UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FORESIGHT FUND MANAGERS LTD.,
Petitioner,
v. Civil Action No. 18-1148 (TSC)
THE KINGDOM OF SPAIN,
Respondent.
FORESIGHT FUND MANAGERS LTD.,
Petitioner,
v. Civil Action No. 20-925 (TSC)
THE KINGDOM OF SPAIN,
Respondent.
MEMORANDUM OPINION
Petitioner Foresight Fund Managers Ltd. (“Foresight”) brings petitions to confirm two
arbitral awards issued by the Stockholm Chamber of Commerce against Respondent Kingdom of
Spain (“Spain”). Pet., ECF No. 1, Case No. 1:18-cv-1148; Pet., Ex. A, ECF No. 1-1, Case No.
1:20-cv-925. 1 Before the court is Spain’s Motion to Dismiss for lack of subject-matter jurisdiction
1
Unless otherwise specified, all subsequent citations refer to the docket of Case No. 1:18-cv-1148.
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and personal jurisdiction. Mot. to Dismiss, ECF No. 145. For the following reasons, the court
will DENY Spain’s motion.
I. BACKGROUND
A. Legal Background
1. Energy Charter Treaty
As the promise of economic growth in the energy sector captivated countries in the early
nineties, foreign nations—particularly in Europe—began to negotiate an international framework
to incentivize trade. So was born the Energy Charter Treaty, 2080 U.N.T.S. 95 (“ECT”). Signed
in 1994 by over forty countries, the ECT aimed to promote “international cooperation in the
energy sector.” NextEra Energy Glob. Holdings B.V. v. Kingdom of Spain, 112 F.4th 1088, 1094
(D.C. Cir. 2024) (citing ECT art. 2). Article 10(1) required every “Contracting Party,” i.e.
signatory to the ECT, see ECT art. 1(2), to “encourage” investors organized under the laws of
“other Contracting Parties to make Investments in its Area,” id. art. 10(1). But the ECT also
imposed obligations upon contracting countries, including requiring them to provide “fair and
equitable treatment” to such investors. Id.
Foreseeing the possibility of conflicts, the ECT afforded several mechanisms to resolve
disputes between investors and signatory nations, including arbitration. Article 26(3)(a) states that
“each Contracting party hereby gives its unconditional consent to the submission of a dispute to
international arbitration,” except in circumstances inapplicable to this case. Id. art. 26(3)(a). If an
investor chooses to arbitrate a dispute, it must provide “its consent in writing for the dispute to be
submitted to” one of several qualified arbitral fora, including the Arbitration Institute of the
Stockholm Chamber of Commerce. See id. art. 26(4), 26(4)(c). The investor’s written consent,
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together with the state’s consent to arbitrate evinced in Article 26(3)(a), are “considered to satisfy
the requirement for” an “‘agreement in writing’ for purposes of article II of the United Nations
Convention on the Recognition and Enforcement of Foreign Arbitral Awards,” opened for
signature June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 (the “New York Convention”). See
ECT art. 26(5)(a), 26(5)(a)(ii). Article 26(6) further provides that the arbitral panel “shall decide
the issues in dispute in accordance with this Treaty and applicable rules and principles of
international law.” Id. art. 26(6).
2. The Komstroy Decision
Although the text of Article 26(2) seems to permit investors incorporated under the laws
of EU states that have signed the ECT to arbitrate disputes against other EU member signatories,
see id. art. 26(2), 26(2)(c), in 2021, the Court of Justice of the European Union (“CJEU”) held
otherwise. In Republic of Moldova v. Komstroy LLC, Case C-741/19, ECLI:EU:C:2021:655 (Sept.
2, 2021), the CJEU concluded that the ECT’s arbitration mechanism was inapplicable to “disputes
between a Member State and an investor of another Member State.” Id. ¶ 66. The CJEU found
that permitting arbitral tribunals—who were neither bound by the Treaty on European Union,2 nor
could certify questions of EU law to the CJEU under the Treaty of the Functioning of the European
Union,3 see id. ¶¶ 59, 63—to resolve such disputes would threaten the “preservation of the
autonomy and of the particular nature of EU law,” id ¶ 65.
2
See Consolidated Version of the Treaty on European Union art. 19(1), Oct. 26, 2012, 2012 O.J. (C 326) 13.
3
See Consolidated Version of the Treaty on the Functioning of the European Union art. 267, Oct. 26, 2012, 2012 O.J. (C 326) 47.
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The CJEU’s ruling was premised on its understanding that the ECT was “an integral part
of the legal order of the European Union from the time it enter[ed] into force,” id. ¶ 23, as the
European Union itself (in addition to many of its member states) had signed the agreement, id.
¶ 24. In Komstroy itself, the parties had chosen to arbitrate a dispute arising under the ECT before
a tribunal in France. Id. ¶ 32. The CJEU held that the choice of France as “the seat of the
arbitration,” id., had “the effect of rendering applicable French law as the lex fori [law of the forum]
to the dispute,” id. ¶ 33. And because “EU law forms part of the law in force in every Member
State,” id., and France is a member of the EU, EU law applied to the arbitration, see id. ¶ 34. In
short, Komstroy held that arbitration agreements between EU signatory nations to the ECT and
investors organized under the laws of another EU signatory state are invalid under EU law.
3. The New York Convention
The United States did not sign the ECT, but it did sign the New York Convention, which
permits parties with arbitral awards—including those granted pursuant to the ECT’s arbitration
mechanism—to enforce those awards in signatory states if certain conditions are met. See
Zhongshan Fucheng Indus. Inv. Co. LTD v. Federal Republic of Nigeria, 112 F.4th 1054, 1059
(D.C. Cir. 2024). The United States “applies the Convention, on the basis of reciprocity, to the
recognition and enforcement of only those awards made in the territory of another Contracting
State,” and only to those disputes “arising from legal relationships that are considered as
commercial.” Id. (cleaned up) (first quoting New York Convention, 21 U.S.T. at 2650; and then
quoting New York Convention art. I(3)).
Congress implemented the New York Convention in the Federal Arbitration Act (“FAA”).
Chapter Two of the FAA allows a party with an arbitral award covered by the New York
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Convention to “confirm the award” in court. 9 U.S.C. § 207. “Confirmation is the process by
which an arbitration award is converted to a legal judgment.” NextEra, 112 F.4th at 1097 (quoting
LLC SPC Stileks v. Republic of Moldova, 985 F.3d 871, 875 (D.C. Cir. 2021)). It permits the party
to “execute on the resulting judgment ‘by, for example, attaching the sovereign’s commercial
assets in the United States.’” Id. at 1097–98 (cleaned up) (quoting Stileks, 985 F.3d at 875).
Congress also declared that an “action or proceeding falling under the Convention shall be deemed
to arise under the laws and treaties of the United States,” and granted district courts “original
jurisdiction over such an action or proceeding.” 9 U.S.C. § 203.
B. Facts and Procedural History
This dispute arises out of a series of failed investments in Spain made between 2007 and
2010 by several energy companies. See Pet. ¶¶ 9–11, ECF No. 1 (“Novenergia Pet.”); Pet. ¶ 26,
Ex. A, ECF No. 1-1, Case No. 1:20-cv-925 (“Foresight Pet.”). Beginning in 2007, Spain enacted
measures to incentivize foreign investment in its domestic electricity sector, see Foresight Pet.
¶ 25, in part by guaranteeing favorable tariffs to renewable energy producers, see Novenergia Pet.
¶ 10. Drawn by the favorable regulations, several companies organized under the laws of
Luxembourg, Denmark, and Italy invested significant sums of money in photovoltaic plants in
Spain. See Novenergia Pet. ¶¶ 1, 10; Foresight Pet. ¶¶ 2–5, 26. Those companies were Novenergia
II – Energy & Environment (SCA) (“Novenergia”), and Foresight Luxembourg Solar 1 S.À.R.L.,
Foresight Luxembourg Solar 2 S.À.R.L., GWM Renewable Energy I S.P.A., GWM Renewable
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Energy II S.P.A., and Greentech Energy Systems (collectively “Foresight”).4 See Novenergia Pet.
¶ 1; Foresight Pet. ¶ 2–5. But the companies incurred heavy losses when Spain ceased to provide
the tariffs. See Novenergia Pet. ¶ 11; Foresight Pet. ¶¶ 27–28.
