Petition for Writ of Certiorari — Kingdom of Spain, Petitioner v. Blasket Renewable Investments LLC, et al.
Supreme Court briefMay 1, 2025
Ask Donna
What actually matters in this document.
Text
APPENDIX
APPENDIX TABLE OF CONTENTS
APPENDIX A: Opinion, NextEra Energy Glob.
Holdings B.V. v. Kingdom of Spain, 112 F.4th
1088 (D.C. Cir. 2024) .........................................
Page
1a
APPENDIX B: Memorandum Opinion, NextEra
Energy Glob. Holdings B.V. v. Kingdom Of
Spain, 656 F. Supp. 3d 201 (D.D.C. 2023) ........ 64a
APPENDIX C: Memorandum Opinion, 9REN
Holding S.A.R.L. v. Kingdom of Spain, No. 19cv-01871 (TSC), 2023 WL 2016933 (D.D.C.
Feb. 15, 2023)..................................................... 100a
APPENDIX D: Memorandum Opinion, Blasket
Renewable Invs., LLP v. Kingdom of Spain,
665 F. Supp. 3d 1 (D.D.C. 2023)........................ 129a
APPENDIX E: Order Denying Rehearing En
Banc, NextEra Energy Glob. Holdings B.V. v.
Kingdom of Spain, No. 23-7031 (D.C. Cir. Dec.
2, 2024) ............................................................... 150a
APPENDIX F: Federal Statutes .......................... 152a
1a
APPENDIX A
UNITED STATES COURT OF APPEALS,
DISTRICT OF COLUMBIA CIRCUIT
————
No. 23-7031, No. 23-7032, No. 23-7038
————
NEXTERA ENERGY GLOBAL HOLDINGS B.V. and
NEXTERA ENERGY SPAIN HOLDINGS B.V.,
v.
Appellees
KINGDOM OF SPAIN,
————
Appellant
9REN HOLDING S.A.R.L.,
v.
Appellee
KINGDOM OF SPAIN,
————
Appellant
BLASKET RENEWABLE INVESTMENTS LLC,
v.
Appellant
KINGDOM OF SPAIN,
————
Appellee
Argued February 28, 2024
Decided August 16, 2024
————
2a
OPINION
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 multimillion-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
3a
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.
4a
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 antisuit 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.
I.
A.
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,
5a
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 ad 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
6a
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.
B.
1.
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.
7a
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
8a
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
9a
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
10a
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 choiceof-law provision, the tribunal reasoned that, “[a]s a
matter of international law, the notion that EU law
11a
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.
2.
Armed with multi-million-euro arbitration awards,
the companies sought to confirm them in the United
12a
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).
13a
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-antisuit 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
14a
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).
15a
A.
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,
143 S.Ct. 940, 215 L.Ed.2d 242 (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).
1.
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
16a
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 Tatneft 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 arbitrationenforcement actions in other signatory states.” Id. at
10. More recently, however, we emphasized that
“[a]lthough we have favorably cited Seetransport and
17a
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.
2.
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.
18a
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
19a
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, 134 S.Ct. 1198, 188 L.Ed.2d 220 (2014)
(Roberts, C.J., dissenting) (emphasis added). The
investment treaty is instead “a contract . . . between
nations.” Id. at 37, 134 S.Ct. 1198 (majority op.). As
20a
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, 134
S.Ct. 1198 (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, 134 S.Ct. 1198 (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, 134 S.Ct.
1198 (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, 134
S.Ct. 1198. 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
21a
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
22a
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
23a
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,
24a
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]
25a
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,
26a
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, 109 S.Ct. 683,
102 L.Ed.2d 818 (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).
27a
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.
B.
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, 16 S.Ct.
139, 40 L.Ed. 95 (1895)). In an amicus brief, the
Netherlands stresses the same theme. See NextEra
Netherlands Amicus Br. 15–17. As does the United
28a
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.
29a
The Laker district court granted the defensive antisuit 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
30a
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
31a
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 Co. v. U.S. Fish & Wildlife
Serv., 586 U.S. 9, 25, 139 S.Ct. 361, 202 L.Ed.2d
269 (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 antisuit injunction factors, the district court also considered the four
traditional injunction factors. Other circuits appear to be 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 antisuit injunction), with, e.g., Goss, 491 F.3d at 361 n.4. (holding
1
32a
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 antisuit 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
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.
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.
33a
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, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983), and can
have serious “diplomatic implications,” Republic of
Sudan v. Harrison, 587 U.S. 1, 19, 139 S.Ct. 1048, 203
L.Ed.2d 433 (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
34a
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 1117–
17. 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 antisuit injunctions were litigated.” Id. at 1118. She
contends that, at most, we “should remand for the
district court to consider the[ ] [United States’ views]
in the first instance.” Id. at 1119. 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
35a
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
36a
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.
37a
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 investorState 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 1120. 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
1120. After all, the ICSID Convention explicitly offers
recourse to signatory countries objecting that another
signatory country is improperly interfering with
38a
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 1120. 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 intraEU 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.
39a
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 1122.
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
40a
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.
41a
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-ofdiscretion 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.
I.
A.
The Energy Charter Treaty (“ECT”) is a multilateral
treaty that facilitates foreign investments in the
energy sectors of participating nations. See Maj. Op.
1094–95. 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
42a
investments in a neutral arbitral forum. See id. at
1094–95. 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. 1097–98; 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. 1095. 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
43a
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.
1095. 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 1097–98.
They then sought to confirm their arbitral awards in a
United States district court, as permitted by the
ICSID Convention. See id. at 1097–98. 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.
B.
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.
44a
See Maj. Op. 1102 (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 1095, 1096–97, 1102–03. 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
45a
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
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.
1
46a
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
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 commit . . .
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
47a
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
48a
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 antisuit 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 antisuit 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
49a
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 antisuit 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.
A.
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. 1105–06. 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 juris-
50a
diction” 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.
51a
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
52a
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.
B.
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. 1107. The majority opinion states that “comity
concerns [are] near their peak,” id. at 1109, 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
53a
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 1107–1109. 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.
1107–08 (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
54a
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, antisuit 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
55a
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. 1106 (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. 1105, 1107–09. 2 But the
The majority opinion notes that (1) the Netherlands and the
United States “stress[ ]” the theme of international comity, Maj.
Op. 1105 (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 1108 (quoting amicus brief of the United States)
(cleaned up); (3) the views of the United States “are important, to
be sure,” id. at 1109; (4) 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 1110
(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 1110
(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 1110.
2
56a
positions expressed by those amici were not before 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 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
57a
and factually distinguishable case. Maj. Op. 1108
(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.
1109. That statement expresses how the majority
would have liked to see the district court handle this
case but does not identify any 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
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. 1109 (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.
