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.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

D. JOHN SAUER

Solicitor General

Counsel of Record

BRETT A. SHUMATE

Assistant Attorney General

CURTIS E. GANNON

Deputy Solicitor General

SOPAN JOSHI

Assistant to the

Solicitor General

SHARON SWINGLE

URJA MITTAL

Attorneys

REED D. RUBINSTEIN

Legal Adviser

Department of State

Washington, D.C. 20520

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

The Foreign Sovereign Immunities Act provides

that foreign states are generally immune from civil lawsuits in state and federal courts, save for limited exceptions. 28 U.S.C. 1604. Under one of those exceptions, a

foreign state is not immune from certain suits seeking

to “confirm an award” under an arbitration agreement

“made by the foreign state with or for the benefit of a

private party.” 28 U.S.C. 1605(a)(6). Petitioner, the

Kingdom of Spain, is a signatory to an investment

treaty providing for “unconditional consent” to arbitrate disputes with investors from other signatory

states, including the Netherlands and Luxembourg.

Respondents are Dutch and Luxembourgish investors

or their successors who seek to enforce arbitral awards

they obtained against Spain. Spain, however, contends

that it never formed valid arbitration agreements with

respondents or their predecessors because European

law forbids European states and European nationals

from agreeing to arbitrate their disputes involving European law.

The questions presented are:

1. Whether Spain’s assertion about European law, if

correct, affects the existence of the arbitration agreement (and thus Spain’s sovereign immunity) or only the

agreement’s scope.

2. Whether a suit to confirm a foreign arbitral award

against a foreign state may be dismissed on grounds of

forum non conveniens.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Introduction................................................................................... 1

Statement ...................................................................................... 4

Discussion ...................................................................................... 8

A. This Court should deny review of the court of

appeals’ interpretation of the FSIA’s arbitration

exception ............................................................................ 9

B. The forum non conveniens question does not

warrant this Court’s review at this time ....................... 19

Conclusion ................................................................................... 23

TABLE OF AUTHORITIES

Cases:

Al-Qarqani v. Saudi Arabian Oil Co., 19 F.4th 794

(5th Cir. 2021), cert. denied,

142 S. Ct. 2753 (2022) ................................................... 15, 16

American Dredging Co. v. Miller,

510 U.S. 443 (1994)........................................................ 19, 21

Astra USA, Inc. v. Santa Clara County,

563 U.S. 110 (2011).............................................................. 14

AT&T Technologies, Inc. v. Communications

Workers, 475 U.S. 643 (1986) ............................................. 12

BCB Holdings Ltd. v. Government of Belize,

650 Fed. Appx. 17 (D.C. Circ. 2016) .................................. 20

BG Group, PLC v. Republic of Argentina,

572 U.S. 25 (2014) ............................................................... 13

Brittania-U Nigeria, Ltd. v. Chevron USA, Inc.,

866 F.3d 709 (5th Cir. 2017) ............................................... 13

Buckeye Check Cashing, Inc. v. Cardegna,

546 U.S. 440 (2006).............................................................. 12

Canada Malting Co. v. Paterson Steamships, Ltd.,

285 U.S. 413 (1932).............................................................. 21

(III)

IV

Cases—Continued:

Page

Cargill International S.A. v. M/T Pavel Dybenko,

991 F.2d 1012 (2d Cir. 1993) ........................................ 15, 16

Constable v. National Steamship Co.,

154 U.S. 51 (1894) ............................................................... 14

Contec Corp. v. Remote Solution, Co.,

398 F.3d 205 (2d Cir. 2005) ................................................ 13

Deutsche Telekom, A.G. v. Republic of India,

155 F.4th 694 (D.C. Cir. 2025) ........................................... 20

Figueiredo Ferraz E Engenharia de Projeto Ltda. v.

Republic of Peru, 665 F.3d 384 (2d Cir. 2011) ................. 21

Granite Rock Co. v. International Brotherhood of

Teamsters, 561 U.S. 287 (2010) ......................................... 12

Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428 (2011)................................................................ 9

LLC SPC Stileks v. Republic of Moldova,

985 F.3d 871 (D.C. Cir. 2021) ............................................. 20

Newco Ltd. v. Government of Belize,

650 Fed. Appx. 14 (D.C. Cir. 2016),

cert. denied, 580 U.S. 1047 (2017) ..................................... 20

Piper Aircraft Co. v. Reyno,

454 U.S. 235 (1981).................................................. 19, 21, 22

Prima Paint Corp. v. Flood & Conklin

Manufacturing Co., 388 U.S. 395 (1967) .......................... 12

Republic of Moldova v. Komstroy LLC, ECLI:EU:C:

2021:655 (E.C.J. Sept. 2, 2021) ............................................ 5

Saudi Arabia v. Nelson, 507 U.S. 349 (1993) ....................... 8

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

158 (E.C.J. Mar. 6, 2018) ...................................................... 5

Swiger v. Rosette, 989 F.3d 501 (6th Cir. 2021) .................. 13

TMR Energy Ltd. v. State Property Fund of

Ukraine, 411 F.3d 296 (D.C. Cir. 2005) ............................ 20

Verlinden B.V. v. Central Bank of Nigeria,

461 U.S. 480 (1983)................................................................ 9

V

Treaties and statutes:

