Nextera Energy Global Holdings B.v. and Nextera Energy Spain Holdings B.v. v. Kingdom of Spain

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 28, 2024 Decided August 16, 2024
No. 23-7031
NEXTERA ENERGY GLOBAL HOLDINGS B.V. AND NEXTERA
ENERGY S PAIN HOLDINGS B.V.,
APPELLEES
v.
KINGDOM OF S PAIN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-01618)
Sarah M. Harris argued the cause for appellant. With her
on the briefs were Matthew J. Weldon, Lisa S. Blatt, Jonathan
M. Landy, Benjamin W. Graham, Aaron Z. Roper, and Noah C.
McCullough.
Sally L. Pei argued the cause for amicus curiae the
European Commission in support of appellant. With her on the
brief was R. Stanton Jones.

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Donald I. Baker, W. Todd Miller, and Erin Glavich were
on the brief for amicus curiae the Government for the Kingdom
of the Netherlands in support of appellant.
Sharon Swingle, Attorney, U.S. Department of Justice,
argued the cause for amicus curiae United States of America
in support of appellant. With her on the brief were Brian M.
Boynton, Principal Deputy Assistant Attorney General, and
Thomas Pulham, Attorney.
Shay Dvoretzky argued the cause for appellees. With him
on the briefs were Timothy G. Nelson, Bradley A. Klein, Parker
Rider-Longmaid, Sylvia O. Tsakos, David Herlihy, Ashley C.
Parrish, Reginald R. Smith, and Thomas C. Childs.
Peter B. Rutledge was on the brief for amicus curiae the
Chamber of Commerce for the United States of America in
support of appellees.
Paul M. Levine, James J. East, Jr., and Carlos Ramos-
Mrosovsky were on the brief for amicus curiae International
Scholars in support of appellees.
Steven A. Engel and Michael H. McGinley were on the
brief for amicus curiae MOL Hungarian Oil and Gas PLC in
support of appellees.
Matthew D. McGill, Matthew S. Rozen, Jeffrey Liu, and
Lavi M. Ben Dor were on the brief for amicus curiae Blasket
Renewable Investments LLC in support of appellees.

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No. 23-7032
9REN HOLDING S.A.R.L.,
APPELLEE
v.
KINGDOM OF S PAIN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-01871)
Sarah M. Harris argued the cause for appellant. With her
on the briefs were Matthew J. Weldon, Lisa S. Blatt, Jonathan
M. Landy, Benjamin W. Graham, Aaron Z. Roper, and Noah C.
McCullough.
Sally L. Pei argued the cause for amicus curiae the
European Commission in support of appellant. With her on the
brief was R. Stanton Jones.
Sharon Swingle, Attorney, U.S. Department of Justice,
argued the cause for amicus curiae United States of America
in support of appellant. With her on the brief were Brian M.
Boynton, Principal Deputy Assistant Attorney General, and
Thomas Pulham, Attorney.

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Shay Dvoretzky argued the cause for appellees. With him
on the briefs were Timothy G. Nelson, Bradley A. Klein, Parker
Rider-Longmaid, Sylvia O. Tsakos, David Herlihy, Ashley C.
Parrish, Reginald R. Smith, and Thomas C. Childs.
Peter B. Rutledge was on the brief for amicus curiae the
Chamber of Commerce for the United States of America in
support of appellees.
Paul M. Levine, James J. East, Jr., and Carlos Ramos-
Mrosovsky were on the brief for amicus curiae International
Scholars in support of appellees.
Steven A. Engel and Michael H. McGinley were on the
brief for amicus curiae MOL Hungarian Oil and Gas PLC in
support of appellees.
Matthew D. McGill, Matthew S. Rozen, Jeffrey Liu, and
Lavi M. Ben Dor were on the brief for amicus curiae Blasket
Renewable Investments LLC in support of appellees.
No. 23-7038
B LASKET R ENEWABLE INVESTMENTS LLC,
APPELLANT
v.
KINGDOM OF S PAIN,
APPELLEE

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Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-03249)
Matthew D. McGill argued the cause for appellant. With
him on the briefs were Matthew S. Rozen, Jeffrey Liu, and Lavi
M. Ben Dor.
Sarah M. Harris argued the cause for appellee. With her
on the brief were Lisa S. Blatt, Jonathan M. Landy, Benjamin
W. Graham, Aaron Z. Roper, and Noah C. McCullough.
Sally L. Pei argued the cause for amicus curiae the
European Commission in support of appellant. With her on the
brief was R. Stanton Jones.
John A. Burlingame, Stephen P. Anway, and Dimitar P.
Georgiev-Remmel were on the brief for amicus curiae the
Republic of Croatia in support of appellee.
Sharon Swingle, Attorney, U.S. Department of Justice,
argued the cause for amicus curiae United States of America
in support of appellant. With her on the brief were Brian M.
Boynton, Principal Deputy Assistant Attorney General, and
Thomas Pulham, Attorney.
Before: P ILLARD and P AN, Circuit Judges, and R OGERS ,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge P ILLARD.
Opinion dissenting in part filed by Circuit Judge P AN .

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P ILLARD, Circuit Judge: A collection of Dutch and
Luxembourgish energy companies made investments in the
Kingdom of Spain in reliance on promised economic subsidies.
Several years later, in the wake of 2008 financial crisis, Spain
withdrew those subsidies to control costs. The companies
challenged Spain’s action. Instead of going to court, they
invoked an arbitration clause in the Energy Charter Treaty, a
multilateral investment treaty whose signatories include most
countries within the European Union, among them Spain, the
Netherlands, and Luxembourg, along with some countries
outside of Europe. The companies prevailed in their respective
arbitrations and secured multi-million-euro awards. The
European Union, however, has taken the position that the
Energy Charter Treaty’s arbitration provision does not apply to
disputes between a national of one EU Member State and
another EU Member State, and so the resulting arbitral awards
are invalid as a matter of EU law. If the companies sought to
enforce the awards in an EU national court, they would lose.
So, the companies came to the United States. Although
the United States is not a signatory to the Energy Charter
Treaty, it is a signatory to other treaties—namely, the ICSID
Convention and the New York Convention—that obligate it to
enforce certain foreign arbitral awards. Invoking those treaties,
the companies filed enforcement petitions in the United States
District Court for the District of Columbia.
Spain defended itself in two ways relevant here. It moved
to dismiss the petitions on the ground that it enjoys sovereign
immunity under the Foreign Sovereign Immunities Act, 28
U.S.C. § 1602 et. seq. And Spain filed its own lawsuits in
Dutch and Luxembourgish courts seeking, among other things,
an anti-suit injunction to prevent the companies from
proceeding with their petitions to enforce their arbitral awards
in United States courts. In response, the companies argued that

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the district courts had jurisdiction under the FSIA’s waiver and
arbitration exceptions and asked the district courts for their
own anti-anti-suit injunction to enjoin Spain from seeking in
foreign courts to enjoin the United States court proceedings.
The district courts resolved those motions in opposing
ways. The court presiding over NextEra Energy Global
Holdings B.V. v. Kingdom of Spain, 656 F. Supp. 3d 201
(D.D.C. 2023), and 9REN Holding S.A.R.L. v. Kingdom of
Spain, No. 19-cv-1871, 2023 WL 2016933 (D.D.C. Feb. 15,
2023), held that it had jurisdiction under the FSIA’s arbitration
exception and denied Spain’s motion to dismiss in NextEra. (A
motion to dismiss was not at issue in 9REN.) Exercising that
jurisdiction, the court granted both companies’ requested
injunctions to prevent Spain from seeking anti-suit relief in
foreign courts.
By contrast, in Blasket Renewable Investments, LLC v.
Kingdom of Spain, 665 F. Supp. 3d 1 (D.D.C. 2023), the district
court deemed Spain immune under the FSIA and denied as
moot the companies’ requested injunction. Spain appeals the
adverse decisions in NextEra and 9REN, while a successor to
some of the companies appeals the adverse decision in Blasket.
Because the cases raise similar issues, we heard argument on
the same day and now resolve them in a single opinion.
For the reasons that follow, we hold that the district courts
have jurisdiction under the FSIA’s arbitration exception to
confirm these arbitration awards against Spain, but that the
court in NextEra and 9REN abused its discretion by enjoining
Spain from pursuing anti-suit relief in Dutch and
Luxembourgish courts. We therefore affirm in part and reverse
in part in NextEra; reverse in 9REN and Blasket; and remand
for further proceedings.

