Petition for Writ of Certiorari — Russian Federation, Petitioner v. Stabil LLC, et al.

No. ______

In the

Supreme Court of the United States

____________

RUSSIAN FEDERATION,

Petitioner,

v.

STABIL LLC, ET AL.,

Respondents.

____________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

Sylvi Sareva

Joseph Muschitiello

CURTIS, MALLET-PREVOST,

COLT & MOSLE LLP

101 Park Avenue

New York, NY 10178

Joseph D. Pizzurro

Counsel of Record

Kevin A. Meehan

Juan O. Perla

CURTIS, MALLET-PREVOST,

COLT & MOSLE LLP

1717 Pennsylvania Ave NW

Suite 1300

Washington, DC 20006

(202) 452-7373

jpizzurro@curtis.com

March 2026

Counsel for Petitioner

(i)

QUESTION PRESENTED

This petition presents the same question pending

before this Court in Kingdom of Spain v. Blasket

Renewable Investments, LLC, et al. (No. 24-1130) on

the proper interpretation and application of the

arbitration exception of the Foreign Sovereign

Immunities Act (FSIA), which provides that a foreign

state shall not be immune in an action to confirm an

award rendered pursuant to “an agreement made by

the foreign state with or for the benefit of a private

party to submit to arbitration all or any differences *

* * between the parties.” 28 U.S.C. 1605(a)(6);

Appendix (Pet. App.) 85a. This petition, however,

presents the question from a different but

complementary angle. While Blasket involves the

foreign state’s legal authority to offer (consent) to

arbitrate with investors from certain Contracting

Parties under a multilateral investment treaty, this

petition involves the legal authority of domestic

investors to accept an offer to arbitrate under a

bilateral investment treaty that by its terms extends

only to foreign investors. Although Russia’s petition is

independently certworthy, this Court would benefit

from granting both petitions and hearing the cases

together. That way it can conduct a 360-degree review

of the relevant issues and fully resolve the existing

circuit split on the question presented, which is:

Whether Section 1605(a)(6) requires a court to

determine, as a threshold jurisdictional matter, that

the foreign state offered (consented) to arbitrate “with

or for the benefit of a private party” such that an

arbitration agreement exists between those parties.

(ii)

PARTIES TO THE PROCEEDING

The petitioner is the Russian Federation

(appellant in both cases below, Nos. 25-7005 and 257064).

The respondents are Stabil LLC, Rubenor LLC,

Rustel LLC, Novel-Estate LLC, PII KirovogradNAFTA LLC, Crimea-Petrol LLC, Pirsan LLC, TradeTrust LLC, Elefteria LLC, VKF Satek LLC, and

Stemv Group LLC (together, the “Stabil Investors”)

(appellees in No. 25-7005), and JSC DTEK

Krymenergo (“DTEK”) (appellee in No. 25-7064).

(iii)

RELATED PROCEEDINGS

The proceedings directly related to this petition

are:

•

Stabil LLC, et al., v. Russian Federation, No.

25-7005 (D.C. Cir. Feb. 13, 2026).

•

JSC DTEK Krymenergo v. Russian Federation,

No. 25-7064 (D.C. Cir. Feb. 13, 2026).

•

Stabil LLC, et al., v. Russian Federation, No.

1:22-cv-00983 (D.D.C. Dec. 12, 2024).

•

JSC DTEK Krymenergo v. Russian Federation,

No. 1:23-cv-03330 (D.D.C. Apr. 17, 2025).

(iv)

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING ........................... ii

RELATED PROCEEDINGS...................................... iii

TABLE OF AUTHORITIES ...................................... vi

PETITION FOR A WRIT OF CERTIORARI ............. 1

INTRODUCTION ....................................................... 1

OPINIONS BELOW ................................................... 6

JURISDICTION OF THIS COURT ........................... 7

RELEVANT STATUTORY PROVISIONS ................ 7

STATEMENT .............................................................. 7

A.

Legal Background......................................... 7

B.

Factual Background ..................................... 8

C.

Proceedings Below ...................................... 11

REASONS FOR GRANTING THE PETITION ....... 14

I. Joint Review with Blasket Would Help to

Fully Resolve an Existing Circuit Split under

the FSIA’s Arbitration Exception ....................... 15

(v)

A. The D.C. Circuit Departs from the

Second and Fifth Circuits .................................. 15

B. This Petition Should Be Granted and

These Cases Heard with Blasket....................... 22

C. This Petition Is Also a Good Vehicle on

Its Own ............................................................... 26

II. The Decision Below is Wrong .............................. 27

CONCLUSION.......................................................... 34

(vi)

TABLE OF AUTHORITIES

Cases

1010 Potomac Assocs. v. Grocery Mfrs. of Am.,

Inc.,

485 A.2d 199 (D.C. 1984) ...................................... 31

Air France v. Saks,

470 U.S. 392 (1985) ............................................... 21

AlixPartners, LLP v. Fund for Prot. of Investors’

Rights in Foreign States,

142 S. Ct. 638 (2021) ............................................. 24

Al-Qarqani v. Arab AMOCO,

No. 4:18-CV-1807, 2020 U.S. Dist. LEXIS

214237 (S.D. Tex. Nov. 17, 2020).......................... 18

Al-Qarqani v. Saudi Arabian Oil Co.,

19 F.4th 794 (5th Cir. 2021) ............... 18, 19, 20, 28

Argentine Republic v. Amerada Hess Shipping

Corp.,

488 U.S. 428 (1989) ................................................. 7

Bachli v. Holt,

Bachli v. Holt, 200 A.2d 263 (Vt. 1964) ................ 30

BG Grp. plc v. Republic of Argentina,

572 U.S. 25 (2014) ..................................... 21, 30, 31

Bolivarian Republic of Venezuela v. Helmerich &

Payne Int’l Drilling Co.,

581 U.S. 170 (2017) ....................................... 5, 7, 33

(vii)

Buckeye Check Cashing, Inc. v. Cardegna,

546 U.S. 440 (2006) ............................................... 33

Cargill Int’l S.A. v. M/T Pavel Dybenko,

991 F.2d 1012 (2d Cir. 1993)..... 4, 16, 17, 20, 27, 28

Chevron Corp. v. Republic of Ecuador,

795 F.3d 200 (D.C. Cir. 2015) ............................... 28

Granite Rock Co. v. Int’l Bhd. of Teamsters,

561 U.S. 287 (2010) ............................................... 33

Gratz v. Bollinger,

539 U.S. 244 (2003) ............................................... 23

Grieve v. Mullaly,

293 P. 619 (Cal. 1930) ........................................... 30

Henry Schein, Inc. v. Archer & White Sales, Inc.,

586 U.S. 63 (2019) ................................................. 33

Jones v. Bock,

549 U.S. 199 (2007) ............................................... 23

Kingdom of Spain v. Blasket Renewable Invs.