3
58a
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 1095. 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
59a
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. 1109 (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 1110, 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-millioneuro 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 1095–
96. 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, 111 S.Ct.
2123, 115 L.Ed.2d 27 (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
60a
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 1095–96. 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
61a
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. 1109.
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
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. 1107 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.
4
62a
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, 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.
1110. 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. 1109 (“[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
63a
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 antisuit 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.
64a
APPENDIX B
UNITED STATES DISTRICT COURT,
DISTRICT OF COLUMBIA
————
Civil Action No. 19-cv-01618 (TSC)
————
NEXTERA ENERGY GLOBAL HOLDINGS B.V. AND
NEXTERA ENERGY SPAIN HOLDINGS B.V.,
Petitioners,
v.
KINGDOM OF SPAIN,
Respondent.
————
Signed February 15, 2023
————
MEMORANDUM OPINION
————
TANYA S. CHUTKAN, United States District Judge
Dutch-incorporated companies NextEra Energy
Global Holdings B.V. and NextEra Energy Spain
Holdings B.V. (collectively, “NextEra”) have petitioned
to confirm an international arbitral award they
received against the Kingdom of Spain (the “Award”).
Petition to Confirm International Arbitral Award
Pursuant to the 1965 ICSID Convention, ECF No. 1
(“Petition”). Spain moved to dismiss the Petition, ECF
No. 62 (“Spain MTD”), and NextEra cross-moved for
summary judgment, ECF No. 68 (“Cross-MSJ”), as
well as leave to file a surreply, ECF No. 75. In response,
Spain moved to strike NextEra’s cross-motion as
65a
premature, ECF No. 71. While those motions were
pending, on January 12, 2023, NextEra moved for a
preliminary injunction and temporary restraining
order enjoining Spain from pursuing litigation in
the Netherlands that would prevent NextEra from
seeking to confirm the Award. ECF No. 78 (“PI/TRO
Motion”).
For the reasons that follow, the court will DENY
Spain’s Motion to Dismiss and GRANT in part
NextEra’s Motion for Preliminary Injunction and Temporary Restraining Order. The court will also DENY
Spain’s Motion to Strike and DENY NextEra leave to
file a surreply.
I. BACKGROUND
A. Laws and Treaties
This case concerns both international treaties and
domestic laws and raises complex issues about how
they interact for purposes of sovereign immunity.
Along with many other nations, the United States,
the Netherlands, and Spain are all parties to the 1965
Convention on the Settlement of Investment Disputes
between States and Nationals of Other States (the
“ICSID Convention”). The ICSID Convention establishes an arbitration regime for resolving disputes
related to international investments between the
treaty’s members, or “Contracting States.” The
Convention’s Article 54(1) provides: “Each Contracting
State shall recognize an award rendered pursuant
to this Convention as binding and enforce the
pecuniary obligations imposed by that award within
its territories as if it were a final judgment of a court
in that State.” Congress has confirmed that commitment by statute: “The pecuniary obligations imposed
by [an ICSID Convention] award shall be enforced and
66a
shall be given 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.
Spain and the Netherlands are also contracting
parties to the Energy Charter Treaty (ECT), a multinational agreement designed to create “a legal
framework in order to promote long-term cooperation
in the energy field” through “complementarities
and mutual benefits.” ECT art. 2. For example, the
ECT entitles investors from one contracting party to
receive “fair and equitable treatment” from the other
contracting parties. Id. art. 10(1). Should a dispute
arise, the ECT provides that each contracting party
“gives its unconditional consent to the submission of
[that] dispute to international arbitration”—and if a
consenting investor seeks arbitration, the arbitration
can be carried out under the ICSID Convention. Id.
art. 26(3)–(5).
Finally, the Foreign Sovereign Immunities Act
(FSIA) provides that foreign states are immune from
the jurisdiction of U.S. courts unless they fall within
certain exceptions. Under the “waiver” exception, for
example, U.S. courts have jurisdiction “in any case . . .
in which the foreign state has waived its immunity
either explicitly or by implication.” 28 U.S.C.
§ 1605(a)(1). And under the “arbitration” exception,
U.S. courts have jurisdiction in any case “in which
the action is brought . . . to confirm an award made
pursuant to . . . 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.” Id. § 1605(a)(6).
67a
B. Facts and Procedural History
Both NextEra petitioners are private limited
liability companies incorporated under the laws of
the Netherlands. Petition ¶ 4. After Spain enacted
legislation to encourage investment in solar power
projects in its territory in 2007, “NextEra invested
in the construction, development and operation of
two Spanish [solar power] projects at a total cost
of approximately 750 million euros.” Id. ¶ 13. But
NextEra alleges that between 2012 and 2014, Spain
“fundamentally and radically changed the investment
regime NextEra relied on when making its investment,” causing NextEra “significant harm as a result.”
Id. ¶ 14 (quotation and citations omitted). Because the
Netherlands and Spain are both contracting parties to
the ECT, in 2014 NextEra sought to redress its grievances by requesting arbitration under the ICSID
Convention. Id. ¶ 18.
In 2015, a three-member ICSID arbitral tribunal
convened to address NextEra’s request, and held a
hearing on all issues during December of 2016. Id.
¶ 19. In March 2019, the ICSID tribunal issued a
decision in favor of NextEra. Id. at 20; see Award,
ICSID Case No. ARB/14/11, Annex A: Decision on
Jurisdiction, Liability and Quantum Principles, ECF
No. 1-4 (“Liability Decision”). Two months later, the
tribunal issued a “Final Award requiring Spain to pay
NextEra EUR 290.6 million as damages, plus prejudgment interest at a rate of 0.234%, compounded
monthly, from June 30, 2016.” Id. ¶ 21; see Award,
ICSID Case No. ARB/14/11, ECF No. 1-4.
NextEra petitioned this court to confirm the ICSID’s
Award against Spain. Petition, ECF No. 1. But in
September 2020, the court stayed the case while Spain
applied for an annulment of the Award with an ICSID
68a
Annulment Committee. ECF No. 39. The court lifted
that stay in April 2022 upon receiving notice that the
Annulment Committee had dismissed Spain’s application. April 29, 2022 Minute Order. Shortly thereafter,
Spain moved to dismiss NextEra’s petitions, asserting
lack of subject-matter jurisdiction, lack of personal
jurisdiction, and failure to state a claim upon which
relief can be granted. ECF No. 62. NextEra opposed
Spain’s motion and cross-moved for summary judgment. ECF No. 68.
