UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MERCURIA ENERGY GROUP LIMITED,

Petitioner, Case No. 1:23-cv-03572 (TNM) v.

REPUBLIC OF POLAND,

Respondent.

MEMORANDUM OPINION

Mercuria Energy Group Limited, a Cyprian company, believes that the Republic of

Poland owes it interest related to a now-refunded fine it paid nearly two decades ago. After its

litigation efforts in Poland stalled, Mercuria turned to arbitration. The arbitration played out in

Sweden, and Mercuria secured a significant award against Poland. But a Swedish court annulled

that award. And it did so because a series of cases from the European Union’s high court have

largely invalidated the use of arbitration to resolve disputes between European Union members.

Mercuria sees things differently. It asks this Court to ignore those decisions and allow

Mercuria to enforce its annulled award in the United States. Mercuria asserts this is warranted

because the decisions of the European courts are so egregiously unfair that they violate basic

notions of fairness. The Court disagrees. Absent public policy concerns—which are not present

here—precedent requires the Court to respect the decisions of the European courts. And it will

do so by denying Mercuria’s petition for award enforcement. I.

In 2008, Poland imposed a financial penalty of over $100 million plus interest on one of

Mercuria’s subsidiaries. See Pet. to Confirm Arb. Award (“Pet.”), ECF No. 1, ¶¶ 7, 10.

Mercuria itself is based in Cyprus, but it has a subsidiary named JSE incorporated in Poland. See

Pet. ¶ 2; Resp’t’s Mot. Dismiss (“Mot. Dismiss”), ECF No. 28, at 20–21. Mercuria and JSE are

in the business of importing and trading petrochemicals, and the penalty was based on JSE’s

alleged failure to “establish and maintain compulsory stocks of liquid fuels as prescribed by

Polish law.” See Id.; Pet. ¶ 10. Mercuria and JSE then challenged the fine in a Polish court. See

Mot. Dismiss at 22.

After litigation, a Polish court overturned the penalty. See id.; Pet. ¶ 14. Poland then

repaid Mercuria the full penalty but did not compensate the company for its interest payments.

Pet. ¶ 15. Mercuria believed it was entitled to interest and pressed the issue, first with Polish

administrative agencies and then in Polish court. Id. ¶¶ 16–17. After a decade of unsuccessful

efforts, Mercuria resorted to arbitration in Sweden in 2019. See id. ¶¶ 7, 32–33.

The arbitration was anchored in Article 26 of the Energy Charter Treaty (“ECT”). Id.

¶ 8. The ECT is a 1994 multilateral energy sector treaty that sought to integrate Central and

Eastern European states into Western Europe’s market economy system. First Decl. of Prof.

Steffen Hindelang (“First Hindelang Decl.”), ECF No. 10, ¶ 17. Article 26 includes a standing

arbitration clause, allowing investors from one state to dispute the treatment of their investments

in another state. See Pet. ¶ 22. Sweden is one of the available arbitral forums under the ECT.

See id. Both Poland and Cyprus are signatories to the ECT and members of the EU. Pet. ¶¶ 20–

21.

2 Following a heavily litigated arbitration hearing in which both parties participated, a

Swedish tribunal ruled for Mercuria in 2022. Pet. ¶¶ 33–39, 41. Over Poland’s objection, the

tribunal concluded that it had jurisdiction to hear the dispute and then awarded Mercuria tens of

millions of dollars. See Pet. ¶¶ 40, 43.

In February 2023, Poland filed an application with Sweden’s high court, the Svea Court

of Appeal, to annul the award. Decl. of Martin Wallin (“Wallin Decl.”), Ex B, ECF No. 11-2. In

its application, Poland reasserted its jurisdictional objections. See id. ¶¶ 18, 27–30. It alleged

that under EU precedent, the ECT’s arbitration clause does not allow for arbitration of intra-EU

disputes where both states are EU members. See id. Given the potential impact the Svea Court’s

decision could have on Mercuria’s petition, the court stayed proceedings pending the outcome.

See Stay Order, ECF No. 26.

The parties extensively litigated their positions before the Svea Court, submitting four

rounds of briefing. See Mot. Dismiss at 35. In the end, the Svea Court sided with Poland and

issued a decision invalidating Mercuria’s arbitration award. See Poland v. Mercuria Energy

Grp. Ltd., Case No. T 2613-23, (Svea Ct. App., Dec. 23, 2024) (Swed.) (“Svea Ct. App.