LLC,

146 S. Ct. 86 (2025) ............................................... 25

Learning Res., Inc. v. Trump,

Nos. 24-1287, 25-250, (Feb. 20, 2026), slip op. ..... 23

NextEra Energy Glob. Holdings B.V. v. Kingdom

of Spain,

112 F.4th 1088 (D.C. Cir. 2024) .................. 1, 12, 19

(viii)

Obergefell v. Hodges,

574 U.S. 1118 (2015) ............................................. 22

Paige v. Faure,

127 N.E. 898 (N.Y. 1920) ...................................... 30

Trimount Bituminous Prods. Co. v. Chittenden

Trust Co.,

Prods. Co. v. Chittenden Trust Co., 379 A.2d

1266 (N.H. 1977) ................................................... 30

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

461 U.S. 480 (1983) ................................................. 7

Wright v. Henkel,

190 U.S. 40 (1903) ................................................. 30

ZF Auto. US, Inc. v. Luxshare, Ltd.,

596 U.S. 619 (2022) ................................. 1, 2, 24, 27

Statutes

28 U.S.C. 1254(1) ........................................................ 7

28 U.S.C. 1604 ............................................................ 7

28 U.S.C. 1605(a)(6) ............................. i, 2, 4, 7, 20, 27

28 U.S.C. 1782 ............................................ 1, 2, 22, 23

Other Authorities

1 Timothy Murray, CORBIN ON CONTRACTS (2025) .. 29

(ix)

11 Richard A. Lord, WILLISTON ON CONTRACTS

(4th ed. 2012) ......................................................... 31

2 Richard A. Lord, WILLISTON ON CONTRACTS (4th

ed. 2007) ................................................................ 29

Gerald Fitzmaurice, The Law and Procedure of

the International Court of Justice 1951-4:

Treaty Interpretation and Other Treaty Points,

33 BRIT. Y.B. INT’L L. 203 (1957) .......................... 32

ICS Inspection and Control Serv. Ltd (U.K.) v.

Republic of Argentina,

Award on Jurisdiction, PCA Case No. 2010-9

(2012) ..................................................................... 32

Restatement (Second) of Contracts (Am. Law

Inst. 1981) ........................................................ 29, 31

PETITION FOR A WRIT OF CERTIORARI

Russia respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the District of Columbia Circuit.

INTRODUCTION

This petition presents the same threshold

sovereign immunity question regarding the proper

interpretation and application of the arbitration

exception under the Foreign Sovereign Immunities

Act (FSIA) that is pending before this Court in

Kingdom of Spain v. Blasket Renewable Invs. LLC

(No. 24‑1130). Indeed, the D.C. Circuit’s disposition of

the relevant issue in these cases hinged on the very

case from which Spain’s certiorari petition arises:

NextEra Energy Glob. Holdings B.V. v. Kingdom of

Spain, 112 F.4th 1088 (D.C. Cir. 2024). This petition,

however, presents the question in a different factual

context that helps to crystallize the existing circuit

split and the D.C. Circuit’s error.

While this petition should be independently

granted, the Court should grant certiorari in Blasket

as well and decide these cases together, as it did in ZF

Automotive US, Inc. v. Luxshare, Ltd. (No. 21-401)

and AlixPartners, LLP v. Fund for Protection of

Investors’ Rights in Foreign States (No. 21-518).

There, the petitions raised the same interpretative

question under the same federal statute: whether the

phrase “foreign or international tribunal” in 28 U.S.C.

1782 authorized federal courts to order discovery for

use in international arbitrations. ZF Auto. US, Inc. v.

Luxshare, Ltd., 596 U.S. 619, 623 (2022). However,

each case presented the question in distinct “factual

(2)

contexts,” one involving commercial arbitration

between private parties (ZF Automotive) and the other

involving investor–state arbitration under an

investment treaty (AlixPartners). Id. at 624-27. The

Court granted both petitions, consolidated them for

argument, and issued a single opinion holding that

the term “foreign or international tribunal” in Section

1782 did not include purely commercial or investment

treaty arbitrations. See id. at 638. Granting the

petition only in one case risked leaving substantial

uncertainty in the other context due to factual

differences that ultimately proved immaterial.

The same approach is needed here. In both Blasket

and here, the dispositive statutory question is

whether, in order to exercise jurisdiction over a

foreign state in an action to confirm an award under

the FSIA, a court must first find the existence of an

agreement “made by the foreign state with or for the

benefit of a private party,” such that an agreement to

arbitrate exists “between the parties,” that is, between

the sovereign and the private party invoking the

purported agreement. 28 U.S.C. 1605(a)(6); Pet. App.

85a. In Blasket, Spain (a Member State of the

European Union) argued that it lacked the legal

authority to consent to arbitration with nationals

from other EU Member States as a matter of

governing EU law under the Energy Charter Treaty—

a multilateral investment treaty that includes both

EU and non-EU Contracting Parties—and that

therefore no valid agreement to arbitrate between

Spain and EU investors could have ever been formed.

By contrast, the issues in this petition arise under a

bilateral investment treaty between Russia and

(3)

Ukraine. Russia argues that Ukrainian investors who

did not invest in mutually agreed-upon Russian

territory (Crimea) were not offerees with authority to

accept an offer to arbitrate under the treaty, and thus

no valid agreement to arbitrate with or for the benefit

of those investors exists as a matter of basic contract

formation principles, which apply when interpreting

treaties as this Court has repeatedly held.

As with ZF Automotive and AlixPartners, Russia’s

and Spain’s arguments arise in different factual

contexts but are ultimately mirror images of each

other. Addressing this important question only in the

multilateral treaty context involving diverse

Contracting Parties could superficially obscure the

basic contract formation issue that is evident here.

While the multilateral nature of the treaty at issue in

Blasket creates the unusual situation where the same

arbitration provision validly extends to similarly

situated investors from non-EU Member States but

not EU Member States, here in the context of a

bilateral investment treaty, it is clear that the

arbitration provision by its plain terms does not

extend to any investors who did not invest in the

agreed territory of the other Contracting Party.

Granting both petitions and deciding these cases in

tandem would allow the Court to analyze a broader

range of contract formation issues from different

angles across a full range of treaty-based arbitrations,

thereby providing clearer guidance to lower courts

and conclusively resolving the existing circuit split.

The circuit split is clear and entrenched. The

Second and Fifth Circuits correctly treat the existence

(4)

of a valid agreement to arbitrate between the parties

to the dispute as a threshold requirement that must

be satisfied before a court may exercise jurisdiction

over a foreign state under Section 1605(a)(6). As the

Second Circuit correctly held, Section 1605(a)(6) is

satisfied only where the foreign state “intended to

confer a benefit” on the party invoking the arbitration

clause. Cargill Int’l S.A. v. M/T Pavel Dybenko, 991

F.2d 1012, 1019 (1993). The D.C. Circuit in NextEra

and here, by contrast, treated fundamental questions

about whether an arbitration agreement exists

between the parties to the dispute as a “merits

question,” allowing plaintiffs to drag foreign states

through extended litigation over the enforceability of

an arbitral award even when it is clear that no

relevant agreement to arbitrate exists.

The decision below furthers an unsustainable

precedent that allows any party to bypass a foreign

state’s sovereign immunity simply by pointing to the

existence of an arbitration clause, regardless of

whether the sovereign ever offered (consented) to

arbitrate with or for the benefit of the party invoking

that clause. With this approach, a Ukrainian investor

who made investments in France, and argues that

Russia did something to harm those investments,

would be able to invoke a court’s jurisdiction under the

D.C. Circuit’s interpretation of Section 1605(a)(6) by

pointing to the arbitration clause in a bilateral

investment treaty between Russia and Ukraine that

protects only investments made in each other’s

respective territories because the clause applies to

some Ukrainian investors. Russia’s sovereign

immunity would then be defeated despite the obvious

(5)

absence of an agreement to arbitrate with or for the

benefit of Ukrainians who made investments outside

of Russia. This cannot be what Congress intended

when it crafted the narrow arbitration exception to

sovereign immunity.