Page

Convention on the Recognition and Enforcement of

Foreign Arbitral Awards, done June 10, 1958,

21 U.S.T. 2517, T.I.A.S. No. 6997 ........................................ 5

art. III, 21 U.S.T. 2519 ...................................................... 5

art. V, 21 U.S.T. 2520 ...................................................... 10

art. V(1)(d), 21 U.S.T. 2520 ............................................. 16

Convention on the Settlement of Investment

Disputes Between States and Nationals of Other

States, done Mar. 18, 1965, 17 U.S.T. 1270,

T.I.A.S. No. 6090 ................................................................... 4

art. 41(1), 17 U.S.T. 1286 ................................................ 15

art. 53, 17 U.S.T. 1291 ..................................................... 10

art. 54(1), 17 U.S.T. 1291 .................................................. 5

Energy Charter Treaty, adopted Dec. 17, 1994,

2080 U.N.T.S. 95 ..............................................4, 8, 13, 14, 22

art. 26, 2080 U.N.T.S. 121 ............................. 13, 14, 18, 19

art. 26(3)(a), 2080 U.N.T.S. 121 ............................ 4, 17, 18

Foreign Sovereign Immunities Act of 1976,

28 U.S.C. 1330, 1441(d), 1602 et seq. ...................... 1-3, 5-13,

15, 16, 19-21

28 U.S.C. 1330(a) ............................................................... 8

28 U.S.C. 1332(a) ............................................................. 10

28 U.S.C. 1391(f )(4) ......................................................... 16

28 U.S.C. 1604 ................................................................ 6, 8

28 U.S.C. 1605(a) ............................................................... 9

28 U.S.C. 1605(a)(1) ........................................................... 9

28 U.S.C. 1605(a)(6) .................................... 2, 3, 6, 8-12, 18

28 U.S.C. 1606 .................................................................... 6

VI

Treaty and statutes—Continued:

Page

Vienna Convention on the Law of Treaties,

done May 23, 1969, 1155 U.N.T.S. 331 ............................... 3

art. 27, 1155 U.N.T.S. 339 ..................................... 3, 17, 18

art. 31(1), 1155 U.N.T.S. 340 .......................................... 18

art. 46(1), 1155 U.N.T.S. 343 ................................ 3, 17, 18

9 U.S.C. 201 et seq.................................................................... 5

22 U.S.C. 1650a ........................................................................ 5

Miscellaneous:

United Nations, Treaty Collection, Status of Treaties

(May 20, 2026), perma.cc/JJG2-MFB8 ............................. 17

United Nations Commission on International Trade

Law, Model Law on International Commercial

Arbitration, 1985 (amended 2006) .................................... 15

In the Supreme Court of the United States

No. 24-1130

KINGDOM OF SPAIN, PETITIONER

v.

BLASKET RENEWABLE INVESTMENTS LLC, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This brief is submitted in response to the Court’s order inviting the Solicitor General to express the views

of the United States. In the view of the United States,

the petition for a writ of certiorari should be denied.

INTRODUCTION

This case involves the attempted confirmation of arbitral awards against the Kingdom of Spain (petitioner)

obtained by Dutch and Luxembourgish companies (respondents and their predecessors in interest) that had

invested in Spain in reliance on subsidies that Spain

later withdrew. The Foreign Sovereign Immunities Act

of 1976 (FSIA or Act), 28 U.S.C. 1330, 1441(d), 1602 et

seq., ordinarily precludes courts from exercising jurisdiction over civil suits against foreign states, but the

statute contains an exception for suits to confirm

awards under arbitration agreements “made by the for(1)

2

eign state with or for the benefit of a private party.” 28

U.S.C. 1605(a)(6).

Spain, however, maintains that it never had valid arbitration agreements with or for the benefit of those

companies. Although an investment treaty included

Spain’s “unconditional consent” to arbitrate disputes

with investors from other signatory states, Spain contends that it lacked legal capacity to form an arbitration

agreement to resolve disputes with the companies because European Union (EU) law forbids arbitration between EU member states and EU nationals of disputes

that involve EU law.

The court of appeals held that these suits could proceed under the FSIA. The court reasoned that the investment treaty itself is an arbitration agreement between signatory states “for the benefit of a private

party,” and that whether the companies can qualify as

such parties under EU law is a question not of that

agreement’s existence, but merely its scope. That distinction can be critical because under the FSIA, the existence of an arbitration agreement is a jurisdictional

question that a federal court must decide for itself de

novo, whereas the scope of an arbitration agreement

(i.e., whether the agreement covers the particular dispute at issue) is a question that the parties may delegate

to arbitrators, whose decision is either binding on or reviewed highly deferentially by a court. Because the arbitrators here rejected Spain’s argument, the court of

appeals’ holding will permit withdrawal of Spain’s sovereign immunity without a federal court’s ever determining that Spain in fact has valid arbitration agreements with the companies.

That holding is incorrect. The FSIA permits suit under 28 U.S.C. 1605(a)(6) only if the foreign state has an

3

arbitration agreement “with or for the benefit of ” the

FSIA plaintiff—not some unrelated third party. That

is the best contextual reading of “party” in that provision. Even in the domestic context, where Congress has

expressed a national policy favoring arbitration, courts

(not arbitrators) resolve challenges to the validity of arbitration clauses. Congress could not have wanted

courts to exercise less oversight in cases where the immunity of a foreign sovereign is at stake.

