Amicus Curiae Brief — Kingdom of Spain, Petitioner v. Blasket Renewable Investments LLC, et al.

No. 24-1130

In the

Supreme Court of the United States

KINGDOM OF SPAIN,

Petitioner,

v.

BLASKET RENEWABLE INVESTMENTS LLC, ET AL.

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

BRIEF OF THE REPUBLIC OF POLAND AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

CHRISTIAN LEATHLEY

CHRISTOPHER BOYD

HERBERT SMITH FREEHILLS

KRAMER NEW YORK LLP

1177 Avenue of the Americas

New York, NY 10036

(212) 715-9100

ROY T. ENGLERT, JR.

Counsel of Record

ZACHARY N. FERGUSON

HERBERT SMITH FREEHILLS

KRAMER (US) LLP

2000 K Street N.W.

Washington, DC 20006

(202) 775-4500

Roy.Englert@hsfkramer.com

Counsel for Amicus Curiae the Republic of Poland

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES....................................... ii

INTEREST OF AMICUS CURIAE ............................1

SUMMARY OF ARGUMENT .....................................1

ARGUMENT ...............................................................4

I.

II.

The D.C. Circuit’s Decision Fosters

Perverse Litigation Incentives ............................4

A.

The Decision Below Incentivizes

Multiple Rounds of Wasteful

Litigation ......................................................4

B.

The Harms of the D.C. Circuit’s

Decision Will Be Multiplied Across

Numerous Investment Treaties ................. 10

C.

The Decision Below Encourages

Multiple Forms of Forum Shopping .......... 12

This Court Should Grant Certiorari to

Reverse the D.C. Circuit’s Aberrant

Decision .............................................................. 14

CONCLUSION .......................................................... 19

(i)

ii

TABLE OF AUTHORITIES

Cases

Page(s)

American Dredging Co. v. Miller,

510 U.S. 443 (1994) .............................................. 17

Bolivarian Republic of Venezuela v.

Helmerich & Payne Int’l Drilling Co.,

581 U.S. 170 (2017) ........................................ 10, 16

Corporación Mexicana De

Mantenimiento Integral, S. De R.L.

De C.V. v. Pemex-Exploración

Producción,

832 F.3d 92 (2d Cir. 2016) ..................................... 6

Department of the Army v. Blue Fox,

Inc.,

525 U.S. 255 (1999) .............................................. 15

Dole Food Co. v. Patrickson,

538 U.S. 468 (2003) .............................................. 10

Esso Exploration & Prod. Nigeria Ltd.

v. Nigerian Nat’l Petroleum Corp.,

40 F.4th 56 (2d Cir. 2022) .................................... 10

European Comm’n v. European Food

S.A.,

ECLI:EU:C:2022:50 ............................................... 9

European Comm’n v. Ireland,

ECLI:EU:C:2006:345 ........................................... 16

Granite Rock Co. v. International

Brotherhood of Teamsters,

561 U.S. 287 (2010) .............................................. 15

iii

LLC SPC Stileks v. Republic of

Moldova,

985 F.3d 871 (D.C. Cir. 2021) .......................... 2, 17

Republic of Moldova v. Komstroy,

LLC, ECLI:EU:C:2021:655 ............ 1, 2, 6, 7, 12, 13

Republic of Poland v. LC Corp,

No. 200.328.367/01 (Neth. Apr. 22,

2025) ................................................................... 8, 9

Slovak Republic v. Achmea BV,

ECLI:EU:C:2018:158 ........................... 2, 6, 7, 8, 12

Stolt-Nielsen S.A. v. AnimalFeeds Int’l

Corp.,

559 U.S. 662 (2010) ................................................ 9

Statutes and Rules

18 U.S.C. § 1604 ........................................................ 18

18 U.S.C. § 1605 ........................................................ 18

18 U.S.C. § 1609 ........................................................ 18

18 U.S.C. § 1610 ........................................................ 18

18 U.S.C. § 1611 ........................................................ 18

28 U.S.C. § 1605(a)(6) ........................... 3, 5, 10, 14, 15

Sup. Ct. R. 10(a) ........................................................ 17

Sup. Ct. R. 10(c) ......................................................... 17

Miscellaneous

Borzu Sabahi et al., Investor-State

Arbitration (2d ed. 2019) ..................................... 11

Estonia-Spain BIT (1997), art. 11(2) ........................ 11

Germany-Poland BIT (1989), art. 11(2) ................... 11

iv

H.R. Rep. No. 1487, 94th Cong., 2d

Sess. (1976)........................................................... 18

Latvia-Romania BIT (2001), art. 9(2) ....................... 11

Netherlands-Poland BIT (1992), art.