Claiming that Spain had violated its obligation of fair and equitable treatment owed to them
under Article 10 of the ECT, the companies separately initiated arbitration proceedings against
Spain in 2015. See Novenergia Pet. ¶¶ 9, 14; Foresight Pet. ¶¶ 20, 29. At the time, their respective
countries of incorporation and Spain were all members of the ECT. See Contracting Parties and
Signatories of the Energy Charter Treaty, Int’l Energy Charter, https://perma.cc/XA3F-L2R2 (last
visited Sept. 23, 2026). Although Italy and Spain withdrew from the ECT in 2016 and 2025
respectively,5 Article 47(3) protects investments made by investors of a contracting state in a
signatory country for twenty years after the withdrawal of either country, see ECT art. 47(3).
Both companies chose to proceed under the rules of the Arbitration Institute of the
Stockholm Chamber of Commerce. See id. art. 26(4)(c); Novenergia Pet. ¶¶ 13–16; Foresight Pet.
¶ 20. Two separate tribunals were instituted. After three years of hearings and evidentiary
considerations, both tribunals issued final awards for the companies in 2018, granting Novenergia
€53.3 million and Foresight €39 million, plus costs and interest. See Novenergia Pet. ¶¶ 22–25;
Foresight Pet. ¶ 35. In doing so, the tribunals rejected Spain’s argument that they lacked
4
The court refers to the second set of companies as “Foresight” for simplicity because Foresight Fund Managers Ltd. later acquired their interest in the arbitral award and was substituted in their place. See Minute Order of Aug. 18, 2025.
5
See Italy – Energy Charter, Int’l Energy Charter, https://perma.cc/8Z78-PWAD (last visited Sept. 23, 2026); Spain – Energy Charter, Int’l Energy Charter, https://perma.cc/HW35-47TR (last visited Sept. 23, 2026).
Page 6 of 37
jurisdiction to arbitrate disputes between EU member states and EU investors. See Novenergia
Pet. ¶ 23; Foresight Pet. ¶¶ 30–31.
Spain appealed both awards to the Svea Court of Appeal, Sweden’s court of first instance
for challenging the Stockholm tribunals’ decisions. See Joint Status Report ¶ 1, ECF No. 44; Hope
Decl. ¶ 3, ECF No. 44, Case No. 1:20-cv-925. While the appeals were pending, the CJEU issued
the Komstroy decision. In December 2022, the Svea Court issued a judgment “invalid[ating]” the
Novenergia award under Section 33 of the Swedish Arbitration Act. See Kingdom of Spain v.
Novenergia II - Energy & Env’t (SCA), ECF No. 92-1 at 1, 44 (“Novenergia Judgment”). The
Svea Court concluded that “the ECT must be interpreted according to the ruling in Komstroy as of
the time” the ECT “took effect.” Id. at 38. And applying Komstroy, it held that “an arbitration
agreement between the parties could never have been created with Article 26 of the ECT as a
basis.” Id. In June 2024, the Svea Court also “annulled” the Foresight Award under Section 33
of the Swedish Arbitration Act by relying, inter alia, on the CJEU’s judgment in Komstroy.
Kingdom of Spain v. Foresight Luxembourg Solar 1 S.À.R.L., ECF No. 115-1 at 1, 12–13
(“Foresight Judgment”). Novenergia petitioned the Swedish Supreme Court to review and reverse
the Svea Court’s judgment, see Joint Status Report at 2, ECF No. 93, but the Court denied the
request in July 2023, see Novenergia II - Energy & Env’t (SCA) v. Kingdom of Spain, ECF No.
99-1 at 4. The Svea Court did not permit Foresight to appeal. See Foresight Judgment at 15.
Novenergia and Foresight did not wait for the appellate process to conclude before seeking
enforcement of these awards, however. In May 2018, Novenergia filed suit in this court to
“confirm[], recognize[], and enforce[e]” its award under Section 207 of the FAA, which
implements the New York Convention. See Novenergia Pet. at 1, 14. In December 2018,
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Foresight filed a similar petition in the Supreme Court of the State of New York. See Foresight
Pet. at 1, 12. Spain removed the Foresight action to federal court, and it was subsequently
transferred to this court in April 2020. See ECF Nos. 1, 65, Case No. 1:20-cv-925. Cognizant of
the set-aside proceedings ongoing before the Svea Court at the time, this court stayed the
Novenergia action in January 2020. See Order at 1, ECF No. 43. In September 2020, it
consolidated the Foresight action with the Novenergia case and stayed the Foresight action. See
Order at 1-3, ECF No. 57.
Once the Swedish proceedings had concluded and the D.C. Circuit had decided several
issues pertinent to this motion, Novenergia and Foresight moved to lift the stay in January 2025.
See Consolidated Mot. to Lift Stays, ECF No. 128. This court granted the motion and lifted the
stays in May 2025. See Minute Order of May 22, 2025. In October 2025, Spain moved to dismiss
both petitions under Federal Rules 12(b)(1) and 12(b)(2), alleging that the court lacked subjectmatter jurisdiction over the dispute and personal jurisdiction over Spain. See Mot. to Dismiss. On
the same day, the court granted the companies’ motion to substitute Foresight for Novenergia
because the latter had “irrevocably and unconditionally assigned all of the rights, interests and
benefits associated with the arbitral award” to the former. See Second Minute Order of Aug. 24,
2026 (cleaned up) (quoting Mot. to Substitute at 2, ECF No. 156). Despite the substitution, the
court will refer to the two petitions as the “Novenergia petition” and the “Foresight petition,” and
the two companies as “Petitioners” for simplicity.
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II. LEGAL STANDARD
A. Rule 12(b)(1) Motion to Dismiss for Lack of Subject -Matter Jurisdiction
“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized
by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). When a foreign sovereign is sued, the
Foreign Sovereign Immunities Act (“FSIA”) provides “the sole basis for obtaining jurisdiction
over a foreign state in our courts.” Creighton Ltd. v. Gov’t of State of Qatar, 181 F.3d 118, 121
(D.C. Cir. 1999) (quoting Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434
(1989)). Although the FSIA states that “a foreign state shall be immune from the jurisdiction” of
federal courts, 28 U.S.C. § 1604, the Act carves out several exceptions to this general rule, see id.
§ 1605(a). “Whenever an FSIA immunity exception applies, jurisdiction usually follows.”
CC/Devas (Mauritius) Ltd. v. Antrix Corp., 605 U.S. 223, 230 (2025). A motion to dismiss for
lack of subject-matter jurisdiction thus challenges whether any such exception applies.
The two exceptions relevant to this case are the “arbitration exception” and the “waiver
exception.” The former permits suits to “confirm an award made pursuant to” an arbitration
agreement entered into “by the foreign state with or for the benefit of a private party.” 28 U.S.C.
§ 1605(a)(6). If the award “is or may be governed by a treaty or other international agreement”
signed by the United States which “call[s] for the recognition and enforcement of arbitral awards,”
the suit may proceed. Id. Accordingly, for the arbitration exception to apply, a district court must
find “three ‘jurisdictional facts’: (1) an arbitration agreement, (2) an arbitration award, and (3) a
treaty potentially governing award enforcement.” NextEra, 112 F.4th at 1100 (quoting Chevron
Corp. v. Ecuador, 795 F.3d 200, 204 & n.2 (D.C. Cir. 2015)).
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The waiver exception permits a suit to proceed against any foreign nation that “has waived
its immunity either explicitly or by implication.” 28 U.S.C. § 1605(a)(1). “The FSIA does not
specifically define what will constitute a waiver ‘by implication.’” Glob. Voice Grp. SA v.
Republic of Guinea, 177 F.4th 299, 302 (D.C. Cir. 2026) (quoting Khochinsky v. Republic of
Poland, 1 F.4th 1, 8 (D.C. Cir. 2021)). “For decades, however,” the D.C. Circuit has “followed
the ‘virtually unanimous’ precedents construing the implied waiver provision narrowly.” Id.
(internal quotation marks omitted) (quoting Creighton, 181 F.3d at 122). “To waive immunity by
implication, a foreign sovereign must have ‘at some point indicated its amenability to suit.’”
Amaplat Mauritius Ltd. v. Zim. Mining Dev. Corp., 143 F.4th 496, 503 (D.C. Cir. 2025) (quoting
Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174 (D.C. Cir. 1994)). Accordingly, the
D.C. Circuit has “consistently concluded that what matters . . . is the foreign sovereign’s actual
intent.” Id. (quoting Wye Oak Tech., Inc. v. Republic of Iraq, 24 F.4th 686, 697 (D.C. Cir. 2022)).