As aptly explained by Spain in its petition, this

doctrinal confusion carries consequences for U.S.

foreign relations and reciprocity. Foreign sovereigns—

including the United States when sued abroad—

deserve clarity about when they may be haled into

court. Pet. for Writ of Certiorari at 16-17, Kingdom of

Spain v. Blasket Renewable Investments LLC, et al.,

No. 24-1130 (May 1, 2025) (“Spain Pet.”). The FSIA’s

“basic objective” is to protect sovereigns “from the

inconvenience of suit” consistent with international

law. Bolivarian Republic of Venezuela v. Helmerich &

Payne Int’l Drilling Co., 581 U.S. 170, 174, 184

(“H&P”). The D.C. Circuit’s approach eviscerates this

protection by deferring threshold sovereign immunity

determinations until after burdensome merits

proceedings. And it denies foreign sovereigns the right

to seek interlocutory review under the collateral order

doctrine if this defense is deemed non-jurisdictional.

With the United States involved in “about 1,000 cases

in 100 courts around the world” at any given time, the

rules that apply to foreign states in U.S. courts are

closely watched and often mirrored abroad. Id. at 183.

This Court’s review is urgently needed to restore

clarity to FSIA jurisprudence, protect the dignity of

foreign states, and encourage reciprocal treatment for

the United States in foreign courts.

(6)

Alternatively, if the Court elects to proceed first in

Blasket, Russia asks that this petition be held in

abeyance pending disposition of Blasket and then

resolved through a grant‑vacate‑remand (GVR) so

that the D.C. Circuit can reconsider its judgment in

light of this Court’s decision in Blasket. Either

course—joint review now or GVR later—would ensure

that the FSIA’s arbitration exception is interpreted

uniformly in cases turning on whether there was ever

a valid offer to arbitrate or a valid acceptance of that

offer sufficient to form an arbitration agreement

between the parties to the dispute under either

multilateral or bilateral investment treaties.

In sum, this petition should be granted, ideally

with Blasket. Otherwise, it should be held in abeyance

and GVR’d in light of the Court’s decision in Blasket.

OPINIONS BELOW

The court of appeals’ opinion in Nos. 25-7005 and

25-7064 is available at 2026 U.S. App. LEXIS 4462

(D.C. Cir. Feb. 13, 2026) and reprinted in the

Appendix (Pet. App.) at 1a-40a.

The decision of the district court in the Stabil

action, No. 1:22-cv-00983, is available at 2024 U.S.

Dist. LEXIS 224751 (D.D.C. Dec. 12, 2024). Pet. App.

41a-57a.

The decision of the district court in the DTEK

action, No. 1:23-cv-03330, is available at 2025 U.S.

Dist. LEXIS 73499 (D.D.C. Apr. 17, 2025). Pet. App.

58a-81a.

(7)

JURISDICTION OF THIS COURT

The court of appeals issued its judgment on

February 13, 2026. This petition is timely filed on

March 13, 2026. This Court has jurisdiction under 28

U.S.C. 1254(1).

RELEVANT STATUTORY PROVISIONS

Sections 1604 and 1605(a)(6) of Title 28 are

reproduced at Pet. App. 82a-94a.

STATEMENT

A. Legal Background

The FSIA “provides the sole basis for obtaining

jurisdiction over a foreign state” in any civil action.

Argentine Republic v. Amerada Hess Shipping Corp.,

488 U.S. 428, 443 (1989). Under the FSIA, foreign

states such as Russia are presumptively immune from

the jurisdiction of U.S. courts unless a plaintiff can

satisfy the “substantive requirements” of an exception

to immunity. Bolivarian Republic of Venezuela v.

Helmerich & Payne Int’l Drilling Co., 581 U.S. 170,

177 (2017) (“H&P”); Verlinden B.V. v. Central Bank of

Nigeria, 461 U.S. 480, 486-489 (1983).

Under the FSIA’s arbitration exception, sovereign

immunity may be abrogated only in circumstances

where an action is brought to “confirm an award made

pursuant to” an “agreement made by the foreign state

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

arbitration all or any differences * * * between the

parties.” 28 U.S.C. 1605(a)(6); Pet. App. 85a.

(8)

B. Factual Background

1. The events giving rise to both disputes began

with the respondents’ domestic investments in energy

projects between the 1990s and 2000s. The Stabil

Investors invested in the petrol retail business

between 2000 and 2010, and DTEK invested in

electricity distribution between 2006 and 2012. Both

investments were made by Ukrainian entities in

Crimea when it was indisputably part of Ukraine. 257064 C.A. App. 9 (¶ 13); 88 (¶¶ 349-50); 25-7005 C.A.

App. 15 (¶ 16); Pet. App. 7a-9a.1

In March 2014, Crimea acceded to Russia

pursuant to the Treaty Between the Russian

Federation and the Republic of Crimea on the

Admission to the Russian Federation of the Republic

of Crimea and the Formation of New Constituent

Entities Within the Russian Federation. On March 21,

2014, the Russian Parliament ratified the Accession

Treaty and enacted a law governing the admission of

Crimea into Russia in accordance with the Russian

constitution. 25-7005 C.A. App. 15-16; Pet. App. 43a.

2. After the accession, the Crimean paramilitary

forces allegedly seized the Stabil Investors’ petrol

stations and an office located in Crimea. In September

2014, the Crimean State Council issued a decree

nationalizing assets in Crimea, including various

assets of the Stabil Investors related to their petrol

investments, and declaring them to be property of the

1 References to “25-7064 C.A. App.” and “25-7005 C.A. App.”

are to the joint appendices in the cases below respectively.

(9)

Republic of Crimea. 25-7005 C.A. App. 17 (¶ 20); Pet.

App. 43a.

DTEK’s investments in Crimea followed a similar

trajectory. In May 2014, DTEK restructured its

corporate presence in Crimea by moving its “corporate

seat” to Kiev, Ukraine and registered a branch office

in Crimea. By January 2015, all of DTEK’s tangible

and intangible assets in Crimea were, by amendment,

folded into the Crimean State Council’s September

2014 nationalization decree. 25-7064 C.A. App. 57 (¶

200); 77 (¶ 295); 58 (¶ 206); Pet. App. 59a-60a.

Authorities in Crimea soon adopted an additional

regulation placing DTEK’s movable and immovable

property in Crimea under the control of a state-owned

company. 25-7064 C.A. App. 58 (¶ 206); Pet. App. 59a60a.

3. The Stabil Investors and DTEK commenced

separate arbitrations against Russia, invoking the

Agreement Between the Government of the Russian

Federation and the Cabinet of Ministers of Ukraine on

the Encouragement and Mutual Protection of

Investments (the “Bilateral Investment Treaty”),

which by its terms applies to “investments made by

investors of one Contracting Party in the territory of

the other” Contracting Party. 25-7064 C.A. App. 236;

25-7005 C.A. App. 173; Pet. App. 8a. Specifically,

Article 9 provides that “resolution of disputes between

a Contracting Party and an Investor of the other

Contracting Party arising in connection with

investments * * * shall be referred to,” among other

forums, “an ad hoc arbitration tribunal, in accordance

with the Arbitration Rules of the United Nations

(10)

Commission

for

International

Trade

Law

(UNCITRAL).” Ibid. Under Article 1(1), the term

“investments” is defined to mean any assets “which

are invested by an investor of one Contracting Party

in the territory of the other Contracting Party.” 257064 C.A. App. 85 (¶ 333). The crux of the

respondents’ claims was that Russia had expropriated

their properties in Crimea in violation of Article 5 of

the Bilateral Investment Treaty, which requires the

payment of prompt and adequate compensation for

expropriation of investments made in Russian

territory. 25-7064 C.A. App. 11 (¶ 21); 25-7005 C.A.