8(2) ........................................................................ 11

SCC Arbitration Institute, SCC Policy:

Deciding the Seat in Intra-EU

Investment Arbitrations Administered

under the SCC Rules (Oct. 16, 2024) ....... 12, 13, 14

Termination of Bilateral Investment

Treaties between the Member States

of the European Union, Official J. of

the E.U., L 169 (June 25, 2019) ....................... 2, 14

INTEREST OF AMICUS CURIAE 1

The Republic of Poland is a sovereign nation and

international ally of the United States. Poland is a

party to 36 active bilateral investment treaties, many

of which provide for arbitration of claims between

investors and contracting parties. Poland is also a

member of the European Union and, under the

principle of primacy of EU law, is bound by decisions

of the Court of Justice of the European Union (CJEU)

as the ultimate interpreter of EU law. Poland submits

this brief to assist the Court in understanding how the

decision below will subject the Republic and other EU

Member States to burdensome litigation in connection

with arbitration proceedings that are incompatible

with EU law.

SUMMARY OF ARGUMENT

This case concerns forum shopping in an effort to

enforce foreign arbitration awards that are contrary

to the law of the European Union. In 2018 and again

in 2021, the CJEU ruled that investor-state

arbitration provisions under bilateral investment

treaties or other international agreements are not

applicable to disputes between an EU national and an

EU Member State—often referred to as “intra-EU”

arbitration—because such application would be

incompatible with EU Law. Republic of Moldova v.

Komstroy, LLC, ECLI:EU:C:2021:655, ¶¶ 64-66; see

No counsel for any party wrote any portion of this brief or

made any contribution intended to fund its preparation or

submission. No person or entity other than amicus or its

counsel has made a monetary contribution to fund the

preparation or submission of this brief. All parties received

timely notice of the filing of this brief.

1

(1)

2

also Slovak Republic v. Achmea BV, ECLI:EU:C:2018:

158, ¶¶ 32-33, 41. In response to the first of these

decisions, Slovak Republic v. Achmea, 23 EU Member

State signed an agreement to terminate all intra-EU

bilateral investment treaties because their arbitration

clauses were incompatible with EU law. 2 And in

response to the second decision, Republic of Moldova

v. Komstroy, the EU and numerous EU Member

States, including Poland, notified their withdrawal

from the Energy Charter Treaty (ECT)—again, in

large part because the arbitration clause in that

treaty offended EU law.

Despite the Achmea and Komstroy decisions and

EU Member States’ withdrawal from these treaties,

arbitral bodies continue to hear intra-EU claims

brought under the treaties’ arbitration clauses. Those

arbitrations have embroiled EU Member States in

costly arbitration and collateral proceedings, and

there is little sign of relief on the horizon. Indeed, a

leading arbitral institution—and one that has

administrated a fifth of all ECT arbitrations—has

now changed its rules to try to insulate these unlawful

arbitration awards from collateral challenge.

It is against this backdrop that Respondents here

sought to confirm their awards. The Republic believes

that the district courts did not have jurisdiction to

confirm those awards under the Foreign Sovereign

Immunities Act (FSIA) because Respondents failed to

demonstrate the existence of an agreement to

See Agreement for the Termination of Bilateral Investment Treaties between the Member States of the European

Union, Official J. of the E.U., L 169 (June 25, 2019),

https://tinyurl.com/mun9u6p4.

2

3

arbitrate claims between themselves and Spain, as

required by Section 1605(a)(6) of the FSIA. The courts

below did not hold that Respondents had shown an

agreement to arbitrate claims between themselves

and Spain but, instead, that they did not have to show

any such agreement involving Respondents themselves. That legal conclusion does not turn on any

nuance of EU law. But this case raises important

practical implications for EU Member States that

weigh strongly in favor of granting the petition.