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I.
A.
These cases concern the relationship between three sets of
multilateral international treaties: (1) the Treaty on the
Functioning of the European Union (TFEU) and the Treaty on
European Union (TEU) (collectively, the EU Treaties), which
created and now govern the European Union; (2) the Energy
Charter Treaty (ECT), an investment treaty adopted to promote
international cooperation in the energy sector; and (3) the
ICSID Convention (also known as the Convention on the
Settlement of Investment Disputes Between States and
Nationals of Other States) and the New York Convention (also
known as the Convention on the Recognition and Enforcement
of Foreign Arbitral Awards), two treaties designed to facilitate
the enforcement of international arbitration awards.
The Energy Charter Treaty was signed in 1994 among 53
nations and regional organizations to promote international
cooperation in the energy sector. See Energy Charter Treaty
art. 2, Dec. 17, 1994, 2080 U.N.T.S. 95. Its initial signatories
(also known as contracting parties) included the EU, most EU
Member States, including Spain, the Netherlands, and
Luxembourg, and 26 nations outside the EU. The United States
is not a signatory. See Int’l Energy Charter, Contracting
Parties and Signatories of the Energy Charter Treaty,
https://perma.cc/XA3F-L2R2.
While these cases were pending, the EU, Spain, and
Luxembourg each announced its intention to withdraw from
the ECT. See NextEra 28(j) Letter dated May 20, 2024;
NextEra 28(j) Letter dated July 9, 2024. Under Article 47 of
the ECT, these withdrawals “shall take effect” one year after
their announcement. ECT art. 47(2). Because the withdrawals

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post-date the events in question, we refer to the EU, Spain, and
Luxembourg throughout this opinion as signatories to the ECT.
The ECT protects investments in the territory of a
“Contracting Party” by “Investors” located or incorporated in
“other Contracting Parties.” Id. art. 10; see also id. arts. 1(7),
26. In particular, Article 10(1) mandates that contracting
parties give “fair and equitable treatment” to the investments
of other contracting parties’ investors. Id. art. 10(1). To
effectuate that protection, Article 26 provides that a foreign
investor “may choose to submit” to international arbitration
any “[d]ispute[] between a Contracting Party and an Investor
of another Contracting Party relating to” a covered investment.
Id. art. 26(1), (2). By joining the ECT, a state
“unconditional[ly] consent[s]” to “international arbitration” of
investment disputes at the investor’s election. Id., art. 26(3).
Investors can choose among several arbitral tribunals,
including the International Centre for Settlement of Investment
Disputes (ICSID) or an hoc arbitration tribunal under the
Arbitration Rules of the United Nations Commission on
International Trade Law (UNCITRAL). Id. art. 26(4)(a), (b).
Regardless of arbitral forum, the ECT provides that tribunals
“shall decide the issues in dispute in accordance with this
Treaty and applicable rules and principles of international
law.” Id. art. 26(6). ICSID awards may be enforced under the
ICSID Convention, while UNCITRAL awards may be
enforced under the New York Convention. See ICSID
Convention art. 54(1), opened for signature Mar. 18, 1965, 17
U.S.T. 1270; New York Convention art. III, June 10, 1958, 21
U.S.T. 2517.

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B.
1.
NextEra Energy Global Holdings B.V. and NextEra
Energy Spain Holdings B.V. (collectively, NextEra) are Dutch
companies, as are AES Solar Energy Coöperatief U.A. and
Ampere Equity Fund B.V. (collectively, AES). 9REN Holding
S.À.R.L. (9REN) is a Luxembourgish company. Between
2007 and 2012, the companies made investments in solar
power projects in Spain in reliance on that country’s promise
that they could charge subsidized electricity rates, ensuring
profitable returns. NextEra and 9REN invested approximately
€750 million and €211 million, respectively; AES did not detail
the magnitude of its investment, but it was part of a broader
group of investors that cumulatively invested approximately €2
billion.
In the wake of the 2008 financial crisis, Spain withdrew
those subsidies in an effort to control costs. In response, the
companies commenced arbitration under Article 26 of the
ECT. Because Spain, the Netherlands, and Luxembourg are
signatories to the ICSID Convention, NextEra and 9REN
decided to arbitrate before ICSID tribunals in Washington D.C.
AES opted to proceed before an ad hoc UNCITRAL tribunal
seated in Geneva, Switzerland. The companies argued that
Spain failed to give their investments “fair and equitable
treatment” in violation of Article 10(1) of the ECT.
While those arbitral proceedings were ongoing, the Court
of Justice of the European Union—the EU’s court of last
resort—issued two landmark decisions that called into question
the validity of the underlying arbitration agreements. In Slovak
Republic v. Achmea BV, ECLI:EU:C:2018:158, ¶ 60 (Mar. 6,
2018), a Dutch company called Achmea prevailed in
arbitration against the Slovak Republic under the terms of a

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bilateral investment treaty. Achmea ¶¶ 7, 12. The Slovak
Republic had unsuccessfully objected in the arbitration to the
arbitral tribunal’s jurisdiction, arguing that “as a result of [the
Slovak Republic’s] accession to the European Union,
[Achmea’s] recourse to an arbitral tribunal provided for in [the
bilateral investment treaty] was incompatible with EU law.”
Id. ¶ 11. Making the same argument in a German national
court, the Slovak Republic sought to set aside the arbitral
award, and that court referred the matter to the Court of Justice
of the European Union. Id. ¶ 12.
The Court of Justice honored the Slovak Republic’s
objection. The court observed that Member States may not
“submit a dispute concerning the interpretation or application
of the [EU] Treaties to any method of settlement other than
those provided for in the Treaties.” Id. ¶ 32 (citing TFEU art.
344). And one such requirement, the court explained, is that a
tribunal “called on to interpret or . . . apply EU law,” id. ¶ 42,
must have the authority to “make a reference to the [Court of
Justice] for a preliminary ruling,” with the “object of securing
uniform interpretation of EU law, thereby serving to ensure its
consistency,” id. ¶¶ 37, 49 (citing TFEU art. 267). The court
reasoned that an arbitral tribunal considering an intra-EU
dispute under an investment treaty “may be called on to
interpret or indeed to apply EU law,” id. ¶ 42, but, unlike
national courts, would lack the authority to refer questions of
EU law to the Court of Justice, id. ¶ 49. As a result, the court
concluded, a binding commitment to submit intra-EU disputes
to arbitration could prevent open legal questions “from being
resolved in a manner that ensures the full effectiveness of EU
law.” Id. ¶ 56.
The Court of Justice therefore held that the EU Treaties
“must be interpreted as precluding a provision in an
international agreement concluded between [EU] Member

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States, . . . under which an investor from one of those Member
States may, in the event of a dispute concerning investments in
the other Member State, bring proceedings against the latter
Member State before an arbitral tribunal whose jurisdiction that
Member State has undertaken to accept.” Id. ¶ 60. As a result,
the Court of Justice prohibited EU national courts from
enforcing Achmea’s arbitration award. Id. ¶ 60.
In Republic of Moldova v. Komstroy LLC,
ECLI:EU:C:2021:655 (Sept. 2, 2021), the Court of Justice
applied the logic of Achmea to the Energy Charter Treaty’s
arbitration provision. The Court of Justice first determined
that, because the European Union is a signatory to the ECT,
“the ECT itself is an act of EU law.” Komstroy ¶ 49. A tribunal
constituted under the ECT, therefore, will necessarily be
“required to interpret, and even apply, EU law.” Id. ¶ 50. And
because such a tribunal cannot refer such questions to the Court
of Justice, the Treaty’s arbitration provision could run afoul of
the EU Treaties in just the same way as the provision at issue
in Achmea. Apparently embracing a form of interpretation akin
to our doctrine of constitutional avoidance, the Court of Justice
concluded that Article 26 of the ECT “must be interpreted as
not being applicable to disputes between a Member State and
an investor of another Member State concerning an investment
made by the latter in the first Member State.” Id. ¶ 66.
Separately, the European Commission (EC)—the EU’s
executive branch—identified a different problem with the
awards. Article 107 of the TFEU prohibits Member States
from granting “aid” that “distorts or threatens to distort
competition,” absent the EC’s prior approval. TFEU arts. 107,
108. The EC determined that Spain’s energy subsidies were
unapproved “[s]tate aid.” See Euro. Comm’n Decision on State
Aid, SA.40348, ¶ 88 (Nov. 10, 2017). That meant, according
to the EC, that any arbitral award successfully challenging

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Spain’s revocation of the subsidies “would constitute in and of
itself State aid.” Id. ¶ 165. So, even if the companies prevailed
in this appeal, EU law would prohibit Spain from paying the
awards unless and until the EC granted approval to do so. Id.
The EC is currently considering whether to grant such
approval, but it has made no decision to date. See NextEra Eur.
Comm’n Amicus Br. 30.
Both arbitration regimes—ICSID and UNCITRAL—
delegate to the arbitral tribunal the power to decide threshold
issues of arbitrability. See ICSID Convention art. 41(1) (“The
Tribunal shall be the judge of its own competence.”);
UNCITRAL Rules, art. 23(1) (“The arbitral tribunal shall have
the power to rule on its own jurisdiction, including any
objections with respect to the existence or validity of the
arbitration agreement.”). Relying on Achmea and Komstroy,
Spain argued to the arbitral tribunals that they lacked
jurisdiction over the disputes because, as a matter of EU law,
Spain could not lawfully enter into arbitration agreements with
the companies. Spain made two primary arguments: (1) that
Article 26(4) of the ECT (the arbitration provision) does not
cover disputes between an investor in one EU Member State
and another EU Member State; and (2) that, even if it did,
Article 26(6) of the ECT (the choice-of-law provision) requires
the tribunal to apply Achmea and Komstroy to prevent such
intra-EU arbitration.
The tribunals rejected Spain’s jurisdictional objection.
The 9REN tribunal’s analysis is illustrative. First, the tribunal
concluded that “the plain language of the ECT[’s arbitration
provision]” does not exclude “intra-EU disputes from the scope
of ECT.” 9REN J.A. 86. Quoting another tribunal, the 9REN
tribunal observed that “[i]t would have been a simple matter to
draft the ECT so that Article 26 does not apply to disputes
between an Investor of one EU Member State and another EU

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Member State as respondent.” 9REN J.A. 86 n.102. But “[t]hat
was not done,” and the tribunal found no other “indication in
the language of the ECT that any such exclusion was intended.”
9REN J.A. 86 n.102.
Second, the 9REN tribunal determined that the ECT, so
construed, does not violate the EU Treaties because the
tribunal’s “jurisdiction and its exercise in the present case rests
upon the ECT (with international law as the applicable law) and
not EU law.” 9REN J.A. at 95-96. And, looking to the ECT’s
choice-of-law provision, the tribunal reasoned that, “[a]s a
matter of international law, the notion that EU law may be
considered only by EU judges is misconceived.” 9REN J.A. at
94. After all, “[i]nternational courts and tribunals are
frequently required to consider the laws of domestic or regional
jurisdictions,” but their conclusions “are not binding on the
courts or tribunals of the home jurisdiction.” 9REN J.A. at 94.
Likewise, “[t]he award of an ECT [arbitral] tribunal does not
in any way represent a threat or challenge to the autonomy or
authority of the . . . the EU and the [Court of Justice].” 9REN
J.A. at 94.
On the merits, the tribunals found that Spain violated the
Energy Charter Treaty and awarded damages in the amount of
€290 million to NextEra, €41 million to 9REN, and €26.5
million to AES. These awards are not anomalous. Amici point
out that “Spain now leads the world in noncompliance with
investor-state awards,” owing “more than $1.3 billion for 16
unpaid investor-state awards.” NextEra Int’l Scholars Amicus
Br. 30 & n.23.
Spain continued to fight these awards through the
processes laid out in the ICSID and New York Conventions.
Spain requested review of NextEra’s and 9REN’s awards under
the ICSID annulment process, arguing that the tribunals