While those motions were pending, on December 22,
2022, Spain initiated a legal action in Amsterdam
(the “Dutch Action”), seeking an order requiring
NextEra to “take all actions necessary to withdraw
the proceedings currently pending before the United
States District Court for the District of Columbia
under case number 1:19-cv-01618 . . . under penalty of
a daily payment of EUR 30,000 per day for each day or
part of a day that Defendants fail to effect such
suspension.” See PI/TRO Motion, Decl. of Bradley A.
Klein, Exhibit 1, at 32–33, ECF No. 78-3 (“Dutch
Writ”). Spain also requests a separate civil penalty and
an injunction preventing NextEra from seeking to
confirm the Award or otherwise pursue payment
anywhere in the world. Id. at 33.
In response, NextEra now seeks injunctive relief
of its own, asking this court to issue a preliminary
injunction and temporary restraining order preventing Spain from pursuing the Dutch Action insofar as it
would affect NextEra’s suit here. Specifically, NextEra
seeks an injunction stopping Spain from seeking any
relief in the Dutch Action—or anywhere else—that
would halt or obstruct this case, and requiring Spain
to withdraw its requests for such relief in the Dutch
Action—Claims (A) through (D) and (L) through (P)
69a
of the Dutch Writ. See Proposed Order Granting
Preliminary Injunction at 2–3, ECF No. 78-5.
Because Spain committed to not seek any relief in
the Dutch Action until at least March 1, 2023, see Joint
Status Report, ECF No. 80, the court did not deem
it necessary to issue a temporary restraining order
before deciding whether to issue a preliminary injunction.
II. LEGAL STANDARD
A. Motion to Dismiss
“Before evaluating the availability of preliminary
relief, the Court must first determine that it may
properly exercise jurisdiction over the action.”
Rosenkrantz v. Inter-Am. Dev. Bank, No. CV 20-3670
(BAH), 2021 WL 1254367, at *7 (D.D.C. Apr. 5, 2021)
(quotation omitted), aff’d, 35 F.4th 854 (D.C. Cir. 2022);
see also Aamer v. Obama, 742 F.3d 1023, 1028, 1038
(D.C. Cir. 2014) (“We begin, as we must, with the
question of subject-matter jurisdiction,” then “turn to
the question of whether petitioners have established
their entitlement to injunctive relief.”). A defendant’s
“Motion to Dismiss under Rule 12(b)(1) therefore must
be decided before plaintiffs’ Motion for Preliminary
Injunction may be considered.” Rosenkrantz, 2021 WL
1254367, at *7.
Here, Spain moves for dismissal under Rule 12(b)(1)
on the grounds that it is immune from jurisdiction
under the FSIA, which provides the “sole basis for
obtaining jurisdiction over a foreign state in the courts
of this country.” Saudi Arabia v. Nelson, 507 U.S. 349,
355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993) (quotation
omitted). “Under the Act, a foreign state is presumptively immune from the jurisdiction of United States
courts; unless a specified exception applies, a federal
70a
court lacks subject-matter jurisdiction over a claim
against a foreign state.” Id. at 355, 113 S.Ct. 1471.
When a defendant challenges the factual basis for
jurisdiction under an FSIA exception, the D.C. Circuit
applies a burden-shifting analysis. See Agudas
Chasidei Chabad of U.S. v. Russian Fed’n, 528 F.3d
934, 940 (D.C. Cir. 2008). The plaintiff “bears the initial
burden of supporting its claim that the FSIA exception
applies.” Chevron Corp. v. Ecuador, 795 F.3d 200, 204
(D.C. Cir. 2015) (citing Chabad, 528 F.3d at 940).
“[T]his is only a burden of production”—producing
evidence of the required jurisdictional facts. Id. (same).
If Plaintiff meets its burden, then the “burden of
persuasion rests with the foreign sovereign claiming
immunity, which must establish the absence of the
factual basis by a preponderance of the evidence.” Id.
(same).
B. Motion for Preliminary Injunction
A preliminary injunction is an “extraordinary and
drastic” remedy that is “never awarded as of right.”
Munaf v. Geren, 553 U.S. 674, 689–90, 128 S.Ct. 2207,
171 L.Ed.2d 1 (2008). A movant must demonstrate (1)
a likelihood of success on the merits; (2) a likelihood of
irreparable harm absent injunctive relief; (3) that the
balance of equities tips in their favor; and (4) that an
injunction is in the public interest. Winter v. Nat. Res.
Def. Coun., Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172
L.Ed.2d 249 (2008). Because “a preliminary injunction
is an extraordinary and drastic remedy,” the court
should not grant one “unless the movant, by a clear
showing, carries the burden of persuasion.” Mazurek v.
Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138
L.Ed.2d 162 (1997) (internal citation omitted) (emphasis in original).
71a
Courts in this Circuit have typically applied a
“sliding-scale” approach in analyzing these four
factors; a particularly strong showing in one factor
could outweigh weakness in another. Sherley v.
Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011). It is
unclear if this approach has survived the Supreme
Court’s decision in Winter, however. See, e.g., Banks v.
Booth, 459 F. Supp. 3d 143, 149–50 (D.D.C. 2020)
(citing Sherley, 644 F.3d at 393). Nonetheless, the
movant still bears a burden to show that “all four
factors, taken together, weigh in favor of the
injunction.” Abdullah v. Obama, 753 F.3d 193, 197
(D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar.
Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)).
III. JURISDICTION
A. FSIA Exceptions
NextEra asserts that the court has jurisdiction
over its petition under both the FSIA arbitration
and waiver exceptions. Spain contends that neither
applies. Because the court concludes that it has
jurisdiction under the arbitration exception, it does
not reach whether the waiver exception applies.
The D.C. Circuit has found that “jurisdiction under
the arbitration exception requires more than a claim
invoking an arbitration award.” LLC SPC Stileks v.
Republic of Moldova, 985 F.3d 871, 877 (D.C. Cir. 2021).
“Rather,” and tracking the text of the exception, the
court has held that “the existence of an arbitration
agreement, an arbitration award and a treaty governing the award are all jurisdictional facts that must be
established.” Id.; see also Process & Indus. Devs. Ltd. v.
Fed. Republic of Nigeria, 27 F.4th 771, 776 (D.C. Cir.
2022). Spain does not contest the latter two facts. See
Spain MTD at 6–8 (discussing the Award and denial of
72a
its application for annulment); id. at 40 (acknowledging that “Congress implemented the ICSID Convention by enacting 22 U.S.C. § 1605a”). Instead, Spain’s
central argument is that “as a matter of European
Union (“EU”) Law . . . [,] no such agreement to
arbitrate exists.” Id. at 1. NextEra concedes that an
existing agreement is essential for jurisdiction under
the arbitration exception. Cross-MSJ at 18.1
1
Spain’s challenge to the arbitration agreement’s existence
has implications for the FSIA’s waiver exception as well. The D.C.