First, the decision below creates perverse

litigation incentives that will burden EU Member

States with multiple layers of wasteful litigation. By

providing jurisdiction over intra-EU arbitration

awards, the D.C. Circuit has opened the floodgates to

confirmation proceedings that would be unlawful in

the courts of any EU Member State, and that are

premised on arbitration agreements that do not exist

under EU law. This increases EU nationals’

incentives to initiate intra-EU arbitration and will

force EU Member States to expend enormous sums

litigating arbitration proceedings, confirmation

proceedings, award-annulment and other collateral

proceedings. These harms will be multiplied across

dozens of now-terminated intra-EU bilateral

investment treaties, which arbitral tribunals are

jockeying to keep alive notwithstanding their blanket

termination.

Second, and relatedly, the D.C. Circuit’s decision

encourages multiple forms of harmful forum

shopping. This case is emblematic of the first form:

Respondents have forum-shopped their way to the

United States to avoid a legal rule that would be

outcome determinative in any EU court. That alone is

4

cause for concern. But the second form of forum

shopping is even more troubling: faced with a

potential loss of revenue from the decline of intra-EU

arbitration, arbitral forums are now modifying their

rules to circumvent EU law.

Aside from its practical implications for EU

Member States, the D.C. Circuit’s decision is wrong,

in conflict with the decisions of other courts of appeals,

and inconsistent with this Court’s precedents. The

Republic of Poland respectfully urges this Court to

grant Spain’s petition.

ARGUMENT

I. The D.C. Circuit’s Decision Fosters Perverse

Litigation Incentives

A. The Decision Below Incentivizes Multiple

Rounds of Wasteful Litigation

Unless reversed by this Court, the D.C. Circuit’s

decision will require EU Member States to engage in

multiple layers of needless litigation. The availability

of a U.S. forum to confirm intra-EU arbitral awards

will encourage EU nationals to pursue arbitration

against EU Member States. EU Member States will

be forced to counter those arbitrations through a

variety of means—including collateral proceedings to

enjoin arbitration and to annul arbitral awards—and

will be required to defend themselves in awardconfirmation proceedings in the United States, all in

response to arbitrations that are unlawful under the

CJEU’s clear-cut decisions.

1. The D.C. Circuit’s decision packed a one-two

punch. First, in the face of the clear textual

requirement that an arbitration agreement must

“submit to arbitration … differences … between the

5

parties” to fall under the FSIA’s arbitration exception,

28 U.S.C. § 1605(a)(6) (emphasis added), the D.C.

Circuit held that Spain’s ratification of the ECT itself

“provided ‘unconditional consent’ to arbitrate

investment disputes with the investors of at least

some of the other signatory nations.” Pet. App. 22a

(emphasis added). And, because that “agreement is

‘for the benefit’ of the signatory’s investors,” the court

concluded that it “satisfie[d] the FSIA’s arbitration

exception” and gave the district court “jurisdiction to

enforce” the awards against Spain. Pet. App. 22a, 26a

(cleaned up).

Even hobbled by that erroneous ruling, an EU

Member State, one would think, could always move to

dismiss an intra-EU award confirmation proceeding

under the doctrine of forum non conveniens. And

many district courts would likely accept that

invitation given that, by definition, these disputes

involve foreign parties on both sides and thorny

questions of foreign law. But then came the D.C.

Circuit’s second blow: In addition to granting

jurisdiction to confirm intra-EU awards, the Court

invoked a per se rule prohibiting district courts from

even considering the application of forum non

conveniens. Pet. App. 27a. Thus, an EU national

contemplating whether to bring intra-EU arbitration

under the ECT can now do so with the knowledge that

U.S. jurisdiction is available over any resulting

award.

The first-order effects of these two holdings are

obvious. Emboldened by the D.C. Circuit’s decision,

EU nationals will continue to file arbitration claims

under the ECT against EU Member States. And

experience suggests that there will be arbitral

6

tribunals—like the tribunals whose awards are at

issue here—that will continue to find that they have

jurisdiction to hear such claims despite the challenges

posed by EU Member States under the CJEU’s

decisions in Achmea and Komstroy. EU Member

States will be forced to litigate those proceedings and

to seek anti-arbitration injunctions in the national

courts of investors’ home states. In cases where EU

nationals prevail, they will now have a forum in the

United States from which their cases cannot be

dismissed to a more appropriate venue.