App. 172; Pet. App. 10a.

3.a. The Stabil arbitration proceeded first in 2015

without Russia’s participation at any phase of the

proceeding. In 2017, the tribunal issued a partial

award concluding that it had jurisdiction over the

dispute under the Bilateral Investment Treaty. 257005 C.A. App. 336 (¶ 235). The tribunal recognized

that the Stabil Investors had made domestic, rather

than foreign, investments when they invested in

Crimea. The tribunal also noted that it received a nonparty submission from Ukraine stating that Crimea

remains an inseparable part of Ukraine. Despite its

understanding that the Bilateral Investment Treaty

limits the offer to arbitrate to investors of one

Contracting Party who made investments in the

territory of the other Contracting Party, the tribunal

concluded that it had jurisdiction over the dispute

because Russia exercised “de facto control” over

Crimea during the alleged events giving rise to the

Stabil Investors’ claims. 25-7005 C.A. App. 289-92 (¶¶

96, 98); 278 (¶ 63); 318 (¶ 175); Pet. App. 35a-36a.

(11)

Ultimately, the tribunal issued an award in which it

concluded that Russia had violated Article 5 of the

Bilateral Investment Treaty, and awarded the Stabil

Investors $34 million in compensation. 25-7005 C.A.

App. 112 (¶ 259); 167-68 (¶ 430); Pet. App. 10a.

3.b. The DTEK arbitration followed a similar route

starting in 2020. However, Russia participated in

every phase of this arbitral proceeding aside from the

appointment of the arbitrators. Ukraine did not

submit a non-party statement in this proceeding. In

2023, a majority of the tribunal concluded that it had

jurisdiction over the dispute under the Bilateral

Investment Treaty and, like the tribunal in the Stabil

arbitration, hung its jurisdictional determination on

Russia’s exercise of “de facto” control over Crimea at

the time of the alleged breach of the Bilateral

Investment Treaty. The majority ruled for DTEK on

the merits, awarding $208 million in compensation.

25-7064 C.A. App. 32 (¶¶ 8-12); 34 (¶¶ 21-22); 70

(¶ 253); 73 (¶ 270); 77 (¶ 291); 91 (¶ 368); 98 (¶ 407);

107 (¶ 452); Pet. App. 11a.

C. Proceedings Below

1. The Stabil Investors and DTEK separately filed

petitions to confirm their awards in the U.S. District

Court for the District of Columbia.

In both actions, Russia moved to dismiss the

petition for lack of jurisdiction. Relevantly, Russia

argued that the FSIA’s arbitration exception to

sovereign immunity did not apply because under the

plain terms of the Bilateral Investment Treaty,

Russia never agreed to arbitrate with Ukrainian

investors who invested in Ukraine, which was

(12)

indisputably the case at the time the respondents

made their investments in Crimea. Pet. App. 11a-12a;

47a-48a; 67a-68a. Subsequent events could not alter

that fact without a mutual understanding and

amendment between Russia and Ukraine on the

territorial status of Crimea under Article 13 of the

Bilateral Investment Treaty. Because the Stabil

Investors and DTEK were not offerees with the legal

power to accept Russia’s offer to arbitrate under the

Bilateral Investment Treaty as a matter of basic

contract formation principles, a valid agreement to

arbitrate any differences—a key jurisdictional

predicate under the arbitration exception—was never

made with or for the benefit of these investors, and

therefore no agreement to arbitrate exists between

Russia and the respondents. Ibid.

The district court in Stabil ruled first. It denied

Russia’s motion to dismiss, holding that the FSIA’s

arbitration exception was satisfied. In particular, the

district court concluded that the Stabil Investors had

met their burden of establishing the existence of an

arbitration agreement by producing a copy of the

Bilateral Investment Treaty and the notice of

arbitration. Pet. App. 47a-54a. The district court

relied directly on NextEra Energy Glob. Holdings B.V.

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

A few months later, the district court in DTEK made

a substantially similar ruling. Also relying on

NextEra, the district court held that Russia’s

argument was about “arbitrability,” that is, whether

Russia “agreed to arbitrate this particular dispute,”

rather than about the formation and existence of a

(13)

valid arbitration agreement in the first instance. Pet.

App. 68a-71a.

2. Russia timely appealed both district court orders

and briefed the appeals separately. Russia argued

that the issue of whether it offered (consented) to

arbitrate with these investors goes to whether an

agreement to arbitrate any differences between the

parties was ever validly formed, insofar as it

implicated the legal power of these investors to accept

Russia’s offer to arbitrate as a matter of basic contract

formation principles. Pet. App. 15a-16a. On Russia’s

motion, the D.C. Circuit consolidated the appeals for

oral argument. Pet. App. 13a.

The D.C. Circuit disposed of both appeals in a

single opinion affirming the lower courts’ denial of

Russia’s sovereign immunity. The court of appeals

agreed that the respondents had met their burden to

show that an arbitration agreement existed simply by

producing a copy of the Bilateral Investment Treaty

and the notices of arbitration. Pet. App. 31a-32a.

Relying on NextEra and its progeny, the court of

appeals held that “precedent foreclose[d]” Russia’s

argument that the courts were required to decide, at

the threshold jurisdictional stage, whether Russia’s

offer to arbitrate in the Bilateral Investment Treaty

extended to these investors so as to empower them to

validly accept that offer and form an arbitration

agreement with Russia. Pet. App. 18a. As in NextEra,

the court of appeals considered the arbitration clause

in the Bilateral Investment Treaty as establishing the

existence of an agreement to arbitrate between Russia

and Ukraine for the benefit of some investors, and

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held that the arbitration agreement between the

sovereigns was sufficient to satisfy the arbitration

exception. Pet. App. 17a-25a. According to the court of

appeals, whether particular investors were covered by

the Bilateral Investment Treaty’s arbitration clause

was a “merits” question about the “scope” of a validly

existing arbitration agreement between the

sovereigns, rather than a jurisdictional question

under Section 1605(a)(6). Pet. App. 17a-19a.

The court of appeals made clear that the question

of whether an agreement to arbitrate existed between

Russia and these particular investors was for the

“merits” stage. Pet. App. 19a-20a.

REASONS FOR GRANTING THE PETITION

This Court should consider and grant Russia’s

certiorari petition together with Spain’s petition in

Blasket. Joint consideration of these cases would allow

this Court to review more fully the proper

interpretation and application of Section 1605(a)(6) in

different treaty contexts, enabling it to provide clearer

guidance to lower courts on a question that has

divided the D.C. Circuit from the Second and Fifth

Circuits.

These circuits are split on the question of whether,

as a threshold jurisdictional matter under the FSIA’s

arbitration exception, a court is required to determine

that a sovereign consented to arbitrate with the

specific parties invoking the arbitration clause, and

therefore that an agreement to arbitrate anything at

all was ever made between the parties to the dispute.