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“manifestly exceed[ed] [their] powers”—one of the five
recognized grounds for annulment under Article 52 of the
ICSID Convention. And Spain appealed AES’s award (at issue
in Blasket) to the Federal Supreme Court of Switzerland, as
contemplated by Article V(1)(e) of the New York Convention
and Swiss law. Those challenges were unsuccessful.
2.
Armed with multi-million-euro arbitration awards, the
companies sought to confirm them in the United States.
“Confirmation is the process by which an arbitration award is
converted to a legal judgment.” LLC SPC Stileks v. Republic
of Moldova, 985 F.3d 871, 875 (D.C. Cir. 2021). It is only once
an award is confirmed that the prevailing party may seek to
execute on the resulting judgment “by, for example, attaching
[the sovereign’s] commercial assets in the United States.” Id.
As a signatory to the ICSID Convention, the United States
instructs its federal courts to “enforce[]”—i.e., confirm—
ICSID awards and give them “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).
Likewise, as a signatory to the New York Convention, the
United States instructs its federal courts to confirm
UNCITRAL awards governed by the Convention “unless it
finds one of the grounds for refusal or deferral of recognition
or enforcement of the award specified in the . . . Convention.”
9 U.S.C. § 207.
Spain defended itself in two ways. First, it moved to
dismiss the petitions filed in district court by NextEra and AES
in part on the ground that it enjoyed sovereign immunity under
the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C.
§ 1602 et seq. (Spain initially moved the district court to
dismiss 9REN’s petition, but that motion was denied without

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prejudice when the case was held in abeyance pending the
outcome of the ICSID annulment proceedings, and Spain did
not renew its motion to dismiss once the case resumed.)
Second, Spain filed its own lawsuits in the courts of the
Netherlands and Luxembourg seeking, among other things, to
enjoin the companies under EU law from proceeding with their
petitions in the United States (a so-called anti-suit injunction).
The companies responded in kind. They argued that the
district courts had jurisdiction under the FSIA’s waiver and
arbitration exceptions, and they asked the district courts for
their own injunctions—anti-anti-suit injunctions—to stop
Spain from seeking anti-suit injunctions in foreign courts to
enjoin the U.S. court proceedings. And, in an effort to escape
the jurisdictional reach of the Dutch courts, AES transferred its
rights in the award to a Delaware company called Blasket
Renewable Investments LLC (Blasket). Blasket, not AES, is
an appellant here.
The district courts resolved these motions in early 2023.
The district court presiding over NextEra and 9REN held that,
under our binding precedent, Spain’s assertion that it “could
not have entered into the ECT’s arbitration provisions because
EU law . . . does not permit EU members to assign questions of
EU law to arbitration in non-EU tribunals” was a merits
defense to enforcement, not a jurisdictional question under the
FSIA. NextEra Energy Global Holdings B.V. v. Kingdom of
Spain, 656 F. Supp. 3d 201, 213 (D.D.C. 2023) (citing Stileks,
985 F.3d at 878-79; Chevron Corp. v. Ecuador, 795 F.3d 200,
205 & n.3 (D.C. Cir. 2015)); see also 9REN Holding S.À.R.L.
v. Kingdom of Spain, No. 19-cv-1871, 2023 WL 2016933, at
*4-6 (D.D.C. Feb. 15, 2023). The court thus held it had
jurisdiction under the FSIA’s arbitration exception, denied
Spain’s motion to dismiss in NextEra, and granted the
companies’ requested injunctions to prevent Spain from

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seeking anti-suit relief in foreign courts. See NextEra, 656 F.
Supp. 3d at 215-21; 9REN, 2023 WL 2016933, at *7-13.
In Blasket, by contrast, the district court granted Spain’s
motion to dismiss, reasoning that, “[b]ecause Spain’s standing
offer to arbitrate was void as to the Companies under the [EU]
law to which both Spain and the Companies are subject and
which applied to the dispute by the terms of the Energy Charter
Treaty itself, no valid agreement to arbitrate exists.” Blasket
Renewable Inv., LLC v. Kingdom of Spain, 665 F. Supp. 3d. 1,
4 (D.D.C. 2023); see id. at 12-13. The Blasket court thus
deemed Spain immune under the FSIA and denied as moot the
companies’ requested injunction. Id. at 14 & n.9.
Spain appeals the adverse decisions in NextEra and 9REN;
Blasket appeals the adverse decision in Blasket.
II.
These appeals raise two primary questions. The first
question is whether the FSIA gives the district courts
jurisdiction to enforce (or decline to enforce) the arbitration
awards against Spain. The NextEra and 9REN district court
answered in the affirmative and denied Spain’s motion to
dismiss NextEra on sovereign immunity grounds; the Blasket
district court said no and granted Spain’s motion to dismiss.
We have jurisdiction to review dismissals for and denials of
sovereign immunity under 28 U.S.C. § 1291, and we do so de
novo. Kilburn v. Socialist People’s Libyan Arab Jamahiriya,
376 F.3d 1123, 1126-27 (D.C. Cir. 2004). The second question
is whether, assuming it had jurisdiction, the district court in
NextEra and 9REN abused its discretion by enjoining Spain
from seeking anti-suit relief under foreign law in foreign
courts. We have jurisdiction to review the grant of a
preliminary injunction under 28 U.S.C. § 1292(a)(1); our
review is for abuse of discretion. Laker Airways Ltd. v.

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Sabena, Belgian World Airlines, 731 F.2d 909, 921 (D.C. Cir.
1984); see Elec. Privacy Info. Ctr. v. U.S. Dep’t of Commerce,
928 F.3d 95, 100 (D.C. Cir. 2019).
A.
We begin with jurisdiction. NextEra and 9REN seek to
enforce their arbitration awards against the Kingdom of Spain
under 22 U.S.C. § 1650a (implementing the ICSID
Convention), while Blasket seeks to do so under 9 U.S.C. § 203
(implementing the New York Convention). Invoking the
FSIA, Spain insists that it is immune from the companies’
enforcement suits, so the district courts lack jurisdiction over
them.
The “FSIA codifies a baseline principle of immunity for
foreign states and their instrumentalities.” Turkiye Halk
Bankasi A.S. v. United States, 598 U.S. 264, 272 (2023) (citing
28 U.S.C. § 1604). It then sets out a handful of narrow
exceptions to that principle. See, e.g., 28 U.S.C. § 1605(a).
The companies contend that two of the FSIA exceptions apply
in these cases: the waiver exception and the arbitration
exception. 28 U.S.C. § 1605(a)(1), (6).
1.
The waiver exception provides in relevant part that a
foreign state “shall not be immune from the jurisdiction of
courts of the United States or of the States in any case . . . in
which the foreign state has waived its immunity either
explicitly or by implication.” Id. § 1605(a)(1). The companies
contend that Spain implicitly waived its immunity by ratifying
the ICSID and New York Conventions, since those
conventions provide for enforcement of arbitration awards
against contracting foreign sovereigns in domestic courts of
any convention signatory. By mutually agreeing with other

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sovereigns to enforce arbitral awards rendered in disputes to
which any signatory is a party, the logic goes, Spain waived its
immunity defense against such an enforcement action in U.S.
court.
Embracing that logic, the Second Circuit has held that, by
ratifying either convention, a country implicitly waives its
sovereign immunity from suits seeking to enforce awards under
that convention. See Blue Ridge Invs., LLC v. Republic of
Argentina, 735 F.3d 72, 84 (2d Cir. 2013) (ICSID Convention);
Seetransport Wiking Trader v. Navimpex Centrala, 989 F.2d
572, 578-79 (2d Cir. 1993) (New York Convention). The High
Court of Australia recently came to a similar conclusion. See
Kingdom of Spain v. Infrastructure Servs. Luxembourg S.à.r.l.
[2023] HCA 11 ¶ 79 (holding that Spain consented to the
jurisdiction of Australian courts “because the relevant
agreement arose from Spain’s entry into the ICSID
Convention, which included its agreement as to the
consequences of an award rendered pursuant to the ICSID
Convention”).
The waiver issue remains “unsettled” in our Circuit.
Process & Indus. Devs. Ltd. v. Fed. Republic of Nigeria
(P&ID), 27 F.4th 771, 774 (D.C. Cir. 2022). To be sure, we
have twice approvingly cited the Second Circuit’s decision in
Seetransport. In Creighton Ltd. v. Government of State of
Qatar, 181 F.3d 118 (D.C. Cir. 1999), we opined in dicta that
Seetransport “correctly” held that a foreign sovereign waives
sovereign immunity when it joins the New York Convention.
Id. at 123. Then, in Taftneft v. Ukraine, 771 F. App’x 9 (D.C.
Cir. 2019), we held in an unpublished judgment that “a
sovereign, by signing the New York Convention, waives its
immunity from arbitration-enforcement actions in other
signatory states.” Id. at 10. More recently, however, we
emphasized that “[a]lthough we have favorably cited

