Nextera Energy Global Holdings B v. v. Kingdom of Spain ( 2023 )


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  •                            UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    NEXTERA ENERGY GLOBAL
    HOLDINGS B.V. and NEXTERA
    ENERGY SPAIN HOLDINGS B.V.,
    Petitioners,
    Civil Action No. 19-cv-01618 (TSC)
    v.
    KINGDOM OF SPAIN,
    Respondent.
    MEMORANDUM OPINION
    Dutch-incorporated companies NextEra Energy Global Holdings B.V. and NextEra
    Energy Spain Holdings B.V. (collectively, “NextEra”) have petitioned to confirm an
    international arbitral award they received against the Kingdom of Spain (the “Award”). Petition
    to Confirm International Arbitral Award Pursuant to the 1965 ICSID Convention, ECF No. 1
    (“Petition”). Spain moved to dismiss the Petition, ECF No. 62 (“Spain MTD”), and NextEra
    cross-moved for summary judgment, ECF No. 68 (“Cross-MSJ”), as well as leave to file a
    surreply, ECF No. 75. In response, Spain moved to strike NextEra’s cross-motion as premature,
    ECF No. 71. While those motions were pending, on January 12, 2023, NextEra moved for a
    preliminary injunction and temporary restraining order enjoining Spain from pursuing litigation
    in the Netherlands that would prevent NextEra from seeking to confirm the Award. ECF No. 78
    (“PI/TRO Motion”).
    For the reasons that follow, the court will DENY Spain’s Motion to Dismiss and GRANT
    in part NextEra’s Motion for Preliminary Injunction and Temporary Restraining Order. The
    court will also DENY Spain’s Motion to Strike and DENY NextEra leave to file a surreply.
    Page 1 of 30
    I.     BACKGROUND
    A. Laws and Treaties
    This case concerns both international treaties and domestic laws and raises complex
    issues about how they interact for purposes of sovereign immunity.
    Along with many other nations, the United States, the Netherlands, and Spain are all
    parties to the 1965 Convention on the Settlement of Investment Disputes between States and
    Nationals of Other States (the “ICSID Convention”). The ICSID Convention establishes an
    arbitration regime for resolving disputes related to international investments between the treaty’s
    members, or “Contracting States.” The Convention’s Article 54(1) provides: “Each Contracting
    State shall recognize an award rendered pursuant to this Convention as binding and enforce the
    pecuniary obligations imposed by that award within its territories as if it were a final judgment of
    a court in that State.” Congress has confirmed that commitment by statute: “The pecuniary
    obligations imposed by [an ICSID Convention] award shall be enforced and shall be given the
    same full faith and credit as if the award were a final judgment of a court of general jurisdiction
    of one of the several States.” 22 U.S.C. § 1650a.
    Spain and the Netherlands are also contracting parties to the Energy Charter Treaty
    (ECT), a multinational agreement designed to create “a legal framework in order to promote
    long-term cooperation in the energy field” through “complementarities and mutual benefits.”
    ECT art. 2. For example, the ECT entitles investors from one contracting party to receive “fair
    and equitable treatment” from the other contracting parties. Id. art. 10(1). Should a dispute
    arise, the ECT provides that each contracting party “gives its unconditional consent to the
    submission of [that] dispute to international arbitration”—and if a consenting investor seeks
    arbitration, the arbitration can be carried out under the ICSID Convention. Id. art. 26(3)-(5).
    Page 2 of 30
    Finally, the Foreign Sovereign Immunities Act (FSIA) provides that foreign states are
    immune from the jurisdiction of U.S. courts unless they fall within certain exceptions. Under the
    “waiver” exception, for example, U.S. courts have jurisdiction “in any case . . . in which the
    foreign state has waived its immunity either explicitly or by implication.” 
    28 U.S.C. § 1605
    (a)(1). And under the “arbitration” exception, U.S. courts have jurisdiction in any case
    “in which the action is brought . . . to confirm an award made pursuant to . . . an agreement to
    arbitrate, if . . . the agreement or award is or may be governed by a treaty or other international
    agreement in force for the United States calling for the recognition and enforcement of arbitral
    awards.” 
    Id.
     § 1605(a)(6).
    B. Facts and Procedural History
    Both NextEra petitioners are private limited liability companies incorporated under the
    laws of the Netherlands. Petition ¶ 4. After Spain enacted legislation to encourage investment in
    solar power projects in its territory in 2007, “NextEra invested in the construction, development
    and operation of two Spanish [solar power] projects at a total cost of approximately 750 million
    euros.” Id. ¶ 13. But NextEra alleges that between 2012 and 2014, Spain “fundamentally and
    radically changed the investment regime NextEra relied on when making its investment,”
    causing NextEra “significant harm as a result.” Id. ¶ 14 (quotation and citations omitted).
    Because the Netherlands and Spain are both contracting parties to the ECT, in 2014 NextEra
    sought to redress its grievances by requesting arbitration under the ICSID Convention. Id. ¶ 18.
    In 2015, a three-member ICSID arbitral tribunal convened to address NextEra’s request,
    and held a hearing on all issues during December of 2016. Id. ¶ 19. In March 2019, the ICSID
    tribunal issued a decision in favor of NextEra. Id. at 20; see Award, ICSID Case No.
    ARB/14/11, Annex A: Decision on Jurisdiction, Liability and Quantum Principles, ECF No. 1-4
    (“Liability Decision”). Two months later, the tribunal issued a “Final Award requiring Spain to
    Page 3 of 30
    pay NextEra EUR 290.6 million as damages, plus pre-judgment interest at a rate of 0.234%,
    compounded monthly, from June 30, 2016.” Id. ¶ 21; see Award, ICSID Case No. ARB/14/11,
    ECF No. 1-4.
    NextEra petitioned this court to confirm the ICSID’s Award against Spain. Petition, ECF
    No. 1. But in September 2020, the court stayed the case while Spain applied for an annulment of
    the Award with an ICSID Annulment Committee. ECF No. 39. The court lifted that stay in
    April 2022 upon receiving notice that the Annulment Committee had dismissed Spain’s
    application. April 29, 2022 Minute Order. Shortly thereafter, Spain moved to dismiss NextEra’s
    petitions, asserting lack of subject-matter jurisdiction, lack of personal jurisdiction, and failure to
    state a claim upon which relief can be granted. ECF No. 62. NextEra opposed Spain’s motion
    and cross-moved for summary judgment. ECF No. 68.
    While those motions were pending, on December 22, 2022, Spain initiated a legal action
    in Amsterdam (the “Dutch Action”), seeking an order requiring NextEra to “take all actions
    necessary to withdraw the proceedings currently pending before the United States District Court
    for the District of Columbia under case number 1:19-cv-01618 . . . under penalty of a daily
    payment of EUR 30,000 per day for each day or part of a day that Defendants fail to effect such
    suspension.” See PI/TRO Motion, Decl. of Bradley A. Klein, Exhibit 1, at 32-33, ECF No. 78-3
    (“Dutch Writ”). Spain also requests a separate civil penalty and an injunction preventing
    NextEra from seeking to confirm the Award or otherwise pursue payment anywhere in the
    world. Id. at 33.
    In response, NextEra now seeks injunctive relief of its own, asking this court to issue a
    preliminary injunction and temporary restraining order preventing Spain from pursuing the
    Dutch Action insofar as it would affect NextEra’s suit here. Specifically, NextEra seeks an
    Page 4 of 30
    injunction stopping Spain from seeking any relief in the Dutch Action—or anywhere else—that
    would halt or obstruct this case, and requiring Spain to withdraw its requests for such relief in the
    Dutch Action—Claims (A) through (D) and (L) through (P) of the Dutch Writ. See Proposed
    Order Granting Preliminary Injunction at 2-3, ECF No. 78-5.
    Because Spain committed to not seek any relief in the Dutch Action until at least March
    1, 2023, see Joint Status Report, ECF No. 80, the court did not deem it necessary to issue a
    temporary restraining order before deciding whether to issue a preliminary injunction.
    II.     LEGAL STANDARD
    A. Motion to Dismiss
    “Before evaluating the availability of preliminary relief, the Court must first determine
    that it may properly exercise jurisdiction over the action.” Rosenkrantz v. Inter-Am. Dev. Bank,
    No. CV 20-3670 (BAH), 
    2021 WL 1254367
    , at *7 (D.D.C. Apr. 5, 2021) (quotation omitted),
    aff’d, 
    35 F.4th 854
     (D.C. Cir. 2022); see also Aamer v. Obama, 
    742 F.3d 1023
    , 1028, 1038 (D.C.
    Cir. 2014) (“We begin, as we must, with the question of subject-matter jurisdiction,” then “turn
    to the question of whether petitioners have established their entitlement to injunctive relief.”). A
    defendant’s “Motion to Dismiss under Rule 12(b)(1) therefore must be decided before plaintiffs’
    Motion for Preliminary Injunction may be considered.” Rosenkrantz, 
    2021 WL 1254367
    , at *7.
    Here, Spain moves for dismissal under Rule 12(b)(1) on the grounds that it is immune
    from jurisdiction under the FSIA, which provides the “sole basis for obtaining jurisdiction over
    a foreign state in the courts of this country.” Saudi Arabia v. Nelson, 
    507 U.S. 349
    , 355 (1993)
    (quotation omitted). “Under the Act, a foreign state is presumptively immune from the
    jurisdiction of United States courts; unless a specified exception applies, a federal court lacks
    subject-matter jurisdiction over a claim against a foreign state.” 
    Id. at 355
    .
    Page 5 of 30
    When a defendant challenges the factual basis for jurisdiction under an FSIA exception,
    the D.C. Circuit applies a burden-shifting analysis. See Agudas Chasidei Chabad of U.S. v.
    Russian Fed’n, 
    528 F.3d 934
    , 940 (D.C. Cir. 2008). The plaintiff “bears the initial burden of
    supporting its claim that the FSIA exception applies.” Chevron Corp. v. Ecuador, 
    795 F.3d 200
    ,
    204 (D.C. Cir. 2015) (citing Chabad, 
    528 F.3d at 940
    ). “[T]his is only a burden of
    production”—producing evidence of the required jurisdictional facts. 
    Id.
     (same). If Plaintiff
    meets its burden, then the “burden of persuasion rests with the foreign sovereign claiming
    immunity, which must establish the absence of the factual basis by a preponderance of the
    evidence.” 
    Id.
     (same).
    B. Motion for Preliminary Injunction
    A preliminary injunction is an “extraordinary and drastic” remedy that is “never awarded
    as of right.” Munaf v. Geren, 
    553 U.S. 674
    , 689-90 (2008). A movant must demonstrate (1) a
    likelihood of success on the merits; (2) a likelihood of irreparable harm absent injunctive relief;
    (3) that the balance of equities tips in their favor; and (4) that an injunction is in the public
    interest. Winter v. Nat. Res. Def. Couns, Inc., 
    555 U.S. 7
    , 20 (2008). Because
    “a preliminary injunction is an extraordinary and drastic remedy,” the court should not grant one
    “unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v.
    Armstrong, 
    520 U.S. 968
    , 972 (1997) (internal citation omitted) (emphasis in original).
    Courts in this Circuit have typically applied a “sliding-scale” approach in analyzing these
    four factors; a particularly strong showing in one factor could outweigh weakness in
    another. Sherley v. Sebelius, 
    644 F.3d 388
    , 393 (D.C. Cir. 2011). It is unclear if this approach
    has survived the Supreme Court's decision in Winter, however. See, e.g., Banks v. Booth, 
    459 F. Supp. 3d 143
    , 149-50 (D.D.C. 2020) (citing Sherley, 
    644 F.3d at 393
    ). Nonetheless, the movant
    still bears a burden to show that “all four factors, taken together, weigh in favor of the
    Page 6 of 30
    injunction.” Abdullah v. Obama, 
    753 F.3d 193
    , 197 (D.C. Cir. 2014) (quoting Davis v. Pension
    Benefit Guar. Corp., 
    571 F.3d 1288
    , 1292 (D.C. Cir. 2009)).
    III.   JURISDICTION
    A. FSIA Exceptions
    NextEra asserts that the court has jurisdiction over its petition under both the FSIA
    arbitration and waiver exceptions. Spain contends that neither applies. Because the court
    concludes that it has jurisdiction under the arbitration exception, it does not reach whether the
    waiver exception applies.
    The D.C. Circuit has found that “jurisdiction under the arbitration exception requires
    more than a claim invoking an arbitration award.” LLC SPC Stileks v. Republic of Moldova, 
    985 F.3d 871
    , 877 (D.C. Cir. 2021). “Rather,” and tracking the text of the exception, the court has
    held that “the existence of an arbitration agreement, an arbitration award and a treaty governing
    the award are all jurisdictional facts that must be established.” Id.; see also Process & Indus.
    Devs. Ltd. v. Fed. Republic of Nigeria, 
    27 F.4th 771
    , 776 (D.C. Cir. 2022). Spain does not
    contest the latter two facts. See Spain MTD at 6-8 (discussing the Award and denial of its
    application for annulment); 
    id. at 40
     (acknowledging that “Congress implemented the ICSID
    Convention by enacting 22 U.S.C. § 1605a”). Instead, Spain’s central argument is that “as a
    matter of European Union (“EU”) Law . . . [,] no such agreement to arbitrate exists.” Id. at 1.
    NextEra concedes that an existing agreement is essential for jurisdiction under the arbitration
    exception. Cross-MSJ at 18. 1
    1
    Spain’s challenge to the arbitration agreement’s existence has implications for the FSIA’s
    waiver exception as well. The D.C. Circuit has “found an implicit waiver of sovereign
    immunity in only three situations,” Turan Petroleum, Inc. v. Ministry of Oil & Gas of
    Kazakhstan, 
    406 F. Supp. 3d 1
    , 10 (D.D.C. 2019) (quoting Gutch v. Fed. Republic of Germany,
    