Resolving this split is essential to ensure uniformity

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in FSIA jurisprudence and prevent inconsistent

application of sovereign immunity principles.

This petition provides a straightforward context

for resolving that split. The Bilateral Investment

Treaty between Russia and Ukraine contains clear

language limiting the Contracting Parties’ offer

(consent) to arbitrate to specific investors (those who

made investments in the territory of the other

Contracting Party), making it an ideal vehicle to

analyze whether a valid agreement to arbitrate

anything at all exists between the parties to the

dispute. As explained in Spain’s petition (at 16-18),

clarifying the proper interpretation and application of

Section 1605(a)(6) will promote stability, ensure that

foreign states are not subjected to unnecessary

litigation in U.S. courts, and encourage reciprocal

treatment of the United States abroad.

Alternatively, this Court should hold this petition

in abeyance pending disposition of Blasket, and if the

petition in Blasket is granted and the D.C. Circuit’s

NextEra decision is overruled, vacated or otherwise

modified, then GVR for reconsideration in light of

Blasket.

I.

Joint Review with Blasket Would Help to

Fully Resolve an Existing Circuit Split

under the FSIA’s Arbitration Exception

A. The D.C. Circuit Departs from the Second

and Fifth Circuits

The Second, Fifth, and D.C. Circuits have

irreconcilable approaches to interpreting and

applying the FSIA’s arbitration exception, creating a

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circuit split that requires this Court’s review. The

disagreement centers on whether courts must

determine, as a threshold jurisdictional matter, that a

foreign state offered (consented) to arbitrate with or

for the benefit of the party invoking the arbitration

clause, and that therefore an agreement to arbitrate

exists between the foreign state and that party.

1. In the Second and Fifth Circuits, one cannot

surpass the high bar of sovereign immunity simply by

producing an agreement to arbitrate with any party.

The plaintiff must show, as a jurisdictional matter,

that the arbitration agreement applies to them (as

distinct from whether it applies to the subject matter

of the dispute).

In Cargill Int’l S.A. v. M/T Pavel Dybenko, the

Second Circuit held that whether an agreement to

arbitrate was made between the parties to the dispute

was a threshold question of “subject matter

jurisdiction” under the FSIA’s arbitration exception.

991 F.2d 1012, 1019 (1993). The case involved a

charter party between an oil exporter and an oil

shipper, a Russian state-owned entity, that included

a dispute resolution clause requiring arbitration in

London. The oil importer, as the receiver of goods

under bills of lading that were supposed to incorporate

the charter party by its own terms, moved a U.S.

federal district court to compel arbitration in London

with the oil shipper after the goods were found to be

contaminated during shipment. The importer argued

that Section 1605(a)(6) applied because it was an

intended third-party beneficiary of the arbitration

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agreement made between the exporter and the

shipper. Id. at 1014-15.

Because the agreement to arbitrate in the charter

party on its face was between only the oil exporter and

the oil shipper, the district court held that it lacked

subject matter jurisdiction over the action. Id. at 1018.

The court declined to consider any arguments from

the importer about whether it was a third-party

beneficiary of the arbitration clause. Id. at 1015.

On appeal, the Second Circuit reversed. It held

that the district court must decide, at the

jurisdictional stage, whether the exporter and the

shipper “intended to make” the importer “a third

party beneficiary of the Charter Party,” and thus,

whether an agreement to arbitrate existed between

the shipper and the importer. Id. at 1019. Put

differently, the importer was required to show that

“the parties to that contract intended to confer a

benefit on it when contracting,” and thus “the district

court was required to weigh the contractual

arguments” to decide “whether subject matter

jurisdiction existed.” Ibid. (cleaned up). Only if the

importer was entitled to benefit from the agreement

would it be proper to exercise jurisdiction “to enforce

the arbitration agreement against” the sovereign

entity. Id. at 1020. Whether an agreement was made

to arbitrate with or for the benefit of someone else was

not the end of the jurisdictional inquiry. The Second

Circuit remanded “to the district court for a

determination of whether CBV [the importer] can

prove its third party beneficiary status and thus

establish subject matter jurisdiction.” Id. at 1015.

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Similarly, in Al-Qarqani v. Saudi Arabian Oil Co.,

the Fifth Circuit declined to assert jurisdiction in an

action to confirm an $18 billion award under Section

1605(a)(6) where no arbitration agreement was made

“among the parties” to the dispute. 19 F.4th 794, 802

(2021). There, the petitioners claimed inheritance

rights to oil-rich land under a 1933 agreement with

Saudi Arabia and 1949 agreement with a supposed

predecessor-in-interest of Saudi Aramco, Saudi

Arabia’s national oil company. Id. at 797. The

petitioners invoked the FSIA’s arbitration exception

on the theory that Saudi Aramco’s predecessor-ininterest had agreed to arbitrate disputes with

petitioners’ predecessors-in-interest. The Fifth

Circuit, in its analysis of both the 1933 and 1949

agreements, examined whether there was an

agreement to arbitrate “among the parties” to the

dispute rather than merely whether the sovereign had

agreed to arbitrate with or for the benefit of someone

else. Id. at 802. Having found no agreement among

the parties to the dispute, the Fifth Circuit held that

the arbitration exception could not apply, and Saudi

Aramco was immune. Ibid.2

2 The lower court denied the petition to enforce the award

because the plaintiffs lacked any right to invoke the purported

arbitration agreement. Al-Qarqani v. Arab AMOCO, No. 4:18CV-1807, 2020 U.S. Dist. LEXIS 214237, at *15-20 (S.D. Tex.

Nov. 17, 2020) (“[T]he petitioners here cannot enforce the

arbitration provisions * * * , even assuming that Saudi Aramco

is bound by those provisions.”). The Fifth Circuit concluded that

the lower court’s analysis of the contractual arguments was

“quite accurate,” but should have been done as a jurisdictional

matter under the FSIA’s arbitration exception rather than on the

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2. The D.C. Circuit takes a different approach,

treating the question of whether a sovereign agreed to

arbitrate with the private parties invoking the

treaty’s arbitration clause as a “merits question,” not

a “jurisdictional question under the FSIA.” NextEra

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

F.4th 1088, 1101 (D.C. Cir. 2024); Pet. App. 17a.

Instead of performing the proper analysis as to

whether the sovereign intended to confer a benefit on

the parties invoking the arbitration clause in the

treaty, and therefore, an agreement to arbitrate exists

between the sovereign and those parties, courts in the

D.C. Circuit need only find that the sovereign “entered

into an arbitration agreement” that was “for the

benefit” of at least “some investors” to establish

jurisdiction. NextEra, 112 F.4th at 1103; Pet.

App. 20a-21a.

The D.C. Circuit’s holdings in both of these cases

and Blasket illustrate the need for this Court to

definitively hold that an agreement to arbitrate must

exist between the parties to the dispute for Section

1605(a)(6) to apply. Current D.C. Circuit precedent

reveals the misstep of not addressing this question at

the jurisdictional stage. In the D.C. Circuit’s analysis,

a Ukrainian who invested anywhere in the world may

defeat Russia’s sovereign immunity to confirm an

award under the FSIA’s arbitration exception, so long

as Russia consented to arbitrate with some Ukrainian

investors under the Bilateral Investment Treaty. Pet.