Courts “‘rarely’ find waiver ‘without strong evidence that this is what the foreign state intended.’”
Id. (quoting Khochinsky, 1 F.4th at 8).
When a foreign sovereign defendant moves for dismissal under Rule 12(b)(1) on sovereign
immunity grounds, the court applies a “burden-shifting framework.” See NextEra, 112 F.4th at
1100. First, the plaintiff “bears the burden of overcoming the presumption of sovereign immunity
‘by producing evidence that an [FSIA] exception applies.’” Ambar v. Federal Republic of
Germany, 596 F. Supp. 3d 76, 81 (D.D.C. 2022) (alteration in original) (quoting Bell Helicopter
Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 1175, 1183 (D.C. Cir. 2013)). If the plaintiff
meets this initial “burden of production,” NextEra, 112 F.4th at 1100, the foreign sovereign then
bears the “ultimate burden of persuasion” to show that the exception does not apply, Bell
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Helicopter, 734 F.3d at 1183. The sovereign must “establish the absence of the factual basis” of
the exception “by a preponderance of the evidence.” NextEra, 112 F.4th at 1100 (quoting Chevron,
795 F.3d at 204).6
B. Rule 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction
A Rule 12(b)(2) motion to dismiss challenges whether a federal court can exercise
jurisdiction over the defendant. The plaintiff “bears the burden of establishing personal
jurisdiction over each defendant.” Thompson Hine LLP v. Smoking Everywhere, Inc., 840 F. Supp.
2d 138, 141 (D.D.C. 2012) (citing Crane v. N.Y. Zoological Soc’y, 894 F.2d 454, 455–56 (D.C.
Cir. 1990)).
Where the defendant is a foreign sovereign, Section 1330(b) of the FSIA governs the
exercise of “[p]ersonal jurisdiction over a foreign state,” 28 U.S.C. § 1330(b), imposing “two
substantive requirements,” Antrix, 605 U.S. at 232. First, a district court must have “subject-matter
jurisdiction” over the “claim for relief,” which is acquired when “any of the FSIA’s immunity
exceptions applies.” Id. (quoting 28 U.S.C. § 1330(b)). Second, a plaintiff must “compl[y] with
the FSIA’s specialized service-of-process rules.” Id. (quoting Republic of Sudan v. Harrison, 587
U.S. 1, 4–5, 8–13 (2019)). “[U]nder the FSIA, ‘subject matter jurisdiction plus service of process
equals personal jurisdiction.’” GSS Grp. Ltd. v. Nat’l Port Auth., 680 F.3d 805, 811 (D.C. Cir.
2012) (quoting Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 95 (D.C. Cir.
2002)).
6
This burden-shifting framework appears in tension with the general rule that the “party invoking federal jurisdiction bears the burden of establishing” it. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Spain points out as much, see Mot. to Dismiss at 13 n.11, but this court is bound to apply the framework.
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“When serving a foreign sovereign, ‘strict adherence to the terms of [Section] 1608(a) [of
the FSIA] is required.’” Barot v. Embassy of the Republic of Zambia, 785 F.3d 26, 27 (D.C. Cir.
2015) (quoting Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 154 (D.C. Cir. 1994)).
Under Section 1608(a), the plaintiff should first attempt service “in accordance with any special
arrangement for service between the plaintiff and the foreign state.” 28 U.S.C. § 1608(a)(1); see
Angellino v. Royal Fam. Al-Saud, 688 F.3d 771, 773 (D.C. Cir. 2012). If no such arrangement
exists, the plaintiff must deliver “a copy of the summons and complaint in accordance with an
applicable international convention on service of judicial documents.” 28 U.S.C. § 1608(a)(2). If
the plaintiff is unable to do so, then the FSIA provides additional methods to effectuate service.
See id. § 1608(a)(3), (4). But the service requirement is inflexible: Neither “substantial
compliance, nor actual notice” suffices. Barot, 785 F.3d at 27. “When sufficiency of service is
challenged, the burden is on the plaintiff to demonstrate that service has been effected properly.”
de Sousa v. Embassy of Republic of Angola, 229 F. Supp. 3d 23, 27 (D.D.C. 2017) (quoting Mann
v. Castiel, 681 F.3d 368, 372 (D.C. Cir. 2012)).
III. ANALYSIS
A. Subject-Matter Jurisdiction
Petitioners seek to invoke this court’s jurisdiction under both the FSIA’s arbitration and
waiver exceptions. Spain argues that neither exception applies. The court finds that the arbitration
exception applies and declines to reach the parties’ arguments regarding the waiver exception.
1. Arbitration Exception
For a court to exercise jurisdiction over a foreign sovereign under 28 U.S.C. § 1605(a)(6),
three facts must be present: “(1) an arbitration agreement, (2) an arbitration award, and (3) a treaty
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potentially governing award enforcement.” NextEra, 112 F.4th at 1100 (quoting Chevron, 795
F.3d at 204 & n.2). The parties dispute whether any of these facts exists. See Mot. to Dismiss at
14–27; Opp’n at 12–26, ECF No. 149. They also dispute whether the Svea Court’s judgments
collaterally estop this court’s analysis of the jurisdictional facts. See Mot. to Dismiss at 28–33;
Opp’n at 21–23. The court concludes that all jurisdictional facts necessary for the arbitration
exception to apply are present, and that the Svea Court’s judgements are not entitled to issue
preclusion.
i. Existence of Jurisdictional Facts
a. Arbitration Agreement
The first jurisdictional fact this court must find is the existence of an arbitration agreement.
The FSIA requires “‘an agreement made by the foreign state’—either ‘with’ or ‘for the benefit’ of
a private party—to submit certain disputes to arbitration.” NextEra, 112 F.4th at 1101 (quoting
28 U.S.C. § 1605(a)(6)). Typically, a plaintiff can satisfy its burden simply by “producing copies
of the ECT.” Id. at 1104 (cleaned up) (quoting Stileks, 985 F.3d at 877). In NextEra, the D.C.
Circuit explained that the ECT’s arbitration provision allowed two types of agreement which
would support FSIA jurisdiction. See id. at 1101. First, the provision could be understood as an
agreement between signatory countries to submit to arbitration “‘for the benefit’ of a private
party,” namely an investor formed under the laws of a contracting state. Id. at 1101–02 (quoting
28 U.S.C. § 1605(a)(6)). Second, the provision could be interpreted “as ‘a unilateral offer to
arbitrate’ by each sovereign to investors of the other signatory countries.” Id. at 1102 (quoting BG
Grp., PLC v. Republic of Argentina, 572 U.S. 25, 50 (2014) (Roberts, C.J., dissenting)). “A foreign
investor seeking to take advantage” may “accept the offer by ‘filing a notice of arbitration,’” thus
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making an agreement “with” a foreign sovereign. Id. (cleaned up) (quoting BG Grp., 572 U.S. at
42 (majority op.)).
Indeed, NextEra itself involved materially similar facts. There, companies from the
Netherlands and Luxembourg obtained arbitral awards against Spain for violations of its
obligations under the ECT and sought to enforce the awards in the United States. See id. at 1093–
97. Spain claimed that the court did not have jurisdiction under the FSIA’s arbitration exception
because no agreement between the country and the companies had existed. Id. at 1101. The D.C.
Circuit rejected that argument, reasoning that Spain had “entered into an arbitration agreement—
the Energy Charter Treaty itself—that” was “arguably ‘for the benefit’” of the companies. Id. at
1102 (cleaned up) (quoting 28 U.S.C. § 1605(a)(6)). It was “common ground that, in ratifying the
ECT, Spain provided ‘unconditional consent’ to arbitrate investment disputes with the investors
of at least some of the other signatory nations.” Id. (quoting ECT art. 26(3)(a)). Thus, Spain had
formed an agreement “‘for the benefit’ of the signatory’s investors” which satisfied the arbitration
exception’s requirement. Id. at 1103.
