amerada Hess Shipping

1

To enforce an arbitration award in federal court against a foreign

sovereign, there must also “be a basis upon which a court in the

United States may enforce a foreign arbitral award.” Creighton Ltd.

v. Government of the State of Qatar, 181 F.3d 118, 121 (D.C. Cir.

1999). Russia does not dispute that the New York Convention

provides a basis for enforcing these arbitral awards. See 9

U.S.C. § 207; Convention on the Recognition and Enforcement of

Foreign Arbitral Awards art. I, opened for signature June 10, 1958,

21 U.S.T. 2517, 330 U.N.T.S. 3; LLC SPC Stileks v. Republic of

Moldova, 985 F.3d 871, 877 n.2 (D.C. Cir. 2021) (recognizing the

New York Convention provides a basis for enforcing arbitral awards

in the federal courts).

6

Corp., 488 U.S. 428, 443 (1989). Unless a plaintiff’s case falls

within one of the nine exceptions enumerated in the FSIA, the

federal courts lack subject matter jurisdiction. See Verlinden

B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488–89 (1983).

The Shareholders maintain the FSIA’s arbitration

exception applies to this case. That exception provides:

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 action is

brought, either to enforce an [arbitration]

agreement made by the foreign state with or for

the benefit of a private party … 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).

Before concluding the arbitration exception to sovereign

immunity applies, a federal court must independently confirm

three jurisdictional facts: (1) the existence of an arbitration

agreement; (2) an arbitration award; and (3) a treaty that may

govern the award. See Chevron Corp. v. Republic of Ecuador,

795 F.3d 200, 204 (D.C. Cir. 2015); LLC SPC Stileks v.

Republic of Moldova, 985 F.3d 871, 877 (D.C. Cir. 2021). This

Circuit applies a burden-shifting framework to evaluate

whether jurisdiction has been established.2 When asserting the

2

The United States has repeatedly argued that this framework is

incompatible with the jurisdictional nature of the FSIA. See Brief for

the United States as Amicus Curiae at 9 n.2, NextEra Energy Glob.

7

arbitration exception applies, a plaintiff must initially satisfy “a

burden of production” as to these facts. Chevron, 795 F.3d at

204 (cleaned up). The burden then shifts to the foreign

sovereign to demonstrate “the absence of the factual basis by a

preponderance of the evidence.” Id. (cleaned up).

Jurisdictional questions must be independently analyzed

by the court. See generally Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 94 (1998) (explaining “the court is bound

to ask and answer for itself” the question of jurisdiction).

Determining whether we have jurisdiction over a foreign

sovereign under the FSIA is no exception. Accordingly, when

faced with questions about sovereign immunity, we must

independently “resolve any disputed issues of fact” relevant to

jurisdiction. Phoenix Consulting, Inc. v. Republic of Angola,

216 F.3d 36, 40 (D.C. Cir. 2000). Federal courts may not defer

to an arbitral tribunal or otherwise outsource the obligation to

determine jurisdictional facts that go to the waiver of sovereign

immunity under the FSIA.

III.

On appeal, Russia maintains the district court erred in

deferring to the Tribunal’s conclusions about jurisdictional

Holdings B.V. v. Kingdom of Spain, 112 F.4th 1088 (D.C. Cir. 2024)

(arguing that because a foreign state is presumptively immune from

suit, there is “no justification for placing the ultimate ‘burden of

persuasion’ on the foreign state”); Brief for the United States as

Amicus Curiae Supporting Petitioners at 10, Republic of Hungary v.

Simon, 145 S. Ct. 480 (2025) (“The FSIA’s text makes clear that

sovereign immunity is jurisdictional, and the burden of establishing

subject-matter jurisdiction always rests with the party asserting

jurisdiction.”). In Republic of Hungary v. Simon, the Supreme Court

explicitly declined to reach this issue, thereby leaving our framework

undisturbed. 145 S. Ct. 480, 490 n.1 (2025).

8

facts. Russia contends that it retains sovereign immunity

because there was no valid arbitration agreement triggering a

waiver of immunity under the FSIA.3 Russia advances two

primary arguments in support. First, Russia claims it did not

make an offer to arbitrate because provisional application of

the Treaty’s arbitration clause would have been inconsistent

with Russian law. Second, even if Russia were required to

apply the arbitration clause provisionally such that it

constituted a standing offer to arbitrate, the Shareholders were

not investors within the meaning of the Treaty.

At the outset, we must evaluate whether Russia’s

arguments challenge the existence or validity of an arbitration

agreement or instead merely challenge the scope of an

arbitration agreement. When a party challenges the existence

or validity of an arbitration agreement, that question goes to the

applicability of an exception to sovereign immunity and

therefore is jurisdictional. See Belize Soc. Dev. Ltd. v.