App. 19a (citing NextEra, 112 F.4th at 1104). In the

merits of the petition for enforcement. Al-Qarqani, 19 F.4th at

802.

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D.C. Circuit’s view, arguments about why the treaty’s

arbitration clause may not be properly invoked at all

by specific investors are treated as “merits” questions

going to the “scope” of the treaty’s arbitration clause,

requiring the foreign sovereign to trudge through

extended merits litigation before extricating itself

from the U.S. courts, even if basic contract arguments

plainly reveal that an agreement to arbitrate any

differences could not be made between the parties to

the dispute. For instance, Russia would not be

immune from the jurisdiction of U.S. courts in an

action to confirm an award rendered pursuant to the

Bilateral Investment Treaty where a Ukrainian

investor made investments in France. Russia would

be forced to remain in the litigation through a merits

phase even though it would be obvious that no

agreement to arbitrate with or for the benefit of those

investors was ever made. That cannot be the law.

3. Comparing D.C. Circuit precedent to Cargill and

Al-Qarqani highlights the divide in how courts in the

different circuits consider the existence of an

agreement to arbitrate under the FSIA’s arbitration

exception. If D.C. Circuit law applied in Cargill,

production of the agreement to arbitrate between the

exporter and the shipper would have been enough to

satisfy the arbitration exception with respect to the

action brought by the importer, and the question of

whether the arbitration clause was for its benefit

would have been punted to the merits phase. If D.C.

Circuit law applied in Al-Qarqani, production of the

1933 and 1949 agreements containing arbitration

clauses directed at different parties would have been

the petitioners’ ticket to the merits phase, without

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careful consideration as to whether those arbitration

clauses evidenced an agreement to arbitrate between

the heirs and Saudi Aramco. If, however, the D.C.

Circuit applied the rule from Cargill and Al-Qarqani,

the existence of an agreement to arbitrate with or for

the benefit of the private parties to the dispute would

be a question of sovereign immunity under Section

1605(a)(6), and the courts below would have been

required to rule on Russia’s contractual arguments at

the jurisdictional stage—with little additional effort

because it is a solely legal issue.

The fact that Cargill and Al-Qarqani involved

arbitration clauses in commercial contracts rather

than investment treaties is of no moment because, as

this Court has repeatedly held, treaties are contracts

and should be interpreted as such. See, e.g., ZF Auto.

US, Inc. v. Luxshare, Ltd., 596 U.S. 619, 634 (2022)

(“[A] treaty is a contract, though between nations.”

(citation omitted)); see also BG Grp. plc v. Republic of

Argentina, 572 U.S. 25, 37 (2014); Air France v. Saks,

470 U.S. 392, 399 (1985). In these cases, which involve

a bilateral rather than a multilateral investment

treaty, the irrelevance of the investment treaty

context is all the more obvious because similarly

situated investors from both Russia and Ukraine

would be subject to the same rule, unlike the unusual

situation under a multilateral treaty such as the

Energy Charter Treaty where the arbitration clause

may validly extend to similarly situated investors

from some Contracting Parties but not others.

In brief, the inquiry into whether an agreement to

arbitrate was made by the foreign state with or for the

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benefit of the private parties invoking that

agreement—and therefore whether an agreement to

arbitrate any differences exists between those

parties—is treated differently by the D.C. Circuit and

the Second and Fifth Circuits, and that difference is

dispositive as to the foreign state’s entitlement to

sovereign immunity under the FSIA’s arbitration

exception. This Court’s review is needed.3

B. This Petition Should Be Granted and

These Cases Heard with Blasket

Like Blasket, this petition implicates the same

circuit split regarding the requirement to determine

the existence of an agreement to arbitrate under

Section 1605(a)(6). This petition, however, presents

the question in a different but complementary factual

context. While Russia’s petition is worthy of being

granted on its own, this Court should grant both

petitions, align the briefing schedules and hear the

cases together. See Obergefell v. Hodges, 574 U.S.

1118 (2015). No delay would result from doing so,

because at this point, if certiorari were granted in

As Spain explained in its petition (at 13-15), no further

percolation of this issue is expected because the District of

Columbia is the default venue for suing foreign states, and

therefore the issue is unlikely to repeat itself in other circuits. In

particular, now that the law in the D.C. Circuit is more favorable

to plaintiffs on the issue of sovereign immunity under the FSIA’s

arbitration exception, plaintiffs seeking to enforce awards

rendered pursuant to investment treaties will have strong reason

to commence their actions to confirm their awards within the

D.C. Circuit.

3

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Blasket, oral argument in that case would not be

heard any earlier than next term in any case.

1. The Court regularly aligns cases presenting

similar legal questions in different factual or

procedural contexts. See, e.g., Learning Res., Inc. v.

Trump, Nos. 24-1287, 25-250 (Feb. 20, 2026), slip op.

4-5 (granting certiorari in separate cases involving

identical questions of law in different procedural

contexts and consolidating them for briefing and

argument); Obergefell, 574 U.S. (similar); Jones v.

Bock, 549 U.S. 199, 211 (2007) (similar); Gratz v.

Bollinger, 539 U.S. 244, 259-60 (2003) (“Petitioners

asked this Court to grant certiorari in this case as well

* * * so that this Court could address the

constitutionality of the consideration of race in

university admissions in a wider range of

circumstances. We did so.”). This practice is a

particularly useful approach where, as here, the

different cases present the same question but with

their own nuances, allowing this Court to consider and

answer the question more fully.

The petitions in ZF Automotive US, Inc. v.

Luxshare, Ltd. (21-401), and AlixPartners, LLP v.

Fund for Protection of Investors’ Rights in Foreign

States (21-518), are illustrative. Both cases presented

the same core question: whether 28 U.S.C. 1782

authorizes federal courts to order discovery for use in

foreign or international arbitration proceedings. Both

cases arose from efforts to obtain U.S.-style discovery

in aid of international arbitral proceedings, and both

squarely implicated a deep circuit split over the

meaning of the term “foreign or international

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tribunals” in Section 1782. ZF Automotive, 596 U.S. at

623. However, ZF Automotive presented the question

in the context of purely commercial arbitration

between private parties, while the question in

AlixPartners arose in the context of investor-state

arbitration under an investment treaty. Id. at 624-27.

Rather than tackle the question only in one

context, this Court granted certiorari in both ZF

Automotive and AlixPartners, consolidated the cases

and allowed each party to file its own briefs. See

AlixPartners, LLP v. Fund for Prot. of Investors’

Rights in Foreign States, 142 S. Ct. 638 (2021).

Considering the identical legal issue, the substantial

analytical overlap, and the apparent differences in the

relevant contexts, this Court was able to provide more

comprehensive guidance as to whether the arbitral

tribunals, in the context of both cases, were

governmental authorities, and thus qualified as

international or foreign tribunals under Section 1782.

ZF Automotive, 596 U.S. at 638 (holding that “neither

the private commercial arbitral panel in the first case

nor the ad hoc arbitration panel in the second case

qualifies” (emphasis added)).

