Summary

Petitioners respectfully submit this Reply Brief in further support of their Motion for Preliminary Injunction and Temporary Restraining Order (ECF No. 78, the "Motion" or "Mot.") and in response to Spain's January 26, 2023, Opposition Brief (ECF No. 81, "Opposition" or "Opp.").

PRELIMINARY STATEMENT

Confronted with NextEra's application to enjoin a foreign lawsuit that threatens to terminate this case and strip this Court of jurisdiction--as well as irrefutable proof of urgency-- Spain's briefing attempts to deflect matters by engaging in evasions and vague generalities. Yet nothing can distract from the fact that Spain's Dutch Action, by the explicit terms of its pleadings, seeks to terminate this case, identifying it specifically by name and docket number in its requests for relief. This case thus cries out for urgent relief in the form of a TRO and preliminary injunction preventing Spain from pursuing the specific requests for relief in the Dutch Action that threaten to interfere with this Court's explicit treaty-based, and congressionally mandated, jurisdiction to recognize and enforce NextEra's Award. Binding precedent of this Circuit confirms that such an injunction is amply justified, as it would protect the Court from requests for relief in a foreign action whose "sole purpose" is "to terminate the [U.S.] action." Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 930 (D.C. Cir. 1984). It would also ensure that the Court can fulfill its statutory duty to see that ICSID tribunal awards "shall be enforced," 22 U.S.C. § 1650a(a)--a duty consistent with the ICSID Convention's requirement that such awards be treated as "binding" without "any appeal or. . . any other remedy," ICSID Convention art. 53(1).

In its opposition brief, Spain barely attempts to address the basis for the targeted, defensive injunctive relief NextEra seeks. Instead, Spain veers off into a discussion of other issues: it seeks to relitigate the merits of the Award (which have twice been decided against Spain, with dispositive effect), revisit irrelevant issues of EU law (such as the treaty structure connecting "the application of the TEU, the TFEU, and the ECT," Opp. 1) even though these do not properly arise for adjudication in this action, and re-plow the fully briefed issue of subject matter jurisdiction over this straightforward ICSID award enforcement action. Not once does Spain acknowledge that it is an award debtor from an arbitration that took place between 2014 and 2019 before a properly constituted ICSID Tribunal and resulted in an Award finding that Spain's actions caused NextEra to lose the value of its investment. Nor does Spain acknowledge that the Award survived an annulment challenge which lasted between 2019 and 2022, thereby exhausting Spain's last remedies under the ICSID Convention. For Spain to now argue, years after all of those events and decisions, that it should be able to shop for a foreign court in a bid to prohibit enforcement of the Award demonstrates its utter lack of respect for both the ICSID Convention and this Court.

To the extent any of Spain's attempts to relitigate the merits of the Award bear on the Court's resolution of the present Motion, they are unavailing. This action is straightforward, and Spain's attempts to invoke transnational EU law and principles of comity do not make it less so.

Federal law requires that the Award "shall be enforced" by this Court as a judgment. 22 U.S.C. § 1650a(a). The United States' binding treaty obligations confirm that the Court "shall recognize an award pursuant to [the ICSID] Convention as binding" in the same manner as "a final judgment of a court." ICSID Convention art. 54(1). Every court to consider an award of an ICSID tribunal has reached the same conclusion. See, e.g., ConocoPhillips Petrozuata B.V. v. Bolivarian Republic of Venez., No. 1:19-cv-0683 (CJN), 2022 WL 3576193, at *4 (D.D.C. Aug. 19, 2022); Valores Mundiales, S.L. v. Bolivarian Republic of Venez., No. 19-cv-46-FYP-RMM, 2022 WL 17370242, at *5 (D.D.C. Aug. 3, 2022); Tethyan Copper Co. v. Islamic Republic of Pak., 590 F. Supp. 3d 262, 275 (D.D.C. 2022); Koch Minerals Sarl v. Bolivarian Republic of Venez., No. 17-cv-2559-ZMF, 2021 WL 3662938, at *2-3 (D.D.C. Aug. 18, 2021); Micula v. Gov't of Romania, 404 F. Supp. 3d 265, 275-76 (D.D.C. 2019); TECO Guatemala Holdings, LLC v. Republic of Guatemala, 414 F. Supp. 3d 94, 101 (D.D.C. 2019); Tidewater Inv. SRL v. Bolivarian Republic of Venez., No. 17- 1457 (TJK), 2018 WL 6605633, at *6 (D.D.C. Dec. 17, 2018); Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venez., 863 F.3d 96, 117-18 (2d Cir. 2017). Regardless of Spain's position on what the EU may or may not decide regarding the application of its own laws to certain types of disputes, the law of the United States mandates that this dispute is at its endpoint.

Viewed through the perspective of federal law, as it must be seen, the defensive anti-suit injunction that NextEra requests is necessary to preserve the Court's jurisdiction, protects the clear policy enacted by Congress to enforce ICSID awards, and comports with all of the traditional requirements the Court considers when issuing a preliminary injunction.

LEGAL ARGUMENT

I. THE REQUESTED ANTI-SUIT INJUNCTION IS VITAL TO PROTECT THIS COURT'S JURISDICTION AND THE POLICIES OF THE UNITED STATES

A. The Dutch Action Expressly Threatens to Eviscerate the Jurisdiction of this Court

In the Dutch Action, Spain takes explicit aim at these proceedings, seeking nothing short of the complete prohibition of any efforts to proceed with NextEra's Petition--specifically identified by case name and docket number--and a permanent injunction preventing its refiling.

Dutch Writ at 33 (Claims M, O). There is no denying that this requested relief seeks to "paralyze or halt the proceedings" before this Court. See Laker Airways, 731 F.2d at 930-31 (granting anti-suit injunction where a foreign action's "sole purpose" was "to terminate" existing U.S. proceedings even though the foreign action raised a foreign law claim and sought a "determination that the defendants had not engaged in any unlawful conduct" (emphasis in original)). Thus, the only question this Court must answer on the present Motion is whether a defensive anti-suit injunction--narrowly drawn to enjoin only that part of the Dutch Action that directly threatens the proceedings in this Court--is warranted here, as it was in Laker Airways, to "protect the jurisdiction of [the Court]" and "to preserve [NextEra's rights] under the laws of the United States.'" See id. at 919 (internal quotation removed).

The answer, unequivocally, is "yes." NextEra's Motion explained that the two-part test ...

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