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Seetransport and its reasoning in dicta and in an unpublished
opinion, we have not formally adopted it.” P&ID, 27 F.4th at
774. And the United States urges against doing so in this case.
See NextEra U.S. Amicus Br. 19-25.
We leave clarification of the waiver question for another
day because we conclude that the district courts have
jurisdiction under the FSIA’s arbitration exception, to which
we now turn.
2.
As relevant here, the FSIA arbitration exception
withdraws sovereign immunity:
in any case . . . in which the action is brought, either
to enforce 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, whether contractual
or not, concerning a subject matter capable of
settlement by arbitration under the laws of the United
States, or to confirm an award made pursuant to such
an agreement to arbitrate, if . . . the agreement or
award is or may be governed by a treaty or other
international agreement in force for the United States
calling for the recognition and enforcement of
arbitral awards.
28 U.S.C. § 1605(a)(6).
To proceed under this clause of the FSIA’s arbitration
exception, we have explained, a district court must find three
“jurisdictional facts”: (1) an arbitration agreement, (2) an
arbitration award, and (3) a treaty potentially governing award

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enforcement. Chevron Corp., 795 F.3d at 204 & n.2; see also
Stileks, 985 F.3d at 877. In assessing these jurisdictional facts,
we apply a burden-shifting framework. The plaintiff must
initially satisfy a burden of production as to these facts, which
when met requires the foreign sovereign to “establish the
absence of the factual basis by a preponderance of the
evidence.” Chevron, 795 F.3d at 204 (citation omitted). The
United States objects to Chevron’s burden-shifting framework.
In its view, the plaintiff, as the party invoking the federal
court’s jurisdiction, must satisfy both the burden of production
and persuasion. See NextEra U.S. Amicus Br. 9-10 n.2. We
are bound by Chevron, however, and would have no occasion
in any event to revisit the issue because the plaintiff companies
satisfy the burden of persuasion in these cases.
Spain does not dispute that the companies have
demonstrated arbitration awards and a treaty governing the
enforcement of the awards in the United States. The only
jurisdictional fact in dispute here is “the existence of an
arbitration agreement.” Chevron, 795 F.3d at 204. The word
“existence” in this context is significant. It is well established
in this Circuit that disputes about the scope of an arbitration
agreement, such as whether a binding arbitration agreement
covers a particular dispute, are not jurisdictional questions
under the FSIA. See Stileks, 985 F.3d at 878. Scope questions
instead go to the award’s enforceability on the merits. To make
the issue jurisdictional, the sovereign must attack the existence
or validity of the arbitration agreement.
The first step in the analysis, then, is to identify the
relevant arbitration agreement. As mentioned, 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. 28 U.S.C. § 1605(a)(6).

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The most straightforward case is when a sovereign enters
into an arbitration agreement directly “with” a private investor.
Consider, for example, Belize Social Development Limited v.
Government of Belize, 794 F.3d 99 (D.C. Cir. 2015). In that
case, a private company entered into a business agreement
containing an arbitration clause with the prime minster of
Belize, who purported to sign on behalf of the country. Id. at
100-01. A newly elected prime minster later renounced the
agreement, claiming that the previous prime minister lacked
the authority to enter into the agreement. Id. at 101. The
company nonetheless commenced arbitration, prevailed, and,
invoking the FSIA’s arbitration exception, sought to enforce
the resultant award in the United States. Id. Belize resisted
enforcement on the ground that it did not enter into a valid
arbitration agreement with the company. Id. at 102. We treated
Belize’s argument as a jurisdictional one—it was attacking the
validity of the arbitration agreement it signed “with” the private
company—but we rejected the argument because the country
failed to substantiate its claim that the previous prime minister
“lacked authority to enter the agreement to arbitrate.” Id. at
103 (emphasis omitted).
An arbitration provision in an investment treaty works
differently. In itself, an investment treaty “cannot constitute an
agreement to arbitrate with an investor. How could it? No
investor is a party to that Treaty.” BG Grp., PLC v. Republic
of Argentina, 572 U.S. 25, 50 (2014) (Roberts, C.J., dissenting)
(emphasis added). The investment treaty is instead “a
contract . . . between nations.” Id. at 37 (majority op.). As
such, an arbitration provision in an investment treaty can both
(1) constitute an agreement “for the benefit” of a private party;
and (2) give rise to a separate agreement “with” a private party.
28 U.S.C. § 1605(a)(6). Under the plain terms of the FSIA’s
arbitration exception, either type of agreement may support the
exercise of jurisdiction over a foreign sovereign.

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The two agreements are related. First, the arbitration
provision in an investment treaty may itself be “part of a
completed agreement between” the signatory countries to
arbitrate certain disputes with investors of the other’s country.
BG Grp., 572 U.S. at 53 (Roberts, C.J., dissenting) (emphasis
omitted). Such a provision is an agreement made “for the
benefit” of a private party. But it is not a complete agreement
made “with” a private party. “Something else must happen to
create an agreement where there was none before.” Id. at 50
(emphasis omitted). To that end, an investment treaty’s
arbitration provision operates as “a unilateral offer to arbitrate”
by each sovereign to investors of the other signatory countries.
Id. (emphasis omitted). A foreign investor seeking to take
advantage of the investment treaty’s arbitration agreement may
accept the offer by “filing . . . a notice of arbitration,” id. at 42
(majority op.), and thereby create a second arbitration
agreement—this one made by the sovereign “with” a private
party.
In so holding, we recognize that “a sovereign’s consent to
arbitration is important.” Id. at 43. That is especially so where,
as here, the agreement to arbitrate is the basis of a federal
court’s authority to exercise jurisdiction over the sovereign.
An investment treaty may reflect the requisite consent for
purposes of the FSIA’s arbitration exception. When a
sovereign makes “an agreement . . . to submit to arbitration” by
entering an investment treaty with other sovereigns “for the
benefit of” a class of private investors, it is the treaty that
manifests the sovereign’s consent to arbitrate. 28 U.S.C.
§ 1605(a)(6). We therefore may look to the investment treaty
itself to identify the scope of the sovereign’s consent and the
relevant agreement for purposes of the FSIA’s arbitration
exception.

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The investment treaty offers powerful reasons to conclude
that the standing offer to arbitrate contained in the ECT’s
arbitration provision extends to EU nationals. The clear terms
of the ECT’s arbitration provision cover “[d]isputes between a
Contracting Party and an Investor of another Contracting
Party.” ECT art. 26(1). Spain is undeniably a “Contracting
Party,” id. art. 1(2), and the companies are undeniably
“Investor[s] of another Contracting Party,” id. art. 26(1),
because the companies are “organized in accordance with the
law applicable in” the Netherlands or Luxembourg, id. art.
1(7). And if the ECT’s drafters nonetheless intended to exempt
intra-EU disputes, they could have done so through a
“disconnection clause”—a provision stating that the treaty does
not govern the relationships between EU Member States.
Indeed, as another ICSID tribunal explained, “during
negotiation of the ECT, the EU had proposed the insertion of a
disconnection clause. However, that clause was ultimately
dropped from the draft treaty.” Vattenfall AB v. Fed. Republic
of Germany, ICSID Case No. Arb/12/12, Decision on the
Achmea Issue, ¶¶ 204-05 (Aug. 31, 2018).
For its part, Spain insists that it did not enter into an
arbitration agreement “with” the companies. It contends that
the standing offer to arbitrate contained in Article 26 of the
ECT did not and could not “extend” to the companies because,
under the Court of Justice’s Komstroy opinion, “the Energy
Charter Treaty does not permit intra-EU arbitration.” NextEra
Appellant Br. 43. Therefore, the country concludes, it “could
not form any arbitration agreement” with the companies as a
matter of EU law. Id. 31.
But we need not and do not resolve whether Spain entered
into separate arbitration agreements “with” private parties
because we conclude that it entered into an arbitration
agreement—the Energy Charter Treaty itself—that is arguably

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“for the[ir] benefit.” 28 U.S.C. § 1605(a)(6). Spain does not
dispute that it is a signatory to the Energy Charter Treaty. And
it is 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.
ECT art. 26(3)(a). Thus, as a leading scholar has explained, the
treaty itself “contain[s] the consent of the contracting parties to
submit disputes involving foreign investment to direct
investor-state arbitration.” Christopher Dugan et al., Investor-
State Arbitration 241 (2008). That agreement is “for the
benefit” of the signatory’s investors, and therefore satisfies the
FSIA’s arbitration exception.
Spain agrees that the ECT was made “for the benefit” of
some investors—just not those within the European Union. 28
U.S.C. § 1605(a)(6). Spain’s view, again, is that the standing
offer to arbitrate contained in Article 26 of the ECT does not
extend to EU nationals like the companies; it extends only to
the nationals of ECT signatories outside the European Union,
like Japan. NextEra Appellant Br. 31, 42-44. That, however,
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. And our binding
precedent holds that the question “[w]hether the ECT applies
to [a] dispute” is not “a jurisdictional question under the FSIA.”
Stileks, 985 F.3d at 878-79 (emphasis omitted) (citing Chevron,
795 F.3d at 205-06).
In Chevron and Stileks, the sovereigns argued that they
never agreed to arbitrate because the scope of the relevant
investment treaties’ arbitration provisions did not extend to the
disputes that the companies sought to arbitrate. In each case,
we held that the sovereign’s argument went to the
enforceability of the arbitral award on the merits, rather than

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the district court’s jurisdiction to enforce the award under the
FSIA.
Chevron concerned a contractual dispute between
Chevron, an American company, and the Republic of Ecuador.
795 F.3d at 202. After Chevron’s lawsuits against Ecuador
languished in Ecuador’s courts, Chevron commenced
arbitration and prevailed under an arbitration provision
contained in a bilateral investment treaty between the United
States and Ecuador. Id. at 202-03. Under that treaty, “Ecuador
made a standing offer to American investors to arbitrate
disputes involving investments that existed on or after the
treaty’s effective date.” Id. at 202. Invoking the FSIA’s
arbitration exception, Chevron petitioned to enforce the award
in the United States under the New York Convention. Id. at
203. Ecuador argued the arbitration exception did not apply
because its “offer to arbitrate in the [investment treaty] [did
not] encompass[] Chevron’s breach of contract claims.” Id. at
205. “According to Ecuador, if Chevron’s claims [were] not
covered by the [investment treaty], then Ecuador never agreed
to arbitrate with Chevron, and the District Court consequently
lacked jurisdiction.” Id. The panel rejected that argument,
holding that “[t]he dispute over whether the lawsuits were
‘investments’ for purposes of the treaty” is not a jurisdictional
question under the FSIA; rather it “is properly considered as
part of review under the New York Convention.” Id. at 206.
Stileks applied the reasoning of Chevron to the Energy
Charter Treaty’s arbitration provision. A Ukrainian company
called Energoalliance contracted to sell electricity to the
Republic of Moldova. 985 F.3d at 874-75. But Energoalliance
did not sell directly to Moldova; instead, it sold the electricity
to a British Virgin Islands entity called Derimen Properties,
which in turn provided the electricity to Moldova. Id. at 875.
When Moldova fell behind on payments, “Derimen assigned