Judgment”), ECF No. 28-3. The annulment rests on a series of decisions from the European

Court of Justice (“CJEU”) limiting the availability of arbitration to resolve disputes between two

EU member states. See id. at 11–13.

The first of these was Slovak Republic v. Achmea B.V., EU:C:2018:158 (March 6, 2018).

There, the CJEU rejected the use of arbitration clauses in bi-lateral treaties if both signatories are

members of the EU. See id. ¶¶ 56–60. Following Achmea, nearly two dozen EU states issued a

joint declaration in early 2019 notifying their citizens that intra-EU “investor-State arbitration

clauses . . . are contrary to [European] Union law and thus inapplicable.” See First Hindelang

3 Decl., Ex. 13, ECF No. 10-13, at 2. Though Achmea discussed only bi-lateral treaties, not multi-

lateral treaties like the ECT, the states cautioned that the ECT’s arbitration clause was likely

invalid too. See id. at 3. Mercuria’s home state of Cyprus was among the declaration’s

signatories. See id. at 13. Despite the declaration’s warning to “the investor community that no

new intra-EU investment arbitration proceeding should be initiated,” id. at 4, Mercuria forged

ahead with arbitration against Poland nine months later. See Pet. ¶ 32.

The joint declaration’s warning proved prescient. As predicted, the CJEU later extended

Achmea’s reasoning to invalidate intra-EU arbitration clauses in multi-lateral agreements like the

ECT. See Repub. of Moldova v. Komstroy, EU:C:2021:655 (September 2, 2021). In Komstroy,

the CJEU specifically targeted Article 26 of the ECT—the provision Mercuria relied on for

arbitration. According to the CJEU, applying Article 26 to disputes between two EU member

states would be manifestly incompatible with the EU’s governing legal framework.

Why? Because under the EU’s legal system, a body that interprets and applies EU law

must be “subject to mechanisms capable of ensuring the full effectiveness of the rules of

the European Union.” Komstroy ¶ 51. EU courts satisfy this requirement because they can refer

questions on EU law to the CJEU for guidance; but arbitration tribunals lack any such referral

mechanism. See id. ¶ 53. Because the ECT “is an act of EU law,” any arbitration under Article

26 requires the arbitrators to interpret and apply provisions of EU law. Svea Ct. App. Judgment

at 12; see also Komstroy ¶ 50 (“[A]n arbitral tribunal such as that referred to in Article 26(6)

ECT is required to interpret, and even apply, EU law.”). So allowing arbitration tribunals to

weigh in on the contours of EU law without CJEU guardrails violates the fundamental legal

structure of the EU. At least so says the CJEU.

4 Against this backdrop, the Svea Court found that the arbitration leading to Mercuria’s

award was “incompatible with the fundamental rules and principles governing the legal system

in the EU and thus also in Sweden.” Svea Ct. App. Judgment at 13. It thus “declare[d] the

arbitral award invalid.” Id. at 16. The Svea Court also awarded Poland attorney’s fees based on

the EU’s default “loser pays” rule. See id. at 15. The judgment is final and not appealable. See

id. at 16.

Now that the dust has settled, here is where things stand. Poland moves to dismiss based

on sovereign immunity or to deny the petition on the merits because there is no longer an award

to enforce. See Mot. Dismiss at 1. Mercuria opposes, arguing that this Court is not bound by the

Svea Court’s decision and should enforce the award anyway because the invalidation is contrary

to public policy. Pet’r’s Mot. Dismiss Opp’n (“Opp’n”), ECF No. 29, at 7–12. The European

Commission also submitted an amicus brief in support of Poland. European Commission

Amicus Curiae Br. (“Amicus Br.”), ECF No. 41. The Court now turns to these questions. 1

II.

Foreign states are generally immune from suit under the Foreign Sovereign Immunities

Act (“FSIA”).

. But there are several exceptions, including one that allows

actions to enforce arbitration agreements.

(a)(6); see also LLC SPC Stileks v.

Rep. of Moldova,

(D.C. Cir. 2021). These exceptions are the “sole basis for

obtaining [subject matter] jurisdiction over a foreign state.” Tethyan Copper Co. v. Islamic Rep.

of Pakistan,

, 269 (D.D.C. 2022). If a court has subject matter jurisdiction

1 Mercuria requested oral argument in its brief. Opp’n at 1. The Court has considered that request but finds that oral argument is unnecessary to adjudicate Mercuria’s petition. See United States v. Cooley,

(8th Cir. 2023) (“A hearing is not required if a dispute can be resolved on the basis of the record.”).