Circuit has “found an implicit waiver of sovereign immunity in
only three situations,” Turan Petroleum, Inc. v. Ministry of Oil &
Gas of Kazakhstan, 406 F. Supp. 3d 1, 10 (D.D.C. 2019) (quoting
Gutch v. Fed. Republic of Germany, 255 F. App’x 524, 525 (D.C.
Cir. 2007)), only one of which is potentially relevant here: where
“a foreign state has agreed to arbitration in another country,”
Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438,
444 (D.C. Cir. 1990) (citation omitted). But in that situation, too,
the key jurisdictional fact is whether the foreign state has agreed
to arbitration. NextEra disagrees, relying on Creighton Ltd. v.
Gov’t of State of Qatar, 181 F.3d 118, 123 (D.C. Cir. 1999), which
in turn cites Seetransport Wiking Trader v. Navimpex Centrala,
989 F.2d 572, 577 (2d Cir. 1993), for the proposition that by joining
the Convention, Spain “must have contemplated enforcement
actions in other signatory states.” See Cross-MSJ at 23. But
Creighton only favorably cited that conclusion (and only with
respect to the New York Convention) after noting that the Second
Circuit first “found [the] implied waiver where [the] foreign
government had agreed . . . to arbitrate.” 181 F.3d at 123. In other
words, even when a state has assented to the enforcement of
arbitral awards in the United States, an agreement to arbitrate
is still necessary for implied waiver of immunity. The ICSID
Convention establishes an arbitration regime and commits its
members to abide by arbitral awards issued under the regime,
but the Convention does not constitute an agreement to arbitrate
in any particular case. Under Article 25, parties must separately
agree to ICSID arbitration. Therefore, a specific arbitration
agreement remains a jurisdictional prerequisite under the waiver
exception.
73a
As a result, the key issue is whether an agreement
to arbitrate existed between Spain and NextEra.
Spain concedes—as it must—that the ECT exists, and
that its terms facially create such an agreement:
“Article 26 of the ECT . . . provides for the resolution of
disputes between investors of one contracting party, on
the one hand, and another contracting party, on the
other, before an ICSID tribunal.” Spain MTD at 11. So,
in a purely literal sense, there is no dispute about the
existence of an agreement to arbitrate.
Whether the ECT’s agreement to arbitrate existed
as a legal matter is a harder question. Spain asserts
that recent decisions of the Court of Justice of the
European Union (CJEU)—which interprets and enforces EU law—have clarified that Spain never
had the authority to agree to ICSID arbitration via the
ECT. In Slovak Republic v. Achmea B.V., Case No.
C-284/16 (Mar. 6, 2018), ECF No. 62-47 (Achmea), the
CJEU addressed the relationship between international arbitration agreements and the Treaty on the
Functioning of the European Union, “which sets forth
the EU’s authority to legislate and key principles of
EU law.” Micula v. Gov’t of Romania, 404 F. Supp. 3d
265, 278 (D.D.C. 2019), aff’d, 805 F. App’x 1 (D.C. Cir.
2020). In Achmea, the CJEU held that
Articles 267 and 344 [of the] TFEU must be
interpreted as precluding a provision in an international agreement concluded between 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
74a
jurisdiction that Member State has undertaken to
accept.
Achmea ¶ 60.
In other words, to protect “the autonomy of EU law,”
Achmea invalidated arbitration agreements that
would “call upon [an] arbitral tribunal to interpret or
apply EU law . . . not subject to review by a court or
tribunal within the EU’s judicial system.” Micula,
404 F. Supp. 3d at 279. In Republic of Moldova v.
Komstroy, Case C-741/19 (Sept. 2, 2021), ECF No.
62-67, the CJEU confirmed that its reasoning in
Achmea applied specifically to ECT Article 26. Based
on Achmea and Komstroy, Spain contends that “[a]s a
matter of EU law, the law to which Spain and
Petitioners are both subject, no arbitration agreement
exists between Spain and Petitioners because any such
agreement would violate core tenets of EU sovereignty
as set out in the EU Treaties.” Spain MTD at 4–5.
As another court in this district recognized in
similar case, “[a]ssuming Spain is correct, the dominoes begin to fall. If there was no agreement to
arbitrate, the ICSID tribunal never had jurisdiction,
its award is not enforceable, and therefore it is not
entitled to full faith and credit in this Court.” InfraRed
Env’t Infrastructure GP Ltd. v. Kingdom of Spain, No.
CV 20-817 (JDB), 2021 WL 2665406, at *4 (D.D.C.
June 29, 2021). “Moreover, absent an agreement to
arbitrate, Spain maintains its immunity under the
FSIA, leaving this Court without subject-matter
jurisdiction to rule on the merits of the complaint.” Id.
For its part, NextEra disputes the legal effects of
Achmea and Komstroy but argues that in any event,
those effects go to the merits and validity of the
arbitration agreement rather than its existence.
Cross-MSJ at 30–38. In NextEra’s view, the existence
75a
of the agreement is res judicata after the ICSID
tribunal’s decision, and Spain’s resort to EU law is a
disguised form of collateral attack on the Award. Id.
at 24–30.
Only one U.S. court has attempted to grapple
with the implications of Achmea for its jurisdiction
under the FSIA to confirm an ICSID arbitral award.
In Micula v. Government of Romania, Swedish investors had “initiated arbitration proceedings against
Romania before an ICSID tribunal” pursuant to a
Romania-Sweden bilateral investment treaty (“BIT”),
then sought to confirm that award in this district. 404
F. Supp. 3d at 270, 272–73. Romania argued that the
FSIA arbitration exception did not apply “because the
arbitration clause in the Sweden-Romania BIT has
been declared invalid” by the Achmea decision, id. at
277—the same argument Spain advances here with
respect to the ECT’s Article 26.
After “carefully consider[ing] the Achmea decision,”
the court in Micula held that Romania “ha[d] failed to
carry its burden of showing that Achmea forecloses
this court’s jurisdiction under the FSIA’s arbitration
exception.” Id. at 279. Specifically, Romania had
“not shown that the concern that animated Achmea—
the un-reviewability of an arbitral tribunal’s determination of EU law by an EU court—[was] present in
[that] case.” Id. The court gave three reasons for that
conclusion, all of which related to the fact that “all key
events to the parties’ dispute occurred before Romania
acceded to the EU.” Id. at 280. First, “Romania’s
challenged actions occurred when it remained . . .
subject, at least primarily, to its own domestic law.” Id.