    255 F. App’x 524
    , 525 (D.C. Cir. 2007)), only one of which is potentially relevant here: where
    Page 7 of 30
    As a result, the key issue is whether an agreement to arbitrate existed between Spain and
    NextEra. Spain concedes—as it must—that the ECT exists, and that its terms facially create
    such an agreement: “Article 26 of the ECT . . . provides for the resolution of disputes between
    investors of one contracting party, on the one hand, and another contracting party, on the other,
    before an ICSID tribunal.” Spain MTD at 11. So, in a purely literal sense, there is no dispute
    about the existence of an agreement to arbitrate.
    Whether the ECT’s agreement to arbitrate existed as a legal matter is a harder question.
    Spain asserts that recent decisions of the Court of Justice of the European Union (CJEU)—which
    interprets and enforces EU law—have clarified that Spain never had the authority to agree to
    ICSID arbitration via the ECT. In Slovak Republic v. Achmea B.V., Case No. C-284/16 (Mar. 6,
    2018), ECF No. 62-47 (Achmea), the CJEU addressed the relationship between international
    arbitration agreements and the Treaty on the Functioning of the European Union, “which sets
    forth the EU's authority to legislate and key principles of EU law.” Micula v. Gov’t of Romania,
    “a foreign state has agreed to arbitration in another country,” Foremost-McKesson, Inc. v.
    Islamic Republic of Iran, 
    905 F.2d 438
    , 444 (D.C. Cir. 1990) (citation omitted). But in that
    situation, too, the key jurisdictional fact is whether the foreign state has agreed to arbitration.
    NextEra disagrees, relying on Creighton Ltd. v. Gov’t of State of Qatar, 
    181 F.3d 118
    , 123
    (D.C. Cir. 1999), which in turn cites Seetransport Wiking Trader v. Navimpex Centrala, 
    989 F.2d 572
    , 577 (2d Cir.1993), for the proposition that by joining the Convention, Spain “must
    have contemplated enforcement actions in other signatory states.” See Cross-MSJ at 23. But
    Creighton only favorably cited that conclusion (and only with respect to the New York
    Convention) after noting that the Second Circuit first “found [the] implied waiver where [the]
    foreign government had agreed . . . to arbitrate.” 
    181 F.3d at 123
    . In other words, even when a
    state has assented to the enforcement of arbitral awards in the United States, an agreement to
    arbitrate is still necessary for implied waiver of immunity. The ICSID Convention establishes
    an arbitration regime and commits its members to abide by arbitral awards issued under the
    regime, but the Convention does not constitute an agreement to arbitrate in any particular case.
    Under Article 25, parties must separately agree to ICSID arbitration. Therefore, a specific
    arbitration agreement remains a jurisdictional prerequisite under the waiver exception.
    Page 8 of 30
    
