The Solicitor General Opposes Cert in Spain v. Blasket but Opens the Door to Future FSIA Challenges to Award Enforcement

Last week, in Kingdom of Spain v. Blasket Renewable Investments LLC, the Solicitor General (SG) weighed in on whether U.S. courts have jurisdiction to enforce arbitral awards arising from disputes between European investors and EU Member States—so-called “intra-EU” investment arbitrations. These awards have generated significant controversy around the world following landmark rulings by the Court of Justice of the European Union (CJEU) holding that arbitration of such disputes is incompatible with EU law. In the United States, a key question that has emerged as creditors of these awards have sought enforcement in U.S. courts is whether courts possess jurisdiction under the arbitration exception in the Foreign Sovereign Immunities Act (FSIA) to enforce them, or whether, as Spain has contended, that exception cannot apply because no valid “agreement to arbitrate” can exist between EU parties. In his brief, the Solicitor General agreed with Spain that the D.C. Circuit did not adequately evaluate whether this issue meant that there was no “agreement to arbitrate” as required by the exception. He nonetheless recommended denying cert because even under the appropriate analysis, Spain would be unlikely to succeed on its jurisdictional objection.

The SG reached the right bottom line, but the brief’s analysis of the arbitration exception appears flawed and blurs the FSIA jurisdictional analysis with the underlying question of the awards’ enforceability. If adopted, the brief’s approach could create significant additional hurdles to the enforcement of awards against foreign sovereigns, including by allowing a second bite at issues already resolved in arbitration.

Background: The D.C. Circuit Resolves a District Court Split Over “Intra-EU” FSIA Challenges

Since the CJEU decided the landmark cases Slovak Republic v. Achmea BV (2018) and Republic of Moldova v. Komstroy LLC (2021), the enforcement of intra-EU awards has been uncertain. Courts in several EU Member States have set aside and refused to enforce such awards on the basis that the Achmea and Komstroy decisions bar arbitration between European investors and EU Member States. This trend, however, has largely been limited to the EU, with courts in the United Kingdom, Australia, and Singapore all enforcing awards notwithstanding intra-EU objections.

Enter the U.S. courts. In recent years, European investors have brought numerous cases seeking enforcement of intra-EU awards in the U.S. District Court for the District of Columbia, including approximately a dozen against Spain. Spain has challenged these actions by arguing that because intra-EU arbitration is incompatible with EU law under Achmea and Komstroy, it did not validly agree to arbitrate with the investors and therefore there is no “agreement to arbitrate” for purposes of the FSIA arbitration exception. A split has emerged among the district courts over that issue.

In August 2024, the D.C. Circuit resolved that split in a consolidated appeal of enforcement actions brought by Blasket Renewable Investments, 9REN Holding, and NextEra Energy Global Holdings against Spain. The panel explained that, under circuit precedent, the FSIA arbitration exception, § 1605(a)(6), requires the establishment of three jurisdictional facts: “(1) an arbitration agreement, (2) an arbitration award, and (3) a treaty potentially governing award enforcement.” Interpreting § 1605(a)(6), the court held that with respect to the first requirement, courts must specifically find “‘an agreement made by the foreign state’—either ‘with’ or ‘for the benefit’ of a private party—to submit certain disputes to arbitration.” It concluded that the Energy Charter Treaty (ECT), an investment treaty, satisfied the latter requirement as it provides an agreement to arbitrate with a class of investors and is “for the benefit of” those investors. On that basis, the panel declined to determine whether the ECT excludes arbitration with EU investors, reasoning that that issue pertained to the scope of the ECT, not the existence of an arbitration agreement for FSIA purposes.

Relatedly, the panel did not reach the unresolved question of whether parties waive immunity by agreeing to arbitration under the New York Convention or the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID or Washington Convention). Resolving this issue in favor of the investors would have provided a simpler route to finding jurisdiction under the FSIA, as courts in other countries have found in relation to ICSID awards in similar intra-EU cases, including one involving Blasket in the Federal Court of Australia. Whether parties waive immunity under the New York Convention has remained more contested.

In May 2025, Spain asked the Supreme Court to review and reverse, and the Court called for the views of the Solicitor General in October 2025.

The Solicitor General’s Brief

Although the Solicitor General’s brief generally aligns with the position taken by the U.S. government in the consolidated appeal below—and in that respect is not entirely surprising—three key points stand out.

First, and most importantly, the SG argues that the D.C. Circuit “erred in holding that arbitrators rather than courts should decide whether Spain has an arbitration agreement that is ‘with or for the benefit of’ respondents.” While the panel did not expressly hold as much, the SG refers to the implicit distinction drawn by the panel between the question of the “existence” of the arbitral agreement, which the panel answered by reference to the ECT, and the intra-EU law question, which the panel held was a “scope” or “merits” question delegated to the arbitrators under the applicable UNCITRAL and ICSID rules.