The second-order effects may be less obvious, but

are no less consequential. Faced with the risk of

confirmation in the United States, EU Member States

will be forced to expend significant resources

attempting to annul intra-EU arbitration awards that

never should have issued. Even if they are successful,

EU Member States will still face the risk of

enforcement in the United States notwithstanding the

awards’ annulment. See, e.g., Corporación Mexicana

De Mantenimiento Integral, S. De R.L. De C.V. v.

Pemex-Exploración Producción, 832 F.3d 92, 107 (2d

Cir. 2016) (exercising discretion to enforce annulled

foreign arbitral award).

2. Poland’s experience is instructive. In 2019,

Mercuria Energy Group Ltd., an EU national,

initiated arbitration against the Republic under the

ECT and the rules of the Arbitration Institute of the

Stockholm Chamber of Commerce. The Republic

repeatedly objected to the tribunal’s jurisdiction

under EU law throughout the course of the arbitration

proceedings. Nevertheless, on December 29, 2022, the

tribunal rendered an award in Mercuria’s favor. But

the entire arbitration was unlawful under EU law. So,

7

on February 28, 2023, Poland had to initiate

annulment proceedings in the Svea Court of Appeal,

the intermediate appellate court with jurisdiction

over the award. At the time, that Stockholm-based

court had annulled—without exception—every postAchmea intra-EU arbitration award brought before it.

Facing long odds in Sweden, Mercuria decided to

try its luck in the United States. On November 30,

2023, Mercuria initiated confirmation proceedings in

the United States District Court for the District of

Columbia. ECF No. 1, Mercuria Energy Grp. Ltd. v.

Republic of Poland, No. 1:23-cv-03572 (Nov. 30, 2023).

After an initial round of motion-to-dismiss briefing,

the district court eventually stayed the case in light of

the Swedish annulment proceedings. But that stay

came nearly 14 months after the petition was filed.

ECF No. 26, Mercuria Energy Grp. Ltd. v. Republic of

Poland, No. 1:23-cv-03572 (Jan. 2, 2025).

Poland later prevailed before the Svea Court of

Appeal, setting off a second round of motion-todismiss briefing in the district court. That motion—in

response to which Mercuria argues that the court

should still confirm the now-annulled award—is

currently pending in the district court. The Republic

is confident that it will ultimately prevail against

Mercuria. Even so, Poland will have been required to

defend itself in arbitration, award-annulment, and

award-confirmation proceedings—none of which

should ever have been initiated under the CJEU’s

decisions in Achmea and Komstroy. Mercuria is just

one of many such examples—at least twelve district

judges in the D.C. Circuit currently have one or more

8

intra-EU arbitration award cases pending before

them. 3

Against another EU national, Poland has been

forced to seek anti-arbitration injunctive relief in

collateral proceedings before the national courts of the

investor’s home state. In Republic of Poland v. LC

Corp B.V., a Dutch national, LC Corp, initiated

arbitration proceedings under the NetherlandsPoland bilateral investment treaty, which had already

been terminated in response to Achmea more than a

year before the request for arbitration was filed. While

the Republic defended itself in the arbitration, it also

applied to the District Court of Amsterdam for an

E.g., InfraStructure Services Luxembourg SARL v. Kingdom of Spain, No. 18-cv-1753-LLA-MAU; Novenergia IIEnergy & Env’t (SCA) v. Kingdom of Spain, No. 18-cv01148-TSC; CEF Energia B.V. v. Italian Republic, No. 19cv-3443-CKK; RREEF Infrastructure (G.P.) Limited v.

Kingdom of Spain, No. 19-cv-03783-CJN; Greentech Energy Sys. a/s v. Italian Republic, No. 19-cv-3444-CKK;

Watkins Holdings S.R.L. v. Kingdom of Spain, No. 20-cv01081-BAH; Infrared Env’t Infrastructure GP Ltd. v. Kingdom of Spain, No. 20-cv-00817-JDB; Foresight Luxembourg Solar 1 S.A. R.L. v. Kingdom of Spain, No. 20-cv00925-TSC; Cube Infrastructure Fund Sicav v. Kingdom of

Spain, No. 20-cv-01708-LLA-MAU; BayWa R.E. AG v.