    404 F. Supp. 3d 265
    , 278 (D.D.C. 2019), aff’d, 
    805 F. App’x 1
     (D.C. Cir. 2020). In Achmea, the
    CJEU held that
    Articles 267 and 344 [of the] TFEU must be interpreted as precluding a provision
    in an international agreement concluded between Member States . . . under which
    an investor from one of those Member States may, in the event of a dispute
    concerning investments in the other Member State, bring proceedings against the
    latter Member State before an arbitral tribunal whose jurisdiction that Member
    State has undertaken to accept.
    Achmea ¶ 60.
    In other words, to protect “the autonomy of EU law,” Achmea invalidated arbitration
    agreements that would “call upon [an] arbitral tribunal to interpret or apply EU law . . . not
    subject to review by a court or tribunal within the EU’s judicial system.” Micula, 404 F. Supp.
    3d at 279. In Republic of Moldova v. Komstroy, Case C-741/19 (Sept. 2, 2021), ECF No. 62-67,
    the CJEU confirmed that its reasoning in Achmea applied specifically to ECT Article 26. Based
    on Achmea and Komstroy, Spain contends that “[a]s a matter of EU law, the law to which Spain
    and Petitioners are both subject, no arbitration agreement exists between Spain and Petitioners
    because any such agreement would violate core tenets of EU sovereignty as set out in the EU
    Treaties.” Spain MTD at 4-5.
    As another court in this district recognized in similar case, “[a]ssuming Spain is correct,
    the dominoes begin to fall. If there was no agreement to arbitrate, the ICSID tribunal never had
    jurisdiction, its award is not enforceable, and therefore it is not entitled to full faith and credit in
    this Court.” InfraRed Env’t Infrastructure GP Ltd. v. Kingdom of Spain, No. CV 20-817 (JDB),
    