Had the Court decided to consider the question

only in ZF Automotive, it might have left unresolved

the application of Section 1782 to investor-state

arbitrations. That approach could have led to further

unnecessary litigation in lower courts and unfair

disparate treatment of parties in different factual

contexts

that

turned

out

to

be

legally

indistinguishable under Section 1782. Inversely,

considering the issue solely with respect to investor-

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state arbitration in AlixPartners would have deprived

the Court of the benefits of comparatively analyzing

the issues both from the perspective of treaty

arbitration involving a foreign sovereign and purely

commercial arbitration involving only private parties.

2. This Court, the lower courts and the litigants

would all benefit from following the same approach

here. There is no risk of delay or other prejudice to the

parties in Blasket from considering the petitions

together. The petition for certiorari in Blasket is still

pending, and this Court has “invited the Solicitor

General to file a brief expressing the views of the

United States.” Kingdom of Spain v. Blasket

Renewable Invs. LLC, 146 S. Ct. 86, 86 (2025). The

Solicitor General has yet to submit his views. In any

case, the Court’s invitation alone underscores the

significance of the question presented in both Blasket

and this petition alike. And if the Court grants

certiorari in Blasket, which presents the same

question as here, the certworthiness of that issue will

be established as to both cases.

Consideration of these cases with Blasket would

serve judicial efficiency while ensuring a more

comprehensive analysis of the question across a

broader spectrum of international agreements—the

bilateral investment treaty context here and the

multilateral investment treaty context in Blasket.

Furthermore, Spain’s petition includes an overlay of

EU law pursuant to which Spain (and other EU

Member States) were deprived of the legal authority

to offer (consent) to arbitrate with nationals of other

EU Member States—a nuance that could be used to

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complicate the otherwise basic contract formation

principles underlying Spain’s arguments. Here, the

terms of the Bilateral Investment Treaty are clear:

Russia’s standing offer to arbitrate extends only to

Ukrainian investors who invested in Russia, and thus,

Ukrainian investors such as the respondents who

invested in Ukraine lacked legal power to accept an

offer that was not directed at them. Granting the

petition in both cases and hearing them together

would thus allow the Court to decide the issue from

both angles: lack of authority by the sovereign to make

an offer (consent) and lack of authority by the private

parties to accept an offer (assent).

If the Court addresses the question only in Blasket,

it may be deprived of the benefit of analyzing the issue

in the more straightforward context of a bilateral

investment treaty implicating basic universal

principles of contract formation. It also might render

a decision that inadvertently leaves unresolved the

application of Section 1605(a)(6) in cases such as these

that present what may ultimately turn out to be

immaterial differences (as in ZF Automotive).

C. This Petition Is Also a Good Vehicle on Its

Own

While the question presented in Blasket is

essentially the same as here, and Blasket is an apt

vehicle for this question, this petition involves a more

straightforward Bilateral Investment Treaty between

Russia and Ukraine that contains an arbitration

provisions offering (consenting) to arbitrate only with

investors of a Contracting Party who made

investments in the territory of the other Contracting

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Party. See, e.g., ZF Automotive, 596 U.S. at 626 (“The

treaty seeks to promote ‘favourable conditions for

investments made by investors of one Contracting

Party in the territory of the other Contracting

Party.’”). Thus, the question is whether Ukrainian

investors who made investments in Ukraine are

intended third-party beneficiaries of the treaty’s

arbitration clause and therefore legally empowered to

accept Russia’s offer to arbitrate. Russia’s contractual

argument focuses precisely on the jurisdictional

question that divides the circuits: whether courts

must determine, in ascertaining their own subject

matter jurisdiction, that the foreign state actually

agreed to arbitrate with or for the benefit of the

private parties invoking the purported agreement.

The bilateral nature of the treaty at issue in these

cases and the simple question of contract formation

crystallizes the jurisdictional question presented in

Blasket. These cases are thus an ideal vehicle to

resolve the circuit split even without Blasket.

II.

The Decision Below is Wrong

The FSIA creates an exception to foreign sovereign

immunity in cases in which the action is brought to

“confirm an award made pursuant to” an “agreement

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

private party * * * to submit to arbitration all or any

differences * * * between the parties.” 28 U.S.C.

1605(a)(6) (emphases added); Pet. App. 85a. This

exception authorizes jurisdiction only where an

arbitration agreement exists between the foreign

state and the “private party” invoking the purported

agreement. See Cargill, 991 F.2d 1019-20; Al-

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Qarqani, 19 F.4th at 802; see also Chevron Corp. v.

Republic of Ecuador, 795 F.3d 200, 205 & n.3 (D.C.

Cir. 2015).

1. The court of appeals declined to address the

question of whether an agreement to arbitrate existed

between Russia and the respondents. Pet. App. 17a18a. It treated the phrase “with or for the benefit of”

as establishing a two-pronged test. Because Russia

did not dispute that the Bilateral Investment Treaty

“exists or that it contains an agreement to arbitrate”

between Russia and Ukraine “for the benefit” of some

investors, the court concluded that it need not go any

further to determine the existence of an agreement to

arbitrate “with” the respondents. Pet. App. 19a. The

court then treated Russia’s arguments about the

existence of an agreement to arbitrate between Russia

and the respondents as an argument about the “scope”

of the agreement between the sovereigns. Id. at 20a21a. That is wrong.

The phrase “agreement made by the foreign state

with or for the benefit of a private party” refers to only

one agreement: an agreement to arbitrate “between

the parties,” that is, between the foreign state and the

“private party” referenced in the exception (not

another sovereign). See Cargill, 991 F.2d at 1019-20;

Al-Qarqani, 19 F.4th at 802; see also Chevron, 795

F.3d at 205 & n.3. The question of whether an

agreement to arbitrate exists between Russia and the

respondents is different from questions about the

“scope” of a validly existing agreement. If, for

example, an offer to arbitrate was unquestionably

made by a sovereign to a group of investors, the

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sovereign may have valid arguments that the type of

investments made by investors within the group put

them outside of the scope of the agreement to

arbitrate. Or, the sovereign may argue that certain

prerequisites have not been met by investors within

the group, putting those investors outside the scope of

the otherwise validly existing agreement to arbitrate.

None of those arguments go to the formation of an

agreement to arbitrate. They are merits questions,

different from the question here: whether the offer to

arbitrate extends to the respondents in the first place,

such that they are members of the group (offerees)

who may validly accept it, thereby forming an

agreement to arbitrate between them and Russia.

2. There is no question that offer and acceptance

are fundamental principles of contract formation.

Restatement (Second) of Contracts § 22(1) (A.L.I.

1981) (“The manifestation of mutual assent to an

exchange ordinarily takes the form of an offer or

proposal by one party followed by an acceptance by the

other party or parties.”). “One of the necessary

elements of any proposed contract is the person with

whom the contract is to be made.” 2 Richard A. Lord,

WILLISTON ON CONTRACTS § 6:27 (4th ed. 2007). The

discretion to limit the power of acceptance to certain

offerees is “wholly within the offeror’s power.”

1 Timothy Murray, CORBIN ON CONTRACTS § 3.2

(2025); see also Restatement (Second) of Contracts

§ 52 cmt. a (“The offeror is the master of his offer, and

the power of acceptance rests on his manifested

intention.”). These basic rules of contract formation

have been reinforced many times over by the highest

state courts. See, e.g., Trimount Bituminous Prods.

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Co. v. Chittenden Trust Co., 379 A.2d 1266, 1269 (N.H.