5 under FSIA, it statutorily has personal jurisdiction over the foreign sovereign as well. See

Schubarth v. Fed. Rep. of Germany,

, 397 n.1 (D.C. Cir. 2018) (citing

(b)).

III.

A.

The Court starts, as it must, with jurisdiction. Poland has a right to resolve sovereign

immunity as a threshold matter before briefing the merits of the petition. See Process & Indus.

Devs. Ltd. v. Fed. Repub. of Nigeria,

, 585–86 (D.C. Cir. 2020) (“[A] foreign

sovereign may forgo its entitlement to a threshold determination of immunity . . . by opting to

brief all of its defenses together.”). Bifurcation is optional though, see

and Poland addresses

both jurisdiction and merits in the same brief. See Mot. Dismiss at 9–10 (acknowledging this);

id. at 29, 32 (briefing on sovereign immunity and merits). The Court can thus resolve

jurisdiction and merits simultaneously. See Process & Indus. Devs. at 585–86. To ensure that

Mercuria gets the final word as the petitioner, the Court allowed Mercuria to file a sur-reply on

the merits. See ECF No. 31.

Poland says that sovereign immunity is a bar to the Court’s jurisdiction. See Mot.

Dismiss at 29. But the Court agrees with Mercuria that FSIA’s arbitration exception applies.

See Opp’n at 27. This carveout to sovereign immunity gives courts jurisdiction over petitions “to

confirm an award made pursuant to” an arbitration agreement if the foreign state formed the

agreement “with or for the benefit of a private party.” 2 NextEra Energy Glob. Holdings B.V. v.

Kingdom of Spain,

(D.C. Cir. 2024) (quoting

(a)(6)).

2 The ECT was made “‘for the benefit’ of the signatory’s investors, and therefore satisfies the FSIA’s arbitration exception.” NextEra Energy Glob. Holdings B.V. v. Kingdom of Spain,

(D.C. Cir. 2024).

6 Mercuria bears the initial burden of production to show: “(1) an arbitration agreement, (2) an

arbitration award, and (3) a treaty potentially governing award enforcement [in the United

States].”

(citing Chevron Corp. v. Ecuador,

, 204 & n.2 (D.C. Cir. 2015)). The

burden then flips to Poland to establish by a preponderance that Mercuria’s initial production is

factually deficient.

(quoting Chevron,

).

To meet the first requirement, Mercuria produced the ECT’s arbitration clause and a

notice of arbitration. See ECT, ECF No. 1-6, at 81–84 (Article 26 arbitration clause); Arb. Not.,

ECF No. 1-8; Chevron,

(finding these two things sufficient to make a “prima

facie showing that there was an arbitration agreement”). Second, it produced its arbitration

award. Award, ECF No. 1-5. And third, for the treaty governing award enforcement, Mercuria

points to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New

York Convention”), June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38. Pet. ¶¶ 1, 53. Poland

disputes the first two requirements. See Mot. Dismiss at 30.

Poland’s counterarguments rest on the Svea Court’s invalidation of the agreement and

annulment of the award. See

It says that because there is no longer a valid arbitration

agreement or an award, FSIA’s arbitration exception does not apply. But the Court has seen this

film before, and the ending has not changed. Poland’s argument is foreclosed by the D.C.

Circuit’s NextEra decision.

Start with the arbitration agreement. Poland gives several reasons why it believes the

agreement was never legally valid. See Mot. Dismiss at 31. And true, the CJEU’s Komstroy

decision holds as much. But Poland’s argument puts the cart before the horse. “For

jurisdictional purposes, the FSIA’s arbitration exception requires that the arbitral tribunal

‘purported to make an award pursuant to the ECT, not that it in fact did so.’” NextEra Energy,

7

. Put another way, what matters for jurisdiction is that the arbitration tribunal

believed it could render a decision under the ECT. The arbitration panel here spent dozens of

pages justifying its reliance on the ECT. See Award at 6, 111–164. At the jurisdiction stage, that

is enough.

The same goes for the existence of an arbitration award. The Svea Court annulled the

award, which could not have happened without the existence of an award. So again, Poland’s

argument skips ahead to the merits of enforcing the now-defunct award but does not undermine

the existence of an award for jurisdictional purposes. See, e.g., TermoRio S.A. E.S.P. v.