Under the principles set forth in NextEra, Petitioners have met their initial burden by
“producing copies of the ECT,” id. at 1104 (cleaned up) (quoting Stileks, 985 F.3d at 877); see
ECF No. 2-2; ECF Nos. 1-8 at 20–30, 1-9 at 1–58, Case No. 1:20-cv-925. Those copies show that,
by signing and ratifying the ECT, Spain formed an agreement with Luxembourg, Italy, and
Denmark “for the benefit” of their investors. NextEra, 112 F.4th at 1103. Accordingly, NextEra
governs the outcome here. The court declines to reach the parties’ arguments about whether Spain
had formed an agreement “with” the companies themselves within the meaning of the FSIA. See
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Mot. to Dismiss at 16–20; Opp’n at 20. The court also declines Spain’s invitation to depart from
NextEra, as it is bound to follow binding Circuit precedent. See Mot. to Dismiss at 21 n.15.
Spain fails to carry its countervailing burden of persuasion. It first contends that any “thirdparty beneficiary arbitration agreement contained in Article 26 of the ECT” is “not an arbitration
agreement under its governing law.” Id. at 22. That governing law, according to Spain, is “the
law of the seat [of the arbitration]: Sweden.” Id. Swedish law in turn “incorporates EU law,” thus
making the Komstroy decision “directly applicable.” Id. And because Komstroy did not recognize
any arbitration agreements between EU nations that had signed the ECT and investors from such
states, Spain contends that the ECT contains no such agreement. Id.
NextEra rejected a virtually identical argument, however. There, too, Spain argued that
Komstroy barred any possible arbitration agreement from existing for purposes of jurisdiction
under the FSIA. See NextEra, 112 F.4th at 1102–03. The Court disagreed. Although the Court
declined to resolve whether Komstroy foreclosed arbitration agreements “with” private investors,
it reasoned that Komstroy nonetheless permitted the possibility of arbitration agreements “for the
benefit” of private parties under the FSIA. See id. at 1102–03.
Applying that rationale, the Court held that it had jurisdiction. It explained that the ECT
was made “‘for the benefit’ of [at least] some investors.” Id. at 1103 (quoting 28 U.S.C.
§ 1605(a)(6)). After all, Komstroy itself acknowledged that under EU law, “the ECT may require
[EU] Member States to comply with the arbitral mechanisms” to resolve disputes with “investors
from third States who are also Contracting Parties” to the ECT, so long as those parties are not EU
“Member States.” Komstroy ¶ 65. Thus, all that Spain alleged there—as it does here—was that
any agreement created under the ECT did not cover investors from EU signatory nations, such as
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Luxembourg, Denmark, and Italy. But that “is an argument regarding the scope of the Energy
Charter Treaty, not its existence. It goes to whether the ECT’s arbitration provision applies to
these disputes.” NextEra, 112 F.4th at 1103. And under “binding precedent,” the “question
‘whether the ECT applies to a dispute’ is not ‘a jurisdictional question under the FSIA,’” id.
(cleaned up) (quoting Stileks, 985 F.3d at 878–79), but one that “go[es] to the award’s
enforceability on the merits,” id. at 1101.
Since NextEra, multiple D.C. Circuit opinions have rejected virtually identical arguments
to Spain’s. In Hulley Enterprises Ltd. v. Russian Federation, 149 F.4th 682 (D.C. Cir. 2025), for
example, the Court rejected Russia’s argument that an arbitration agreement did not exist under
the FSIA “even if it did make a standing offer to arbitrate by signing the [Energy Charter] Treaty,”
because the petitioners there were “not [the] proper beneficiaries of the arbitration clause.” Id. at
690. The Court explained that whether the petitioners were “investors within the meaning of the
arbitration clause ‘is an argument regarding the scope of the Energy Charter Treaty, not its
existence.’” Id. (quoting NextEra, 112 F.4th at 1103). Likewise, in Stabil LLC v. Russian
Federation, 167 F.4th 506 (D.C. Cir. 2026), the Court explained that questions about “territorial
reach and treaty coverage go to the scope of the agreement—to arbitrability—not to the existence
of consent.” Id. at 520. And in Marseille-Kliniken AG v. Republic of Equatorial Guinea, 153
F.4th 1262 (D.C. Cir. 2025), the Court held that “arguments that an arbitration agreement violates
domestic law” are “not jurisdictional defenses under the FSIA.” Id. at 1268. The appropriate way
to challenge the existence of an agreement after NextEra is to claim that an investment treaty was
Page 16 of 37
not an offer to arbitrate “with anybody or about anything.” Hulley, 149 F.4th at 689. But, for
obvious reasons, Spain does not go so far.7
Attempting to avoid NextEra’s reach, Spain proffers a declaration from an expert in
international treaty interpretation, see Hollis Decl., ECF No. 145-7, who suggests that even though
the ECT is a “multilateral treaty” between many nations, id. ¶ 16, it generates only “bilateral
obligations” running between pairs of countries, Hollis Reply Decl. ¶ 9, ECF No. 151-1, for
instance “between Spain, one the one hand, and another EU Member State, like Luxembourg,
Denmark, and/or Italy, on the other,” Hollis Decl. ¶ 16. According to Spain, this difference is
significant because it shows that the question of whether Spain formed an agreement with the
investors’ home countries is a jurisdictional one about existence, not a merits one about scope. See
Reply at 13.
The court need not delve into the details of international treaty interpretation to reject
Spain’s argument. Simply put, NextEra understood the ECT as a “multilateral investment treaty”
generating multilateral obligations. 112 F.4th at 1093; see also id. at 1102–04. This court cannot
depart from that understanding. Spain apparently recognizes as much, but nonetheless urges this
court to hold otherwise because NextEra “did not consider the interpretive agreement” concerning
Article 26 that Spain signed with Petitioners’ home states in June 2024. Reply at 16; see id. at 10,
7
Because the court follows NextEra’s holding that the ECT contains an arbitration agreement as a matter of jurisdictional fact under the FSIA even if EU law were to apply, see 112 F.4th at 1102– 03, it declines to address Spain’s fallback argument that the ECT would not be understood to contain an arbitration agreement even if international law governed, see Mot. to Dismiss at 22–23. The court does note however, that contrary to Petitioners’ argument, see Opp’n at 13, 16, NextEra did not conclude that courts should exclusively consider the plain text of the investment treaty in assessing whether the ECT contains an arbitration agreement. The D.C. Circuit simply did not go so far. See NextEra, 112 F.4th at 1102–03.
Page 17 of 37
11 n.3; Mot. to Dismiss at 22–23; Hollis Decl. Ex. 2, ECF No. 145-9 (“Interpretive Agreement”).
Under that agreement, EU member states “reaffirm[ed]” a “common understanding” of Article 26,
namely that it “cannot and never could serve as a legal basis for intra-EU arbitration proceedings.”
Interpretive Agreement ¶ 1. Spain argues that the agreement is “a material development postdating briefing and oral argument” that ought to compel a different result. Reply at 16. Not so.
Even if this court could depart from NextEra on the basis of the June 2024 agreement, it finds little
reason to. As noted, the agreement was signed in June 2024, well after Petitioners commenced
arbitration proceedings. And as it was not signed by all the signatories to the ECT, it could not
have modified the “multilateral” obligations that signatories to the ECT owed under NextEra. 112
F.4th at 1093; see also id. at 1102–04. Spain’s argument thus holds no water.
Spain next argues that NextEra is inapposite because even if the ECT contained an
arbitration agreement for the benefit of Petitioners, the Swedish tribunals did not render their
awards “pursuant to” that agreement. Mot. to Dismiss at 21–22; see 28 U.S.C. § 1605(a)(6). It
contends that the tribunals instead made their awards pursuant to an agreement formed when
Petitioners “accepted Spain’s standing offer to arbitrate by submitting” a “request for arbitration.”
Mot. to Dismiss at 15 (quoting ECF No. 22 at 24); see also Foresight Pet. ¶ 9. Spain argues that
because the tribunals made their awards “pursuant to” an agreement “with” Petitioners, and
Petitioners have only shown the existence of an agreement “for the[ir] benefit,” the award does
not satisfy the FSIA’s “pursuant to” requirement. See Mot. to Dismiss at 15, 20–21; Reply at 3–5
(first citing Novenergia Award ¶¶ 73, 74, ECF No. 2-1; and then citing Foresight Award ¶¶ 7, 8,
ECF No. 11-4, Case No 1:20-cv-925).
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But the fact that the Swedish tribunals did not rest their decisions on an agreement “for the
benefit” of Petitioners is irrelevant. Those tribunals were not adjudicating a question under the
FSIA; they were applying a different law, almost a decade before NextEra. Spain cannot fault the
Swedish tribunals for failing to cite a theory of agreement that had not yet been developed by a
different court under a different law.