Nevertheless, the court of appeals’ holding does not

warrant further review because the asserted circuit

conflict is shallow and resolution of the issue is unlikely

to make a difference in this case. Even on de novo review, the court of appeals would be likely to conclude

that the investment treaty reflects a valid arbitration

agreement “with or for the benefit of ” the companies.

28 U.S.C. 1605(a)(6). The treaty’s language is unequivocal: Spain gave its “unconditional consent” to arbitrate

disputes with investors. And the Vienna Convention on

the Law of Treaties, done May 23, 1969, 1155 U.N.T.S.

331—to which Spain, the Netherlands, and Luxembourg are parties—provides that, with exceptions not

relevant here, a state may not invoke “internal law” to

avoid a treaty obligation. Arts. 27, 46(1), 1155 U.N.T.S.

339, 343. The EU law that allegedly vitiates Spain’s

“unconditional” promise is just the sort of “internal law”

on which Spain may not rely. Spain thus likely would

not be entitled to relief even if it prevailed on the first

question presented, making this case a poor vehicle in

which to address that question.

Nor is this Court’s review warranted on the question

whether forum non conveniens dismissal is available.

Although that question is important and has divided the

4

circuits, this case is a poor vehicle in which to address it

because of unresolved factual issues.

STATEMENT

1. Between 2007 and 2012, respondents or their predecessors in interest (collectively, respondents) made

investments in Spain’s renewable energy sector in reliance on a Spanish subsidy program. Pet. App. 6a.

When Spain later altered the subsidies, respondents

claimed that the alterations violated the Energy Charter Treaty (ECT or Treaty), adopted Dec. 17, 1994, 2080

U.N.T.S. 95, a multilateral investment treaty joined by

many nations within the EU (including Spain, the Netherlands, and Luxembourg) as well as some nations outside of it (including, for instance, Japan), but not the

United States. Pet. App. 4a-7a, 22a.

Article 26 of the Treaty provides that with exceptions not relevant here, “each Contracting Party hereby

gives its unconditional consent to the submission of a

dispute to international arbitration.” ECT art. 26(3)(a).

Invoking that provision, the NextEra and 9REN respondents pursued arbitration against Spain under the

Convention on the Settlement of Investment Disputes

Between States and Nationals of Other States (ICSID

Convention), done Mar. 18, 1965, 17 U.S.T. 1270,

T.I.A.S. No. 6090, while the predecessors in interest of

the Blasket respondent pursued arbitration against

Spain under the auspices of the United Nations Commission on International Trade Law (UNCITRAL).

See Pet. App. 6a-7a.

Spain contested the arbitral panels’ jurisdiction, arguing that Spain had never formed valid arbitration

agreements with respondents because EU law prohibits

EU member states from arbitrating disputes against

EU nationals if the arbitration would raise questions of

5

EU law (on the theory that doing so would interfere

with the autonomy of the EU courts). See Pet. App.

10a-11a. The Court of Justice of the European Union—

the EU’s highest court—has endorsed that argument in

a pair of holdings involving arbitral decisions against

Slovakia and Moldova. See Slovak Republic v. Achmea

BV, ECLI:EU:C:2018:158, ¶ 60 (Mar. 6, 2018); Republic

of Moldova v. Komstroy LLC, ECLI:EU:C:2021:655

¶ 66 (Sept. 2, 2021). In contrast, the arbitral panels here

(like nearly all arbitral panels to have addressed the issue) rejected Spain’s argument, found Spain to have violated the Treaty, and entered substantial awards in favor of respondents. Pet. App. 11a (awards of €290 million, €41 million, and €26.5 million).

2. Respondents filed three separate suits against

Spain in federal district court in the District of Columbia seeking to enforce their respective arbitral awards.

See Pet. App. 11a-14a. The United States is a party

both to the ICSID Convention, which imposes an obligation to confirm international arbitral awards, and to

the Convention on the Recognition and Enforcement of

Foreign Arbitral Awards (New York Convention), done

June 10, 1958, 21 U.S.T. 2517, T.I.A.S. No. 6997, which

imposes a similar obligation under UNCITRAL. See

ICSID Convention art. 54(1), 17 U.S.T. 1291; New York

Convention art. III, 21 U.S.T. 2519; see also 9 U.S.C.

201 et seq. (domestic enforcement of New York Convention); 22 U.S.C. 1650a (same for ICSID). The NextEra

and 9REN cases were assigned to Judge Chutkan and

the Blasket case was assigned to Judge Leon. See Pet.

App. 64a-149a.

Spain moved to dismiss all three cases under the

FSIA, which provides that as a general matter, a “foreign state shall be immune from the jurisdiction of the

6

courts of the United States and of the States” in civil

cases. 28 U.S.C. 1604; see Pet. App. 12a-14a. The FSIA

further provides, however, that “[a] foreign state shall

not be immune from the jurisdiction of courts of the

United States or of the States” where suit is expressly

permitted by certain international agreements or by exceptions enumerated in the FSIA. 28 U.S.C. 1605(a).

When one of those exceptions applies, “the foreign state

shall be liable in the same manner and to the same extent as a private individual under like circumstances,”

subject to certain limitations on punitive damages. 28

U.S.C. 1606.

Respondents relied in part on the arbitration exception set forth in 28 U.S.C. 1605(a)(6). See Pet. App. 13a.