Kingdom of Spain, No. 22-cv-02403-APM; Hydro Energy 1,

S.A.R.L. v. Kingdom of Spain, No. 21-cv-02463-RJL; RWE

Renewables GMBH v. Kingdom of Spain, No. 21-cv-03232JMC; MOL Hungarian Oil and Gas plc v. Republic of Croatia, No. 23-cv-218-RDM; Swiss Renewable Power Partners

S.A.R.L. v. Kingdom of Spain, No. 23-cv-00512-RJL; Mercuria Energy Grp. v. Republic of Poland, No. 23-cv-3572TNM; ACF Renewable Energy Ltd. v. Republic of Bulgaria,

No. 24-cv-1715-DLF.

3

9

order requiring LC Corp to cooperate in terminating

the arbitration proceedings. The district court

initially denied Poland’s request, but the Amsterdam

Court of Appeal reversed. Noting that “LC Corp

deliberately sought to circumvent the … system of

legal protection” applicable to intra-EU investments

by pursuing arbitration “incompatible with EU law,”

the Court of Appeal ordered LC Corp to cooperate in

winding down the arbitration proceedings and

declared that the arbitration and sunset clauses

contained in the bilateral investment treaty had

lapsed. Republic of Poland v. LC Corp, No. 200.328.

367/01, ¶¶ 4.11, 4.15 (Neth. Apr. 22, 2025).

3. As this Court has recognized, parties often

choose arbitration because of the “lower costs” and

“greater efficiency” associated with alternative

dispute resolution. Stolt-Nielsen S.A. v. AnimalFeeds

Int’l Corp., 559 U.S. 662, 685 (2010). But the

incentives created by the decision below turn those

advantages on their head. Because the D.C. Circuit’s

decision fundamentally alters the risk calculus in

favor of bringing unlawful intra-EU arbitration, EU

nationals will continue to do so. EU Member States

will thus be forced to fight a multi-front war—in

arbitration, confirmation, annulment and other collateral proceedings—over claims that belong in EU

Member States’ national courts. See European

Comm’n v. European Food S.A., ECLI:EU:C:2022:50,

¶ 145.

Those indirect litigation-multiplying effects are

in addition to the direct litigation-prolonging effects of

the decision below. As Petitioner the Kingdom of

Spain explains, because jurisdictional objections must

generally be resolved at the outset of a case, treating

10

a meritorious sovereign immunity defense as jurisdictional grants sovereigns “protection from the

inconvenience of suit.” Dole Food Co. v. Patrickson,

538 U.S. 468, 479 (2003); see also Pet. 16. By contrast,

deferring a decision on the defense until summary

judgment will “embroil the foreign sovereign in an

American lawsuit for an increased period of time.”

Bolivarian Republic of Venezuela v. Helmerich &

Payne Int’l Drilling Co., 581 U.S. 170, 183 (2017).

That distinction is material, as some confirmation

proceedings involve significant, burdensome discovery. E.g., Esso Exploration & Prod. Nigeria Ltd. v.

Nigerian Nat’l Petroleum Corp., 40 F.4th 56, 69 (2d

Cir. 2022) (discussing “extensive … discovery”). The

appellate implications of the D.C. Circuit’s decision

likewise directly increase sovereigns’ litigation

burdens—while denial of a jurisdictional defense

under the FSIA is immediately appealable, a denial of

a defense on the merits is not. See Helmerich, 581 U.S.

at 185; Pet. 16.

B. The Harms of the D.C. Circuit’s Decision

Will Be Multiplied Across Numerous

Investment Treaties

Although this case arises out of an arbitration

under the ECT, the litigation-multiplying effects of

the decision below will be felt across numerous intraEU investment treaties.

The D.C. Circuit articulated as a “limit[]” to its

holding that “not every arbitration provision in an

investment treaty represents a completed agreement

‘for the benefit’ of a private party.” Pet. App. 25a

(quoting 28 U.S.C. § 1605(a)(6)). That is because, the

D.C. Circuit explained, “not all investment treaties

supply the requisite state consent to arbitration”;

11

some contain “a mere agreement to agree.” Id.

(cleaned up). That is true, as far as it goes—not every

investment treaty’s arbitration provision provides a

complete agreement to arbitrate. But, as a leading

investment arbitration treatise explains, “[i]n most

modern investment protection treaties, contracting

states expressly consent to the mandatory submission

of certain investment disputes to arbitration.” Borzu

Sabahi et al., Investor-State Arbitration 315 (2d ed.

2019).