1977) (“Only the offeree can accept an offer.”); Bachli

v. Holt, 200 A.2d 263, 266-67 (Vt. 1964) (“The offer

could be accepted only by the person to whom it was

addressed. Neither the owner nor her architect could

accept the bid, since it was extended only to the

defendant.”); Paige v. Faure, 127 N.E. 898, 900 (N.Y.

1920); Grieve v. Mullaly, 293 P. 619, 620 (Cal. 1930).

As with the interpretation of any contract, a court

must look to the text of the treaty and the intent of the

Contracting Parties to identify who may validly accept

the sovereign’s standing offer to arbitrate. BG Group,

572 U.S. at 37 (“[A] treaty is a contract.”); see also Air

France, 470 U.S. at 399 (explaining that courts must

give “the specific words of the treaty a meaning

consistent with the shared expectations of the

contracting parties.”); Wright v. Henkel, 190 U.S. 40,

57 (1903) (“Treaties must receive a fair interpretation,

according to the intention of the contracting parties.”).

For if the offer was not directed at the investors

invoking it, then they are not offerees who can validly

accept it, and no agreement to arbitrate any difference

may be formed between them and the sovereign.

3. Under Article 9 of the Bilateral Investment

Treaty, Russia and Ukraine agreed between

themselves to resolve disputes with each other’s

nationals through arbitration, subject to certain

limitations. However, Article 9 is not an agreement to

arbitrate any disputes directly with anyone. It

operates as a standing offer by the sovereign to

arbitrate that investors may accept in accordance

with the treaty’s terms. The combination of the offer

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plus a legally valid acceptance forms an agreement to

arbitrate between the sovereign and the investors. See

BG Group, 572 U.S. at 61 (Roberts, C.J., dissenting).

Specifically, Article 9 provides that “resolution of

disputes between a Contracting Party and an Investor

of the other Contracting Party arising in connection

with investments * * * shall be referred to,” among

other forums, “an ad hoc arbitration tribunal, in

accordance with the Arbitration Rules of the United

Nations Commission for International Trade Law

(UNCITRAL).” Pet. App. 29a. An “Investor of the

Other Contracting Party” must be competent “to make

investments in the territory of the other Contracting

Party.” 25-7064 C.A. App. 99 (¶ 413); Bilateral

Investment Treaty, art. 1(2)(a)-(b). And the

“investments” must have been made “by an investor of

one Contracting Party in the territory of the other

Contracting Party.” 25-7064 C.A. App. 85 (¶ 333);

Bilateral Investment Treaty, art. 1(1). Because the

respondents here invested in Crimea when it was

indisputably Ukrainian territory, and Ukraine

disputes that Crimea is Russian territory, the

respondents are not offerees who may validly accept

Russia’s offer to arbitrate under the Bilateral

Investment Treaty.4

4 Principles of contract interpretation dictate that the parties’

intent “must be ascertained in light of all the circumstances

surrounding the parties at the time the contract was made.” 1010

Potomac Assocs. v. Grocery Mfrs. of Am., Inc., 485 A.2d 199, 205

(D.C. 1984) (emphasis added) (citing Restatement (Second) of

Contracts §§ 202, 212(1) (1981)); see also 11 Richard A. Lord,

WILLISTON ON CONTRACTS § 32:7, at 713 (4th ed. 2012) (“In

construing a contract, a court seeks to ascertain the meaning of

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If the court below had interpreted and applied

Section 1605(a)(6) correctly, it would have resolved

Russia’s contractual arguments about the existence of

an agreement to arbitrate between Russia and the

respondents as a jurisdictional matter, relieving

Russia of the indignity and burden of having to defend

the actions on the merits because it is clear that no

agreement to arbitrate exists between Russia and the

respondents. This Court need not decide the ultimate

question of whether an agreement exists between

Russia and the respondents, only whether that

question must be decided at the jurisdictional stage

under Section 1605(a)(6).

4. It is imperative that a district court satisfy itself

of the existence of a relevant arbitration agreement as

part of its jurisdictional analysis consistent with the

the contract at the time and place of its execution.”). The

principle of contemporaneity in international law similarly

requires that the terms of a treaty, like other contracts, be

interpreted in light of the circumstances known to the parties at

the time the treaty was ratified. See, e.g., ICS Inspection and

Control Serv. Ltd. (U.K.) v. Republic of Argentina, Award on

Jurisdiction, PCA Case No. 2010-9, ¶ 289 (2012) (observing that

it is “appropriate and helpful to resort to the principle of

contemporaneity in treaty interpretation, particularly pertinent

in the case of bilateral treaties,” which “requires that the

meaning and scope” of a treaty term “be ascertained as of the

time the states negotiated their [investment treaty]”); Gerald

Fitzmaurice, The Law and Procedure of the International Court

of Justice 1951-4: Treaty Interpretation and Other Treaty Points,

33 BRIT. Y.B. INT’L L. 203, 225 (1957) (“[R]ights of parties to a

dispute * * * [are determined] on the basis of the

contemporaneous meaning of the treaty terms at the date of its

conclusion, and in the light of current usages and practice at that

time.”).

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general rule that formation of an arbitration

agreement is always a threshold question for courts.

Henry Schein, Inc. v. Archer & White Sales, Inc., 586

U.S. 63, 69 (2019) (holding that “whether a valid

arbitration agreement exists” is a question for “the

court [to] determine[]”); Granite Rock Co. v. Int’l Bhd.

of Teamsters, 561 U.S. 287, 299-301 (2010); Buckeye

Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444

n.1 (2006) (“The issue of the agreement’s ‘validity’ is

different from the issue [of] whether any agreement

between the parties ‘was ever concluded.’”). It does not

matter that this question might overlap with a

“merits” defense in the context of an action to enforce

an award, because as this Court has made clear,

“merits and jurisdiction will sometimes come

intertwined” under the FSIA, whose “basic objective”

is to avoid embroiling foreign sovereigns in more

burdensome litigation where a dispositive question

may be answered as a threshold matter of sovereign

immunity. H&P, 581 U.S. at 178 (“We recognize that

merits and jurisdiction will sometimes come

intertwined * * * If so, the court must still answer the

jurisdictional question. If to do so, it must inevitably

decide some, or all, of the merits issues, so be it.”).

Answering this threshold question at the

jurisdictional stage imposes no additional burden on

courts, since they would be required to conduct the

same analysis anyway, albeit at a later “merits” stage

of the litigation.

In brief, the question of whether an agreement to

arbitrate exists between Russia and the respondents

must be decided as a matter of sovereign immunity

under Section 1605(a)(6). Since no such agreement

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exists, the actions to enforce these awards should have

been dismissed for lack of jurisdiction under the FSIA.

CONCLUSION

This petition should be granted, ideally with

Spain’s petition in Blasket. Alternatively, it should be

held in abeyance pending this Court’s ultimate

disposition of Blasket and GVR’d for reconsideration

in light of Blasket.

Respectfully submitted,

Joseph D. Pizzurro

Counsel of Record

Kevin A. Meehan

Juan O. Perla

Sylvi Sareva

CURTIS, MALLET-PREVOST,

Joseph Muschitiello

COLT & MOSLE LLP

CURTIS, MALLET-PREVOST, 1717 Pennsylvania Ave

COLT & MOSLE LLP

NW Suite 1300

101 Park Avenue

Washington, DC 20006

New York, NY 10178

(202) 452-7373

(212) 696-6000

jpizzuro@curtis.com

Counsel for Petitioner

March 2026