That exception permits suit “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,” or

“to confirm an award made pursuant to such an agreement,” if certain other conditions (not relevant here) are

satisfied. 28 U.S.C. 1605(a)(6). Respondents contended

that the Treaty itself reflects an arbitration agreement

with or for the benefit of investors such as themselves,

and they asserted that Spain’s argument concerned the

agreement’s scope, not its existence, so that the decision

about that argument’s correctness was properly delegated to the arbitrators. See Pet. App. 22a.

3. Judge Leon dismissed the Blasket suit for lack of

jurisdiction. Pet. App. 129a-149a. He explained that

“challenges to the validity of an arbitration clause on

grounds that the parties lacked the legal capacity to

form an agreement to arbitrate must be resolved by a

court, not an arbitrator,” and he concluded that in light

7

of the European Court of Justice decisions in Achmea

and Komstroy, Spain “lacked the legal capacity to make

a valid offer to arbitrate” disputes with EU nationals.

Id. at 137a-138a.

Judge Chutkan, in contrast, held that the NextEra

and 9REN suits could proceed under the arbitration exception. Pet. App. 64a-99a (NextEra), 100a-128a (9REN ).

She concluded that the Treaty “in a purely literal sense”

created an arbitration agreement, and that Spain’s argument concerned only the scope of that agreement. Id.

at 73a, 107a; see id. at 78a-80a, 112a-114a. Judge Chutkan also denied Spain’s request to dismiss the suit on

forum non conveniens grounds, citing D.C. Circuit

precedent precluding such dismissal in suits seeking to

enforce foreign arbitral awards. Id. at 81a-82a. Judge

Chutkan enjoined Spain from pursuing an anti-suit injunction in the Netherlands or Luxembourg that would

have required respondents to abandon their FSIA suits.

Id. at 88a-96a, 121a-128a.

4. The court of appeals resolved all three appeals in

a single opinion, holding that the district court had jurisdiction over respondents’ suits and remanding each

case for further proceedings. Pet. App. 1a-63a. The

court of appeals concluded that Spain’s argument “that

the standing offer to arbitrate contained in Article 26 of

the ECT does not extend to EU nationals” is an “argument regarding the scope of the Energy Charter Treaty,

not its existence.” Id. at 22a. The court explained that

a scope question is “not ‘a jurisdictional question under

the FSIA,’ ” but instead a merits question to be resolved

by the arbitrators. Id. at 23a (citation omitted).

The court of appeals also explained that circuit precedent foreclosed Spain’s forum non conveniens argument. Id. at 27a. And the court vacated Judge Chut-

8

kan’s anti-anti-suit injunction. Id. at 27a-40a. Judge

Pan dissented only from the vacatur of that injunction.

Id. at 41a-63a.

DISCUSSION

The petition for a writ of certiorari should be denied.

On the first question presented, about the FSIA’s arbitration exception, the court of appeals erred in holding

that arbitrators rather than courts should decide

whether Spain has an arbitration agreement that is

“with or for the benefit of ” respondents, 28 U.S.C.

1605(a)(6). But even on de novo review, the courts below would likely agree with the arbitrators that the EU

case law on which Spain relies does not relieve it of its

obligations under the Energy Charter Treaty. In that

event, Spain would not be entitled to relief even if it

were to prevail on the first question presented, making

this a poor vehicle in which to address that question.

Nor is review warranted of the second question presented, about the availability of forum non conveniens

in suits against foreign states to confirm arbitral

awards. Although that question is important and the

subject of a narrow circuit conflict, the factual record

here remains undeveloped, and Spain might not have

been entitled to such a dismissal under any circuit’s

rule.

A. This Court Should Deny Review Of The Court Of Appeals’ Interpretation Of The FSIA’s Arbitration Exception

1. a. Under the FSIA, “a foreign state is presumptively immune” from civil liability in U.S. courts, and

“unless a specified exception applies, a federal court

lacks subject-matter jurisdiction over a claim against a

foreign state.” Saudi Arabia v. Nelson, 507 U.S. 349,

355 (1993); see 28 U.S.C. 1330(a), 1604.

9

Because “federal courts have an independent obligation to ensure that they do not exceed the scope of their

jurisdiction,” a court must satisfy itself of the facts necessary to establish its jurisdiction. Henderson ex rel.

Henderson v. Shinseki, 562 U.S. 428, 434 (2011). “At

the threshold of every action in a District Court against

a foreign state, therefore, the court must satisfy itself

that one of the exceptions applies—and in doing so it

must apply the detailed federal law standards set forth

in the Act.” Verlinden B.V. v. Central Bank of Nigeria,

461 U.S. 480, 493-494 (1983). Although a foreign state

may waive immunity, it cannot forfeit immunity: A federal district court must determine whether “immunity

is unavailable under the Act”—that is, whether an exception to foreign sovereign immunity applies—“even if

the foreign state does not * * * assert an immunity defense.” Id. at 494 n.20; cf. 28 U.S.C. 1605(a)(1) (foreign

state may “waive[] its immunity”).

The FSIA’s arbitration exception in paragraph (6) of

Section 1605(a) withdraws foreign sovereign immunity

in any case brought “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,” or “to

confirm an award made pursuant to such an agreement

to arbitrate,” with certain additional requirements not

relevant here. 28 U.S.C. 1605(a)(6). In determining

whether that exception applies, a court must therefore

determine whether an arbitration agreement, as described in the exception, exists.