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the debt to Energoalliance,” which commenced arbitration
under Article 26 of the Energy Charter Treaty. Id.
Energoalliance secured an arbitral award and sought to enforce
the award in the United States under the New York
Convention. Id.
Like Chevron, Energoalliance invoked the FSIA’s
arbitration exception. Id. at 877. And, like Ecuador, Moldova
argued that the arbitration exception did not apply. It reasoned
that “Derimen’s claim against [Moldova] was not an
investment within the meaning of the ECT because Derimen, a
[British Virgin Islands] entity, was not a qualifying investor.”
Id. at 878. So, “[a]lthough the ECT may establish that Moldova
agreed to arbitrate certain disputes, it does not prove that it
agreed to arbitrate this particular dispute.” Id. Following
Chevron, the panel in Stileks held “that the arbitrability of a
dispute is not a jurisdictional question under the FSIA,” and it
“construe[d] Moldova’s arbitrability argument as a defense
under [the New York] Convention.” Id.
What was true in Stileks is true here. Like Moldova, Spain
argues that the ECT’s arbitration provision does not cover the
companies’ claims. Moldova said that was because
Energoalliance’s claims were not covered investments under
the ECT; Spain argues it is because the EU companies are not
covered investors under the ECT. Both claims go to the scope
of the ECT’s arbitration provision—in the former case, which
disputes are covered; in the latter, which investors are covered.
In Stileks, we squarely held that the question “[w]hether the
ECT applies to the dispute” is not “a jurisdictional question
under the FSIA.” 985 F.3d at 878-79. It does not matter why
the ECT may not apply to the dispute. For jurisdictional
purposes, the FSIA’s arbitration exception requires that the
arbitral tribunal “purported to make an award pursuant to the
ECT, not that it in fact did so.” Id. at 878. Therefore, the

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companies showed Spain’s agreement to arbitrate, for purposes
of the FSIA, by “produc[ing] copies of the ECT.” Id. at 877.
Two limits of our holding bear emphasis. First, not every
arbitration provision in an investment treaty represents a
completed agreement “for the benefit” of a private party. 28
U.S.C. § 1605(a)(6). That is because not all investment treaties
“supply the requisite state consent to arbitration.” Dugan,
Investor-State Arbitration at 241. Some investment treaties
contain “a mere agreement to agree”; they provide, for
example, that a dispute “shall upon the agreement by both
parties be submitted for arbitration.” Id. at 237 (quoting
Agreement Between the Government of Sweden and the
Government of Malaysia Concerning the Mutual Protection of
Investments art. 6, Mar. 3, 1979, 1254 U.N.T.S. 315). Unlike
the ECT’s arbitration provision, such a provision does not itself
“constitute consent to arbitration by the States concerned.” Id.
(internal quotation omitted).
Second, we hold only that the district courts have
jurisdiction to enforce these arbitration awards. That does not
mean they must or should do so. By basing jurisdiction on the
Energy Charter Treaty as an agreement “for the benefit” of
foreign investors, we do not address the merits question
whether that Treaty’s arbitration provision extends to EU
nationals and thus whether Spain ultimately entered into legally
valid agreements with the companies.
Our holding that the FSIA’s arbitration exception
authorizes enforcement of these arbitral awards makes it
unnecessary for us to reach another issue that Blasket raised in
an amicus brief it filed in NextEra and 9REN. The FSIA grants
sovereign immunity to foreign states, but that grant is explicitly
“[s]ubject to existing international agreements to which the
United States [was] a party” before FSIA’s enactment in 1976.

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28 U.S.C. § 1604. Because the United States ratified the ICSID
Convention in 1966, the FSIA’s carve-out for “existing
international agreements,” id., may include that convention,
depending on whether it “expressly conflict[s] with the
[FSIA’s] immunity provisions.” Argentine Republic v.
Amerada Hess Shipping Corp., 488 U.S. 428, 442 (1989)
(formatting modified). Since we hold that district courts have
jurisdiction to enforce these awards under the FSIA’s
arbitration exception, we see no express conflict between the
FSIA’s immunity provisions and the ICSID Convention. See
Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venez., 863
F.3d 96, 113-14 (2d Cir. 2017).
In sum, we take no position on the ultimate enforceability
of these awards. We hold only that district courts have
jurisdiction to enforce them under the FSIA’s arbitration
exception.
Finally, Spain contends that, even if the district courts had
jurisdiction under the FSIA, they should have alternatively
dismissed the petitions based on the doctrine of forum non
conveniens. As Spain acknowledges, however, binding circuit
precedent dictates that “forum non conveniens is not available
in proceedings to confirm a foreign arbitral award because only
U.S. courts can attach foreign commercial assets found within
the United States.” See Stileks, 985 F.3d at 876 n.1 (citing TMR
Energy Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296, 303-
04 (D.C. Cir. 2005)). We therefore reject that challenge.
B.
We now consider the propriety of the district court’s anti-
suit injunctions in NextEra and 9REN. After asserting
jurisdiction over the disputes, the district court preliminarily
enjoined Spain from pursuing relief in the Netherlands or

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Luxembourg that would interfere with the district court’s
jurisdiction.
On appeal, Spain contends that the injunctions were an
abuse of discretion. Spain’s primary argument is that the
injunctions violate the principle of international comity—i.e.,
“the recognition which one nation allows within its territory to
the legislative, executive or judicial acts of another nation.”
Usoyan v. Republic of Turkey, 6 F.4th 31, 48 (D.C. Cir. 2021)
(quoting Hilton v. Guyot, 159 U.S. 113, 164 (1895)). In an
amicus brief, the Netherlands stresses the same theme. See
NextEra Netherlands Amicus Br. 15-17. As does the United
States, which submitted an amicus brief and participated in oral
argument at our invitation. See NextEra U.S. Amicus Br. 25-
30.
We agree that the injunctions were an abuse of discretion.
We start with some context. There are two types of anti-
suit injunctions: offensive (seeking to defeat another court’s
jurisdiction) and defensive (seeking to protect the ordering
court’s own jurisdiction). Some examples are useful to
understand the difference. Suppose X sues Y in Country A. If
Y turns to courts in Country B to obtain an injunction against
the proceeding in Country A, that’s an offensive anti-suit
injunction: “Its only purpose is to destroy [Country A’s]
jurisdiction.” Laker Airways Ltd., 731 F.2d at 933 n.81. If X
responds by seeking in Country A an injunction to put a stop to
the Country B proceeding, that’s a defensive anti-suit
injunction: It is “designed to protect [Country A’s] jurisdiction
to proceed with the case.” Id.
We affirmed a defensive anti-suit injunction in Laker
Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909
(D.C. Cir. 1984). There, British company Laker Airways sued
other British, American, and foreign companies in U.S. district

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court for anticompetitive behavior. See id. at 917-18. The
British and some of the foreign defendant airlines went to
British court and obtained an offensive anti-suit injunction,
prohibiting Laker from proceeding in the U.S. court. Id. at 918.
Laker responded by preemptively seeking in U.S. court
defensive anti-suit injunctions against the U.S. airlines and the
two foreign airlines that had not yet sought anti-suit relief in
British court. Id.
The Laker district court granted the defensive anti-suit
injunctions against those airlines, preventing them from
“taking any action before a foreign court or governmental
authority that would interfere with the district court’s
jurisdiction over the matters alleged in the complaint.” Id. at
919. Those foreign airlines—one Dutch, the other Belgian—
appealed. Id. at 919, 954 n.175. They did not “dispute the
power of the United States District Court to issue the
injunction.” Id. at 934. Rather, they argued that the district
court abused its discretion because the injunction “violate[d]
their right to take part in the ‘parallel’ actions commenced in
the English courts,” in contravention of “international
principles of comity.” Id. at 921. They also argued that the
injunction “ignored Britain’s ‘paramount right’ to apply British
law to Laker, which is a British subject.” Id.
A divided panel affirmed the injunction. Id. at 916. The
majority emphasized that an anti-suit injunction should issue
only after a case-specific evaluation of the equities makes clear
that it is necessary “to prevent an irreparable miscarriage of
justice.” Id. at 927. Anything less than “the most compelling
circumstances” is not enough. Id.
The Laker panel approved the injunction because “the sole
purpose of the English proceeding [was] to terminate the
American action.” Id. at 930 (emphasis in original). It ruled