Numerous bilateral investment treaties among

EU Member States fall into that category. For

example, the bilateral investment treaty between the

Netherlands and Poland provides that investor

disputes shall “upon request of the investor be

submitted to an arbitral tribunal.” NetherlandsPoland BIT (1992), art. 8(2), https://tinyurl.com/4ysf

kvht. The same is true of many other intra-EU

bilateral investment treaties, 4 under which investors

continue to bring arbitration proceedings even though

all intra-EU bilateral investment treaties have been

terminated. Under the decision below, those

arbitration provisions would fall within the FSIA’s

arbitration exception because they were entered into

See, e.g., Latvia-Romania BIT (2001), art. 9(2) (“the investor may submit the dispute, at his choice, for settlement to

[ICSID or an ad hoc arbitral tribunal]”), https://tinyurl.com/36m4kyyu; Estonia-Spain BIT (1997), art. 11(2)

(“the dispute shall be submitted, at the choice of the investor, to [one of several arbitral bodies]”), https://tinyurl.com/54yv748n; Germany-Poland BIT (1989), art.

11(2) (“either of the parties to the dispute shall be entitled

to appeal to an international arbitral tribunal”), https://tinyurl.com/yckckebk.

4

12

“for the benefit” of at least “some investors.” Pet. App.

22a (emphasis added).

C. The Decision Below Encourages Multiple

Forms of Forum Shopping

This case involves a textbook example of forumshopping. Unable to enforce their unlawful

arbitration awards in the courts of any EU Member

State, Respondents forum-shopped their way to the

United States. So far, at least, that gambit has paid

off: whereas Respondents’ enforcement actions would

have been dead on arrival in any EU Member State’s

courts, the decision below provides Respondents with

jurisdiction to enforce their awards.

The D.C. Circuit’s decision will further

incentivize forum shopping by EU nationals, as

discussed above. But it will also incentivize efforts by

arbitral institutions themselves to encourage

arbitration that the CJEU’s Achmea and Komstroy

decisions would otherwise deter.

This concern is far from theoretical. For example,

the Arbitration Institute of the Stockholm Chamber of

Commerce (“SCC”)—which has administrated a fifth

of all ECT arbitrations to date—adopted a new forumselection policy on October 16, 2024. See SCC

Arbitration Institute, SCC Policy: Deciding the Seat

in Intra-EU Investment Arbitrations Administered

under the SCC Rules (Oct. 16, 2024), https://tinyurl.

com/c8dfn642 (hereinafter “SCC Intra-EU Policy”).

The policy modifies the SCC’s practice under Article

25(1) of the SCC Rules, which empowers the SCC’s

board to decide the seat of arbitration where the

parties have failed to reach agreement. The seat of

arbitration is critical—it provides the lex arbitri of the

proceedings and determines, among other things,

13

which country’s laws govern challenges to arbitration

awards. Whereas the SCC previously defaulted to

selecting Stockholm as the seat, the new policy creates

a special rule for intra-EU arbitrations:

In investment treaty arbitrations

between parties based in the EU, and/or

a state that is a candidate or potential

candidate for EU membership, the Board

will not decide that Stockholm, or any

other city, or any other judicial district

within the EU, or within a state that is a

candidate or potential candidate for EU

membership, shall be the seat of

arbitration. In such cases, the Board will

decide on a seat located outside the EU

and those states listed as candidates or

potential candidates for EU membership

SCC Intra-EU Policy at 3-4.

The SCC’s new policy is an attempt to end-run

EU law. Before the policy change, an intra-EU dispute

referred to the SCC for arbitration would have been

seated in Stockholm. Any award arising from such

arbitration would, therefore, have been subject to EU

law and vulnerable to annulment under Achmea and

Komstroy. That is precisely how Poland was able to

annul the award in the Mercuria arbitration, which

was seated in Stockholm. By requiring the SCC Board

to assign a non-EU seat of arbitration, the SCC’s new

policy attempts to insulate these awards from EU law.

From the SCC’s perspective, this rule change is

simply business. EU Member States have terminated

all intra-EU bilateral investment treaties, including

their sunset provisions. See Agreement for the

14

Termination of Bilateral Investment Treaties

between the Member States of the European Union,

Official J. of the E.U., L 169 (June 25, 2019),

https://tinyurl.com/mun9u6p4. But the SCC has

declared that these terminated investment treaties

“remain in force.” SCC Intra-EU Policy at 1. The

policy change is thus intended to serve “investors from

EU jurisdictions [that] have continued to request

investment arbitration against EU host states,” id.,

notwithstanding EU law.

