Novenergia II - Energy & Environment (Sca) v. Kingdom of Spain

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. Page 1 of 37 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, Page 2 of 37 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. Page 3 of 37  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 Page 4 of 37 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 Page 5 of 37 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, Page 7 of 37 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 subject- matter 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. Page 8 of 37  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)). Page 9 of 37  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 Page 10 of 37 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. Page 11 of 37  “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 Page 12 of 37 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 Page 13 of 37 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 Page 14 of 37 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 “third- party 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 Page 15 of 37 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 post- dating 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). Page 18 of 37  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 Page 19 of 37  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. Page 20 of 37  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