Second, the parties agreed that the “substantive rules”
of the “Sweden-Romania BIT,” not EU law, “supplied
the applicable law” for the claims at issue—the ICSID
76a
tribunal only considered EU law “for factual context,
not as a source of controlling law.” Id. (quotation
omitted). And third, a ruling from a CJEU constituent
court had expressly distinguished Achmea on the
grounds that the arbitral tribunal in Micula “was
not bound to apply EU law to events occurring prior
to the accession before it.” Id. at 280. The court
found that that ruling “therefore explicitly refute[d]
Romania’s position that the CJEU’s decision in
Achmea nullified the arbitration agreement contained
in the Sweden Romania BIT.” Id.
A panel of the D.C. Circuit affirmed Judge Mehta’s
conclusion in an unpublished, per curiam opinion,
noting the “question[ ] whether Romania’s agreement
to arbitrate was nullified by its ascension to the
European Union.” Micula v. Gov’t of Romania, 805
F. App’x 1, 1 (D.C. Cir. 2020). But the panel did not
address that question because, “as the district court
carefully explained, Romania did not join the EU until
after the underlying events here, so the arbitration
agreement applied.” Id.
Even more recently, however, the D.C. Circuit has
indicated that there is no need to reach an analysis of
EU law and the CJEU’s Achmea decision in this
context. In LLC SPC Stileks v. Republic of Moldova,
985 F.3d 871, 875 (D.C. Cir. 2021), Energoalliance,
a Ukrainian energy provider, had invoked the ECT’s
arbitration clause to initiate a proceeding against
Moldova before the United Nations Commission on
International Trade Law (UNCITRAL). After that
arbitral tribunal issued an award, Energoalliance
sought to confirm it in the United States. Moldova
argued before the district court and D.C. Circuit
that U.S. courts lacked jurisdiction under the FSIA’s
arbitration exception because Energoalliance was not
77a
a qualifying investor under the ECT and therefore
could not have validly invoked the ECT’s arbitration
clause. Id. at 875, 877–78. Thus, Moldova argued,
“[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.
at 878. In other words, Moldova argued—as Spain does
here—that whether one party could have validly
agreed to arbitrate under the ECT implicated the
agreement’s very existence and was therefore a
necessary jurisdictional question under the FSIA.
The D.C. Circuit panel squarely rejected that
argument. It characterized Moldova’s argument as
contesting the arbitrability of the dispute, not the
necessary jurisdictional fact of an agreement’s
existence. Id.; see also id. at 877 n.3 (observing
“no disagreement that Moldova is a party to the
ECT, which provides for the arbitration of certain
disputes”). And, citing Chevron Corp. v. Ecuador, 795
F.3d 200, 205–06 (D.C. Cir. 2015), the Court concluded
that “the arbitrability of a dispute is not a jurisdictional question under the FSIA.” 985 F.3d at 878. In
Chevron, Ecuador asserted that it “had never agreed
to arbitrate with Chevron” because Chevron’s investments had terminated before the relevant treaty came
into force. 795 F.3d at 203. But, the Court ruled, that
assertion “conflate[d] the jurisdictional standard of the
FSIA with the standard for review” of the award’s
merits based on its arbitrability or lack thereof. 795
F.3d at 205. Likewise, the Stileks panel declined to
address Moldova’s argument that Energoalliance
could not have invoked the ECT’s arbitration provision
78a
for purposes of resolving the issue of jurisdiction under
the FSIA. 985 F.3d at 878.2
The lesson of Stileks and Chevron appears to be this:
The assertion that a party lacked a legal basis to
enter or invoke an arbitration agreement is not a
challenge to the jurisdictional fact of that agreement’s
existence but rather a challenge to that agreement’s
arbitrability. And that assertion goes to arbitrability
even if it contends that the ECT was not validly
applied. As the Circuit noted in Stileks: “Whether the
ECT applies to the dispute and whether the tribunal
had jurisdiction under the ECT are different ways of
framing the same question” about the merits of an
award—namely, whether a dispute was arbitrable. Id.
at 879. A defendant may accordingly assert the lack of
a legal basis for entering an agreement to contest an
award’s merits (where the law provides for judicial
review of an award’s merits), but not to rebut a
2
The Stileks Court did consider Moldova’s arguments in
deciding whether it could assert “a defense to confirmation under
the New York Convention.” 985 F.3d at 878. But even in that
context, the Court declined to “pass[ ] on the merits of that
defense” because the ECT bound its parties to arbitration under
UNCITRAL’s rules, one of which was that UNCITRAL had power
to rule on its own jurisdiction. Id. Thus, the ECT’s parties had
delegated the question of arbitrability to the UNCITRAL
tribunal, and therefore the “court possesse[d] no power to decide
the arbitrability issue.” Id. at 878–79 (quoting Henry Schein, Inc.
v. Archer & White Sales, Inc., ––– U.S. ––––, 139 S.Ct. 524, 529,
202 L.Ed.2d 480 (2019)). Ultimately, however, there is no need to
replicate that analysis here because unlike the New York
Convention—and as reiterated infra Section III.B.1—the ICSID
Convention’s Article 54(1) and 22 U.S.C. § 1650a do not provide
for judicial review of an ICSID tribunal award’s merits, including
the question of arbitrability.
79a
plaintiff ’s evidence that an agreement to arbitrate
exists.
At least one other judge in this district has applied
Stileks in that way. In Tethyan Copper Co. Party Ltd.
v. Islamic Republic of Pakistan, 590 F. Supp. 3d
262 (D.D.C. 2022), Tethyan, an Australian mining
company, sought to confirm an ICSID arbitration
award against Pakistan. Under the relevant treaty,
a referral to arbitration required written consent.
Pakistan argued that it had “never provided such
written consent,” and therefore had “never agreed
to arbitrate at ICSID.” Id. at 273. In evaluating
that purported “dispute[ ] over the existence of an
arbitration agreement,” id., the court recognized that
Tethyan had met its jurisdictional burden to produce
“copies of the [underlying treaty], the notice[ ] of
arbitration, and the tribunal’s decision,” id. (quoting
Stileks, 985 F.3d at 877), which together “entitle[d]
Tethyan to a presumption of a valid arbitration agreement,” id. Further, the court expressly rejected
Pakistan’s argument that “the Court should make its
own independent determination on the existence
of an agreement,” construing that argument as going
to arbitrability and citing Chevron and Stileks for
the proposition that an arbitrability dispute “does
not affect the Court’s jurisdiction.” Id. at 273–74.
Consequently, the court found, “Pakistan’s arbitrability argument [was] not cognizable under FSIA” and
the arbitration exception applied to grant the court
jurisdiction to confirm the arbitral award. Id. at 275.