In any event, Spain’s cramped reading of “pursuant to” finds no support in precedent or
statutory text. As the D.C. Circuit has explained, it is enough to show that an “award was made
pursuant to the ECT” to establish jurisdiction under the FSIA. Stileks, 985 F.3d at 877 (emphasis
added). The Court did not impose any further requirement that the arbitral panel also have cited
the same theory of agreement under which petitioners invoke the court’s jurisdiction. And that
rule makes sense. Section 1605(a)(6) of the FSIA permits confirmation of “an award made
pursuant to such an agreement to arbitrate,” where “such” refers to the two different types of
agreements described earlier: those made “with” a private party and those made for its “benefit.”
28 U.S.C. § 1605(a)(6). The text simply requires the award to be made pursuant to an agreement
that falls within those categories; it does require the award to be based on “the” particular
arbitration agreement identified by a given tribunal. Under Stileks and the plain meaning of the
FSIA, all Petitioners need to show is that the Swedish tribunals made their awards pursuant to the
ECT. They have done so.8
8
Spain’s citations to Chevron, 795 F.3d at 204, and Al-Qarqani v. Saudi Arabian Oil Co., 19 F.4th 794, 801–02 (5th Cir. 2021) are unavailing, see Mot. to Dismiss at 15. As to Chevron, Spain quotes a party’s argument that “an award [must be] based on th[e] agreement,” not the D.C. Circuit’s holding, which simply looked for “the existence of an award.” 795 F.3d at 204; see also Stileks, 985 F.3d at 877–78 (interpreting Chevron similarly). And the Fifth Circuit in Al-Qarqani
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Finally, Spain complains that Petitioners should not be able to use the “benefit of” theory
of arbitration agreement because they did not present it before the arbitral tribunals. See Reply at
4-5. To be sure, Petitioners consistently represented, even before this court, that the relevant
arbitration agreement was made between them and Spain. See id.; see also ECF No. 22 at 24
(“Novenergia accepted Spain’s standing offer to arbitrate by submitting the request for arbitration
to the SCC.”); Foresight Pet. ¶ 9 (“The arbitration agreement between the Petitioners and Spain
consists of two elements: (i) Spain’s consent contained in Article 26(3) of the ECT; and (ii)
Petitioners’ consent contained in their Request for Arbitration.”). But those representations
occurred well before NextEra, and in the case of the Swedish tribunals, outside the context of the
FSIA. Accordingly, the court finds that the first jurisdictional fact exists.
b. Arbitration Award
The next requirement for jurisdiction under the arbitration exception is the existence of an
arbitration award. See Stileks, 985 F.3d at 877 (citing Chevron, 795 F.3d at 204). Petitioners have
carried their burden of production by presenting copies of the awards entered in their favor by the
Stockholm Chamber of Commerce. See Marseille-Kliniken AG, 153 F.4th at 1267 (producing a
“Swiss arbitral award” was enough for petitioner there to meet its burden); see also Novenergia
Award, ECF No. 2-1; Foresight Award, ECF No. 11-4, Case No 1:20-cv-925. Those decisions
show that Novenergia and Foresight were awarded €53.3 million and €39 million on February 15,
2018, and November 14, 2018, respectively, plus costs and interest. See Novenergia Award ¶ 860;
Foresight Award ¶ 562. That suffices.
held that it did not have jurisdiction because “there exist[ed] no agreement among the parties to arbitrate,” not because the award had not been made “pursuant to” the agreement. 19 F.4th at 802.
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Contrary to Spain’s argument, the fact that the awards were later annulled by the Svea
Court is immaterial. In Process & Industrial Developments Ltd. v. Federal Republic of Nigeria,
27 F.4th 771 (D.C. Cir. 2022) (“P&ID”), Nigeria—like Spain—argued that the court did not have
jurisdiction under the FSIA’s arbitration exception because the “Federal High Court of Nigeria
[had] set aside the arbitral tribunal’s liability award.” Id. at 776. The D.C. Circuit rejected that
argument, holding that “a foreign court’s order ostensibly setting aside an arbitral award has no
bearing on the district court’s jurisdiction and is instead an affirmative defense properly suited for
consideration at the merits stage.” Id. at 772. P&ID thus forecloses Spain’s objection.
Spain’s multifarious attempts to distinguish P&ID fail. First, it argues that unlike the
arbitral award in P&ID, which had merely been “set aside” by the Nigerian court, the arbitral
awards here were held “never [to] have existed” by the Svea Court. Reply at 16, 18. According
to Spain, the Svea Court determined that the awards were “void ipso facto and ab initio” under
Section 33 of the Swedish Arbitration Act. Mot. to Dismiss at 24 (quoting Bylander Decl. ¶ 23,
ECF No. 145-2). But Spain offers no good reason why the distinction between a “set aside” order
and a “void ab initio” order matters under P&ID. It contends that the “set aside” order in P&ID
went to the “validity or enforceability” of the arbitral award, which is “a merits question,” see
P&ID, 27 F.4th at 776 (emphasis omitted), whereas the Svea Court’s “void ab initio” order goes
to the award’s “existence,” which is jurisdictional, see Reply at 18. But that rationale proves too
much. Under it, Nigeria could have prevailed in P&ID simply by characterizing its High Court’s
decision as going to the very “existence” of the award as well.
Next, Spain suggests that P&ID is inapposite because the High Court of Nigeria “lacked
authority” to set aside the arbitral award, as “Nigeria was not the seat of the arbitration” for the
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underlying dispute. Mot. to Dismiss at 25 n.17. But Spain fails to acknowledge that the D.C.
Circuit assumed that the Nigerian court’s set-aside decision was valid for purposes of the case.
See P&ID, 27 F.4th at 776 n.4. It nonetheless concluded that the set-aside order had no bearing
on the jurisdictional analysis. See id. at 776. So too here. Spain’s further insistence that “[o]nly
a court in a country with primary jurisdiction over an arbitral award may annul that award,” Mot.
to Dismiss at 23 (quoting TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 935 (D.C. Cir
2007)), is misplaced because that, too, is “a defense to confirmation under the New York
Convention,” and goes to the merits, not the jurisdictional issue presented here, Stileks, 985 F.3d
at 878. Spain next claims that the “purported legal effect” of the Nigerian court’s decision was
“unclear,” and the decision “offered no reasoning or explanation.” Mot. to Dismiss at 25 n.17
(quoting P&ID, 27 F.4th at 773). But the D.C. Circuit did not rest any part of its analysis on the
Nigerian High Court’s lack of explanation. See P&ID, 27 F.4th at 776. And the Nigerian court’s
decision had the same functional effect as the Svea Court’s judgments here.
Spain’s remaining arguments likewise fail. It observes that the Nigerian court’s decision
in P&ID only set aside the tribunal’s finding of “liability,” not the “final award,” whereas the Svea
Court here annulled the final award. Mot. to Dismiss at 25 n.17 (citing P&ID, 27 F.4th at 772–
73). But again, Spain offers no reason why that distinction makes any difference. Indeed, no good
reason seems to exist, for the final award in P&ID ostensibly depended on the finding of liability.
Finally, Spain notes that Novenergia did not file a “duly-certified” copy of the tribunal’s award
before this court. Reply at 17 n.8. It does not, however, suggest that the omission has any effect
on the jurisdictional analysis, nor does this court perceive any such effect.
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Ultimately, Spain’s arguments boil down to its contention that Swedish law ought to
govern the question of whether an award exists, and under Swedish law, the awards in favor of
Petitioners have always been “legally non-existent.” Mot. to Dismiss at 24 (quoting Bylander
Decl. ¶ 23). As explained above, that argument would effectively eviscerate P&ID. And in any
event, Spain cannot seriously contest that the Svea Court’s determination was “not a factual one,
but a legal conclusion about the importance attributed to certain facts under the law”—namely the
purportedly invalid arbitral award. Hum., S.E. v. Czech Republic—Ministry of Health, 824 F.3d
131, 137 (D.C. Cir. 2016); see Mot. to Dismiss at 24 (“Legally such awards do not exist.” (quoting
Bylander Decl. ¶ 23)); id. (The awards have “lacked legal existence under Swedish law ever since
they were purportedly issued.” (emphasis added)); see also Reply at 17. Under the FSIA, however,
the “existence of an award” is not a legal question, but “a factual question that the District Court
must resolve.” Chevron, 795 F.3d at 204. Because Spain has failed to carry its burden of
persuasion on the question, the court resolves it in Petitioners’ favor.9
c. Treaty Potentially Governing Award Enforcement
The third and final fact that must exist for the arbitration exception to apply is “a treaty
potentially governing award enforcement.” NextEra, 112 F.4th at 1100 (citing Chevron, 795 F.3d
at 204 & n.2). The word “potentially” is important; it derives from the plain text of the FSIA,
which requires only that an award “may be governed by a treaty,” not that it must be. 28 U.S.C.