Electranta S.P.,

, 939–40 (D.C. Cir. 2007) (affirming a finding of jurisdiction

in an enforcement proceeding where the award was previously invalidated). More, the New

York Convention directly discusses the implications of annulment, recognizing that courts “may”

refuse to enforce invalidated awards. New York Convention, Art. V(1)(e). That provision

would be wholly unnecessary if annulment were automatically sufficient to defeat jurisdiction.

Thus, Mercuria has put forth sufficient facts to establish the arbitration exception, and

Poland’s rebuttal does not call those facts into doubt. The Court is satisfied that FSIA’s

arbitration exception applies and gives the Court jurisdiction to hear Mercuria’s petition.

B.

Now, the merits. The parties agree on the rules, but not how they cache out. Compare

Mot. Dismiss at 32–33 and Opp’n at 32–33 (both applying New York Convention, Art. V(1)(e)

and TermoRio). Courts may refuse confirmation where, as here, the award “has been set aside or

suspended by a competent authority of the country in which, or under the law of which, that

award was made.” New York Convention, Art. V(1)(e). Refusal is not mandatory, but the D.C.

Circuit has explained that courts “normally may not enforce an arbitration award that has been

8 lawfully set aside by a competent authority in the” state where the arbitration was held.

TermoRio,

. Put another way, though courts weighing enforcement of defunct

awards retain some discretion, “the power and authority of the local courts of the rendering state

remain of paramount importance.” Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys “R” US, Inc.,

(2d Cir. 1997).

There is a caveat though: Foreign judgments annulling awards need not be recognized if

they are “repugnant to fundamental notions of what is decent and just in the” United States.

TermoRio,

. Repugnant judgments include those that “clearly . . . undermine the

public interest, the public confidence in the administration of the law, or security for individual

rights of personal liberty or of private property.”

This “standard is high, and infrequently

met.”

Without any affront to public policy, “the district court is obligated to afford comity to

the [Svea Court’s] judgment and must decline to enforce the arbitral award that the [Svea Court]

set aside.” Esso Expl. & Prod. Nigeria Ltd. v. Nigerian Nat’l Petroleum Corp.,

(2d Cir. 2022).

1.

The focus of the parties’ dispute is the CJEU’s Komstroy opinion. As Mercuria

recognizes, that decision all but mandated the award annulment. See Opp’n at 34 (“[I]t is

virtually indisputable that the Svea Court’s decision was dictated by” Komstroy.). Mercuria

starts by trying to make an end run around Komstroy. It suggests the Court need not accept

Komstroy’s limitation on Article 26—and, by extension, the award annulment—because it is

dicta. See Opp’n at 24, 38. Mercuria may read it as dicta, but EU states have not treated it that

way. Multiple states signed a joint declaration announcing that “in Komstroy . . . the CJEU held

that Article 26(2)(c) of the Energy Charter Treaty must be interpreted as not being applicable to

9 [investment] disputes between a Member State and an investor of another Member State.”

Second Decl. of Prof. Steffen Hindelang, Ex. 153, ECF No, 23-13, at 3; see also Amicus Br.,

ECF No. 41, at 21 n.8 (collecting EU cases that treat Komstroy and its predecessor Achmea as

binding). Nor has the CJEU treated it as dicta. It cited Komstroy in a later decision, reiterating

that the structure of EU law prevents the use of arbitration agreements to resolve intra-EU

disputes. See Repub. of Poland v. PL Holdings Sàrl, EU:C:2021:875, ¶¶ 45–47 (October 26,

2021); see also Amicus Br. at 19.

It is not this Court’s place to superintend EU courts as they interpret their own laws.

Basic principles of comity shun such self-aggrandizement. See TermoRio at 937 (“The

Convention does not endorse a regime in which secondary States (in determining whether to

enforce an award) routinely second-guess the judgment of a court in a primary State.”). Besides,

even if the Court were to agree with Mercuria that dozens of EU courts are misreading

Komstroy, “[e]rroneous legal reasoning or misapplication of law is generally not a violation of

public policy within the meaning of the New York Convention.” Karaha Bodas Co. v.

Perusahaan Pertambangan Minyak Dan Gas Bumi Negara,

(5th Cir. 2004).