    2021 WL 2665406
    , at *4 (D.D.C. June 29, 2021). “Moreover, absent an agreement to arbitrate,
    Spain maintains its immunity under the FSIA, leaving this Court without subject-matter
    jurisdiction to rule on the merits of the complaint.” 
    Id.
     For its part, NextEra disputes the legal
    effects of Achmea and Komstroy but argues that in any event, those effects go to the merits and
    Page 9 of 30
    validity of the arbitration agreement rather than its existence. Cross-MSJ at 30-38. In NextEra’s
    view, the existence of the agreement is res judicata after the ICSID tribunal’s decision, and
    Spain’s resort to EU law is a disguised form of collateral attack on the Award. 
    Id. at 24-30
    .
    Only one U.S. court has attempted to grapple with the implications of Achmea for its
    jurisdiction under the FSIA to confirm an ICSID arbitral award. In Micula v. Government of
    Romania, Swedish investors had “initiated arbitration proceedings against Romania before an
    ICSID tribunal” pursuant to a Romania-Sweden bilateral investment treaty (“BIT”), then sought
    to confirm that award in this district. 404 F. Supp. 3d at 270, 272-73. Romania argued that the
    FSIA arbitration exception did not apply “because the arbitration clause in the Sweden-Romania
    BIT has been declared invalid” by the Achmea decision, id. at 277—the same argument Spain
    advances here with respect to the ECT’s Article 26.
    After “carefully consider[ing] the Achmea decision,” the court in Micula held that
    Romania “ha[d] failed to carry its burden of showing that Achmea forecloses this court’s
    jurisdiction under the FSIA’s arbitration exception.” Id. at 279. Specifically, Romania had “not
    shown that the concern that animated Achmea—the un-reviewability of an arbitral tribunal's
    determination of EU law by an EU court—[was] present in [that] case.” Id. The court gave
    three reasons for that conclusion, all of which related to the fact that “all key events to the
    parties’ dispute occurred before Romania acceded to the EU.” Id. at 280. First, “Romania’s
    challenged actions occurred when it remained . . . subject, at least primarily, to its own domestic
    law.” Id. Second, the parties agreed that the “substantive rules” of the “Sweden-Romania BIT,”
    not EU law, “supplied the applicable law” for the claims at issue—the ICSID tribunal only
    considered EU law “for factual context, not as a source of controlling law.” Id. (quotation
    omitted). And third, a ruling from a CJEU constituent court had expressly distinguished Achmea
    Page 10 of 30
    on the grounds that the arbitral tribunal in Micula “was not bound to apply EU law to events
    occurring prior to the accession before it.” Id. at 280. The court found that that ruling “therefore
    explicitly refute[d] Romania’s position that the CJEU’s decision in Achmea nullified the
    arbitration agreement contained in the Sweden Romania BIT.” Id.
    A panel of the D.C. Circuit affirmed Judge Mehta’s conclusion in an unpublished, per
    curiam opinion, noting the “question[] whether Romania’s agreement to arbitrate was nullified
    by its ascension to the European Union.” Micula v. Gov’t of Romania, 
    805 F. App’x 1
    , 1 (D.C.
    Cir. 2020). But the panel did not address that question because, “as the district court carefully
    explained, Romania did not join the EU until after the underlying events here, so the arbitration
    agreement applied.” 
    Id.
    Even more recently, however, the D.C. Circuit has indicated that there is no need to reach
    an analysis of EU law and the CJEU’s Achmea decision in this context. In LLC SPS Stileks v.
    Republic of Moldova, 
    985 F.3d 871
    , 875 (D.C. Cir. 2021), Energoalliance, a Ukrainian energy
    provider, had invoked the ECT’s arbitration clause to initiate a proceeding against Moldova
    before the United Nations Commission on International Trade Law (UNCITRAL). After that
    arbitral tribunal issued an award, Energoalliance sought to confirm it in the United States.
    Moldova argued before the district court and D.C. Circuit that U.S. courts lacked jurisdiction
    under the FSIA’s arbitration exception because Energoalliance was not a qualifying investor
    under the ECT and therefore could not have validly invoked the ECT’s arbitration clause. 
    Id. at 875, 877-78
    . Thus, Moldova argued, “[a]lthough the ECT may establish that Moldova agreed to
    arbitrate certain disputes, it does not prove that it agreed to arbitrate this particular dispute.” 
    Id. at 878
    . In other words, Moldova argued—as Spain does here—that whether one party could
    Page 11 of 30
    have validly agreed to arbitrate under the ECT implicated the agreement’s very existence and
    was therefore a necessary jurisdictional question under the FSIA.
    The D.C. Circuit panel squarely rejected that argument. It characterized Moldova’s
    argument as contesting the arbitrability of the dispute, not the necessary jurisdictional fact of an
    agreement’s existence. Id.; see also 
    id.
     at 877 n.3 (observing “no disagreement that Moldova is a
    party to the ECT, which provides for the arbitration of certain disputes”). And, citing Chevron
    Corp. v. Ecuador, 
    795 F.3d 200
    , 205-06 (D.C. Cir. 2015), the Court concluded that “the
    arbitrability of a dispute is not a jurisdictional question under the FSIA.” 985 F.3d at 878. In
    Chevron, Ecuador asserted that it “had never agreed to arbitrate with Chevron” because
    Chevron’s investments had terminated before the relevant treaty came into force. 
    795 F.3d at 203
    . But, the Court ruled, that assertion “conflate[d] the jurisdictional standard of the FSIA with
    the standard for review” of the award’s merits based on its arbitrability or lack thereof. 
    795 F.3d at 205
    . Likewise, the Stileks panel declined to address Moldova’s argument that Energoalliance
    could not have invoked the ECT’s arbitration provision for purposes of resolving the issue of
    jurisdiction under the FSIA. 985 F.3d at 878. 2
    The lesson of Stileks and Chevron appears to be this: The assertion that a party lacked a
    legal basis to enter or invoke an arbitration agreement is not a challenge to the jurisdictional fact
    2
    The Stileks Court did consider Moldova’s arguments in deciding whether it could assert “a
    defense to confirmation under the New York Convention.” 985 F.3d at 878. But even in that
    context, the Court declined to “pass[] on the merits of that defense” because the ECT bound its
    parties to arbitration under UNCITRAL’s rules, one of which was that UNCITRAL had power
    to rule on its own jurisdiction. Id. Thus, the ECT’s parties had delegated the question of
    arbitrability to the UNCITRAL tribunal, and therefore the “court possesse[d] no power to
    decide the arbitrability issue.” Id. at 878-79 (quoting Henry Schein, Inc. v. Archer & White
    Sales, Inc., 
    139 S.Ct. 524
    , 529 (2019)). Ultimately, however, there is no need to replicate that
    analysis here because unlike the New York Convention—and as reiterated infra Section
    III.B.1—the ICSID Convention’s Article 54(1) and 22 U.S.C. § 1650a do not provide for
    judicial review of an ICSID tribunal award’s merits, including the question of arbitrability.
    Page 12 of 30
    of that agreement’s existence but rather a challenge to that agreement’s arbitrability. And that
    assertion goes to arbitrability even if it contends that the ECT was not validly applied. As the
    Circuit noted in Stileks: “Whether the ECT applies to the dispute and whether the tribunal had
    jurisdiction under the ECT are different ways of framing the same question” about the merits of
    an award—namely, whether a dispute was arbitrable. Id. at 879. A defendant may accordingly
    assert the lack of a legal basis for entering an agreement to contest an award’s merits (where the
    law provides for judicial review of an award’s merits), but not to rebut a plaintiff’s evidence that
    an agreement to arbitrate exists.
    At least one other judge in this district has applied Stileks in that way. In Tethyan Copper
    Co. Party Ltd. v. Islamic Republic of Pakistan, 
    590 F. Supp. 3d 262
     (D.D.C. 2022), Tethyan, an
    Australian mining company, sought to confirm an ICSID arbitration award against Pakistan.
    Under the relevant treaty, a referral to arbitration required written consent. Pakistan argued that
    it had “never provided such written consent,” and therefore had “never agreed to arbitrate at
    ICSID.” 
    Id. at 273
    . In evaluating that purported “dispute[] over the existence of an arbitration
    agreement,” 
    id.,
     the court recognized that Tethyan had met its jurisdictional burden to produce
    “copies of the [underlying treaty], the notice[] of arbitration, and the tribunal’s decision,” 
    id.
    (quoting Stileks, 985 F.3d at 877), which together “entitle[d] Tethyan to a presumption of a valid
    arbitration agreement,” id. Further, the court expressly rejected Pakistan’s argument that “the
    Court should make its own independent determination on the existence of an agreement,”
    construing that argument as going to arbitrability and citing Chevron and Stileks for the
    proposition that an arbitrability dispute “does not affect the Court’s jurisdiction.” Id. at 273-74.
    Consequently, the court found, “Pakistan’s arbitrability argument [was] not cognizable under
    Page 13 of 30
    FSIA” and the arbitration exception applied to grant the court jurisdiction to confirm the arbitral
    award. Id. at 275.
    The court reaches the same conclusion here. As noted above, there is no question as to
    the existence of the “copies of the [underlying treaty], the notice[] of arbitration, and the
    tribunal’s decision.” Stileks, 985 F.3d at 877. Under the Chevron burden-shifting framework,
    therefore, Spain has the burden of showing that, in fact, no arbitration agreement exists. See 
    795 F.3d at 204
    . Spain’s only argument on that score is that it could not have entered into the ECT’s
    arbitration provisions because EU law—as retroactively clarified by the Achmea and Komstroy
    decisions—does not permit EU members to assign questions of EU law to arbitration in non-EU
    tribunals. Therefore, the ECT did not apply to Spain and NextEra’s dispute, and no agreement to
    arbitrate was ever formed. But the D.C. “Circuit [has] rejected that tactic.” Tethyan, 590 F.
    Supp. 3d at 274. Chevron and Stileks treat the argument that a party lacked a legal basis to enter
    an agreement as a question of arbitrability and therefore an issue of the award’s merits. See
    Stileks, 985 F.3d at 878; Chevron, 
    795 F.3d at
    205 n.3. Spain thus cannot deploy that argument
    here as a backdoor challenge to FSIA jurisdiction.
    Because Spain’s argument “does not affect the Court’s jurisdiction,” Tethyan, 590 F.
    Supp. 3d at 274, there is no need at this stage to analyze the effects of Achmea and Komstroy on
    EU law and intra-EU disputes. And because Spain does not offer any other arguments or
    evidence rebutting the existence of an arbitration agreement, it has failed to carry its burden of
    persuasion that the necessary jurisdictional facts are not present here. As a result, the court finds
    Page 14 of 30
    that it has jurisdiction over Spain under the FSIA’s arbitration exception, 
    28 U.S.C. § 1605
    (a)(6),
    and rejects this basis for Spain’s motion to dismiss. 3
    B. Forum non conveniens
    Spain also urges the court to decline to exercise jurisdiction over NextEra’s petition
    under the doctrine of forum non conveniens.
    A federal court has discretion to dismiss a case on the ground of forum non
    conveniens when an alternative forum has jurisdiction to hear the case, and trial in
    the chosen forum would establish oppressiveness and vexation to a defendant out
    of all proportion to plaintiff's convenience, or the chosen forum is inappropriate
    because of considerations affecting the court's own administrative and legal
    problems.
    Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 
    549 U.S. 422
    , 429 (2007) (cleaned up)
    (quotation omitted).
    Here, Spain’s argument is even more clearly foreclosed by Stileks. In that decision, the
    D.C. Circuit plainly stated that “forum non conveniens is not available in proceedings to confirm
    a foreign arbitral award because only U.S. courts can attach foreign commercial assets found
    within the United States.” 985 F.3d at 876 n.1. Spain’s gymnastic but unavailing efforts to
    circumvent that holding “do not require sustained discussion.” Id. In short, Spain argues that
    Stileks, along with TMR Energy Ltd. v. State Prop. Fund of Ukraine, 
    411 F.3d 296
     (D.C. Cir.
    2005), and Tatneft v. Ukraine, 
    21 F.4th 829
     (D.C. Cir. 2021), do not control here because in
    those cases, “the court determined that it had jurisdiction under the FSIA before addressing the
    forum non conveniens motion.” Spain MTD at 27. Setting aside the fact that the court has
    similarly determined its FSIA jurisdiction here, Spain fails to identify any indication in those
    3
    Because the court finds jurisdiction under the arbitration exception, it does not reach whether it
    also has jurisdiction under the waiver exception. See Process & Indus. Devs. Ltd. v. Fed.
    Republic of Nigeria, 
    27 F.4th 771
    , 775 (D.C. Cir. 2022).
    Page 15 of 30
    cases that they should be read so narrowly. Indeed, the D.C. Circuit’s core rationale—that
    alternative fora are inherently inadequate because they cannot attach U.S. assets—applies
    regardless of procedural posture. The court therefore rejects Spain’s request for dismissal on
    grounds of forum non conveniens, and its motion to dismiss will therefore be denied. 4
    IV.     INJUNCTIVE RELIEF
    Having found that it has jurisdiction over NextEra’s petition and that dismissal is not
    warranted, the court turns to NextEra’s request for injunctive relief. The court is persuaded that
    this case presents sufficiently unusual circumstances to warrant a preliminary, anti-suit
    injunction against a foreign sovereign.
    A. Anti-Suit Injunction
    U.S. federal courts “have power to control the conduct of persons subject to their
    jurisdiction to the extent of forbidding them from suing in foreign jurisdictions.” Laker Airways
    Ltd. v. Sabena, Belgian World Airlines, 
    731 F.2d 909
    , 926 (D.C. Cir. 1984). “However, . . . [t]he
    mere filing of a suit in one forum does not cut off the preexisting right of an independent forum
    to regulate matters subject to its prescriptive jurisdiction,” and “[i]f the foreign court reacts with
    a similar injunction, no party may be able to obtain any remedy.” 
    Id. at 927
    . Thus, “foreign
    anti-suit injunctions are appropriate only when ‘required to prevent an irreparable miscarriage of
    justice,’ such as when ‘necessary to protect the jurisdiction of the enjoining court, or to prevent
    the litigant’s evasion of the important public policies of the forum.’” United States v. All Assets
    Held at Credit Suisse (Guernsey) Ltd., 
    45 F.4th 426
    , 434 (D.C. Cir. 2022) (quoting Laker
    Airways, 
    731 F.2d at 927
    ).
    4
    Because the court will deny Spain’s Motion to Dismiss, it will also deny as moot NextEra’s
    Motion for Leave to File a Surreply with respect to that Motion.
    Page 16 of 30
    The D.C. Circuit’s decision in Laker Airways provides direct guidance in this case. In
    1982, the liquidated British airline Laker Airways—which operated transatlantic flights between
    New York and London—brought an antitrust action against several domestic and foreign
    airlines, seeking to recoup losses caused by alleged predatory pricing and other economic
    interference. 
    731 F.2d at 917
    . Shortly thereafter, the foreign airlines initiated a suit in the
    United Kingdom’s High Court of Justice, seeking “(1) a declaration that the four foreign
    defendants were not engaged in any unlawful combination or conspiracy, and (2) an injunction
    prohibiting Laker from taking any action in United States courts to redress an alleged violation
    by the defendants of United States antitrust laws,” including by forcing Laker Airways to
    withdraw its antitrust suit. 
    Id. at 918
    . Ultimately, the British courts did order Laker Airways to
    cease prosecuting at least the British airlines, and were considering a similar order protecting the
    other foreign airlines as well. 
    Id. at 919-20
    . Laker Airlines sought an anti-suit injunction in this
    district restraining the other foreign airlines from continuing their efforts to obtain injunctive
    relief against Laker Airways in British courts. 
    Id. at 919-21
    .
    The D.C. Circuit concluded that, in those circumstances, an anti-suit preliminary
    injunction was warranted.
    Courts have a duty to protect their legitimately conferred jurisdiction to the extent
    necessary to provide full justice to litigants. Thus, when the action of a litigant in
    another forum threatens to paralyze the jurisdiction of the court, the court may
    consider the effectiveness and propriety of issuing an injunction against the
    litigant’s participation in the foreign proceedings.
    Laker Airways, 
    731 F.2d at 927
    . “[D]uplication of parties and issues alone is not sufficient” to
    warrant this remedy, as “the fundamental corollary to concurrent jurisdiction must ordinarily be
    respected: parallel proceedings on the same in personam claim should ordinarily be allowed to
    proceed simultaneously, at least until a judgment is reached in one which can be pled as res
    Page 17 of 30
    judicata in the other.” 
    Id. at 927-28
    . But “where the foreign proceeding is not following a
    parallel track but attempts to carve out exclusive jurisdiction over concurrent actions, an
    injunction may be necessary to avoid the possibility of losing validly invoked jurisdiction” and
    protect “the court’s ability to render a just and final judgment.” 
    Id. at 930
    .
    That is the case here. For the reasons explained supra section III, this action is a
    “proper[] exercise” of the court’s jurisdiction.” Id. And the express and primary purpose of
    Spain’s suit in the Netherlands “is to terminate [this] action,” id.—ordering NextEra to withdraw
    this suit, imposing penalties upon failure to do so, and issuing a worldwide injunction preventing
    NextEra from taking any action to confirm the Award, Dutch Writ at 31-33. Like the foreign
    airlines in Laker Airways, Spain did not provide the court with “any prior notice” that it was
    seeking an anti-suit injunction against NextEra in the Netherlands, apparently planning to simply
    later advise the court of the “fait accompli . . . which would have virtually eliminated the court’s
    effective jurisdiction over [NextEra’s] facially valid claim.” 
    731 F.2d at 930-31
    . That leaves the
    court with “the stark choice of either protecting or relinquishing [its] jurisdiction” over
    NextEra’s petition. 
    Id. at 930
    . The court concludes that these “most compelling circumstances”
    require an anti-suit injunction. 
    Id. at 927
    . 5
    Spain offers only two direct counterarguments, but both fail for reasons the court has
    already explained. First, Spain argues that because the court lacks jurisdiction, there is no
    jurisdiction here to protect. Opposition to Motion for Preliminary Injunction and Temporary
    Restraining Order at 10-12, ECF No. 81 (“Opp. to PI/TRO Motion”). But the court has rejected
    5
    Because the court’s need to protect its own jurisdiction is sufficient to justify an anti-suit
    injunction here, the court need not reach the other “category” of compelling circumstances
    described by Laker Airways: “prevent[ing] the litigant’s evasion of the important public
    policies of the forum.” 
    731 F.2d at 927
    ; see PI/TRO Motion at 16-18; Opp. to PI/TRO Motion
    at 13-16.
    Page 18 of 30
    Spain’s premise and found jurisdiction, so Spain’s argument likewise fails. Supra section III.A.
    Second, Spain attempts to distinguish Laker Airways by noting that one of the D.C. Circuit’s
    concerns in that case was that the relief plaintiffs sought—“the remedies afforded by the
    American antitrust laws”—were not available in foreign courts. Id. at 12 (citing 
    731 F.2d at 930
    ). But this case does not present even that partial distinction; here, too, foreign courts are
    inadequate alternatives because, as the court noted supra section III.B, “only U.S. courts can
    attach foreign commercial assets found within the United States.” Stileks, 985 F.3d at 876 n.1;
    see also Laker Airways, 
    731 F.2d at 936
     (observing that arguments like Spain’s are better suited
    to forum non conveniens cases where there is an adequate alternative forum).
    Considerations of comity, while deserving substantial respect, do not outweigh the need
    for an anti-suit injunction in this case. Like the defendants in Laker Airways, Spain “argue[s]
    strenuously” that “the crucial principles of comity that regulate and moderate the social and
    economic intercourse between independent nations” preclude an injunction here. 
    731 F.2d at 937
    ; see Opp. to PI/TRO Motion at 17-20. And like the Circuit in Laker Airways, the court
    “approach[es] [Spain’s] claims seriously,” recognizing that “when possible, the decision of
    foreign tribunals should be given effect in domestic courts, since recognition fosters international
    cooperation and encourages reciprocity, thereby promoting predictability and stability.” 
    731 F.2d at 937
    . “However, there are limitations to the application of comity.” 
    Id.
     For one,
    United States courts must control the access to their forums. No foreign court can
    supersede the right and obligation of the United States courts to decide whether
    Congress has created a remedy for those injured by trade practices adversely
    affecting United States interests. Our courts are not required to stand by while [a
    foreign sovereign] attempts to close a courthouse door that Congress, under its
    territorial jurisdiction, has opened.
    