Accordingly, Spain’s sovereign immunity here, and

the jurisdiction of federal courts over respondents’

suits, depends on whether Spain has a valid arbitration

10

agreement “with or for the benefit of a private party.”

28 U.S.C. 1605(a)(6). The court of appeals viewed the

Treaty itself as establishing a valid arbitration agreement “for the benefit of ” at least some private investors

from signatory states—for instance, investors from

Japan—thereby satisfying the plain text of paragraph

(6). Pet. App. 22a. The court viewed Spain’s contention

that EU law precluded the formation of intra-EU arbitration agreements as affecting only the scope of the

agreement, i.e., whether that agreement covered the

particular dispute between respondents and Spain at issue here. Id. at 23a. And as to questions of scope, the

court observed, the arbitrators’ decision controls. Ibid.;

see ICSID Convention, art. 53, 17 U.S.T. 1291 (arbitral

decision is binding and unreviewable); New York Convention, art. V, 21 U.S.T. 2520 (recognition and enforcement of arbitral decision may be refused only on extremely limited grounds).

b. The court of appeals’ view is incorrect. In context,

the phrase “an agreement made by the foreign state

with or for the benefit of a private party” is best read

to mean an agreement with or for the benefit of the

FSIA plaintiff—not some unrelated third party (such

as a hypothetical Japanese investor).

28 U.S.C.

1605(a)(6) (emphasis added). That is the most natural

reading of a jurisdictional provision—especially one

that withdraws the immunity of a foreign sovereign in

U.S. courts. Jurisdictional provisions generally turn on

the status of the parties to the litigation, not of unrelated third parties. E.g., 28 U.S.C. 1332(a) (diversity jurisdiction). It would be strange—and at odds with the

carefully crafted exceptions in the FSIA—for Congress

to withdraw a foreign state’s sovereign immunity from

a suit brought by one party solely because that state

11

would lack immunity from a suit brought by someone

else.

The surrounding text in paragraph (6) confirms that

reading. As noted, that provision authorizes the exercise of jurisdiction over a foreign state in certain cases

involving “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.” 28 U.S.C. 1605(a)(6) (emphasis

added). The only relevant “parties” that have both a

“defined legal relationship” and “differences” to be resolved in the case are the foreign state and the FSIA

plaintiff seeking to enforce an arbitration agreement (or

confirm an award under such an agreement). Respondents observe (Blasket Br. in Opp. 19-21; NextEra/9REN

Br. in Opp. 20-21) that the phrase “the parties” in paragraph (6) is most naturally read as referring to “the foreign state” and “a private party” earlier in the sentence.

28 U.S.C. 1605(a)(6). That is true, but it cuts against

respondents because it confirms that “a private party”

for whose benefit an arbitration agreement has been

made must also be one of “the parties” with “differences”

to be resolved—namely, the FSIA plaintiff. Ibid.

Emphasizing the statute’s use of the indefinite article (“a private party”), respondents contend that a court

should ask only whether the foreign-state defendant

has made an arbitration agreement with or for the benefit of some private party, somewhere; and if the answer

is “yes,” whether that agreement covers the FSIA

plaintiff ’s dispute is reserved for the arbitrators to decide. Blasket Br. in Opp. 20; NextEra/9REN Br. in Opp.

16. That argument proves too much. If it were correct,

even a national of a non-signatory country to the Treaty

12

could maintain a suit in federal court to “enforce” arbitration at the outset of a dispute, 28 U.S.C. 1605(a)(6),

on the theory that the Treaty constitutes an arbitration

agreement for the benefit of “a private party” (e.g.,

some hypothetical investor from a signatory country such

as Japan), and whether that agreement actually encompasses any other investor-plaintiff ’s dispute would be a

matter of scope to be decided by the arbitrators, after

the court compels arbitration. And if the plaintiff later

were to prevail before the arbitral panel, he could sue in

federal court to confirm the award—again based solely

on the hypothetical Japanese investor. To be sure, conscientious arbitrators presumably would not accept outlandish arguments about the Treaty’s scope. But the

key point is that federal courts should determine for

themselves whether they in fact have jurisdiction—

especially where it affects the sovereign immunity of a

foreign state—instead of basing their jurisdictional determinations on hypothetical parties not before the

court and effectively outsourcing determination of the

true jurisdictional facts to arbitrators.

c. Even in the context of domestic arbitration, where

Congress has expressed a strong “national policy favoring arbitration,” courts themselves will resolve any “validity challenge * * * to the arbitration clause itself.”

Granite Rock Co. v. International Brotherhood of

Teamsters, 561 U.S. 287, 298-299 (2010) (brackets and

citations omitted); see Buckeye Check Cashing, Inc. v.

Cardegna, 546 U.S. 440, 445 (2006); Prima Paint Corp.

v. Flood & Conklin Manufacturing Co., 388 U.S. 395,

403-404 (1967); cf. AT&T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649 (1986) (“Unless

the parties clearly and unmistakably provide otherwise,

the question of whether the parties agreed to arbitrate

13

is to be decided by the court, not the arbitrator.”).