9
In passing, Spain contends that the question of whether an award exists cannot be answered in “a legal vacuum” because the “assessment of jurisdictional facts often requires a legal determination.” Reply at 17 & n.9. Whatever the metaphysics of Swedish law, however, it is undisputed as a factual matter that the arbitral tribunals issued awards in Petitioners’ favor.
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§ 1605(a)(6) (emphasis added). Thus, all that the court needs to determine is whether a treaty
“plausibly could” cover the award. Stabil, 167 F.4th at 522.
Petitioners have met their burden of production to show that the New York Convention
may cover these arbitral awards. See Opp’n at 25. The New York Convention governs “the
recognition and enforcement of arbitral awards made in the territory of a State other than the State
where the recognition and enforcement of such awards are sought.” New York Convention art.
I(1). Under it, arbitral awards are enforceable so long as “the place of the award . . . is in the
territory of a party to the Convention.” Creighton, 181 F.3d at 121 (quoting Restatement (Third)
of Foreign Relations Law § 487 cmt. b (A.L.I. 1987)). Chapter Two of the FAA, which
implements the Convention, imposes two further conditions. First, the dispute must “aris[e] out
of a legal relationship,” 9 U.S.C. § 202, that “explicitly contemplate[s] which parties it would
obligate,” determines “the extent of the[ir] obligations,” and provides “the legal framework to
govern the arrangement,” Stabil, 167 F.4th at 522 (quoting Hum., S.E., 824 F.3d at 135). Second,
the statute requires the relationship to be “commercial” in nature. 9 U.S.C. § 202.
There is no doubt all three requirements are satisfied here. To start, the awards at issue
were made in Sweden, a signatory to the New York Convention. See Contracting States, N.Y.
Convention, https://perma.cc/65MP-2JT2 (last visited Sept. 23, 2026). Next, the dispute between
Petitioners and Spain “arise[s] out of a legal relationship” forged by the ECT. Zhongshan, 112
F.4th at 1062 (quoting 9 U.S.C. § 202). As explained above, the ECT requires “[e]ach Contracting
Party” to guarantee “the most constant protection and security” to investments made by “Investors
of other Contracting Parties.” ECT art. 10(1). It requires states to provide investors from other
signatory nations “fair and equitable treatment.” Id. And it supplies a menu of options to resolve
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disputes between investors and Contracting Parties, including arbitration. See id. art. 26(3).
Finally, the legal relationship between Petitioners and Spain was plainly “commercial.”
Zhongshan, 112 F.4th at 1062 (quoting 9 U.S.C. § 202). Both Novenergia and Foresight invested
heavily in photovoltaic facilities to provide renewable energy to Spanish consumers. See
Novenergia Pet. ¶ 10; Foresight Pet. ¶¶ 25–26. Given these facts and the D.C. Circuit’s repeated
exhortations that “the New York Convention ‘is exactly the sort of treaty Congress intended to
include in the arbitration exception,’” P&ID, 27 F.4th at 776 (quoting Creighton, 181 F.3d at 123–
24); see also Stabil, 167 F.4th at 522, Petitioners have met their burden of showing that a treaty
“potentially governs enforcement of the award,” Stabil, 167 F.4th at 517.
Spain contends that the New York Convention does not govern Petitioners’ awards. It
argues that Petitioners cannot satisfy Article II of the Convention, which requires “an agreement
in writing where the parties undertake to submit to arbitration all or any differences which have
arisen or which may arise between them.” Mot. to Dismiss at 25 (cleaned up) (quoting New York
Convention art. II(I)). According to Spain, no such written agreement exists because “there are no
arbitration agreements between Petitioners and Spain” under Swedish law, and because any
agreement “for the benefit of” Petitioners is not between Petitioners and Spain, but the signatory
nations themselves. Id. at 26-27. Spain also argues that Novenergia cannot satisfy Article IV of
the Convention because it did not present a notice of arbitration along with its petition to confirm
the award before this court. See id. at 26–27.
But Spain’s arguments “conflate[] the jurisdictional standard of the FSIA with the standard
for review under the New York Convention.” Stileks, 985 F.3d at 878 (quoting Chevron, 795 F.3d
at 205). For jurisdictional purposes, this court need only find that Petitioners’ awards may
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“potentially” be governed by the New York Convention. That inquiry turns on the factors
identified above: whether the award was made in a signatory nation, whether the dispute arises out
of legal relationship, and whether the relationship is commercial in nature. See Hum., S.E., 824
F.3d at 136; Stabil, 167 F.4th at 522. Those factors are clearly satisfied here.
Indeed, the D.C. Circuit has declined invitations like Spain’s to import the requirements
for enforcement under the New York Convention into the jurisdictional inquiry under the FSIA.
In Stileks, for example, it rejected Moldova’s argument that the arbitration exception was not
triggered, essentially because the award there did not meet the requirements of Article V(1)(c) of
the Convention. See 985 F.3d at 878. The Court explained that Moldova’s argument was “a
defense to confirmation under the New York Convention,” not a barrier to jurisdiction under the
FSIA. Id. Spain, like Moldova, appears to be seeking “two bites at the apple of the merits of its
dispute” with Petitioners by requiring them to produce an agreement in writing. Chevron Corp. v.
Republic of Ecuador, 949 F. Supp. 2d 57, 63 (D.D.C. 2013). The court cannot permit that
stratagem. And to the extent Spain asserts that no arbitration agreement has ever existed, the court
has already rejected that argument. See supra Part III.A.1.i.a.
Further, Spain cites no precedent—nor can the court identify any—requiring a written
agreement for purposes of jurisdiction under the FSIA. Spain’s citation to an unpublished case
from this district, Olive Group FZ-LLC v. Afghanistan Civil Aviation Authority, No. 24-cv-2170,
2025 WL 1662961, at *3 (D.D.C. June 12, 2025), see Mot. to Dismiss at 25, is meritless, because
the case it relied on in turn, Compagnie Sahélienne d’Entreprise v. Republic of Guinea, No. 20-cv-1536, 2021 WL 2417105, at *2 (D.D.C. June 14, 2021), analyzed the writing requirement to
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determine whether a claim fell within the ambit of the New York Convention for purposes of the
FAA. The case did not involve jurisdiction under the FSIA’s arbitration exception.10
Nor do Spain’s citations to Chevron, 795 F.3d at 204, and Stati v. Republic of Kazakhstan,
199 F. Supp. 3d. 179, 188 (D.D.C. 2016), show that Novenergia’s failure to present the notice of
arbitration at the time it filed its petition resulted in an incurable jurisdictional defect, see Mot. to
Dismiss at 27. In Chevron, the Court explained that a party seeking to enforce an award will
ordinarily meet its burden of production simply by producing the investment treaty and a notice of
arbitration. See 795 F.3d at 204. But the Court was concerned with the existence of an arbitration
agreement “with” the state formed by the oil companies’ acceptance of Ecuador’s “standing offer”
to arbitrate. Id. at 206. The same was true in Stati, which involved an arbitration agreement “with”
the country of Kazakhstan. See 199 F. Supp. 3d. at 185, 188. By contrast, when an investment
treaty creates an arbitration agreement “for the benefit of” investors, the petitioner can meet its
burden of production merely by producing a copy of the treaty itself. See Stabil, 167 F.4th at 520.
That jurisdictional requirement has been met here.
Likewise, Spain’s citations to Jiangsu Beier Decoration Materials Co. v. Angle World
LLC, 52 F.4th 554, 561 (3d Cir. 2022) and Al-Qarqani v. Chevron Corp., 8 F.4th 1018, 1023 (9th
Cir. 2021) are unpersuasive, see Mot. to Dismiss at 28. Both cases state that proof of a written
10
The only D.C. Circuit case the court has identified which applies an additional jurisdictional requirement analyzed whether the parties were “persons” within the meaning of Article I(1) of the Convention. See Zhongshan, 112 F.4th at 1065. That requirement does not stem from 9 U.S.C. § 202. In any event, it is met here. Foreign states are “persons” within the meaning of Article I(1). See Zhongshan, 112 F.4th at 1065–66. So too are private entities like Petitioners—indeed, the “Court of Appeals consistently has held that the Convention, as codified, provides a basis for federal courts to enforce arbitral awards between private entities and foreign states.” Belize Bank Ltd. v. Gov’t of Belize, 191 F. Supp. 3d 26, 34 (D.D.C. 2016).