The court reaches the same conclusion here. As
noted above, there is no question as to the existence of
the “copies of the [underlying treaty], the notice[ ] of
arbitration, and the tribunal’s decision.” Stileks,
985 F.3d at 877. Under the Chevron burden-shifting
80a
framework, therefore, Spain has the burden of showing that, in fact, no arbitration agreement exists. See
795 F.3d at 204. Spain’s only argument on that score is
that it could not have entered into the ECT’s arbitration provisions because EU law—as retroactively
clarified by the Achmea and Komstroy decisions—does
not permit EU members to assign questions of EU law
to arbitration in non-EU tribunals. Therefore, the ECT
did not apply to Spain and NextEra’s dispute, and no
agreement to arbitrate was ever formed. But the D.C.
“Circuit [has] rejected that tactic.” Tethyan, 590 F.
Supp. 3d at 274. Chevron and Stileks treat the
argument that a party lacked a legal basis to enter an
agreement as a question of arbitrability and therefore
an issue of the award’s merits. See Stileks, 985 F.3d at
878; Chevron, 795 F.3d at 205 n.3. Spain thus cannot
deploy that argument here as a backdoor challenge to
FSIA jurisdiction.
Because Spain’s argument “does not affect the
Court’s jurisdiction,” Tethyan, 590 F. Supp. 3d at 274,
there is no need at this stage to analyze the effects
of Achmea and Komstroy on EU law and intra-EU
disputes. And because Spain does not offer any other
arguments or evidence rebutting the existence of an
arbitration agreement, it has failed to carry its burden
of persuasion that the necessary jurisdictional facts
are not present here. As a result, the court finds
that it has jurisdiction over Spain under the FSIA’s
arbitration exception, 28 U.S.C. § 1605(a)(6), and
rejects this basis for Spain’s motion to dismiss.3
3
Because the court finds jurisdiction under the arbitration
exception, it does not reach whether it also has jurisdiction under
the waiver exception. See Process & Indus. Devs. Ltd. v. Fed.
Republic of Nigeria, 27 F.4th 771, 775 (D.C. Cir. 2022).
81a
B. Forum non conveniens
Spain also urges the court to decline to exercise
jurisdiction over NextEra’s petition under the doctrine
of forum non conveniens.
A federal court has discretion to dismiss a case on
the ground of forum non conveniens when an
alternative forum has jurisdiction to hear the
case, and trial in the chosen forum would establish
oppressiveness and vexation to a defendant out
of all proportion to plaintiff ’s convenience, or the
chosen forum is inappropriate because of considerations affecting the court’s own administrative and legal problems.
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,
549 U.S. 422, 429, 127 S.Ct. 1184, 167 L.Ed.2d 15
(2007) (cleaned up) (quotation omitted).
Here, Spain’s argument is even more clearly
foreclosed by Stileks. In that decision, the D.C. Circuit
plainly stated 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.”
985 F.3d at 876 n.1. Spain’s gymnastic but unavailing
efforts to circumvent that holding “do not require
sustained discussion.” Id. In short, Spain argues that
Stileks, along with TMR Energy Ltd. v. State Prop.
Fund of Ukraine, 411 F.3d 296 (D.C. Cir. 2005), and
Tatneft v. Ukraine, 21 F.4th 829 (D.C. Cir. 2021), do
not control here because in those cases, “the court
determined that it had jurisdiction under the FSIA
before addressing the forum non conveniens motion.”
Spain MTD at 27. Setting aside the fact that the court
has similarly determined its FSIA jurisdiction here,
Spain fails to identify any indication in those cases
82a
that they should be read so narrowly. Indeed, the D.C.
Circuit’s core rationale—that alternative fora are
inherently inadequate because they cannot attach U.S.
assets—applies regardless of procedural posture. The
court therefore rejects Spain’s request for dismissal on
grounds of forum non conveniens, and its motion to
dismiss will therefore be denied.4
IV. INJUNCTIVE RELIEF
Having found that it has jurisdiction over NextEra’s
petition and that dismissal is not warranted, the court
turns to NextEra’s request for injunctive relief. The
court is persuaded that this case presents sufficiently
unusual circumstances to warrant a preliminary, antisuit injunction against a foreign sovereign.
A. Anti-Suit Injunction
U.S. federal 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 Ltd. v. Sabena, Belgian
World Airlines, 731 F.2d 909, 926 (D.C. Cir. 1984).
“However, . . . [t]he mere filing of a suit in one forum
does not cut off the preexisting right of an independent
forum to regulate matters subject to its prescriptive
jurisdiction,” and “[i]f the foreign court reacts with a
similar injunction, no party may be able to obtain
any remedy.” Id. at 927. Thus, “foreign anti-suit
injunctions are appropriate only when ‘required to
prevent an irreparable miscarriage of justice,’ such as
when ‘necessary to protect the jurisdiction of the
enjoining court, or to prevent the litigant’s evasion of
4
Because the court will deny Spain’s Motion to Dismiss, it will
also deny as moot NextEra’s Motion for Leave to File a Surreply
with respect to that Motion.
83a
the important public policies of the forum.’” United
States v. All Assets Held at Credit Suisse (Guernsey)
Ltd., 45 F.4th 426, 434 (D.C. Cir. 2022) (quoting Laker
Airways, 731 F.2d at 927).
The D.C. Circuit’s decision in Laker Airways
provides direct guidance in this case. In 1982, the
liquidated British airline Laker Airways—which operated transatlantic flights between New York and
London—brought an antitrust action against several
domestic and foreign airlines, seeking to recoup losses
caused by alleged predatory pricing and other
economic interference. 731 F.2d at 917. Shortly
thereafter, the foreign airlines initiated a suit in the
United Kingdom’s High Court of Justice, seeking “(1) a
declaration that the four foreign defendants were not
engaged in any unlawful combination or conspiracy,
and (2) an injunction prohibiting Laker from taking
any action in United States courts to redress an alleged
violation by the defendants of United States antitrust
laws,” including by forcing Laker Airways to withdraw
its antitrust suit. Id. at 918. Ultimately, the British
courts did order Laker Airways to cease prosecuting at
least the British airlines, and were considering a
similar order protecting the other foreign airlines
as well. Id. at 919–20. Laker Airlines sought an antisuit injunction in this district restraining the other
foreign airlines from continuing their efforts to obtain
injunctive relief against Laker Airways in British
courts. Id. at 919–21.
The D.C. Circuit concluded that, in those circumstances, an anti-suit preliminary injunction was
warranted.
Courts have a duty to protect their legitimately
conferred jurisdiction to the extent necessary to
provide full justice to litigants. Thus, when the
84a
action of a litigant in another forum threatens to
paralyze the jurisdiction of the court, the court
may consider the effectiveness and propriety of
issuing an injunction against the litigant’s
participation in the foreign proceedings.
