INTRODUCTION AND SUMMARY OF ARGUMENT
These actions are just two of many in which Spain is attempting to evade its obligations under the ICSID Convention--and in which Spain is attempting to persuade U.S. courts to renege on the United States' own obligations under that treaty.
The ICSID Convention is a treaty among 156 nations--including Spain, almost every other EU member state, and the United States, see ICSID, List of Member States - ICSID/3, - that provides a comprehensive framework for arbitrating investment disputes "between Contracting States and nationals of other Contracting States." ICSID Convention, pmbl. Arbitral tribunals constituted under the ICSID Convention are responsible for conclusively deciding not only the merits of any dispute submitted to them, id., art. 48, but also all issues pertaining to their jurisdiction, including disputes about the parties' consent to arbitrate, id., arts. 25, 41. By signing the ICSID Convention, Spain agreed to "abide by" and "comply with" all awards issued pursuant thereto. Id., art. 53(1).
The ICSID Convention provides for only a limited review of arbitral awards and assigns that power to an ad hoc annulment committee. ICSID Convention, art. 52. Under Article 52 of the Convention, that committee--not the courts of any Contracting State--decides whether an award should be set aside on the ground that the tribunal was not properly constituted, exceeded its power, acted corruptly, seriously departed from a fundamental rule of procedure, or failed to state the reasons on which the award was based. Id., art. 52(1). In assigning this role to the annulment committee, the ICSID Convention differs from other regimes like the New York Convention, in which the enforcing court can determine if the award is subject to challenge. Spain and the other parties to the Convention thus agreed that an ICSID arbitration award would be "binding" and enforceable in the courts of any Contracting State--including the United States--as "final judgment[s]" without being "subject to any appeal or to any other remedy except those provided for in th[e] Convention." Id., arts. 53(1), 54(1).
Recognition and enforcement of ICSID awards in the United States is governed by 22 U.S.C. § 1650a, which implements the treaty obligations of the United States, as a contracting party to the ICSID Convention, to ensure that U.S. courts treat an ICSID award "as if it were a final judgment" of a state court. ICSID Convention, art. 54(1). Section 1650a thus provides, in relevant part, that "[t]he pecuniary obligations imposed by [an ICSID] award shall be enforced and shall be given the same full faith and credit as if the award were a final judgment of a court of general jurisdiction of one of the several States." 22 U.S.C. § 1650a(a). Enforcement proceedings are commenced by "fil[ing] a plenary action under section 1650a"
to "convert [the] award into an enforceable judgment" in federal court, Micula v. Gov't of Romania, 104 F. Supp. 3d 42, 49-51 (D.D.C. 2015), in compliance with the Federal Rules of Civil Procedure and the FSIA's personal jurisdiction, service, and venue requirements, 28 U.S.C. §§ 1330, 1391(f), 1608; see Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venezuela, 863 F.3d 96, 100, 117-20 (2d Cir. 2017). Further, the statute specifies that even the limited grounds for vacating or refusing confirmation of an ordinary arbitration award under the FAA, 9 U.S.C. §§ 9-10, "shall not apply to enforcement of awards rendered pursuant to the [ICSID] convention," 22 U.S.C. § 1650a(a). "By expressly precluding the FAA's application to enforcement of ICSID Convention awards, Congress intended to make these grounds of attack unavailable to ICSID award-debtors in federal court enforcement proceedings." Mobil Cerro Negro, 863 F.3d at 120-21. Section 1650a thus envisions a "perfunctory role. .. for federal district courts," Tidewater Inv. SRL v. Bolivarian Republic of Venezuela, 2018 WL 6605633, at *6 (D.D.C. Dec. 17, 2018), in which an award debtor "[is] not. .. permitted to make substantive challenges to the award," Mobil Cerro Negro, 863 F.3d at 118.
District courts "are. .. not permitted to examine an ICSID award's merits, its compliance with international law, or the ICSID tribunal's jurisdiction to render the award." Id. at 102. Instead, courts "may do no more than examine the judgment's authenticity and enforce the obligations imposed by the award." Id.
Spain seeks to avoid these clear limitations by framing its challenge to the awards against it as an argument that the U.S. courts lack subject-matter jurisdiction under the FSIA. But the FSIA creates subject-matter jurisdiction over arbitration enforcement actions under the ICSID Convention without regard to any challenge to the arbitral tribunal's determination that the respondent lawfully consented to binding arbitration. The FSIA grants federal courts subject-matter jurisdiction over an action against a foreign state if one of the FSIA's enumerated exceptions from a foreign state's sovereign immunity applies. Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993); 28 U.S.C. § 1330(a). Two such exceptions--the waiver exception, 28 U.S.C. § 1605(a)(1), and the arbitration exception, id. § 1605(a)(6)--independently establish jurisdiction here, each without regard to any challenge to Spain's consent to arbitrate this dispute. While those exceptions each apply in both the New York Convention and ICSID contexts, several aspects of the ICSID Convention make the application of those exceptions especially clear in ICSID enforcement actions. This Court should therefore affirm the district court's jurisdictional ruling in NextEra and 9REN without reaching Spain's EU-law arguments, which have no place here under the ICSID Convention's streamlined enforcement scheme.