    Id. at 935-36
    . In short, “[n]o nation is under an unremitting obligation to enforce foreign
    interests which are fundamentally prejudicial to those of the domestic forum.” 
    Id. at 937
    .
    Page 19 of 30
    Under these principles, the relief Spain seeks in Amsterdam is not entitled to comity.
    “This is because the [Dutch Action] is specifically intended to interfere with and terminate”
    NextEra’s petition before this court. 
    Id.
     In Laker Airways, the Circuit approved of the
    preliminary injunction because it was “purely defensive—it [sought] only to preserve the district
    court’s ability to arrive at a final judgment adjudicating Laker’s claims under United States
    law”—and was granted in response to a foreign injunction that was “purely offensive—it [was]
    not designed to protect English jurisdiction, or allow English courts to proceed to a judgment on
    the defendant’s potential liability.” 
    Id. at 938
    . The same is true here. NextEra seeks an
    injunction to protect this court’s jurisdiction, while Spain seeks an injunction to eliminate it.
    The upshot of Spain’s argument, then, is the same one made by the defendant airlines and
    rejected by the D.C. Circuit in Laker Airways—“that comity compels us to recognize a decision
    by a foreign government that this court shall not apply its own laws.” Id at 939. But in the
    Dutch Action, Spain is zealously pursuing the very same kind of anti-suit injunction that it now
    asks this court to refrain from issuing. Consequently, Spain’s “claims of comity now asserted in
    United States courts come burdened with the failure of [Spain] to recognize comity.” 
    Id.
     The
    Laker Airways court refused to countenance that hypocrisy, and neither will this court. In that
    case, the Circuit observed that “[t]here never would have been any situation in which comity or
    forbearance would have become an issue if some of the defendants involved in the American
    suit had not gone into the English courts to generate interference with the American courts.” So
    too here. The court would not be considering this relief were Spain not actively seeking to
    frustrate the operation of U.S. law. The comity concerns that Spain laments are of its own
    making.
    Page 20 of 30
    An anti-suit injunction is strong medicine. But here it is required—and will be tailored—
    to meet the force of Spain’s attempt to deprive this court of jurisdiction. Spain remains free, for
    example, to seek a declaration from Dutch courts vindicating its interpretation of EU law. See
    Dutch Writ at 32, Claim (I). But Spain may not seek to foreclose NextEra’s opportunity to
    petition this court for the relief afforded by United States law.
    B. Preliminary Injunction
    Having determined that an anti-suit injunction may be appropriate in this case, the court
    now considers whether such relief against Spain is warranted in the form of a preliminary
    injunction. See In re Millenium Seacarriers, Inc., 
    458 F.3d 92
    , 98 (2d Cir. 2006) (“Once the . . .
    court has addressed the propriety of imposing an anti-suit injunction . . . , [the] court must then
    make findings on whether it is appropriate to enter a preliminary injunction.”). All four relevant
    factors favor granting NextEra’s motion.
    1. Likelihood of success on the merits
    The analysis required for confirming the Award is relatively straightforward, and
    NextEra’s success in confirming it is highly likely. By statute, an ICSID Convention award like
    this one
    create[s] a right arising under a treaty of the United States. The pecuniary
    obligations imposed by such an award shall be enforced and shall be given the
    same full faith and credit as if the award were a final judgment of a court of
    general jurisdiction of one of the several States.
    28 U.S.C. § 1650a(a). Moreover, the Federal Arbitration Act—and its accompanying, “more
    robust form of judicial review,” Tethyan, 590 F. Supp. 3d at 268—“shall not apply to
    enforcement of awards rendered” under the ICSID Convention, 28 U.S.C. § 1650a(a).
    “[T]he Court’s role in enforcing an ICSID arbitral award is therefore exceptionally
    limited.” TECO Guatemala Holdings, LLC v. Republic of Guatemala, 
    414 F. Supp. 3d 94
    , 101
    Page 21 of 30
    (D.D.C. 2019); see also Tidewater Inv. SRL v. Bolivarian Republic of Venezuela, No. CV 17-
    1457 (TJK), 
    2018 WL 6605633
    , at *6 (D.D.C. Dec. 17, 2018) (noting “the perfunctory role that
    22 U.S.C. § 1650a appears to envision for federal district courts”). “The Court must ensure that
    it has subject-matter and personal jurisdiction; that the award is authentic; and that its
    enforcement order tracks the award.” Tethyan, 590 F. Supp. 3d at 268 (citing TECO Guatemala,
    414 F. Supp. 3d at 101; Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venezuela, 
    863 F.3d 96
    , 112 (2d Cir. 2017)).
    All those elements are present here. For the reasons explained infra Section III.A, the
    court finds that it has jurisdiction. And neither party raises any reason to believe that the Award
    in this case is not authentic, or that the court’s enforcement order will not be able to successfully
    track the Award’s terms. That ends the court’s inquiry; the Award must be enforced.
    In challenging that conclusion, Spain asks the court to look beyond the scope of 22
    U.S.C. § 1650a(a) in several respects. First, reiterating its assertion that no valid arbitration
    agreement existed, Spain argues that NextEra’s Award is not entitled to full faith and credit
    because the ICSID tribunal lacked jurisdiction over the underlying dispute. Spain MTD at 41-
    42. But under the ICSID Convention, “[m]ember states’ courts are . . . not permitted to examine
    . . . the ICSID tribunal’s jurisdiction to render the award.” Mobil Cerro, 
    863 F.3d at 102
    . In any
    event, “a judgment is entitled to full faith and credit—even as to questions of jurisdiction—when
    the second court’s inquiry discloses that those questions have been fully and fairly litigated and
    finally decided” by the original court. Durfee v. Duke, 
    375 U.S. 106
    , 111 (1963); Ins. Corp. of
    Ireland v. Compagnie des Bauxites de Guinee, 
    456 U.S. 694
    , 702 n.9 (1982); see Tethyan, 590 F.
    Supp. 3d at 276. After hearing the same arguments Spain raises here, the ICSID tribunal
    Page 22 of 30
    determined that it had jurisdiction over the dispute. Liability Decision ¶¶ 272-357.
    Consequently, that determination, as well as the Award itself, is due full faith and credit.
    Second, Spain argues that the ICSID tribunal violated EU law’s prohibition on granting
    “state aid”—that is, subsidies to private actors—without authorization from the European
    Commission. Id. at 42-44. Insofar as Spain argues that the ICSID tribunal exceeded its own
    jurisdiction, that argument is foreclosed for the reasons explained in the previous paragraph.
    And to the extent that Spain argues that the Award itself violates EU law, that contention “goes
    to the merits of the ICSID panel’s determination” and must be taken up with the ICSID tribunal
    itself. Micula, 404 F. Supp. 3d at 285. The ICSID Convention’s Article 53 provides that an
    “award shall be binding on the parties and shall not be subject to any appeal or to any other
    remedy except those provided for in this Convention.” Nothing in § 1650a permits the court to
    consider this issue.
    Third, Spain suggests that “the [A]ward was illegally procured by Petitioners’ false
    representations,” along with other “defenses as to the merits” of the Award that it plans to unveil
    in future filings. Spain MTD at 48 n.12. But as already noted, merits defenses do not factor into
    the court’s role in enforcing ICSID Convention awards. As the court persuasively explained in
    TECO Guatemala, under full faith and credit principles, “the relevant question is whether the
    ICSID Convention would permit the Court to decline to enforce the award at issue here.” 414 F.
    Supp. 3d at 103. “It would not.” Id. Again, the Convention’s Article 53 does not contemplate
    member states’ courts setting aside awards based on fraud or any other merits defenses. See id.
    The allegation that NextEra “engaged in fraud . . . is merely an effort to relitigate the
    arbitration’s underlying merits masquerading as an appeal to equity” and “is at odds with the
    purpose of the treaty and the clear terms of the implementing legislation, both of which are
    Page 23 of 30
    designed to create a streamlined process for enforcing arbitral awards.” Id. Neither Spain’s
    current challenges to the merits of the Award, nor any potential future merits challenges, have
    any bearing on the court’s duty to enforce the Award. See also infra Section V (discussing
    Spain’s Motion to Strike).
    Finally, Spain appeals to the “foreign sovereign compulsion” and “act of state” doctrines.
    Spain MTD at 43-47. Neither is applicable here. The foreign sovereign compulsion doctrine is a
    defense that some Circuits permit antitrust defendants to assert to shield their anticompetitive
    acts from liability on the grounds that those acts were compelled by a foreign government. See
    Construction and Application of Foreign Sovereign Compulsion Doctrine, 
    86 A.L.R. 2d 1
    (2014); see, e.g., In Re: Vitamin C Antitrust Litig., 
    8 F.4th 136
     (2d Cir. 2021). The D.C. Circuit
    has not adopted the doctrine. More importantly, this is not an antitrust case, and therefore the
    doctrine is inapplicable; the court is unaware of any authority extending this doctrine outside of
    the antitrust context. Spain’s allusions to comity principles, see, e.g., Spain MTD at 45, do not
    persuade the court to do so here. See also supra section IV.A (discussing the role of comity in
    this case).
    The related act of state doctrine “precludes the courts of this country from inquiring into
    the validity of the public acts a recognized foreign sovereign power committed within its own
    territory.” World Wide Min., Ltd. v. Republic of Kazakhstan, 
    296 F.3d 1154
    , 1164 (D.C. Cir.
    2002) (quoting Banco Nacional de Cuba v. Sabbatino, 
    376 U.S. 398
    , 401 (1964)). But “[a]ct of
    state issues only arise when a court must decide—that is, when the outcome of the case turns
    upon—the effect of official action by a foreign sovereign.” W.S. Kirkpatrick & Co. v. Env’t
    Tectonics Corp., Int’l, 
    493 U.S. 400
    , 406 (1990). As noted above, under § 1650a(a), the court
    only needs to decide three questions: (1) whether “it has subject-matter and personal
    Page 24 of 30
    jurisdiction,” (2) whether “the award is authentic,” and (3) whether “its enforcement order tracks
    the award.” Tethyan, 590 F. Supp. 3d at 268; TECO Guatemala, 414 F. Supp. 3d at 101; Mobil
    Cerro, 
    863 F.3d at 112
    . Whether a foreign act was lawful is not part of this calculus. As the
    D.C. Circuit recognized in Micula, petitioners to confirm an ICSID arbitral award “have not
    challenged the acts or decisions of a foreign sovereign,” but instead “have merely sought to
    enforce a decision rendered by a forum for international arbitration to which [the foreign
    sovereign] has voluntarily submitted itself.” 
    2022 WL 2281645
    , at *2.
    Still, Spain contends that confirmation of the Award here would “effectively declare
    invalid Achmea, the Joint Declaration, and the European Commission’s official position.” Spain
    MTD at 46. The Supreme Court has rejected that perspective in language that readily applies
    here: “Regardless of what the court’s factual findings may suggest as to the legality” of those
    foreign acts, their validity “is simply not a question to be decided in the present suit, and there is
    thus no occasion to apply the rule of decision that the act of state doctrine requires.” Kirkpatrick,
    