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that the “injunctions of the United Kingdom courts [were] not
entitled to comity” because the “action before the United
Kingdom courts [was] specifically intended to interfere with
and terminate Laker’s United States antitrust suit.” Id. at 938.
In other words, the “district court’s anti-suit injunction was
purely defensive,” whereas the “English injunction [was]
purely offensive.” Id. The majority also reasoned that the
district court exhibited comity by offering to narrow the scope
of the injunction to permit the foreign airlines “to proceed in
Great Britain without leaving them free to secure orders which
would interfere with the district court’s pending litigation.” Id.
at 942. The dissenting opinion would have held the injunction
too broad but would have approved an injunction that
authorized the foreign airlines to seek declaratory relief. Id. at
958 (Starr, J., dissenting).
Here, the district court took Laker as its starting point.
NextEra, 656 F. Supp. 3d at 215. (Because the district court’s
analysis is substantially the same in NextEra and 9REN, we cite
only to the published opinion in NextEra.) The district court
concluded that anti-suit injunctions were warranted because,
like the injunction in Laker, the injunctions requested here were
defensive anti-suit injunctions. The court found that Spain’s
“express and primary purpose” for initiating the Dutch and
Luxemburgish suits was to terminate the ongoing district court
actions. Id. at 215-16. And the district court permitted Spain
to continue to seek declaratory relief to “vindicat[e] its
interpretation of EU law.” Id. at 217; cf. Laker Airways, 731
F.2d at 958 (Starr, J., dissenting). After considering the
equitable factors Laker identifies as bearing on the propriety of
anti-suit injunctions, the district court applied the traditional
four-factor test for preliminary injunctions. See NextEra, 656
F. Supp. 3d at 214-21. It then issued the anti-suit injunctions,
prohibiting Spain from pursuing relief in the Netherlands or

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Luxembourg that would interfere with the district court’s
jurisdiction. See NextEra J.A. 833-34.
Despite the district court’s careful analysis, we conclude
that it abused its discretion in issuing the anti-suit injunctions.
A district court abuses its discretion when it “fail[s] to consider
a relevant factor” or “relie[s] on an improper factor.” Standing
Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 985 F.3d 1032,
1053 (D.C. Cir. 2021) (quotation marks omitted); see also
Weyerhaeuser v. U.S. Fish & Wildlife Serv., 586 U.S. 9, 25
(2018) (explaining that, on abuse-of-discretion review, a court
must ensure that the decisionmaker “appropriately consider[s]
all of the relevant factors”). A district court also abuses its
discretion if, “upon a weighing of the relevant factors,” it
commits “a clear error of judgment.” Truckers United for
Safety v. Mead, 329 F.3d 891, 894 (D.C. Cir. 2003) (quotation
marks omitted). And, of course, a district court abuses its
discretion when it commits a “material error of law.”
Musgrave v. Warner, 104 F.4th 355, 365 (D.C. Cir. 2024)
(quotation marks omitted).
Before issuing an anti-suit injunction, a court “should
focus on (1) whether an action in the foreign jurisdiction
prevents United States jurisdiction or threatens a vital United
States policy, and (2) whether the domestic interests outweigh
concerns of international comity.” Goss Int’l Corp. v. Man
Roland Druckmaschinen Aktiengesellschaft, 491 F.3d 355, 361
& n.4 (8th Cir. 2007) (citing Laker, 731 F.2d at 909-59). The
district court made two errors in its evaluation of these factors.1
1 As mentioned, in addition to evaluating these specific anti-
suit injunction factors, the district court also considered the
four traditional injunction factors. Other circuits appear to be

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First, the district court did not address the fact that the anti-
suit injunctions run against a foreign sovereign. “[A] district
court’s power to sanction or exercise other forms of judicial
control over a foreign sovereign is not coterminous with its
power to regulate or punish other litigants.” Republic of
Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 72-73 (3d
Cir. 1994). In general, anti-suit injunctions strain the “crucial
principles of comity that regulate and moderate the social and
economic intercourse between independent nations.” Laker,
731 F.2d at 937. An anti-suit injunction against a foreign
sovereign puts these comity concerns “near their peak.” BAE
Sys. Tech. Sol. & Servs., Inc. v. Republic of Korea’s Def.
Acquisition Program Admin., 884 F.3d 463, 480 (4th Cir.
2018).
The district court reasoned that anti-suit injunctions were
justified by the need to protect its jurisdiction to enforce
NextEra’s and 9REN’s awards. While such a concern could
support an injunction against private parties, see, e.g., Laker,
731 F.2d at 927-31, it alone does not account for all of the
divided on whether those factors apply to anti-suit injunctions.
Compare In re Millenium Seacarriers, Inc., 458 F.3d 92, 97-98
(2d Cir. 2006) (per curiam) (evaluating traditional injunction
factors in addition to equitable factors specific to the propriety
of an anti-suit injunction), with, e.g., Goss, 491 F.3d at 361 n.4.
(holding anti-suit injunction factors displace traditional
injunction factors). Because we conclude that the district court
erred in its evaluation of the anti-suit injunction factors, we
need not reach the question whether, in addition to those
factors, a district court considering whether to issue an anti-suit
injunction must also consider the four traditional injunction
factors.

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35
implicated interests when relief is sought against a foreign
sovereign.
The injunctions here would “impinge on the sovereignty”
of both the Spanish government to litigate and the Dutch and
Luxembourgish courts to decide an issue that Spain and the
European Union view as an important question of European
Union law. BAE, 884 F.3d at 480; see NextEra Eur. Comm’n
Amicus Br. 11-12.
These are not abstract concerns. “Actions against foreign
sovereigns in our courts raise sensitive issues concerning the
foreign relations of the United States,” Verlinden B.V. v. Cent.
Bank of Nigeria, 461 U.S. 480, 493 (1983), and can have
serious “diplomatic implications,” Republic of Sudan v.
Harrison, 587 U.S. 1, 19 (2019). Indeed, the United States
warns that the injunctions here “ha[ve] the potential to cause
significant harm to the United States.” NextEra U.S. Amicus
Br. 29. That is because “there is a real risk that issuance of an
antisuit injunction in cases like this could prompt reciprocal
injunctions against the United States.” Id. at 30.
It is thus no surprise that an anti-suit injunction against a
foreign sovereign is virtually unprecedented. The injunction in
Laker ran against private companies, and we emphasized there
were “[n]o facts . . . presented . . . suggesting that the antitrust
suit adversely affects the operations of foreign governments.”
Laker, 731 F.2d at 942. And, in sustaining anti-suit injunctions
against private entities, other courts also stress the fact that
foreign sovereigns are not involved in the lawsuit. See, e.g., E.
& J. Gallo Winery v. Andina Licores S.A., 446 F.3d 984, 994
(9th Cir. 2006) (“There is no indication that the government of
Ecuador is involved in the litigation.”). Indeed, the only case
that we could find in which an appellate court was presented
with a similar injunction deemed the injunction an abuse of

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36
discretion because the district court “failed to recognize [its]
extraordinarily intrusive nature.” See Westinghouse Elec. Co.,
43 F.3d at 80-81 (vacating injunction against foreign sovereign
prohibiting the sovereign from harassing witnesses who had
testified against it in a suit it had brought in federal court in the
United States).
The district court thus erred in issuing the injunctions
without considering Spain’s sovereign status.
Our partially dissenting colleague does not dispute that
Spain’s status as a foreign sovereign is an important part of the
problem. She concludes, however, that the district court did
reckon with “Spain’s status as a sovereign nation.” Partial
Dissent 11. For support, she points to the district court’s
statement that general “[c]onsiderations of comity” weigh
against the anti-suit injunctions. Id. (quoting NextEra, 656 F.
Supp. 3d at 216-17). But that is true of all foreign anti-suit
injunctions, regardless of whether they target private entities or
foreign sovereigns.
Our dissenting colleague also suggests that we cannot
consider the views of the United States because they were “not
before the district court when the anti-suit injunctions were
litigated.” Id. at 14-15. She contends that, at most, we “should
remand for the district court to consider the[] [United States’
views] in the first instance.” Id. at 15. We disagree.
For one thing, the views of the United States were before
the district court when the anti-suit injunctions were litigated.
In opposing the injunctions before the district court, Spain
pointed to the United States’ amicus brief in BAE System
Technology Solution & Services, 884 F.3d 463, a 2018 case in
which the Fourth Circuit affirmed a district court’s denial of an
anti-suit injunction against the Republic of Korea. See NextEra
ECF No. 81 at 15. In a portion of the amicus brief that Spain

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37
quoted to the district court, the United States stressed—in
language it echoes in its brief in this case—that “an antisuit
injunction, barring a foreign sovereign from invoking the
jurisdiction of its own courts, would be a truly extraordinary
remedy with significant consequences for international comity,
and its issuance could have significant negative consequences
for the U.S. government.” See Brief for the United States as
Amicus Curiae, BAE Sys. Tech. Sol. & Servs., 884 F.3d 463
(4th Cir. 2018) (No. 17-1070), 2018 WL 551803, at *2; cf.
NextEra U.S. Amicus Br. 25 (“Enjoining a foreign sovereign
from bringing suit in a foreign court is an extraordinary remedy
that would rarely (and possibly never) be justified.”). So, the
district court was aware of the United States’ position on the
propriety of anti-suit injunctions against foreign sovereigns, at
least as of 2018.
If the interests of the United States were not clear to the
district court, it could have invited the United States to file an
amicus brief to clarify its position. Indeed, no party expressed
surprise at, or objected to, our invitation to the United States to
participate as amicus curiae; all undoubtedly recognize that
U.S. courts addressing matters touching foreign affairs give
substantial respect to the views of the United States
government. Restatement (Third) of Foreign Relations Law
§ 112, cmt. c (Am. L. Inst. 2024). And, although they took the
opportunity to respond to the views of the United States, the
companies did not request that, if we were unable to sustain the
injunctions, we should remand them to the district court.
In any event, our holding does not turn on the views of the
United States. Those views are important, to be sure. But, even
without them, we would conclude that an anti-suit injunction
against a foreign sovereign presents more serious comity
concerns than one against a private entity. The district court’s
failure to recognize that difference was an error. So, we would