Government of Belize (“Belize”), 794 F.3d 99, 102–03 (D.C.

Cir. 2015) (treating as jurisdictional the question of whether a

country’s Prime Minister had authority to enter an arbitration

agreement).

By contrast, questions about whether an arbitration

agreement covers a particular investment pertain to the scope

of the agreement and are not jurisdictional. See Chevron, 795

F.3d at 205–06 (holding that whether certain lawsuits were

“investments” within the meaning of an arbitration agreement

was not a jurisdictional question); Stileks, 985 F.3d at 878

3

The other jurisdictional prerequisites are easily satisfied, as the

district court held and the parties do not contest. The Tribunal

awarded the Shareholders $50 billion in damages, and the awards are

governed by the New York Convention. See Creighton, 181 F.3d at

123–24.

9

(holding that whether a foreign sovereign “agreed to arbitrate

[a] particular dispute” was not jurisdictional). Arguments

about scope are arguments about arbitrability. See Henry

Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 527

(2019). And when parties delegate questions of arbitrability to

an arbitral tribunal, this court is bound by the tribunal’s

determinations. See id. at 528; First Options of Chicago, Inc.

v. Kaplan, 514 U.S. 938, 943 (1995) (explaining “a court must

defer to an arbitrator’s arbitrability decision when the parties

submitted that matter to arbitration”); Stileks, 985 F.3d at 878

(applying First Options in the FSIA context).

A.

Russia first argues the Treaty was not an offer to arbitrate

“with anybody or about anything.” This argument challenges

the existence of an arbitration agreement and therefore relates

to the jurisdictional question of whether Russia has sovereign

immunity for these claims. The district court was required to

evaluate this argument independently and erred in giving

binding effect to the determinations of the Tribunal on this

question.

“[A]n arbitration provision in an investment treaty

can … constitute an agreement for the benefit of a private

party” that “operates as a unilateral offer to arbitrate” and may

become an arbitration agreement with a private party when the

private party accepts the offer. NextEra Energy Glob. Holdings

B.V. v. Kingdom of Spain, 112 F.4th 1088, 1101–02 (D.C. Cir.

2024) (cleaned up).

Russia maintains that it never made a standing offer to

arbitrate. Because the Russian Parliament did not ratify the

Treaty, Russia committed only to applying the Treaty

provisionally. And the Treaty by its terms provides for

provisional application only “to the extent that such provisional

10

application is not inconsistent with [the signatory’s]

constitution, laws or regulations.” Treaty art. 45(1). Russia

contends that its law does not permit arbitration of “public law

disputes,” including “most disputes involving the government”

and “government contracts.” As a result, Russia was not

provisionally bound to the Treaty’s arbitration clause.4

This argument pertains to our jurisdiction under the

FSIA’s arbitration exception to sovereign immunity. In this

context, an arbitration agreement between Russia and the

Shareholders would exist only if Russia had made a standing

offer to arbitrate through provisional application of the Treaty.

See NextEra, 112 F.4th at 1101–02. Russia denies it extended

any such offer, because it was not required to apply the Treaty’s

arbitration clause provisionally. Russia’s argument therefore

goes to the existence of an arbitration agreement and is

jurisdictional.5

Because the existence of an arbitration agreement is a

jurisdictional fact under the FSIA, the district court was

4

Russia also claims the Vice Prime Minister who signed the Treaty

“lacked authority to enter the agreement to arbitrate without

Parliament’s approval” because “the text, purpose, and context” of

the Treaty and “a detailed analysis of Russian judicial practice”

demonstrate that provisional application of the arbitration clause is

inconsistent with Russian law. This “lack of authority” framing is not

an independent argument but merely another way of saying that

Russia did not make a standing offer to arbitrate because it was not

bound to provisionally apply the Treaty’s arbitration clause.

5

This is consistent with the general principle that when the formation

of an arbitration agreement is contested, “the court must resolve the

disagreement.” Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S.

287, 299–300 (2010) (cleaned up).

11

required to decide Russia’s claim de novo, without deferring to

the Tribunal’s conclusions about Russian law.

The district court declined to undertake this inquiry,

concluding that it was bound to follow the Tribunal’s

determinations as to the existence of an arbitration agreement.

In doing so, the district court mistakenly relied on the

deferential standard applied to disputes over the scope of an

arbitration agreement. Hulley Enters., 2023 WL 8005099, at

*21 n.20, *16 (citing First Options, 514 U.S. at 942–43; Stileks,

985 F.3d at 878–79). But in Stileks, the parties did not contest

the existence of an arbitration agreement. Rather, the dispute

was over arbitrability, which may be conclusively determined

by an arbitral tribunal when the parties so delegate. 985 F.3d at

878. In First Options, the Supreme Court likewise addressed

arbitrability, not the existence of an arbitration agreement. 514

U.S. at 943.