Here, Spain challenges the validity not of the Treaty as

a whole, but of the arbitration clause (article 26) as applied to EU nationals like respondents. An analogous

challenge to an arbitration-enforcement suit in the domestic context would trigger a court’s obligation to determine for itself the underlying arbitration clause’s validity. There is no sound basis to read the FSIA as requiring a different result, especially given that the determination implicates foreign sovereign immunity and

the court’s jurisdiction.

Respondents cite lower-court cases holding that arbitrators are often delegated the authority to decide

whether a non-signatory to a contract may invoke (or be

bound by) the contract’s arbitration clause. See Blasket

Br. in Opp. 23 (citing Swiger v. Rosette, 989 F.3d 501

(6th Cir. 2021); Brittania-U Nigeria, Ltd. v. Chevron

USA, Inc., 866 F.3d 709 (5th Cir. 2017); and Contec

Corp. v. Remote Solution, Co., 398 F.3d 205 (2d Cir.

2005)). But unlike this case, those cases did not involve

claims that allowing the non-signatories to invoke (or be

bound by) the arbitration clauses would ipso facto render the clauses invalid, or that the counterparties

lacked legal capacity to enter into arbitration agreements with those non-signatories. That the non-signatories in those cases had close legal relationships to the

signatories makes the cases even less apposite. See

Swiger, 989 F.3d at 503 (coconspirator); Brittania-U,

866 F.3d at 711 (employee and agent); Contec, 398 F.3d

at 207 (successor corporation).

The court of appeals’ reading is also inconsistent

with principles of contract law. Cf. BG Group, PLC v.

Republic of Argentina, 572 U.S. 25, 33-37 (2014) (explaining that “[a]rbitration is a matter of contract” and

14

that arbitration clauses in treaties are generally interpreted like those in contracts) (citation omitted). A

third party to a contract generally “cannot enforce” a

contractual promise unless he “was intended to be the

beneficiary of the promise.” Constable v. National

Steamship Co., 154 U.S. 51, 98 (1894); see Astra USA,

Inc. v. Santa Clara County, 563 U.S. 110, 117 (2011) (“A

nonparty becomes legally entitled to a benefit promised

in a contract * * * only if the contracting parties so intend.”). As the court recognized, the Treaty here is

analogous to a contract between the signatory states.

Pet. App. 19a. But Spain—supported by several EU

signatories and the EU itself—contends that EU signatory states did not intend for their own nationals to be

beneficiaries of the Treaty’s arbitration clause with respect to investments in other EU signatory states. See

European Commission Amicus Br. 7-11; see also Republic of Poland Amicus Br. 2-3; Romania Amicus Br. 34, 13-18; Republic of Bulgaria Amicus Br. 3, 10-11. Yet

the court would nonetheless permit such EU nationals

(like respondents) to invoke and enforce article 26 without resolving for itself whether Spain’s contention is in

fact correct.

d. Observing that review of arbitration awards is

highly deferential, respondents contend that “avoiding

an inquiry into who may enforce an arbitration agreement at the jurisdictional stage” would better ensure

consistency “with the specific treaty standard applicable to each award.” Blasket Br. in Opp. 22; see id. at 2123. But that conflates the grounds on which a court may

refuse to confirm an arbitral award under the New York

or ICSID Conventions with the jurisdictional determination that a U.S. court must make under the FSIA.

Neither the Conventions nor their implementing stat-

15

utes preclude a federal court’s independent assessment

of its own jurisdiction under domestic law. Congress

could have easily written the FSIA to permit all suits

seeking to confirm an arbitral award against a foreign

state under the ICSID or New York Conventions, but

instead chose to write the carefully phrased arbitration

exception. Although the ICSID Convention provides

that an arbitral tribunal “shall be the judge of its own

competence,” art. 41(1), 17 U.S.T. 1286; cf. UNCITRAL

Model Law on International Commercial Arbitration,

1985, art. 16(1) (amended 2006) (“The arbitral tribunal

may rule on its own jurisdiction.”), that does not (and

could not) displace a federal court’s duty to assure itself

of jurisdiction.

2. Nevertheless, this Court’s review of the first

question presented is not warranted because the alleged circuit conflict is shallow and Spain would be unlikely to obtain relief even if the threshold “who decides” question were resolved in Spain’s favor.

a. Spain asserts (Pet. 10-13) that the decision below

conflicts with Cargill International S.A. v. M/T Pavel

Dybenko, 991 F.2d 1012 (2d Cir. 1993), and Al-Qarqani

v. Saudi Arabian Oil Co., 19 F.4th 794 (5th Cir. 2021),

cert. denied, 142 S. Ct. 2753 (2022). But any alleged conflict is tenuous at best.

In Cargill, the Second Circuit reversed the dismissal

of a suit seeking to compel arbitration because “the district court ought to have determined whether, if the

facts as alleged by [the plaintiff ] are true, the arbitration agreement in [the relevant contract] was intended

to benefit” the plaintiff as a third-party beneficiary. 991

F.2d at 1019. Although Cargill directed the district

court to make that determination on remand, the reference to taking the plaintiff ’s allegations as true (instead

16

of determining the actual facts) makes it unclear

whether Cargill viewed the determination as a scope

question that the parties could delegate to the arbitrators.