More, there is good reason for the Court to refrain from armchair quarterbacking the

EU’s treatment of Komstroy. As Poland correctly points out, the issues underlying Komstroy

“are of extraordinary importance . . . because they ‘implicate the structure of the EU legal order,

the role and jurisdiction of EU courts, the interpretation of EU law by non-EU adjudicatory

bodies, and the future of the Energy Charter Treaty and investor-State arbitration within the

EU.’” Reply, ECF No. 30, at 22 (quoting NextEra,

) (cleaned up). And “[t]he

United States has no direct interest in the underlying disputes between . . . European parties . . . .

Nor does the United States have a direct interest in the interpretation of the Energy Charter

10 Treaty, a treaty to which it does not belong.” Reply at 22–23 (quoting NextEra,

) 3 (cleaned up). Simply put, comity is at its zenith here because the issues are of utmost

importance to the EU and minor significance to the United States. See NextEra,

(finding “comity concerns near their peak” in analogous circumstances).

2.

But the question remains whether the Svea Court’s decision, and by extension Komstroy,

is “repugnant to fundamental notions of what is decent and just.” TermoRio,

;

see also Opp’n at 34. In challenging the award annulment, Mercuria relies heavily on a case in

which public policy concerns led the Second Circuit to enforce an annulled arbitration award.

See Opp’n at 32–41 (repeatedly comparing this case to Corporacion Mexicana De

Mantenimiento Integral, S. de R.L. de C.V. v. Pemex-Exploracion y Produccion,

(2d

Cir. 2016)).

The arbitration in Pemex came about when a state-owned Mexican company unilaterally

rescinded a contract with an American company. See

. In the middle of arbitration,

Mexico passed a new law declaring that state-owned companies could not arbitrate contract

rescission disputes.

. The law also dropped the statute of limitations for such claims

from 10 years down to 45 days.

The practical effect was to shut the American company out

of both arbitration and court and leave it without any recourse. See

. But the arbitration

panel continued its proceedings anyway and awarded damages to the American company. See

. A Mexican court later invalidated the award by applying the new law retroactively to

3 This part of NextEra focused on a district court’s anti-suit injunction rather than the underlying arbitration enforcement petition. See NextEra,

. The reasoning invoked general principles of comity though, so it remains applicable to the arbitration enforcement itself. See

at 1105–09 (repeatedly stressing the importance of comity).

11 find the arbitration panel lacked jurisdiction. See

The Second Circuit enforced the award

under the New York Convention anyway. See id. at 100.

Mercuria paints its situation as “remarkably similar.” Opp’n at 33. And the situation in

Pemex faintly echoes this one insofar as both involve enforcement proceedings for an arbitration

award that has been set aside. But the similarities end there. The “powerful” public policy

considerations that drove the Pemex court to disregard the award annulment are largely absent

here. Id. at 107.

At the forefront of the Second Circuit’s decision was its recognition that “[r]etroactive

legislation that cancels existing contract rights is repugnant to United States law.” Id. at 108.

Mexico’s behavior was particularly odious because it also shut down the other avenues of relief

the Americans could have pursued. See id.

Mercuria contends that is what happened here too. See Opp’n at 35–39. It argues that

“U.S. law strongly disfavors the retroactive application of law.” Id. at 35 (citing Bowen v.

Georgetown Univ. Hosp.,

(1988)). And it marches out the views of those who

say they understood the ECT to previously allow intra-EU arbitration, so the CJEU must be

retroactively changing the law. See

at 37–39.

But Mercuria misapprehends Bowen. There, the Supreme Court cautioned against

retroactive rulemaking by an agency—not against judicial interpretations that explain how the

law should always have been understood. See Bowen,

(“The question presented

here is whether the Secretary may exercise . . . rulemaking authority to promulgate cost limits

that are retroactive.”). This distinction is key because a judicial interpretation correcting a

previous misreading of the law does not offend notions of justice in the United States. See

Rivers v. Roadway Exp., Inc.,

, 312–13 (1994) (“A judicial construction of a statute

12 is an authoritative statement of what the statute meant before as well as after the decision of the

case giving rise to that construction.” (emphasis added)). Indeed, this happens often. See, e.g.,

AT & T Corp. v. Hulteen,

, 712 n.5 (2009) (approvingly discussing a decision that

“declared the meaning and scope of sex discrimination under Title VII and held that previous

views to the contrary were wrong as a matter of law”); United States v. Jenkins,

(D.C. Cir. 2022) (explaining that a case interpreting the career offender sentencing

guideline “establishe[d] what that guideline meant ‘before as well as after’ the date it was

decided”). Thus, while Mercuria frames Komstroy as a “change” in the law akin to the

retroactive legislation in Pemex, the decision was really a correction in their understanding of the

law. Public policy is not offended by the EU high court providing authoritative interpretations of

EU law.