We reiterate that the existence of an arbitration agreement

is a jurisdictional question under the FSIA that must be

independently determined by the court. On remand, the district

court must decide whether provisional application of the

Treaty’s arbitration clause is consistent with Russian law.

B.

Russia also argues that even if it did make a standing offer

to arbitrate by signing the Treaty, the Shareholders are not

proper beneficiaries of the arbitration clause. The arbitration

clause provides for settlement of disputes “between a

Contracting Party and an Investor of another Contracting

Party.” Treaty art. 26. Russia contends that the Shareholder

companies, although formally organized under the laws of

Cyprus and the Isle of Man, are controlled by Russian citizens

and therefore are not investors “of another Contracting Party.”

12

Unlike Russia’s other argument, this one is not

jurisdictional. Whether the Shareholders are investors within

the meaning of the arbitration clause “is an argument regarding

the scope of the Energy Charter Treaty, not its existence.”

NextEra, 112 F.4th at 1103. Our decision in NextEra squarely

forecloses Russia’s argument. In Chevron, we similarly

rejected Ecuador’s attempt to recharacterize as jurisdictional

questions about whether certain claims were arbitrable. 795

F.3d at 205. And in Stileks, we held that a claim about which

investments were covered by the treaty went to arbitrability,

not jurisdiction. 985 F.3d at 878. Like the sovereigns’

arguments in Chevron and Stileks, Russia’s argument that the

Shareholders do not qualify as investors within the meaning of

the Treaty pertains to arbitrability and so is not jurisdictional,

as the district court correctly held.6

***

The district court was required to independently determine

the jurisdictional facts regarding Russia’s sovereign immunity

and whether the FSIA’s arbitration exception applies to allow

the Shareholders’ suit. On remand, the district court must

assess whether provisional application of the Treaty’s

arbitration clause was consistent with Russian law.

IV.

The Shareholders also maintain this suit may go forward

because the Dutch courts determined that Russia had agreed to

arbitrate this dispute, and therefore issue preclusion bars Russia

from relitigating the existence of an arbitration agreement. The

6

Because this issue is not jurisdictional, the denial of jurisdictional

discovery was not an abuse of discretion. See Aljabri v. bin Salman,

106 F.4th 1157, 1163 (D.C. Cir. 2024).

13

district court declined to address this argument because it had

already deferred to the Tribunal’s determination of this

jurisdictional question.

Even on the required independent review of jurisdictional

facts, the decisions of the Dutch courts may control the factual

questions that the district court must answer. Given the

numerous threshold issues necessary to resolve before giving

preclusive effect to foreign judgments, it is appropriate to

remand for the district court to address this issue in the first

instance. We will, however, provide “some guidance for the

task to be tackled on remand.” Doraleh Container Terminal SA

v. Republic of Djibouti, 109 F.4th 608, 617 (D.C. Cir. 2024)

(cleaned up).

The first question the district court must consider is

whether issue preclusion applies to jurisdictional questions

under the FSIA. Issue preclusion is a judicial doctrine

providing that a prior judgment may “foreclos[e] successive

litigation of an issue of fact or law actually litigated and

resolved in a valid court determination essential to the prior

judgment.” New Hampshire v. Maine, 532 U.S. 742, 748–49

(2001). It is well established that, in general, “[i]ssue

preclusion applies to threshold jurisdictional issues.” Nat’l

Ass’n of Home Builders v. EPA, 786 F.3d 34, 41 (D.C Cir.

2015). And sovereign immunity is a jurisdictional issue. Other

courts have given preclusive effect to jurisdictional

determinations by domestic courts when analyzing subject

matter jurisdiction under the FSIA.7 This court has not

7

See Gupta v. Thai Airways Int’l, Ltd., 487 F.3d 759, 765–67 (9th

Cir. 2007) (giving preclusive effect to a previous state court decision

that the court lacked subject matter jurisdiction under the FSIA);

Biton v. Palestinian Interim Self-Government Auth., 412 F. Supp. 2d

1, 4–5 (D.D.C. 2005) (holding that “collateral estoppel preclude[d]

re-litigation of the issue[]” of whether certain foreign organizations

14

previously addressed the issue and so the district court should

evaluate whether issue preclusion applies in this context.

If the district court determines that issue preclusion applies

to jurisdictional questions under the FSIA, it must also assess

whether preclusion extends to foreign judgments. This, too,

appears to be a novel question. We are aware of no case, and

the parties point to no case, in which a court has given

preclusive effect to a foreign judgment in order to exercise

jurisdiction over a foreign sovereign under the FSIA. That said,

United States courts have long accorded respect to, and often

enforced, judgments of foreign courts. As Chief Justice

Marshall explained, “[I]n the courts of England,” the judgment

“of a foreign court is conclusive with respect to what it

professes to decide,” so long as the court “has, in the given

case, jurisdiction of the subject-matter.” Rose v. Himely, 8 U.S.