    493 U.S. at 406
    . The act of state doctrine therefore finds no purchase here.
    In sum, none of Spain’s protests alter the conclusion that, pursuant to 28 U.S.C.
    § 1650a(a)’s unambiguous directive, the court should afford the Award full faith and credit and
    enter judgment enforcing it. The court thus concludes that NextEra has a strong likelihood of
    succeeding on the merits of its petition.
    2. Irreparable harm
    The risk of irreparable harm to NextEra is clear. If Spain receives the relief it seeks in
    the Dutch action, NextEra will be permanently enjoined from enforcing the Award, both in this
    court and around the world. See Dutch Writ at 31-33. That is precisely the kind of irreparable
    harm identified by the district court, and affirmed by the D.C. Circuit, in Laker Airways:
    Page 25 of 30
    [I]f this Court should fail to issue an injunction and thus allow those defendants
    which are still before this Court to join with their alleged coconspirators before
    the Queen’s Bench Division, the British court may very well (1) enjoin Laker
    from pursuing its remedies against any of the defendants in this Court, and (2)
    enter a judgment on the merits that the defendants here (plaintiffs there) are not
    liable to Laker for the acts averred in the complaints. The Court finds that, for
    these reasons, plaintiff would be irreparably injured if the Court does not issue an
    injunction.
    Laker Airways Ltd. v. Pan Am. World Airways, 
    559 F. Supp. 1124
    , 1137-38 (D.D.C. 1983)
    (footnotes omitted); see Laker Airways, 
    731 F.2d at 956
    .
    Spain’s counterarguments are unpersuasive. First, it claims that “Petitioners . . . will not
    be prevented from prosecuting this Action permanently unless, of course, the Dutch Action finds
    that under EU law there was no agreement to arbitrate between the parties.” Opp. to PI/TRO
    Motion at 21. “Second, Petitioners do not face any risk collecting the ICSID award, should they
    ultimately prevail.” Id. at 22. In other words: NextEra will not be irreparably harmed unless
    Spain gets the very relief it is actively seeking from the Dutch court. That is precisely why it is
    necessary for this court to enjoin Spain from pursuing that relief. It is immaterial that the Dutch
    court has not yet ruled one way or another. “[G]iven the fact that, once the [Dutch] court issues
    an injunction of the type sought before it, it may very well be too late for [NextEra] ever to find
    its way back to the American judicial system,” anything “less than absolute certainty concerning
    the [Dutch] court’s intentions suffices to support a finding of irreparable injury.” Laker Airways,
    