In Pemex, the Second Circuit also blanched at Mexico’s “taking of private property

without compensation for the benefit of the government.”

. The tension with the

U.S. Constitution is readily apparent, as it forbids state seizure of property without

compensation. See

There is no outright expropriation here and Poland has not seized any of

Mercuria’s property. All that remains is a dispute over whether Mercuria is entitled to

reimbursement of the interest it accrued on a loan used to pay a since refunded fine. So unlike

the annulment in Pemex, the award annulment here does not “clearly . . . undermine . . . security

for . . . private property.” TermoRio,

.

Taking a step back, these issues highlight that the public policy concerns in Pemex

stemmed largely from the protectionist undertones at play in Mexico’s actions. Both the

legislature and judiciary in Mexico took slanted steps to ensure that national interests were

favored at the expense of a U.S. company. The Court squints in vain to see any analogous

13 behavior here. Neither the CJEU nor Sweden’s Svea Court had any direct stake in the outcome

of Mercuria’s claim. And neither had any allegiance to Poland that would foster incentives to

improperly construe the law in Poland’s favor against a European company.

Mercuria launches two counters. First, it suggests the Svea Court may have felt pressure

to annul the award in hopes of appeasing the European Commission. See Opp’n at 38–39. At

the time, Sweden was facing an unrelated European Commission proceeding for failure to bring

its domestic law into full compliance with Achmea. See id.; see also Amicus Curiae Br. at 24.

The European Commission is an “independent institution and acts in the interests of the Union as

a whole, rather than individual Member States.” Amicus Br. at 8. But Mercuria has already

conceded that “the Svea Court’s decision was dictated by” Komstroy rather than any improper

reason. 4 Opp’n at 34.

Second, Mercuria insinuates that Komstroy itself, “when viewed in the surrounding

political circumstances, strongly suggests willful favoritism on the part of the EU’s institutions in

favor of their own Member States (and their treasuries) over private parties.” Opp’n at 39.

Mercuria does little to develop this accusation beyond contending that “European states were

facing—and losing—a multitude of ECT arbitration claims raising the prospect of billions of

dollars’ worth of damages.”

at 38 (citing Collins Decl., Energy Charter Treaty Statistics,

ECF No. 29-2). That is flimsy evidence to support such a weighty accusation. The Court will

not so readily assume the EU’s high court has abandoned its commitments to impartiality and

4 Plus, the European Commission itself rejects Mercuria’s claim as “misleading” because the “proceedings did not concern courts’ duty to set aside intra-EU awards; nor did they concern Poland’s action to set aside Petitioner’s award or indeed the ECT more generally.” Amicus Br. at 24.

14 justice. More is needed to “clearly . . . undermine . . . public confidence in the administration of

the law.” TermoRio,

.

Continuing the comparison to Pemex, Mercuria frets that it will be left out in the cold

without a remedy unless the Court enforces its award. See Pemex,

(“The

imperative of having cases heard—somewhere—is firmly embedded in legal doctrine.”). But as

Mercuria itself recognizes, it is still welcome in Polish courts. Indeed, Mercuria prevailed in

Polish court many times before resorting to arbitration. Its troubles come not from deprivation of

a forum in which to litigate but from “Poland’s refusal to comply with the orders of its own

courts.” Sur-Reply, ECF No. 31, at 20. Yet litigation on that front remains ongoing, and

Mercuria launched its most recent attempt to force compliance through administrative channels

earlier this year. Second. Decl. of Jaroslaw Kolkowski, ECF No. 33, ¶ 7.

Simply put, Mercuria’s continued use of both the Polish court system and Polish

administrative appeals process show it still has options. Cf. Pollux Holding Ltd. v. Chase

Manhattan Bank,

(2d Cir. 2003) (finding in the forum non conveniens context

that “[a]n alternative forum is adequate if the defendants are amenable to service of process

there, and if it permits litigation of the subject matter of the dispute.”). The company disputes

whether these options provide an effective remedy. See Opp’n at 39. But Mercuria’s continued

efforts belie a finding that these avenues are “so clearly inadequate or unsatisfactory” as to be

“no remedy at all.” Piper Aircraft Co. v. Reyno,

(1981). 5

More, the Court is persuaded by Poland and the European Commission’s position that

Mercuria can make an end run around the Polish courts if they are ineffective. Reply at 20–21;

5 This section of Piper Aircraft was discussing forum non conveniens. That doctrine involves distinct legal requirements, but the general principles surrounding the sufficiency of alternative forums are still informative in evaluating Mercuria’s concerns.