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38
vacate and remand the injunctions even if the United States had
not filed an amicus brief in this case asking us to do so.
Second, with comity concerns near their peak, the district
court failed to identify domestic interests strong enough to
warrant the anti-suit injunctions.
In approving the injunction in Laker, we emphasized that
the injunction served substantial interests of the United States.
731 F.2d at 922-26. Although the enjoined party there was a
foreign corporation, it was in liquidation and its “principal
creditors [were] Americans.” Id. at 924. In addition, the case
implicated the enforcement of American antitrust laws, which
would have “directly benefit[ed] American consumers,” since
the anticompetitive behavior was alleged to “raise fares for
United States passengers.” Id.
The only domestic interest the district court identified here
is a public interest in encouraging arbitration. NextEra, 656 F.
Supp. 3d at 221. That important interest is codified at 22
U.S.C. § 1650a(a), the federal statute implementing the ICSID
Convention. Under that Convention, the United States must
open the doors of its courthouses to foreign investors seeking
to enforce such awards. But neither the treaty nor the statute
requires the United States to remove obstacles in other
countries that might make it harder for foreign investors to find
their way to our courts.
These cases are a far cry from Laker. The United States
has no direct interest in the underlying disputes between the
Dutch and Luxembourgish companies and Spain. There is no
suggestion that U.S. law governs that underlying dispute. Nor
does the United States have a direct interest in the interpretation
of the Energy Charter Treaty, a treaty to which it does not
belong. The European Union asserts that “the question of
Article 26’s intra-EU application is a matter internal to the EU

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39
and does not implicate the rights of third countries that are also
contracting parties to the Energy Charter Treaty.” NextEra
Eur. Comm’n Amicus Br. 17; see NextEra U.S. Amicus Br. 28
(noting with approval that “[t]he submission of the EU explains
that these questions are of extraordinary importance to that
body because they ‘implicat[e] the structure of the EU legal
order, the role and jurisdiction of EU courts, the interpretation
of EU law by non-EU adjudicatory bodies, and the future of the
Energy Charter Treaty and investor-State arbitration within the
EU.’” (quoting NextEra Eur. Comm’n Amicus Br. 26)).
Our partially dissenting colleague suggests that we “give
insufficient weight to the United States’ obligation to uphold
the ICSID Convention and its strong interests in doing so.”
Partial Dissent 17. But the United States itself tells us those
interests “are far outweighed by the interests in allowing the
foreign litigation to proceed.” NextEra U.S. Amicus Br. 25.
In any event, we disagree that Spain’s tactics threaten to
“undermine[] the whole process envisioned by the ICSID
Convention.” Partial Dissent 17. After all, the ICSID
Convention explicitly offers recourse to signatory countries
objecting that another signatory country is improperly
interfering with ICSID enforcement proceedings. Under
Article 64, a signatory country may refer a dispute “concerning
the interpretation or application of this Convention” to the
International Court of Justice. ICSID Convention art. 64. If
the Netherlands or Luxembourg concluded that Spain’s
treatment of their nationals was in violation of the ICSID
Convention, they could refer the dispute to the International
Court of Justice. Our colleague suggests the ICSID
Convention’s remedy is too “cumbersome,” but that is neither
here nor there: It is the remedy “envisioned by the ICSID
Convention.” Partial Dissent 17-18. Not only has the

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40
Netherlands declined to pursue that remedy, it urges us to
vacate the injunctions. See Netherlands Amicus Br. 17.
That last point bears emphasis. The companies argue that
Spain is breaching the commitments it made to the Netherlands
and Luxembourg in the Energy Charter Treaty and the ICSID
Convention to arbitrate disputes with their nationals before an
ICSID tribunal. If the Netherlands or Luxembourg agreed with
the companies, they might try to put a stop to Spain’s tactics.
They could refer the issue to the International Court of Justice.
Or their courts could simply deny Spain’s requests for anti-suit
relief. The countries have not taken these steps, likely because
they agree with Spain that the Energy Charter Treaty “cannot
and never could serve as a legal basis for intra-EU arbitration
proceedings.” NextEra 28(j) Letter dated July 9, 2024. In other
words, those countries do not understand the agreement they
made with Spain to obligate Spain to arbitrate with their
nationals. One reason the companies may struggle to enforce
their arbitration awards is that the awards are based on an
interpretation of an international treaty that the treaty signers
reject.
One final note about what is—and is not—at stake with
these anti-suit injunctions. Our dissenting colleague laments
that, without the injunctions, “[o]ur affirmance of the district
court’s jurisdictional rulings is a hollow victory for the
[companies]” because they “will be enjoined by foreign courts
from ever confirming their hard-won awards.” Partial Dissent
21. But the injunctions are one small piece of a complex
international puzzle. The injunctions might help the companies
confirm their awards, but—as the district court made clear—
they would not stop Spain from continuing to seek declaratory
and monetary relief in foreign courts that could ultimately
prevent the companies from securing the money they seek. See
NextEra, 656 F. Supp. 3d at 217.

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41
For example, in addition to seeking an injunction, Spain
asked the Dutch court for a monetary award of “[€]300 million
or an amount equivalent to the amount obtained by NextEra . . .
through the execution, whichever is lower.” NextEra J.A. 800.
Even if we sustained the injunctions, Spain would be free to
pursue an order from the Dutch courts requiring the companies
to return whatever money NextEra obtained through this
enforcement action. Indeed, Laker itself recognized that
foreign courts “can sanction their citizens for resorting to
United States . . . remedies.” 731 F.2d at 936. One way or
another, then, the companies will have to reckon with their
national courts and EU law. The injunctions might help the
companies confirm their arbitral awards, but they would not
help them keep the awards. At the very least, all agree that is a
matter of EU law.
In sum, the district court’s careful analysis overlooked the
fact that anti-suit relief was sought against a foreign sovereign
and the nature of the United States’ ICSID obligations. In so
holding, we do not categorically foreclose anti-suit injunctions
against foreign sovereigns. In this context and on this record,
however, we must vacate the anti-suit injunctions.
III.
We hold that the district courts have jurisdiction to confirm
these arbitration awards under the FSIA’s arbitration
exception, and that the preliminary injunctions in NextEra and
9REN are an abuse of discretion. We therefore affirm in part
and reverse in part in NextEra; reverse in 9REN and Blasket;
and remand for further proceedings.
So ordered.

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PAN, Circuit Judge, dissenting in part:
I concur with the court’s holding that the district court has
jurisdiction under the Foreign Sovereign Immunities Act to
hear the instant cases and to confirm the arbitration awards at
issue. But I believe that the majority errs in vacating the anti-
suit injunctions imposed by the district court. I disagree with
the majority’s approach to applying the abuse-of-discretion
standard of review: The majority appears to perform its own
balancing of interests and to substitute its own judgments for
those of the district court. In so doing, the majority opinion
gives insufficient weight to the United States’ interest in
upholding the ICSID Convention, overlooks Spain’s lack of
comity and apparent bad faith, and ignores the district court’s
finding that the injunctions were necessary to prevent
irreparable harm to NextEra and 9REN. Because reasonable
minds evidently differ on how to weigh the competing factors,
the majority’s conclusions are, at best, only arguably correct.
Thus, the applicable standard of review requires us to uphold
the district court’s discretionary calls, which were within its
“range of choice” and were “not influenced by any mistake of
law.” Morrissey v. Mayorkas, 17 F.4th 1150, 1156 (D.C. Cir.
2021). I therefore respectfully dissent as to Part II.B of the
court’s opinion.
I.
A.
The Energy Charter Treaty (“ECT”) is a multilateral treaty
that facilitates foreign investments in the energy sectors of
participating nations. See Maj. Op. 8–9. A key feature of the
ECT is its guarantee to foreign investors that the participating
nations will agree to resolve disputes arising from the foreign
investments in a neutral arbitral forum. See id. at 9.
Specifically, the ECT provides that each nation “gives its
unconditional consent to the submission of [a] dispute to

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2
international arbitration.” See Energy Charter Treaty 16 art.
26(3), Dec. 17, 1994, 2080 U.N.T.S. 95. An investor who
elects to arbitrate can proceed before the International Centre
for Settlement of Investment Disputes (“ICSID”). Id. at art.
26(3)–(5). The ICSID Convention is a multilateral treaty that
authorizes ICSID “to convene arbitration, mediation, and fact-
finding panels to address disputes between international
investors and Contracting States.” Valores Mundiales, S.L. v.
Bolivarian Republic of Venezuela, 87 F.4th 510, 514 (D.C. Cir.
2023). Signatory nations are obligated to enforce any
arbitration award conferred by an ICSID tribunal as if the
award “were a final judgment of a court in that [signatory
nation].” See ICSID Convention, art. 54; see also Maj. Op. 15;
22 U.S.C. § 1650a(a).
The ECT’s arbitration provision, which includes the
promise of recourse under the ICSID framework, plays an
important role in encouraging foreign investments: It
ameliorates the risk to private companies of doing business
with a sovereign nation by ensuring that there will be a fair
procedure for resolving any disputes arising from the
companies’ investments. Spain is a signatory of the ICSID
Convention, and at the relevant time was a signatory of the
ECT. The United States is a signatory of the ICSID
Convention.
NextEra and 9REN (the “Investors”) are energy
companies from the Netherlands and Luxembourg,
respectively. See Maj. Op. 10. They both invested in the
Spanish energy sector with the understanding that they could
avail themselves of the arbitration provisions in the ECT and
the ICSID Convention if necessary. Spain accepted the capital
investments made by NextEra and 9REN, but nevertheless
broke its promise to provide energy subsidies that would have
benefited the Investors. See id.