Page 27 of 37
arbitration agreement is essential for enforcement of an award under Article IV of the New York
Convention. See Jiangsu, 52 F.4th at 559–561; Al-Qarqani, 8 F.4th at 1023. But that has nothing
to do with jurisdiction under the FSIA. See Jiangsu, 52 F.4th at 559; Al-Qarqani, 8 F.4th at 1024.
If anything, the Ninth Circuit’s decision in Al-Qarqani undermines Spain’s argument. That
decision clarified that a court need not “assess an award against the Convention’s requirements
before exercising jurisdiction” over enforcement proceedings. Al-Qarqani, 8 F.4th at 1025.
Accordingly, the Ninth Circuit concluded that the lower court had erred by dismissing a petition
for lack of subject-matter jurisdiction for failing to meet the Convention’s requirements. See id.
at 1021, 1025. The court should instead have denied enforcement on the merits. See id. at 1025.
Because Spain has failed to meet its burden of persuading the court that the New York
Convention could not plausibly govern Petitioners’ award, the court finds the third jurisdictional
fact present as well. Accordingly, the arbitration exception applies.
ii. Collateral Estoppel
Failing to carry its burden on any of the three jurisdictional facts, Spain insists that the Svea
Court’s judgments estop this court’s jurisdictional analysis. See Mot. to Dismiss at 28–33. Spain
invokes the doctrine of collateral estoppel (or “issue preclusion”), which prohibits “successive
litigation of an issue of fact or law actually litigated and resolved in a valid court determination
essential to the prior judgment.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (quoting New
Hampshire v. Maine, 532 U.S. 742, 748–49 (2001)). The question of whether the judgments of
foreign courts can preclude jurisdictional fact-finding under the FSIA’s arbitration exception
remains an open one in this Circuit, and the Court of Appeals has twice declined to answer it. See
Deutsche Telekom, A.G. v. Republic of India, 155 F.4th 694, 703 (D.C. Cir. 2025); Hulley, 149
Page 28 of 37
F.4th at 691–92. But it has nonetheless provided valuable guidance on how district courts should
go about analyzing the question.
In Hulley, the D.C. Circuit instructed the district court tackling the question on remand to
first determine “whether issue preclusion [even] applies to jurisdictional questions under the
FSIA.” 149 F.4th at 691. If so, then the court was to consider “whether preclusion extends to
foreign judgments,” as opposed to just domestic ones. Id. That difference was potentially
significant: Hulley identified several cases which had “given preclusive effect to jurisdictional
determinations by domestic courts,” but could find none in which “a court ha[d] given preclusive
effect to a foreign judgment in order to exercise jurisdiction over a foreign sovereign under the
FSIA.” Id. Nonetheless, Hulley countenanced the possibility that a foreign judgment could
preclude jurisdictional fact-finding under the FSIA. Id. at 691–92 (quoting Rose v. Himely, 8 U.S.
(4 Cranch) 241, 270 (1808)). It further explained that if the district court concluded that foreign
judgments could have preclusive effect, it was to then assess whether the foreign judgment was
entitled to recognition as matter of comity under the factors enumerated in Hilton v. Guyot, 159
U.S. 113, 202–03 (1895). Hulley, 149 F.4th at 692. And if the judgment was entitled to
recognition, the court finally had to determine “how the Hilton factors intersect with the ordinary
standard for assessing collateral estoppel.” Id. In short, Hulley suggested that if the analysis had
arrived at this stage, a foreign judgment could have preclusive effect if it satisfied both the Hilton
factors and the requirements for issue preclusion. Id. (first citing Hurst v. Socialist People’s Libyan
Arab Jamahiriya, 474 F. Supp. 2d 19, 33–34 (D.D.C. 2007); and then citing Alfadda v. Fenn, 966
F. Supp. 1317, 1325–32 (S.D.N.Y. 1997)).
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Petitioners and Spain have leapfrogged the order of operations Hulley prescribes. Neither
party addresses whether the Svea Court’s judgments could even have preclusive effect. For its
part, Spain simply assumes as much and skips to the final prong of the inquiry, insisting that the
Svea Court’s judgments satisfy the Hilton factors and the requirements for collateral estoppel. See
Mot. to Dismiss at 29–33. Meanwhile, Petitioners fail to seriously dispute whether the Hilton
factors are satisfied, and instead challenge, inter alia, whether the requirements for collateral
estoppel are met. See Opp’n at 22–23.
The court does not opine on the questions of whether foreign judgments can preclude
determination of jurisdictional facts under the FSIA and whether the Svea Court’s judgments
satisfy the Hilton factors. But it concludes that even assuming the Svea Court’s judgments could
preclude, they do not do so here because they fail to meet the standard for issue preclusion to apply.
Under that standard, (1) “the same issue now being raised must have been contested by the parties
and submitted for judicial determination in the prior case,” (2) “the issue must have been actually
and necessarily determined by a court of competent jurisdiction in that prior case,” and (3)
“preclusion in the second case must not work a basic unfairness to the party bound by the first
determination.” Martin v. Dep’t of Justice, 488 F.3d 446, 454 (D.C. Cir. 2007) (cleaned up)
(quoting Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir.1992)); see Hurst,
474 F. Supp. 2d. at 32 (concluding that federal standards of issue preclusion apply in assessing
whether foreign judgments have preclusive effect).
The Svea Court’s judgments lack preclusive effect because they did not decide the “same
issue[s]” now before this court. Martin, 488 F.3d at 454 (quoting Yamaha, 961 F.2d at 254). The
Supreme Court has explained that deciding the “same” issue requires applying the same “legal
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standards.” Smith v. Bayer Corp., 564 U.S. 299, 309 (2011). If courts “apply different law,” they
“decide distinct questions” and “differe[nt]” issues, and thus the first court’s “resolution of one
issue does not preclude” the second court’s “determination of another.” Id. at 309, 312. Here, the
Svea Court applied Swedish law (which in turn incorporates EU law principles) to determine that
no arbitration awards had ever existed under Section 33 of the Swedish Arbitration Act. See
Novenergia Judgment at 37–39; Foresight Judgment at 11–13. That is not the standard under the
FSIA. As the D.C. Circuit has explained, “the existence of an award is a factual question.”
Chevron, 795 F.3d at 204. Spain does not—and cannot—seriously claim that the Svea Court made
a factual finding that no awards ever existed. See, e.g., Mot. to Dismiss at 24 (“Legally such
awards do not exist.” (quoting Bylander Decl. ¶ 23)). Yet that very concession deprives the Svea
Court’s judgments of any preclusive effect regarding the existence of the awards.
Likewise, the Svea Court’s conclusion that no arbitration agreements existed between
Spain and Petitioners fails to meet the standards for issue preclusion. The Svea Court’s conclusion
was grounded in Swedish law, which in turn incorporates EU law principles, most notably the
CJEU’s Komstroy decision. See Novenergia Judgment at 37–39; Foresight Judgment at 11–13.
But EU law does not recognize the distinction between the “scope” and “existence” of an
arbitration agreement that the D.C. Circuit has drawn. See NextEra, 112 F.4th at 1103. That
difference is dispositive as to the existence of an arbitration agreement. See supra Part III.A.1.i.a.
“Because the legal standards” in the Svea Court and this court differ, “the issues before the courts
differ[],” and the Svea Court’s judgments do not preclude the question of whether an arbitration
agreement exists. Smith, 564 U.S. at 309.
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Spain also insists that the Svea Court’s judgments preclude this court from determining
that the New York Convention potentially governs enforcement of the awards, because that finding
depends on “the existence of an ‘agreement in writing.’” Mot. to Dismiss at 29. According to
Spain, the Svea Court held that there were no agreements, and a fortiori, there cannot be any
written agreements. See id. But this court has already rejected the purported preclusive effect of
the Svea Court’s determinations about the existence of arbitration agreements. And in any event,
the need for a written agreement is a merits requirement under the New York Convention, not a
jurisdictional requirement under the FSIA. See supra Part III.A.1.i.c.