The decision below encourages this type of

behavior from arbitral bodies. In the absence of a U.S.

forum for enforcement of unlawful intra-EU

arbitration awards, investors would be discouraged to

trigger intra-EU arbitrations; arbitral bodies would,

therefore, have fewer incentives to compete for them.

A receptive U.S. forum inverts those incentives,

making it likelier that other arbitral bodies will soon

follow suit in a race to flout EU law.

II. This Court Should Grant Certiorari to

Reverse the D.C. Circuit’s Aberrant Decision

Aside from the practical harms it creates, the

D.C. Circuit’s decision is wrong on questions of

significant importance to foreign sovereigns. It is also

inconsistent with decisions of other circuits and this

Court.

1. The D.C. Circuit’s interpretation of the FSIA’s

arbitration exception is insupportable. Section

1605(a)(6) requires that there be “an agreement to

arbitrate,” and that the agreement concern

“differences … between the parties” to “the action.”

The D.C. Circuit elided the plain text of this

jurisdictional requirement, concluding instead that

“the FSIA’s arbitration exception” is “satisfie[d]” when

15

the court finds an “agreement … ‘for the benefit’ of” a

private party—here, “some investors” under the ECT.

Pet. App. 22a. But the D.C. Circuit never concluded

that Spain had agreed to arbitrate differences

between itself and Respondents. Indeed, it didn’t even

conclude that Spain had agreed to arbitrate

differences between itself and any EU national, since

the signatory nations for whose benefit Spain entered

the ECT include non-EU states.

As Petitioner the Kingdom of Spain points out,

even outside the FSIA context, “[a]rbitration is

strictly a matter of consent.” Pet. 22 (quoting Granite

Rock Co. v. International Brotherhood of Teamsters,

561 U.S. 287, 298 n.6 (2010)). Yet somehow in the

sovereign context—where one would expect the

standards to be at their strictest in light of the

background principle of sovereign immunity 5—the

D.C. Circuit has concluded that it need not inquire

whether there is consent between the parties to

arbitration. Such reasoning would be puzzling to any

non-U.S. sovereign all by itself, but the puzzlement is

compounded by the facial inconsistency with the

relevant statutory command: as already mentioned,

for jurisdiction to exist under the FSIA’s arbitration

exception, an arbitration agreement must “submit to

arbitration … differences … between the parties.” 28

U.S.C. § 1605(a)(6) (emphasis added),

“We have frequently held, however, that a waiver of sovereign immunity is to be strictly construed, in terms of its

scope, in favor of the sovereign. Such a waiver must also be

‘unequivocally expressed’ in the statutory text.” Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999)

(citations omitted).

5

16

The D.C. Circuit’s decision creates a circuit split

with the Second and Fifth Circuits on a recurring

question of exceeding importance to foreign

sovereigns. As discussed above, deferring consideration of a foreign sovereign’s immunity objection until

summary judgment “embroil[s] the foreign sovereign

in an American lawsuit for an increased period of

time,” Helmerich, 581 U.S. at 183, during which the

sovereign will suffer the expense and distraction of

litigation that may ultimately be barred by sovereign

immunity. It also invites reciprocal treatment, risking

that foreign sovereigns will “grant[] their courts

permission to embroil the United States in ‘expensive

and difficult litigation, based on legally insufficient

assertions that sovereign immunity should be

vitiated.’” Ibid. (quoting Brief for United States as

Amicus Curiae at 21-22). This is no small risk, as the

United States is involved “[a]t any given time … in

about 1,000 cases in 100 courts around the world.”

Ibid.