Second, the SG argues, in line with Spain’s interpretation of § 1605(a)(6), that “‘an agreement made by the foreign state with or for the benefit of a private party’ is best read to mean an agreement with or for the benefit of the FSIA plaintiff.” On that view, courts must determine whether the agreement provided for arbitration with the particular parties before the enforcement court.

Third, the SG recommends that although the D.C. Circuit erred by failing to analyze whether the agreement was for the benefit of the FSIA plaintiff, the Supreme Court should deny cert because Spain is unlikely to prevail on the substance of its intra-EU arguments. Relying on Articles 27 and 46(1) of the Vienna Convention on the Law of Treaties, the SG correctly explains that EU Member States may not invoke EU law to avoid their treaty obligations under the ECT. That approach aligns with approaches taken by courts in Australia and the United Kingdom, among others.

Interpreting the “Agreement to Arbitrate” Requirement

While the SG ultimately reached the right bottom line, the brief’s reasoning on the first part of the analysis—what must be shown to establish an agreement to arbitrate under § 1605(a)(6)—warrants scrutiny. Most notably, the SG does not clearly explain why courts must find an agreement to arbitrate with specific parties when § 1605(a)(6) provides two distinct routes to jurisdiction: agreements “made by the foreign state with” a particular party, or agreements “for the benefit of” a private party. That there are two routes is clear in the text of the complete provision, which requires “an agreement made by the foreign state with or for the benefit of a private party to submit to arbitration all or any differences which have arisen or which may arise between the parties with respect to a defined legal relationship.” The latter phrasing—“for the benefit of”—is uniquely relevant to investment treaties, like the ECT, which extend a standing offer to arbitrate to a class of investors. The SG’s analogy of the intra-EU issue to “validity” issues in arbitration, which typically must be decided by courts, is accordingly less convincing because the authorities relied on for that point do not address the FSIA’s “for the benefit of” language.

The SG’s interpretation of “private party” to mean “FSIA plaintiff” is also strained. Section 1605(a)(6) distinguishes between “the foreign state” and “a private party,” which is in line with reading “for the benefit of” as referring to a class of investors protected by the relevant treaty, not only specifically identified parties. The phrase “differences . . . between the parties” likewise appears to refer to the parties in the arbitration, not the parties before the enforcement court because that clause merely describes the requisite arbitration agreement in the earlier part of the sentence.

The SG’s “FSIA plaintiff” reading is also at odds with the frequent practice of assigning awards. Indeed, in this very case, one of the parties seeking enforcement—Blasket—is the successor in interest to an original award creditor. Accordingly, on the SG’s interpretation—yet contrary to his conclusion—there would be no jurisdiction over Blasket’s enforcement action because Spain never made an “agreement” to arbitrate with Blasket, specifically.

The Right Outcome, But for (Some of) the Wrong Reasons

Stepping back, the SG’s position could also have significant repercussions for award enforcement. As the D.C. Circuit recently put it in Stabil v. Russian Federation (2026), requiring more than the “existence” of an arbitration agreement “collapses two questions that our caselaw keeps distinct”—namely, questions of arbitrability and FSIA jurisdiction. That distinction is especially important when parties have already had the opportunity to address arbitrability issues both in arbitration and before courts in post-award set-aside or annulment actions. Spain, for example, already raised its intra-EU objection before the relevant arbitral tribunals and pursued set-aside and annulment. The ICSID Convention and its enabling statute, 22 U.S.C. § 1650a, also provide that ICSID awards are final and not subject to any appeal or other remedy and must be enforced as if a final domestic judgment, which is in tension with additional substantive review under the FSIA.

Of course, it’s possible to debate when exactly an arbitration agreement is sufficiently “related” to the party initiating arbitration to satisfy the arbitration exception. But in attempting to address that concern, the SG’s approach may well create larger problems. If courts are required to independently determine whether an agreement has been made with a particular party under an investment treaty—a question the D.C. Circuit labeled a “scope” issue—then the same logic would seem to extend to other requirements of the arbitration exception.

For example, § 1605(a)(6) requires an “award made pursuant to such an agreement to arbitrate.” And in Stileks v. Moldova (2021), the D.C. Circuit reasoned that disputes about whether a “particular dispute” is covered by an arbitration agreement are “scope” questions that do not implicate the “made pursuant to” requirement. The SG’s view, if adopted, could cast doubt on that holding, inviting more sweeping review of arbitrability challenges at the enforcement stage.

Conclusion

It remains to be seen whether the Supreme Court will take a crack at interpreting the FSIA arbitration exception at issue in Blasket. Given the weakness of Spain’s intra-EU law argument, and the strength of the D.C. Circuit’s analysis, that exercise may be best left for another day.

Disclaimer: Debevoise & Plimpton has assisted intra-EU award creditors with enforcement actions.