Finally, Spain suggests that “foreign judgments give rise to collateral estoppel even if they
apply a different law, so long as the requirements for estoppel are satisfied.” Reply at 22 n.12.
But, as already explained, when courts apply different legal standards, they adjudicate different
issues, and thus issue preclusion cannot apply. See Smith, 564 U.S. at 309–12. In any event, Spain
offers no binding precedent for its assertion, and the cases it cites lend no weight to its argument.
See Reply at 22 n.12. In Hurst, the court found it was precluded by a Scottish court’s factual
findings which were necessary to support a criminal conviction in that jurisdiction. See 474 F.
Supp. 2d at 33–34. But that was because of the different evidentiary standards in criminal and
civil cases, and the general rule that a “criminal conviction is conclusive proof and operates as an
estoppel on the defendants as to the facts supporting the conviction in a subsequent civil action.”
Id. (quoting Hinton v. Shaw Pittman Potts & Trowbridge, 257 F. Supp. 2d 96, 100 (D.D.C. 2003)).
No such criminal judgment is involved here. And in Phillips USA, Inc. v. Allflex USA, Inc., 77
F.3d 354 (10th Cir. 1996), the Tenth Circuit upheld the district court’s application of res judicata
(or “claim preclusion”) to bar litigation of a party’s tortious interference with contract claim after
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an Australian court had ruled on its breach of contract claim. See id. at 358–61. That case did not
even concern issue preclusion. Accordingly, it would be inappropriate to apply issue preclusion
here.
2. Waiver Exception
In the alternative, Petitioners argue that the FSIA’s waiver exception supports this court’s
jurisdiction. See Opp’n at 26–28. They insist that Spain “waive[d] its immunity from arbitrationenforcement actions in other signatory states” when it signed the New York Convention. See id.
at 27 (quoting Tatneft v. Ukraine, 771 F. App’x 9, 10 (D.C. Cir. 2019)). Spain retorts that Foresight
(but not Novenergia) failed to timely raise the waiver exception, and that in any event, Spain did
not waive its immunity simply by entering the Convention. See Mot. to Dismiss at 33 & n.18, 35
n.19. Spain also argues that the arbitration exception “preempts application of the waiver
exception.” Id. at 33.
“The waiver issue remains ‘unsettled’ in our Circuit.” NextEra, 112 F.4th at 1100 (quoting
P&ID, 27 F.4th at 774). The D.C. Circuit has declined to “formally adopt” the theory that
signatories to the New York Convention have impliedly waived their sovereign immunity in
actions like this one, Stabil, 167 F.4th at 526 (cleaned up) (quoting P&ID, 27 F.4th at 774), for
that rationale carries “significant policy concerns,” P&ID, 27 F.4th at 775 n.3.
But this court need not reach the parties’ waiver arguments because it has concluded that
it has jurisdiction under the FSIA’s arbitration exception. See Metro. Wash. Chapter, Associated
Builders & Contractors, Inc. v. District of Columbia, 62 F.4th 567, 576 (D.C. Cir. 2023)
(explaining the “cardinal principle of judicial restraint” that courts should resolve no more than is
necessary to decide the case (quotation omitted)).
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B. Personal Jurisdiction
In the alternative, Spain argues that this court lacks personal jurisdiction over it because
“neither the arbitration exception nor the waiver exception to Spain’s sovereign immunity applies”
to either petition to confirm. Mot. to Dismiss at 36. To be sure, under the FSIA, “subject matter
jurisdiction plus service of process equals personal jurisdiction.” GSS Grp., 680 F.3d at 811
(quoting Price, 294 F.3d at 95). But the court has already concluded that it has subject-matter
jurisdiction under the arbitration exception. See Part III.A.1. Accordingly, it rejects Spain’s
argument.
Spain also argues that the court “lacks personal jurisdiction over Spain with respect to the
Foresight petition because the Foresight Petitioners failed to satisfy the FSIA’s service
requirements.” Mot. to Dismiss at 36. Specifically, Spain contends that Foresight failed to meet
Section 1608(a)(2)’s requirement to deliver “a copy of the summons and complaint in accordance
with an applicable international convention on service of judicial documents,” 28 U.S.C.
§ 1608(a)(2)—here, the Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638
(“Hague Service Convention”). See Mot. to Dismiss at 37. That Convention, which has been
signed by both the United States and Spain, see HCCH Members, HCCH, https://perma.cc/Z7YULKF5 (last visited Sept. 23, 2026), creates a framework for serving process on foreign sovereigns.
As the D.C. Circuit has explained, “Articles 2 to 6 of the Hague Convention require that a plaintiff
request service from a Central Authority designated by the receiving state and receive a certificate
of service from the Central Authority stating it has served the defendant by a method consistent
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with the state’s internal law.” Saint-Gobain Performance Plastics Eur. v. Bolivarian Republic of
Venezuela, 23 F.4th 1036, 1038 (D.C. Cir. 2022).
To be sure, Foresight initially failed to meet this standard. In 2019, it transmitted the
petition and related documents to Spain’s Abogacía General del Estado – Dirección del Servicio
Jurídico del Estado, a division in the Attorney General’s office. See Collins Aff. ¶¶ 2–4, ECF 8-1, Case No. 1:20-cv-925. But that was not the entity Spain had designed as its “Central Authority”
for receiving service under the Hague Service Convention—the Subdirección General de
Cooperación Jurídica Internacional, an agency for International Legal Cooperation, was. See
Spain – Central Authority & Practical Information, HCCH, https://perma.cc/AUW9-KK28 (last
visited Sept. 23, 2026). In 2025, Foresight reattempted service, but again sent the summons to the
Attorney General’s office. See ECF No. 139 at 1.
In November 2025, however, Foresight represented that it was “re-serving Spain through
its Central Authority.” Opp’n at 29. And in April 2026, it filed a certificate showing that service
had been completed pursuant to Articles 2 through 6 of the Hague Service Convention. See
Certificate, ECF No. 157-1. Accordingly, the court will dismiss as moot Spain’s argument that it
was not properly served. See Barot, 785 F.3d at 29 (explaining that defective service may be cured
by properly following the Hague Service Convention’s procedures).
The court also declines to reach Foresight’s claim that service was nonetheless properly
effectuated under Article 10(a) of the Hague Service Convention. See Opp’n at 29. It notes,
however, that district courts in this Circuit are divided on whether the FSIA permits a foreign
sovereign to be served under Article 10(a) without first attempting to serve its Central Authority.
Compare Koch Mins. Sàrl v. Bolivarian Republic of Venezuela, 514 F. Supp. 3d 20, 36 (D.D.C.
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2020) (“Article 10(a)’s service-by-mail provision does not apply to service on a State, through its
Central Authority; it applies only to instances where a plaintiff serves a third-party directly, cutting
out the Central Authority.”), with Micula v. Gov’t of Romania, No. 17-cv-2332, 2018 WL
10196624, at *1–*3 (D.D.C. May 22, 2018) (holding that service was proper under Article 10(a)
regardless of whether documents had been sent to Romania’s Central Authority).
Lastly, Spain argues that the Foresight petition should be dismissed for “failure to
prosecute service” because Foresight did not request a summons or attempt to serve it until six
years after the petition was filed. See Mot. to Dismiss at 38. The D.C. Circuit has explained that
dismissal “for failure to prosecute due to a delay in service is appropriate only when there is no
reasonable probability that service can be obtained or there is a lengthy period of inactivity.”
Barot, 785 F.3d at 29 (quoting Angellino, 688 F.3d at 775). As explained above, service has
already been properly effectuated. And as this court is well aware, there has been no “lengthy
period of inactivity” in this case. Id.; see Opp’n at 30. Although the court expresses concern that
Foresight has not demonstrated any good cause for failing to request a summons for six years, it
also finds that Spain has not suffered any prejudice from the delay. Accordingly, the court
exercises its discretion and permits the suit to proceed. See Barot, 785 F.3d at 29 (“[D]istrict courts
have broad discretion to dismiss a complaint for failure to effect service.” (quoting Novak v. World
Bank, 703 F.2d 1305, 1310 (D.C. Cir. 1983)).
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IV. CONCLUSION
For the foregoing reasons, the court will DENY Spain’s Motion to Dismiss. ECF No. 145.
A separate Order accompanies this Memorandum Opinion.
Date: September 28, 2026
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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