15 Amicus Br. at 25. European law guarantees an effective remedy in national court. See

If

Mercuria truly believes its ongoing litigation in Poland is futile, it can bring a claim before the

European Court of Human Rights (“ECHR”) alleging the insufficiency of Poland’s courts. See

Mercuria disputes the effectiveness of this option too, because that court cannot render

monetary judgments. Sur-Reply at 17. But it acknowledges that the ECHR can “direct Poland

to return the funds Mercuria is owed.”

In other words, it can provide a remedy. Between

Mercuria’s ongoing litigation in Poland and its access to the ECHR, the Court cannot agree that

Mercuria is fully without recourse.

Mercuria also unsuccessfully tried these same arguments before the Svea Court, which

rejected them for similar reasons. See Reply at 20–21; Svea Ct. App. Judgment at 8 (recounting

Mercuria’s contention that annulling the arbitral award “would . . . directly result in Mercuria

being left without access to an effective remedy”). It reasoned that “declaring the arbitral award

invalid . . . does not per se deprive the parties of the right to judicial review or the right to a fair

trial.” Svea Ct. App. Judgment at 15. So while the decisions of the CJEU and the Svea Court

block Mercuria’s ability to arbitrate its dispute under the ECT, they do not modify its ability to

seek relief elsewhere. Though Mercuria must now contend with a new limitation in its quest for

relief, it has not been fully shut out of court like the American company in Pemex.

In sum, there is no reason to find that the Svea Court’s decision to invalidate Mercuria’s

award is contrary to American public policy. Pemex is not on point, and the lodestar guiding the

Court’s decision is TermoRio. Because the annulment is not “repugnant to fundamental notions

of what is decent and just,” TermoRio,

, “the power and authority of the local

courts [of Sweden] remain of paramount importance” and the Court will not second guess the

outcome. Toys “R” US,

.

16 As for Poland’s request for attorney’s fees and costs, Mot. Dismiss at 46, the Court sees

no reason to depart from the default rule that each party pays its own costs. Baker Botts L.L.P. v.

ASARCO LLC,

(2015) (“We have recognized departures from the American

Rule only in specific and explicit provisions for the allowance of attorneys’ fees under selected

statutes.” (cleaned up)). While the Svea Court awarded Poland costs, that decision is of little

weight here because the default rule in Sweden is that the loser pays all costs. See Svea Ct. App.

Judgment at 15. To the extent that Poland claims fees and costs are warranted because Mercuria

violated a Svea Court order by seeking enforcement in this Court, there is no sign that the Svea

Court has held Mercuria in contempt. See Mot. Dismiss at 46. If Poland has concerns, it should

raise them first with the court whose order was allegedly violated.

IV.

Mercuria is understandably frustrated by its loss of a significant arbitration award after

years of protracted litigation. But the company had advanced notice that its arbitration efforts

were likely to collapse in the face of CJEU precedent, yet it chose to forge ahead anyway.

Mercuria now asks this Court to find not only that the EU’s highest court and Sweden’s highest

court are wrong about EU law, but that they are so wrong that their decisions offend basic

notions of justice. That goes too far. Mercuria had a fair opportunity to litigate its position

before the Svea Court. And it did, extensively briefing its position and raising many of the same

arguments it relied on here. In the end, things did not go Mercuria’s way and the Svea Court

applied CJEU precedent to annul Mercuria’s Swedish arbitration award. The Court will respect

that decision. 6

6 Because the Court declines to enforce the annulled award under Article V(1)(e) of the New York Convention, it does not reach Poland’s additional arguments under Articles V(1)(a) and V(2)(b), and the forum non conveniens doctrine. See Mot. Dismiss 35–45.

17 For these reasons, the Court will deny Mercuria’s petition for award enforcement and

grant in part Poland’s Motion to Dismiss insofar as it seeks that outcome. A separate Order will

issue today. 2025.09.08 15:34:01 -04'00' Dated: September 8, 2025 TREVOR N. McFADDEN, U.S.D.J.

18