Laker Airways, 731 F.2d at 927. “[D]uplication of
parties and issues alone is not sufficient” to warrant
this remedy, as “the fundamental corollary to concurrent jurisdiction must ordinarily be respected:
parallel proceedings on the same in personam claim
should ordinarily be allowed to proceed simultaneously, at least until a judgment is reached in one
which can be pled as res judicata in the other.” Id. at
927–28. But “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 protect
“the court’s ability to render a just and final judgment.”
Id. at 930.
That is the case here. For the reasons explained
supra section III, this action is a “proper[ ] exercise” of
the court’s jurisdiction.” Id. And the express and
primary purpose of Spain’s suit in the Netherlands “is
to terminate [this] action,” id.—ordering NextEra to
withdraw this suit, imposing penalties upon failure to
do so, and issuing a worldwide injunction preventing
NextEra from taking any action to confirm the Award,
Dutch Writ at 31–33. Like the foreign airlines in Laker
Airways, Spain did not provide the court with “any
prior notice” that it was seeking an anti-suit injunction
against NextEra in the Netherlands, apparently
planning to simply later advise the court of the “fait
accompli . . . which would have virtually eliminated the
court’s effective jurisdiction over [NextEra’s] facially
85a
valid claim.” 731 F.2d at 930–31. That leaves the court
with “the stark choice of either protecting or relinquishing [its] jurisdiction” over NextEra’s petition.
Id. at 930. The court concludes that these “most
compelling circumstances” require an anti-suit
injunction. Id. at 927.5
Spain offers only two direct counterarguments, but
both fail for reasons the court has already explained.
First, Spain argues that because the court lacks
jurisdiction, there is no jurisdiction here to protect.
Opposition to Motion for Preliminary Injunction and
Temporary Restraining Order at 10–12, ECF No. 81
(“Opp. to PI/TRO Motion”). But the court has rejected
Spain’s premise and found jurisdiction, so Spain’s
argument likewise fails. Supra section III.A. Second,
Spain attempts to distinguish Laker Airways by noting
that one of the D.C. Circuit’s concerns in that case
was that the relief plaintiffs sought—”the remedies
afforded by the American antitrust laws”—were not
available in foreign courts. Id. at 12 (citing 731 F.2d at
930). But this case does not present even that partial
distinction; here, too, foreign courts are inadequate
alternatives because, as the court noted supra section
III.B, “only U.S. courts can attach foreign commercial
assets found within the United States.” Stileks, 985
F.3d at 876 n.1; see also Laker Airways, 731 F.2d at 936
(observing that arguments like Spain’s are better
suited to forum non conveniens cases where there is an
adequate alternative forum).
5
Because the court’s need to protect its own jurisdiction is
sufficient to justify an anti-suit injunction here, the court need
not reach the other “category” of compelling circumstances
described by Laker Airways: “prevent[ing] the litigant’s evasion of
the important public policies of the forum.” 731 F.2d at 927; see
PI/TRO Motion at 16–18; Opp. to PI/TRO Motion at 13–16.
86a
Considerations of comity, while deserving substantial respect, do not outweigh the need for an anti-suit
injunction in this case. Like the defendants in Laker
Airways, Spain “argue[s] strenuously” that “the crucial
principles of comity that regulate and moderate the
social and economic intercourse between independent
nations” preclude an injunction here. 731 F.2d at 937;
see Opp. to PI/TRO Motion at 17–20. And like the
Circuit in Laker Airways, the court “approach[es]
[Spain’s] claims seriously,” recognizing that “when
possible, the decision of foreign tribunals should
be given effect in domestic courts, since recognition
fosters international cooperation and encourages
reciprocity, thereby promoting predictability and stability.” 731 F.2d at 937. “However, there are limitations
to the application of comity.” Id. For one,
United States courts must control the access to
their forums. No foreign court can supersede the
right and obligation of the United States courts to
decide whether Congress has created a remedy for
those injured by trade practices adversely
affecting United States interests. Our courts
are not required to stand by while [a foreign
sovereign] attempts to close a courthouse door
that Congress, under its territorial jurisdiction,
has opened.
Id. at 935–36. In short, “[n]o nation is under an
unremitting obligation to enforce foreign interests
which are fundamentally prejudicial to those of the
domestic forum.” Id. at 937.
Under these principles, the relief Spain seeks in
Amsterdam is not entitled to comity. “This is because
the [Dutch Action] is specifically intended to interfere
with and terminate” NextEra’s petition before this
court. Id. In Laker Airways, the Circuit approved of
87a
the preliminary injunction because it was “purely
defensive—it [sought] only to preserve the district
court’s ability to arrive at a final judgment adjudicating Laker’s claims under United States law”—
and was granted in response to a foreign injunction
that was “purely offensive—it [was] not designed to
protect English jurisdiction, or allow English courts to
proceed to a judgment on the defendant’s potential
liability.” Id. at 938. The same is true here. NextEra
seeks an injunction to protect this court’s jurisdiction,
while Spain seeks an injunction to eliminate it.
The upshot of Spain’s argument, then, is the same
one made by the defendant airlines and rejected by the
D.C. Circuit in Laker Airways—“that comity compels
us to recognize a decision by a foreign government that
this court shall not apply its own laws.” Id. at 939. But
in the Dutch Action, Spain is zealously pursuing the
very same kind of anti-suit injunction that it now asks
this court to refrain from issuing. Consequently,
Spain’s “claims of comity now asserted in United
States courts come burdened with the failure of
[Spain] to recognize comity.” Id. The Laker Airways
court refused to countenance that hypocrisy, and
neither will this court. In that case, the Circuit
observed that “[t]here never would have been any
situation in which comity or forbearance would have
become an issue if some of the defendants involved in
the American suit had not gone into the English courts
to generate interference with the American courts.” So
too here. The court would not be considering this
relief were Spain not actively seeking to frustrate the
operation of U.S. law. The comity concerns that Spain
laments are of its own making.
An anti-suit injunction is strong medicine. But here
it is required—and will be tailored—to meet the force
88a
of Spain’s attempt to deprive this court of jurisdiction.
Spain remains free, for example, to seek a declaration
from Dutch courts vindicating its interpretation of EU
law. See Dutch Writ at 32, Claim (I). But Spain may
not seek to foreclose NextEra’s opportunity to petition
this court for the relief afforded by United States law.
B. Preliminary Injunction
Having determined that an anti-suit injunction may
be appropriate in this case, the court now considers
whether such relief against Spain is warranted in the
form of a preliminary injunction. See In re Millenium
Seacarriers, Inc., 458 F.3d 92, 98 (2d Cir. 2006) (“Once
the . . . court has addressed the propriety of imposing
an anti-suit injunction . . . , [the] court must then
make findings on whether it is appropriate to enter a
preliminary injunction.”). All four relevant factors
favor granting NextEra’s motion.