2. The D.C. Circuit’s per se rule against the

application of forum non conveniens is likewise deeply

flawed and merits review. This case is a textbook

candidate for dismissal under the doctrine of forum

non conveniens: EU-based companies allege that an

EU sovereign’s modification of its own law violated a

treaty to which the United States is not a party—and

the EU sovereign’s jurisdictional defense turns on

questions of EU law over which the CJEU has long

determined it has “exclusive jurisdiction.” European

Comm’n v. Ireland, ECLI:EU:C:2006:345, ¶ 123. But

the court of appeals pretermitted any analysis of the

doctrine here, citing a per se rule against application

of forum non conveniens “in proceedings to confirm a

foreign arbitral award because only U.S. courts can

17

attach foreign commercial assets found within the

United States.” Pet. App. 27a (quoting LLC SPC

Stileks v. Republic of Moldova, 985 F.3d 871, 876 n.1

(D.C. Cir. 2021)). 6

Though the D.C. Circuit was bound by stare

decisis to apply that rule, it entrenches yet another

circuit split—this one between the D.C. Circuit and

the Second and Ninth Circuits, which recognize the

doctrine of forum non conveniens in proceedings to

confirm foreign arbitral awards. See Pet. 24-26. The

decision below is also inconsistent with this Court’s

decisions, which have emphasized the fact-bound

nature of forum non conveniens “and have repeatedly

rejected the use of per se rules in applying the

doctrine.” American Dredging Co. v. Miller, 510 U.S.

443, 445 (1994) (collecting cases). This is precisely the

type of question this Court routinely grants certiorari

to resolve. Sup. Ct. R. 10(a), (c).

The D.C. Circuit’s per se rule is also contrary to

the aims of the FSIA. One important innovation of the

Another practical harm made likelier by the D.C. Circuit’s

decision is that EU Member States will be subject to conflicting legal obligations. The EU Commission has determined that payment of intra-EU arbitration awards arising from energy subsidies, like those at issue in the decision below, is unlawful state aid under EU law. See Pet. 6,

30. An order confirming such awards would put EU Member States in a difficult predicament: either pay the award

and violate EU law, or try to find a way to comply with EU

law (as Spain was recently ordered to do, see Pet. 7) by either disobeying a U.S. judgment or trying to find a way to

retrieve the money paid because of a U.S. judgment. The

possibility of putting foreign sovereigns in such a bind yet

again highlights why Spain’s petition is certworthy.

6

18

FSIA is the separation of jurisdiction over a foreign

sovereign from attachment of the sovereign’s assets.

Congress viewed “[a]ttachments for jurisdictional

purposes” as “giv[ing] rise to serious friction in United

States’ foreign relations,” and thus believed that “[t]he

elimination of attachment as a vehicle for commencing a lawsuit w[ould] ease the conduct of foreign

relations by the United States.” See H.R. Rep. No.

1487, 94th Cong., 2d Sess. 26-27 (1976). Congress

viewed jurisdiction over sovereigns and attachment of

their assets as separate potential affronts to

sovereignty, and sought to decouple one from the

other by subjecting them to separate tests contained

in separate sections of the FSIA. See 18 U.S.C.

§§ 1604-1605, 1609-1611.

The D.C. Circuit’s per se rule undermines this

policy goal. Under a flexible application of forum non

conveniens, the cases least appropriate for

adjudication in U.S. courts would be dismissed,

sparing the foreign sovereign the indignity of U.S.

jurisdiction over a case that should be adjudicated in

a foreign forum. The D.C. Circuit’s rigid rule,

however, prevents those same cases from being

transferred to a foreign forum, all in the name of

subjecting the foreign sovereign’s assets to

attachment. The rule, in other words, keeps the cases

least suited to be adjudicated in a U.S. court under

U.S. jurisdiction so that there can be a chance at a

second intrusion on sovereignty in the form of

attachment.

The international discord fomented by the

purported rules of law applied by the courts below

should not be taken lightly. This Court—not lower

courts—should decide whether such friction between

19

nations is truly necessary. And, for the reasons stated

by Petitioner the Kingdom of Spain and in this amicus

brief, it is not.

CONCLUSION

For the foregoing reasons and those stated in the

petition, the petition for a writ of certiorari should be

granted.

Respectfully submitted.

CHRISTIAN LEATHLEY

CHRISTOPHER BOYD

HERBERT SMITH FREEHILLS

KRAMER NEW YORK LLP

1177 Avenue of the Americas

New York, NY 10036

(212) 715-9100

JUNE 2025

ROY T. ENGLERT, JR.

Counsel of Record

ZACHARY N. FERGUSON

HERBERT SMITH FREEHILLS

KRAMER (US) LLP

2000 K Street NW

Washington, DC 20006

(202) 775-4500

Roy.Englert@hsfkramer.com