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.”

(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.”

§ 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),

, at *7 (D.D.C. Apr. 5, 2021) (quotation omitted),

aff’d,

(D.C. Cir. 2022); see also Aamer v. Obama,

(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,

, 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,

(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.”

.

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,

(D.C. Cir. 2008). The plaintiff “bears the initial burden of

supporting its claim that the FSIA exception applies.” Chevron Corp. v. Ecuador,

(D.C. Cir. 2015) (citing Chabad,

). “[T]his is only a burden of

production”—producing evidence of the required jurisdictional facts.

(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.”

(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,

(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.,

(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,

(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,

(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,

, 149-50 (D.D.C. 2020) (citing Sherley,

). 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,

(D.C. Cir. 2014) (quoting Davis v. Pension

Benefit Guar. Corp.,

(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,

(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,

(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,

, 10 (D.D.C. 2019) (quoting Gutch v. Fed. Republic of Germany,

(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,

(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,

(D.C. Cir. 1999), which in turn cites Seetransport Wiking Trader v. Navimpex Centrala,

(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.”

. 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

, 278 (D.D.C. 2019), aff’d,

(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),

, 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.”

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.

.

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,

, 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.”

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,

(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.

. 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.”

. 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

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,

(D.C. Cir. 2015), the Court concluded that “the

arbitrability of a dispute is not a jurisdictional question under the FSIA.”

. 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.

. 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.

. 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.

. 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.”

. 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.

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.”

at 878-79 (quoting Henry Schein, Inc. v. Archer & White Sales, Inc.,

(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,

(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.”

. In evaluating that purported “dispute[] over the existence of an arbitration

agreement,”

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,”

(quoting Stileks,

), which together “entitle[d] Tethyan to a presumption of a valid

arbitration agreement,”

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,

. Under the Chevron burden-shifting framework,

therefore, Spain has the burden of showing that, in fact, no arbitration agreement exists. See

. 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,

; Chevron,

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,

(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.,

(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.”

n.1. Spain’s gymnastic but unavailing efforts to

circumvent that holding “do not require sustained discussion.”

In short, Spain argues that

Stileks, along with TMR Energy Ltd. v. State Prop. Fund of Ukraine,

(D.C. Cir.

2005), and Tatneft v. Ukraine,

(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,

(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,

(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.”

. 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.,

(D.C. Cir. 2022) (quoting Laker

Airways,

).

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.

. 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.

. 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.

. 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.

.

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,

. “[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.”

. 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.”

.

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.”

. That leaves the

court with “the stark choice of either protecting or relinquishing [its] jurisdiction” over

NextEra’s petition.

. The court concludes that these “most compelling circumstances”

require an anti-suit injunction.

. 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.”

; 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

). 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,

n.1;

see also Laker Airways,

(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.

; 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.”

. “However, there are limitations to the application of comity.”

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.

. In short, “[n]o nation is under an unremitting obligation to enforce foreign

interests which are fundamentally prejudicial to those of the domestic forum.”

.

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.

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.”

. 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.”

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.,

(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,

, 101

Page 21 of 30 (D.D.C. 2019); see also Tidewater Inv. SRL v. Bolivarian Republic of Venezuela, No. CV 17-

1457 (TJK),

, 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,

(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,

. 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,

(1963); Ins. Corp. of

Ireland v. Compagnie des Bauxites de Guinee,

, 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,

(2014); see, e.g., In Re: Vitamin C Antitrust Litig.,

(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,

(D.C. Cir.

2002) (quoting Banco Nacional de Cuba v. Sabbatino,

(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,

(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,

. 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.”

, 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,

. 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,

(D.D.C. 1983)

(footnotes omitted); see Laker Airways,

.

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,

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,

; Teck Metals

Ltd. v. Certain Underwriters at Lloyd’s, London, No. CV-05-411-LRS,

, 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),

, 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,

), 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,

(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,

, 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,

. An “ICSID award-debtor . . . [is not] permitted to

make substantive challenges to the award.”

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,

. 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,

(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),

, 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,”

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