1. Likelihood of success on the merits
The analysis required for confirming the Award is
relatively straightforward, and NextEra’s success in
confirming it is highly likely. By statute, an ICSID
Convention award like this one
create[s] a right arising under a treaty of the
United States. The pecuniary obligations imposed
by such an award shall be enforced and shall be
given 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.
28 U.S.C. § 1650a(a). Moreover, the Federal Arbitration
Act—and its accompanying, “more robust form of
judicial review,” Tethyan, 590 F. Supp. 3d at 268—
”shall not apply to enforcement of awards rendered”
under the ICSID Convention, 28 U.S.C. § 1650a(a).
89a
“[T]he Court’s role in enforcing an ICSID arbitral
award is therefore exceptionally limited.” TECO
Guatemala Holdings, LLC v. Republic of Guatemala,
414 F. Supp. 3d 94, 101 (D.D.C. 2019); see also
Tidewater Inv. SRL v. Bolivarian Republic of
Venezuela, No. CV 17-1457 (TJK), 2018 WL 6605633,
at *6 (D.D.C. Dec. 17, 2018) (noting “the perfunctory
role that 22 U.S.C. § 1650a appears to envision for
federal district courts”). “The Court must ensure that
it has subject-matter and personal jurisdiction; that
the award is authentic; and that its enforcement order
tracks the award.” Tethyan, 590 F. Supp. 3d at 268
(citing TECO Guatemala, 414 F. Supp. 3d at 101; Mobil
Cerro Negro, Ltd. v. Bolivarian Republic of Venezuela,
863 F.3d 96, 112 (2d Cir. 2017)).
All those elements are present here. For the reasons
explained infra Section III.A, the court finds that it
has jurisdiction. And neither party raises any reason
to believe that the Award in this case is not authentic,
or that the court’s enforcement order will not be able
to successfully track the Award’s terms. That ends the
court’s inquiry; the Award must be enforced.
In challenging that conclusion, Spain asks the court
to look beyond the scope of 22 U.S.C. § 1650a(a) in
several respects. First, reiterating its assertion that no
valid arbitration agreement existed, Spain argues that
NextEra’s Award is not entitled to full faith and credit
because the ICSID tribunal lacked jurisdiction over
the underlying dispute. Spain MTD at 41–42. But
under the ICSID Convention, “[m]ember states’ courts
are . . . not permitted to examine . . . the ICSID
tribunal’s jurisdiction to render the award.” Mobil
Cerro, 863 F.3d at 102. In any event, “a judgment is
entitled to full faith and credit—even as to questions
of jurisdiction—when the second court’s inquiry
90a
discloses that those questions have been fully and
fairly litigated and finally decided” by the original
court. Durfee v. Duke, 375 U.S. 106, 111, 84 S.Ct. 242,
11 L.Ed.2d 186 (1963); Ins. Corp. of Ireland v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702
n.9, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982); see Tethyan,
590 F. Supp. 3d at 276. After hearing the same
arguments Spain raises here, the ICSID tribunal
determined that it had jurisdiction over the dispute.
Liability Decision ¶¶ 272–357. Consequently, that
determination, as well as the Award itself, is due full
faith and credit.
Second, Spain argues that the ICSID tribunal
violated EU law’s prohibition on granting “state aid”—
that is, subsidies to private actors—without authorization from the European Commission. Id. at 42–44.
Insofar as Spain argues that the ICSID tribunal
exceeded its own jurisdiction, that argument is
foreclosed for the reasons explained in the previous
paragraph. And to the extent that Spain argues that
the Award itself violates EU law, that contention “goes
to the merits of the ICSID panel’s determination” and
must be taken up with the ICSID tribunal itself.
Micula, 404 F. Supp. 3d at 285. The ICSID Convention’s Article 53 provides that an “award shall be
binding on the parties and shall not be subject to any
appeal or to any other remedy except those provided
for in this Convention.” Nothing in § 1650a permits the
court to consider this issue.
Third, Spain suggests that “the [A]ward was
illegally procured by Petitioners’ false representations,” along with other “defenses as to the merits” of
the Award that it plans to unveil in future filings.
Spain MTD at 48 n.12. But as already noted, merits
defenses do not factor into the court’s role in enforcing
91a
ICSID Convention awards. As the court persuasively
explained in TECO Guatemala, under full faith and
credit principles, “the relevant question is whether the
ICSID Convention would permit the Court to decline
to enforce the award at issue here.” 414 F. Supp. 3d at
103. “It would not.” Id. Again, the Convention’s Article
53 does not contemplate member states’ courts setting
aside awards based on fraud or any other merits
defenses. See id. The allegation that NextEra “engaged
in fraud . . . is merely an effort to relitigate the
arbitration’s underlying merits masquerading as an
appeal to equity” and “is at odds with the purpose of
the treaty and the clear terms of the implementing
legislation, both of which are designed to create a
streamlined process for enforcing arbitral awards.” Id.
Neither Spain’s current challenges to the merits of the
Award, nor any potential future merits challenges,
have any bearing on the court’s duty to enforce the
Award. See also infra Section V (discussing Spain’s
Motion to Strike).
Finally, Spain appeals to the “foreign sovereign
compulsion” and “act of state” doctrines. Spain MTD
at 43–47. Neither is applicable here. The foreign
sovereign compulsion doctrine is a defense that some
Circuits permit antitrust defendants to assert to
shield their anticompetitive acts from liability on the
grounds that those acts were compelled by a foreign
government. See Construction and Application of
Foreign Sovereign Compulsion Doctrine, 86 A.L.R. 2d
1 (2014); see, e.g., In Re: Vitamin C Antitrust Litig., 8
F.4th 136 (2d Cir. 2021). The D.C. Circuit has not
adopted the doctrine. More importantly, this is not
an antitrust case, and therefore the doctrine is
inapplicable; the court is unaware of any authority
extending this doctrine outside of the antitrust context. Spain’s allusions to comity principles, see, e.g.,
92a
Spain MTD at 45, do not persuade the court to do so
here. See also supra section IV.A (discussing the role of
comity in this case).
The related act of state doctrine “precludes the
courts of this country from inquiring into the validity
of the public acts a recognized foreign sovereign power
committed within its own territory.” World Wide Min.,
Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1164
(D.C. Cir. 2002) (quoting Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 401, 84 S.Ct. 923, 11 L.Ed.2d
804 (1964)). But “[a]ct of state issues only arise when
a court must decide—that is, when the outcome of
the case turns upon—the effect of official action by a
foreign sovereign.” W.S. Kirkpatrick & Co. v. Env’t
Tectonics Corp., Int’l, 493 U.S. 400, 406, 110 S.Ct. 701,
107 L.Ed.2d 816 (1990
This text is long and has been trimmed here. Open the source document for the complete record.
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.