(4 Cranch) 241, 270 (1808). The Supreme Court viewed the

English approach “as the uniform practice of civilized nations”

and adopted it. Id. at 271.

Later, in the seminal case Hilton v. Guyot, the Supreme

Court explained that recognition of foreign judgments is a

matter of international comity. 159 U.S. 113, 163–67 (1895).

And the Court set forth a series of factors for determining

whether such recognition is appropriate in a particular case. Id.

at 202–03. Since Hilton, the federal courts have extended

comity to foreign judgments that comport with the standard

expounded by the Court. See Tahan v. Hodgson, 662 F.2d 862,

“[met] the definition of ‘foreign state’ under the [FSIA],” and were

therefore immune from suit, because the issue had been “fully and

carefully examined” by two other domestic courts); Mortimer Off

Shore Servs., Ltd. v. Federal Republic of Germany, No. 10-cv-11551,

2012 WL 1067648, at *10–11 (D. Mass. Mar. 28, 2012) (giving

preclusive effect to the Second Circuit’s decision that the dispute did

not fall within the commercial exception to the FSIA).

15

864–68 (D.C. Cir. 1981) (applying the Hilton factors and

concluding that enforcement of an Israeli judgment was

required); Donnelly v. FAA, 411 F.3d 267, 270–71 (D.C. Cir.

2005) (upholding, as consistent with Hilton, a federal agency’s

use of a foreign criminal conviction as evidence in an

adjudication); see also Phillips USA v. Allflex USA, Inc., 77

F.3d 354, 359–61 (10th Cir. 1996); Cunard S.S. Co. v. Salen

Reefer Servs. AB, 773 F.2d 452, 456–60 (2d Cir. 1985); Hurst

v. Socialist People’s Libyan Arab Jamahiriya, 474 F. Supp. 2d

19, 34–36 (D.D.C. 2007).

If issue preclusion applies to jurisdictional facts under the

FSIA, the district court must apply the Hilton factors to

determine whether principles of comity counsel in favor of

recognizing the Dutch judgments. See Tahan, 662 F.2d at 864

(explaining Hilton’s relevance for the enforcement of foreign

judgments). The court should also consider how the Hilton

factors intersect with the ordinary standard for assessing

collateral estoppel. See, e.g., Hurst, 474 F. Supp. 2d at 33–34

(analyzing whether a foreign judgment met the Hilton factors

and the ordinary collateral estoppel standard); Alfadda v. Fenn,

966 F. Supp. 1317, 1325–32 (S.D.N.Y. 1997) (applying the

Hilton comity factors and issue preclusion standards

sequentially). The parties dispute whether the elements of issue

preclusion are met here, in particular whether the Dutch

proceedings were “full and fair.” See Hilton, 159 U.S. at 202.

We leave these questions for the district court to consider in the

first instance.

Whether to apply issue preclusion to foreign judgments

with respect to determinations of foreign sovereign immunity

is a novel question that may implicate foreign relations and

international law. Accordingly, the district court should invite

the United States to express the government’s position on this

16

issue, through a Statement of Interest pursuant to 28 U.S.C.

§ 517, or any other appropriate mechanism.

***

For the foregoing reasons, we vacate the judgment and

remand for the district court to determine whether Russia is

entitled to sovereign immunity or if the arbitration exception to

the FSIA applies. In making this jurisdictional determination,

the district court should also consider whether the Dutch

courts’ judgments on this question are entitled to preclusive

effect.

So ordered.

WILKINS, Circuit Judge, concurring:

I join in full the Court’s opinion. I write separately to

emphasize the limits of our decision. We do not hold that every

time a sovereign claims it lacked authority or capacity to agree

to arbitrate, it necessarily raises a jurisdictional attack under the

Foreign Sovereign Immunities Act. Not all such arguments are

jurisdictional. Compare Brief for Appellant at 40, NextEra

Energy Glob. Holdings B.V. v. Kingdom of Spain, 112 F.4th

1088 (D.C. Cir. 2024) (Nos. 23-7031, 23-7032), Dkt. No.

2011894 (claiming a “lack[]” of “capacity” to agree to

arbitrate), with NextEra, 112 F.4th at 1103 (determining the

argument went to the agreement’s scope and not its existence).

Rather, Russia’s specific argument here, given the text of

Article 45 of the Treaty and the basis Russia identifies for

limiting its provisional application of the Treaty, plainly goes

to the existence of any arbitration agreement. District Courts

should carefully consider the justification for any “lack of

authority” claim, along with the details of the contested

arbitration agreement, in resolving these jurisdictional

disputes.