    559 F. Supp. at
    1137 n.58.
    3. Balance of equities
    The balance of equities strongly favors NextEra, which faces irreparable harm, while
    Spain faces only a temporary hold on its ability to pursue certain relief in the Dutch Action—
    relief that would usurp this court’s jurisdiction. The injunction NextEra requests would still
    permit Spain to litigate the merits of its claims in the Dutch Action. That tailored injunction will
    Page 26 of 30
    serve both principles of comity and equity by allowing each country’s court to evaluate the legal
    issues presented under its respective laws. See Laker Airways, 
    731 F.2d at 9378
    ; Teck Metals
    Ltd. v. Certain Underwriters at Lloyd’s, London, No. CV-05-411-LRS, 
    2009 WL 4716037
    , at
    *3-4 (E.D. Wash. Dec. 8, 2009).
    Spain’s sole response is to label the injunction’s tailoring a “minor concession” and
    insist, without any support, that a preliminary injunction will deal “substantial harm to Spanish
    and American interests.” Opp. to PI/TRO Motion at 23. Without more, the court cannot agree.
    4. Public interest
    Finally, the public interest supports an injunction here, too. As the court explained supra
    section IV.A, it is essential to the continued function of the U.S. courts that they protect their
    lawful jurisdiction. Moreover, Spain does not dispute that there is a public interest in
    “encouraging arbitration and the enforcement of international arbitration law as an efficient
    means of settling disputes.” Jolen, Inc. v. Kundan Rice Mills, Ltd., No. 19-CV-1296 (PKC),
    
    2019 WL 1559173
    , at *4 (S.D.N.Y. Apr. 9, 2019); see Opp. to PI/TRO Motion at 23. Indeed,
    “the text of § 1650a ‘suggest[s] an expectation’ on the part of Congress ‘that actions to enforce
    ICSID awards would not be protracted,’” Micula, 404 F. Supp. 3d at 283 (quoting Mobil Cerro,
    