In Al-Qarqani, the Fifth Circuit ordered the dismissal of a suit to enforce an arbitral award after concluding that the parties did not have a “valid arbitration

agreement” under the governing contract, which “sa[id]

nothing whatsoever about arbitration.” 19 F.4th at 801802. The court did not defer to the arbitrators’ contrary

conclusion, but it is unclear whether that was because

the court viewed the issue as jurisdictional or because

the arbitration proceedings there had been a “sham,”

id. at 802; see id. at 797 (describing the “shenanigans”);

cf. New York Convention art. V(1)(d), 21 U.S.T. 2520

(arbitral award need not be enforced if “the arbitral

procedure was not in accordance with the agreement of

the parties”).

Accordingly, although both Cargill and Al-Qarqani

appeared to assume without discussion that the relevant arbitration agreement must be with or for the benefit of the FSIA plaintiff (and not some unrelated third

party), neither court had occasion to address the contrary reasoning that the D.C. Circuit adopted here. Any

tension between the unelaborated assumptions in those

decisions and the decision below is thus at best shallow

and underdeveloped, and could benefit from more percolation. We acknowledge that further percolation may

be less likely given that D.C. is always an available

venue for civil claims against foreign states, see 28

U.S.C. 1391(f )(4), but there may be many cases arising

out of the D.C. Circuit itself that could provide opportunities to review the issue if necessary, including under

other investment treaties. Cf. European Commission

17

Amicus Br. 19 n.8 (listing pending cases), 21-22 & nn.

10-11 (listing bilateral investment treaties).

b. In addition, this case would be a poor vehicle for

addressing the first question presented because Spain

would likely not be entitled to relief even if that question

were resolved in its favor. Spain’s core argument is that

the supposedly “unconditional consent” it manifested in

the Treaty to arbitrate disputes with investors, ECT

art. 26(3)(a), was conditional after all. Specifically,

Spain contends that under EU law, it lacked capacity to

form an arbitration agreement with other EU signatories for the benefit of each other’s nationals or to consent to arbitrate disputes with respondents directly.

But Spain, the Netherlands, and Luxembourg have all

acceded to or ratified the Vienna Convention, which addresses treaty interpretation. See United Nations,

Treaty Collection, Status of Treaties, perma.cc/JJG2MFB8. Article 27 of the Vienna Convention provides:

“A party may not invoke the provisions of its internal

law as justification for its failure to perform a treaty.”

1155 U.N.T.S. 339. And article 46 provides: “A State

may not invoke the fact that its consent to be bound by

a treaty has been expressed in violation of a provision

of its internal law regarding competence to conclude

treaties as invalidating its consent unless that violation

was manifest and concerned a rule of its internal law of

fundamental importance.” Vienna Convention art.

46(1), 1155 U.N.T.S. 343.

The court of appeals on remand would therefore be

likely to reject Spain’s reliance on EU law to justify its

failure to honor the “unconditional” promise reflected

in the Treaty’s plain text. ECT art. 26(3)(a). After all,

Spain does not contest that the Treaty itself is best read

to establish an arbitration agreement with or for the

18

benefit of all investors. See Medellín v. Texas, 552 U.S.

491, 506 (2008) (“The interpretation of a treaty, like the

interpretation of a statute, begins with its text.”); see

also Vienna Convention art. 31(1), 1155 U.N.T.S. 340

(“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms

of the treaty in their context and in the light of its object

and purpose.”). Nor does Spain contend that the Treaty

draws a distinction between EU and non-EU investors.

Instead, Spain views internal law—that is, EU law—as

having created an implicit carveout with respect to EU

investors. That is precisely what the Vienna Convention forbids. See id. arts. 27, 46(1), 1155 U.N.T.S. 339,

343. As the court of appeals observed, had the Treaty’s

drafters “intended to exempt intra-EU disputes” from

article 26’s otherwise unequivocal command, “they

could have done so through a ‘disconnection clause,’ ”

such as the one that the EU (unsuccessfully) proposed

during treaty negotiations. Pet. App. 21a.

Furthermore, some respondents suggest (NextEra/

9REN Br. in Opp. 14-15) that in addition to being an

agreement to arbitrate for the benefit of investors, article 26 of the Treaty is a standing offer to arbitrate that

investors accept by initiating arbitration. On that view,

the Treaty would be an arbitration agreement “with”

respondents, not just for their benefit. 28 U.S.C.

1605(a)(6). Once again, Spain’s only response is that article 26 could not constitute a standing offer to arbitrate

with respondents because Spain lacks legal capacity to

extend such an offer to EU nationals. See Pet. App.

21a-22a. The court of appeals did not resolve that dispute, but it appeared to favor respondents’ view. Id. at

22a.

19

Accordingly, the court of appeals would likely conclude on a de novo review that Spain does have valid arbitration agreements with or for the benefit of respondents in particular. In that case, if this Court were to

grant certiorari and reverse the court of appeals’ erroneous interpretation of the FSIA’s arbitration exception, Spain would not be entitled to relief because the

lower courts would still have jurisdiction over respondents’ suits. At a minimum, the likelihood of that occurrence makes this a poor vehicle in which to address that

interpretation.

B. The Forum Non Conveniens Question Does Not Warrant

This Court’s Review At This Time

Spain asks this Court to review the court of appeals’

holding that “ forum non conveniens is not available in

proceedings to confirm a foreign arbitral award.” Pet.

App. 27a (citation omitted). Although that issue is important and the subject of a conflict with the Second

Circuit, further review would be premature in this case.

1. The forum non conveniens doctrine provides that

when an alternative forum has jurisdiction to hear a

case, a federal court may, “ ‘in the exercise of its sound

discretion,’ ” dismiss the case “even if jurisdiction and

proper venue are established” upon consideration of the

public interest and the interests of the litigants. American Dredging Co. v. Miller, 510 U.S. 443, 448 (1994)

(citation omitted) (listing factors). If “the remedy offered by the other forum is clearly unsatisfactory, the

other forum may not be an adequate alternative, and

the initial requirement”—namely, that “there exists an

alternative forum”—“may not be satisfied.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981).

The decision below applied circuit precedent dating

back to TMR Energy Ltd. v. State Property Fund of

20

Ukraine, 411 F.3d 296 (D.C. Cir. 2005), in holding that

forum non conveniens is categorically unavailable in

suits seeking to confirm foreign arbitral awards. Pet.

App. 27a. TMR Energy reasoned that a district court

need not even consider whether to dismiss under forum

non conveniens “if no other forum to which the plaintiff

may repair can grant the relief it may obtain in the forum it chose.” 411 F.3d at 303. TMR Energy concluded

that when a party seeks to have a U.S. court confirm a

foreign arbitral award, a foreign court cannot be an adequate alternative because “only a court of the United

States (or of one of them) may attach the commercial

property of a foreign nation located in the United States.”

Ibid. In subsequent cases, including the decision below,

the D.C. Circuit has reiterated that holding without further analysis. E.g., Pet. App. 27a; Deutsche Telekom,

A.G. v. Republic of India, 155 F.4th 694, 700 (2025); Tatneft v. Ukraine, 21 F.4th 829, 840 (2021), cert. denied,

143 S. Ct. 290 (2022); LLC SPC Stileks v. Republic of

Moldova, 985 F.3d 871, 876 n.1 (2021); BCB Holdings

Ltd. v. Government of Belize, 650 Fed. Appx. 17, 19

(2016) (mem.), cert. denied, 580 U.S. 1047 (2017); Newco

Ltd. v. Government of Belize, 650 Fed. Appx. 14, 16

(2016) (mem.), cert. denied, 580 U.S. 1047 (2017).

Nothing in the FSIA, however, purports to categorically preclude the application of forum non conveniens.

If anything, the foreign-affairs and comity concerns

that arise when U.S. courts entertain civil suits against

foreign states make it all the more important for courts

to consider the public- and private-interest factors. As

this Court recognized long before the FSIA was enacted, “[c]ourts of equity and of law also occasionally

decline, in the interest of justice, to exercise jurisdiction, where the suit is between aliens or nonresidents or

21

where for kindred reasons the litigation can more appropriately be conducted in a foreign tribunal.” Canada

Malting Co. v. Paterson Steamships, Ltd., 285 U.S. 413,

423 (1932); see Piper Aircraft, 454 U.S. at 248 (treating

Canada Malting as a forum non conveniens case).

The D.C. Circuit’s categorical rule is inconsistent

with that precedent, in part because it gives dispositive

weight to the unavailability of the plaintiff ’s desired

remedy in an alternative forum instead of treating that

as one factor in the analysis, to be balanced against

other relevant considerations (including the availability

of alternative equivalent remedies). Cf. American

Dredging, 510 U.S. at 455 (“We have emphasized that

each case turns on its facts and have repeatedly rejected the use of per se rules in applying the doctrine.”)

(brackets and quotation marks omitted).

2. For that reason, the Second Circuit has disagreed

with the D.C. Circuit’s rigid approach, holding that “in

the context of a suit to obtain a judgment and ultimately

execution on a defendant’s assets, the adequacy of the

alternate forum depends on whether there are some assets of the defendant in the alternate forum, not

whether the precise asset located here can be executed

upon there.” Figueiredo Ferraz E Engenharia de Projeto Ltda. v. Republic of Peru, 665 F.3d 384, 391 (2011).

3. Notwithstanding the importance of the forum

non conveniens issue, the narrow conflict, and D.C.’s

prominence as a venue for cases against foreign states,

this case would be a poor vehicle in which to address the

issue at this time.

At least on the current record, it is unclear whether

Spain’s forum non conveniens argument could prevail

in any circuit, including the Second Circuit. Given the

apparently entrenched standoff between European

22

courts and arbitrators about whether EU investors are

entitled to arbitrate disputes against EU signatory

states to the Treaty, it seems unlikely that respondents

could get any relief in any European forum. Cf. Piper

Aircraft, 454 U.S. at 254 n.22 (“In rare circumstances,

however, where the remedy offered by the other forum

is clearly unsatisfactory, the other forum may not be an

adequate alternative.”). Nor is it clear whether and to

what extent Spain has attachable assets in any plausibly

available non-European forum—even assuming that the

public- and private-interest factors would favor such a

forum over the United States. Accordingly, as the record now stands, the outcome of Spain’s motion to dismiss on forum non conveniens grounds might well have

been the same under any circuit’s rule, making this a

poor vehicle in which to address the availability of that

doctrine at this time.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

REED D. RUBINSTEIN

Legal Adviser

Department of State

MAY 2026

D. JOHN SAUER

Solicitor General

BRETT A. SHUMATE

Assistant Attorney General

CURTIS E. GANNON

Deputy Solicitor General

SOPAN JOSHI

Assistant to the

Solicitor General

SHARON SWINGLE

URJA MITTAL

Attorneys