    863 F.3d at 121
    ), much less permanently halted by collateral attacks in foreign courts.
    Spain’s contention that “[a]fter the Dutch Action is concluded, this Court would have the
    benefit of ruling on NextEra’s petition with the benefit of the outcome of [that case]” rings
    totally hollow. Opp. to PI/TRO Motion at 23. If Spain prevails in the Dutch Action, this court
    would not “have the benefit of ruling on NextEra’s petition” at all, as NextEra would be forced
    to withdraw its suit. The court is thus not moved by Spain’s assurances, which verge on
    disingenuous.
    Page 27 of 30
    V.      REMAINING MOTIONS
    Two motions remain for the court to address—NextEra’s Cross-Motion for Summary
    Judgment, ECF No. 70, and Spain’s Motion to Strike it, ECF No. 71.
    The court will deny Spain’s Motion to Strike and allow NextEra’s Motion for Summary
    Judgment to remain on the docket. Spain relies principally on Process & Indus. Devs. Ltd. v.
    Fed. Republic of Nigeria, 
    962 F.3d 576
    , 579 (D.C. Cir. 2020), which held that a district court
    may not, “in considering a petition to confirm [a New York Convention] arbitral award against a
    foreign sovereign . . . order the sovereign to brief the merits before resolving a colorable
    assertion of immunity.” Besides the fact that the court has now resolved Spain’s assertion of
    immunity, supra Section III, Spain’s reliance on that case is misplaced for at least two reasons.
    First, as explained supra Section IV.B.1—and unlike the New York Convention—the
    ICSID Convention requires no merits analysis; authentic awards simply “shall be enforced.” 22
    U.S.C. § 1650a(a); see TECO Guatemala, 414 F. Supp. 3d at 103; Tidewater, 
    2018 WL 6605633
    , at *6 (Section 1650a “envision[s] no role for this Court beyond ensuring its own
    jurisdiction over this action.”). Thus, “[a]fter the complaint is filed and service effected, the
    award-creditor may file a motion for judgment on the pleadings . . . or a motion for summary
    judgment.” Mobil Cerro, 
    863 F.3d at 118
    . An “ICSID award-debtor . . . [is not] permitted to
    make substantive challenges to the award.” 
    Id.
     Consequently, there are not and will not be any
    merits to brief.
    Second, Spain has nonetheless chosen to assert at least some merits as well as
    jurisdictional defenses in its Motion to Dismiss. “A foreign sovereign remains free to oppose a
    confirmation petition” by choosing “to brief immunity and merits issues in a single motion to
    dismiss,” but by doing so it “may forgo its entitlement to a threshold determination of
    immunity.” Nigeria, 962 F.3d at 586. Spain’s Motion proffers several reasons why the Award
    Page 28 of 30
    should not be given full faith and credit even if the ICSID “Tribunal was properly constituted
    pursuant to a valid arbitration agreement”—i.e., assuming this court has jurisdiction under the
    FSIA’s arbitration exception. Spain MTD at 42; see also supra Section IV.B.1 (rejecting these
    reasons). For one, Spain argues that the Award would violate EU law regarding “state aid.” Id.
    at 42-44, 45. But “[t]he contention that some portion of the Award violates EU law [on state aid]
    goes to the merits of the ICSID panel’s determination.” Micula, 404 F. Supp. 3d at 285. For
    another, Spain invokes the act of state doctrine as a shield from liability. But that, too, is “a
    substantive rather than a jurisdictional defense . . . more appropriately raised in a motion for
    summary judgment than in a motion to dismiss.” See United States v. Sum of $70,990,605, 
    4 F. Supp. 3d 189
    , 204 (D.D.C. 2014). Having made both “jurisdictional and non-jurisdictional,
    merits defense[s]” in its Motion to Dismiss, Spain cannot now claim the court is “order[ing] [it]
    to brief the merits before resolving a colorable assertion of immunity” by allowing NextEra’s
    Cross-Motion to remain on the docket. Hulley Enters. Ltd. v. Russian Fed’n, No. CV 14-1996
    (BAH), 
    2022 WL 1102200
    , at *1 n.1 (D.D.C. Apr. 13, 2022).
    Nonetheless, the court will not rule on NextEra’s Motion for Summary Judgment at this
    time. This will give Spain a chance to appeal the court’s rulings on the other motions, including
    the court’s jurisdictional holdings. And if the suit reaches the summary judgment stage, this will
    give Spain “an opportunity to supplement [its] submissions,” 
    id.,
     with the merits arguments
    Spain promises, including that “that the award was illegally procured by Petitioners false
    representations,” Spain MTD at 48 n.12.
    VI.     CONCLUSION
    For these reasons, the court will DENY Spain’s Motion to Dismiss, ECF No. 62; DENY
    Spain’s Motion to Strike, ECF No. 71; DENY NextEra’s Motion for Leave to File, ECF No. 75;
    Page 29 of 30
    and GRANT in part NextEra’s Motion for Preliminary Injunction and Temporary Restraining
    Order, ECF No. 78. Accordingly, the court will ENJOIN Spain:
    (1) from seeking an interlocutory decree or any other relief in the Dutch Action or in
    other Dutch proceedings requiring NextEra to suspend, hold in abeyance, or withdraw
    any proceedings before this Court, or that otherwise interferes with, obstructs, or
    delays resolution of NextEra’s Petition to Confirm the Award;
    (2) from pursuing any other foreign litigation that interferes with, obstructs, or delays
    resolution of NextEra’s Petition to Confirm the Award; and
    (3) to withdraw its requests for relief in the Dutch Action requiring NextEra to suspend,
    hold in abeyance or withdraw proceedings before this Court, including without
    limitation, at pages 31-33 of the Dutch Writ, Claims (A) through (D) and (L) through
    (P).
    A corresponding order will accompany this Memorandum Opinion.
    Date: February 15, 2023
    Tanya S. Chutkan
    TANYA S. CHUTKAN
    United States District Judge
    Page 30 of 30
    

Document Info

Docket Number: Civil Action No. 2019-1618

Judges: Judge Tanya S. Chutkan

Filed Date: 2/15/2023

Precedential Status: Precedential

Modified Date: 2/16/2023

Authorities (23)

United States v. Sum of $70,990,605 , 4 F. Supp. 3d 189 ( 2014 )

Saudi Arabia v. Nelson , 113 S. Ct. 1471 ( 1993 )

Mazurek v. Armstrong , 117 S. Ct. 1865 ( 1997 )

Sinochem International Co. v. Malaysia International ... , 127 S. Ct. 1184 ( 2007 )

Winter v. Natural Resources Defense Council, Inc. , 129 S. Ct. 365 ( 2008 )

Henry Schein, Inc. v. Archer & White Sales, Inc. , 202 L. Ed. 2d 480 ( 2019 )

Seetransport Wiking Trader Schiffarhtsgesellschaft Mbh & Co.... , 989 F.2d 572 ( 1993 )

Durfee v. Duke , 84 S. Ct. 242 ( 1963 )

Laker Airways Ltd. v. Pan American World Airways , 559 F. Supp. 1124 ( 1983 )

Foremost-Mckesson, Inc. v. The Islamic Republic of Iran , 905 F.2d 438 ( 1990 )

Laker Airways Ltd. v. Sabena, Belgian World Airlines , 731 F.2d 909 ( 1984 )

W. S. Kirkpatrick & Co. v. Environmental Tectonics Corp., ... , 110 S. Ct. 701 ( 1990 )

Davis v. Pension Benefit Guaranty Corp. , 571 F.3d 1288 ( 2009 )

Chevron Corporation v. The Republic of Ecuador , 795 F.3d 200 ( 2015 )

TMR Energy Ltd. v. State Property Fund of Ukraine , 411 F.3d 296 ( 2005 )

Creighton Ltd. v. Government of Qatar , 181 F.3d 118 ( 1999 )

Sherley v. Sebelius , 644 F.3d 388 ( 2011 )

Munaf v. Geren , 128 S. Ct. 2207 ( 2008 )

Agudas Chasidei Chabad of United States v. Federation , 528 F.3d 934 ( 2008 )

World Wide Minerals, Ltd. v. Republic of Kazakhstan , 296 F.3d 1154 ( 2002 )

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