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3
In response to Spain’s breach of its commitments, NextEra
and 9REN followed the procedures outlined in the ECT and the
ICSID Convention. See Maj. Op. 10. They participated in
lengthy arbitration proceedings with Spain, in which all of
Spain’s arguments were fully aired. The Investors each
secured significant monetary awards that were upheld pursuant
to ICSID’s internal appeal process. See id. at 14–15. They then
sought to confirm their arbitral awards in a United States
district court, as permitted by the ICSID Convention. See id.
at 15. The district court ruled that it had jurisdiction to confirm
the arbitral awards. See NextEra Energy Glob. Holdings B.V.
v. Kingdom of Spain, 656 F. Supp. 3d 201, 214 (D.D.C. 2023);
9REN Holding S.À.R.L. v. Kingdom of Spain, Civ. No. 19-
01871, 2023 WL 2016933, at *3 (D.D.C. Feb. 15, 2023). We
unanimously affirm the district court’s jurisdictional rulings
and remand for further proceedings so that the Investors may
litigate the confirmation of their awards. But all the Investors’
efforts to date may have been for naught because the majority
opinion vacates the district court’s anti-suit injunctions, which
protected the Investors’ ability to enforce their arbitral awards
under the ICSID framework.
B.
Spain has argued in this case and elsewhere that it is not
obligated to arbitrate with EU nationals — such as NextEra and
9REN — because the EU’s highest court has prohibited EU-
member nations from making treaty commitments to arbitrate
intra-EU disputes. See Maj. Op. 24 (citing Republic of
Moldova v. Komstroy LLC, ECLI:EU:C:2021:655 (Sept. 2,
2021)). Based on the EU court’s ruling, Spain claims that it
could not have lawfully entered into arbitration agreements
with the Investors, even though Spain became a signatory to
the ECT and the ICSID Convention long before that ruling was
made. See id. at 10, 13, 25. Spain advanced those arguments

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4
to oppose jurisdiction in this forum, even though dozens of
arbitral tribunals and non-EU courts have ruled against Spain
when presented with similar claims. See Int’l Scholars Amicus
Br. 13 n.7 (collecting examples); Infrastructure Servs.
Luxembourg S.À.R.L v. Kingdom of Spain, [2023] EWHC 1226
(Comm) ¶ 67 (decision by the English High Court of Justice
holding that “[t]he EU treaties do not trump [Spain’s
obligations under the ICSID Convention and the ECT], nor do
they override the relevant domestic law mechanism in the
United Kingdom”). Notably, Spain currently owes more than
$1.3 billion for sixteen unpaid arbitral awards won by
investors. See Int’l Scholars Amicus Br. 30 n.23 (citing Nikos
Lavranos, Updated Report concerning Spain’s Compliance
with Investment Treaty Arbitration Awards 2023, Int’l L.
Compliance (June 2023)).
In these cases, faced with the prospect of losing on the
merits yet again, Spain resorted to a procedural gambit to block
the Investors from using the ICSID framework to enforce their
arbitral awards: Spain sued NextEra and 9REN in their home
countries to enjoin the Investors from confirming their awards
in the United States. In the Dutch action, Spain sought an order
requiring NextEra to “take all actions necessary to suspend the
proceedings currently pending before the United States District
Court . . . under penalty of a daily payment of EUR 30,000 for
each day.” NextEra J.A. 798. Spain also requested an
injunction prohibiting NextEra from trying to enforce its award
anywhere in the world. Id. at 798–99. Likewise, Spain asked
the Luxembourgish court to order 9REN to “cease any
enforcement of the Arbitral Award” or be subject to a penalty
of EUR 100,000 per day. 9REN J.A. 411.
The extreme remedies requested by Spain in the foreign
actions were designed to deter the Investors from exercising
their rights under the ECT and the ICSID Convention — even

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5
though Spain signed those treaties and thereby consented to the
procedures followed by the Investors. To escape its obligations
under the governing treaties and arbitrations, Spain would like
to re-litigate the issues already resolved by the ICSID arbitral
panels in friendlier forums in the EU: Spain apparently
believes that because the Netherlands and Luxembourg are EU
countries, their courts will be more receptive to Spain’s
arguments, which are based on a ruling of the EU Court of
Justice. In short, Spain is forum-shopping.
In a pair of well-reasoned opinions, the district court
granted the Investors’ requests to enjoin Spain from pursuing
anti-suit injunctions in the Netherlands and Luxembourg that
would interfere with the district court’s jurisdiction to provide
relief to the Investors. See NextEra, 656 F. Supp. 3d at 214;
9REN, 2023 WL 2016933, at *7.1 The district court
emphasized that the express purpose of Spain’s foreign
lawsuits was “to terminate [the U.S.] action[s]” by “ordering
[the Investors] to withdraw [their] suit[s], imposing penalties
upon failure to do so, and issuing [] worldwide injunction[s]
preventing [the Investors] from taking any action to confirm
the Award[s].” NextEra, 656 F. Supp. 3d at 216 (emphasis in
original). Moreover, Spain did not provide “any prior notice”
that it was seeking the injunctions, “apparently planning to
simply later advise the court of the ‘fait accompli . . . which
would have virtually eliminated the court’s effective
jurisdiction over [the Investors’] facially valid claim[s].’” Id.
(first and second alteration in original) (quoting Laker Airways
Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 930–31
(D.C. Cir. 1984)). Noting that U.S. courts have a “duty to
protect their legitimately conferred jurisdiction to the extent
1 The district court’s opinions in NextEra and 9REN are
substantially identical in their analysis of the issues, and I therefore
cite only to the published NextEra opinion.

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6
necessary to provide full justice to litigants,” the court
determined that these “most compelling circumstances”
required it to “to meet the force of Spain’s attempt to deprive
this court of jurisdiction.” Id. at 215–17 (first and second
quoting Laker Airways, 731 F.2d at 927).
In reaching that conclusion, the district court considered
Spain’s “strenuous[]” arguments that “principles of comity”
precluded the issuance of the injunctions, while acknowledging
its duty to take Spain’s claims “seriously.” NextEra, 656 F.
Supp. 3d at 216 (quoting Laker Airways, 731 F.2d at 937). But
the district court refused to “countenance [Spain’s] hypocrisy,”
observing that Spain’s “claims of comity . . . come burdened
with the failure of Spain to recognize comity,” and that “[t]he
comity concerns that Spain laments are of its own making.” Id.
at 217 (cleaned up). And further, the court held that “relief
against Spain is warranted in the form of a preliminary
injunction” because “there is a public interest in encouraging
arbitration and the enforcement of international arbitration law
as an efficient means of settling disputes,” as well as “an
expectation on the part of Congress that actions to enforce
ICSID awards would not be protracted, much less permanently
halted by collateral attacks in foreign courts.” Id. at 217, 221
(cleaned up). Finally, the district court found that the Investors
would be irreparably harmed if it did not issue the injunctions
because the Investors would likely be permanently enjoined
from enforcing their awards. Id. at 220. The district court
therefore held that the balance of equities “strongly” favored
the Investors. Id. But the court tailored its relief to preserve
Spain’s ability to seek a declaration from the Dutch and
Luxembourgish courts “vindicating its interpretation of EU
law.” Id. at 217.

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7
II.
It is undisputed that the district court had the authority to
issue the anti-suit injunctions at issue in these cases. “It is well
settled that . . . American courts have power to control the
conduct of persons subject to their jurisdiction to the extent of
forbidding them from suing in foreign jurisdictions.” Laker
Airways, 731 F.2d at 926; see also BAE Sys. Tech. Sol. &
Servs., Inc. v. Republic of Korea’s Def. Acquisition Program
Admin., 884 F.3d 463, 479 (4th Cir. 2018). That power may be
exercised with respect to a foreign sovereign, and there is
precedent for issuing an anti-suit injunction against a foreign
sovereign. See BAE, 884 F.3d at 479 (noting that the district
court “lifted a preliminary injunction it had previously
imposed” against South Korea). “There are no precise rules
governing the appropriateness of antisuit injunctions.” Laker
Airways, 731 F.2d at 927. Rather, we must “carefully
examine[]” the “equitable circumstances surrounding each
request for an injunction” and determine whether the injunction
is necessary “to prevent an irreparable miscarriage of justice.”
Id. We have explained that “[i]njunctions are most often
necessary to protect the jurisdiction of the enjoining court, or
to prevent the litigant’s evasion of the important public policies
of the forum.” Id. An anti-suit injunction is extraordinary
relief that should be granted only under compelling
circumstances. Id.; BAE, 884 F.3d at 480.
We review the district court’s issuance of the anti-suit
injunctions for abuse of discretion. See Laker Airways, 731
F.2d at 916, 921. “The abuse of discretion standard means that
the district court has a range of choice, and that its decision will
not be disturbed as long as it stays within that range and is not
influenced by any mistake of law.” Morrissey, 17 F.4th at 1156
(cleaned up). In other words, we ask whether the district
court’s decision was “at least within the zone of

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8
reasonableness, even if we might disagree with the decision[.]”
Morley v. CIA, 894 F.3d 389, 391 (D.C. Cir. 2018). If we
merely disagree, “[w]e may not substitute our judgment for that
of the trial court,” especially when our review involves a multi-
factor balancing of interests. Morrissey, 17 F.4th at 1156,
1159–60. Indeed, “it will be the rare case when we can reverse
a district court’s balancing of [] factors.” Morley, 894 F.3d
at 391. Our review must be guided by “appellate restraint, a
principle faithful to the reality that appellate tribunals cannot
hope to have the entire range of considerations as readily at
hand as the court charged with the case in the first instance.”
Founding Church of Scientology, Inc. v. Webster, 802 F.2d
1448, 1457 (D.C. Cir. 1986); see id. (“The abuse-of-discretion
standard calls on the appellate department, in a spirit of
humility occasioned by not having participated in what has
gone before, not just to scrutinize the conclusion but to
examine with care and respect the process that led up to it.”).
III.
In my view, the district court did not abuse its discretion
in granting the Investors’ requests for anti-suit injunctions
against Spain under the “equitable circumstances” presented.
Laker Airways, 731 F.2d at 927. The district court’s decisions
(1) properly applied our precedent in Laker Airways, a case in
which we upheld an anti-suit injunction in a similar posture;
(2) considered the United States’ interests in protecting the
jurisdiction of its courts and upholding the ICSID framework;
(3) assessed Spain’s actions and prerogatives in a detailed
discussion of “comity” concerns; and (4) gave appropriate
weight to the irreparable harm that would be done to the
Investors if the requested injunctions were denied.

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9
A.
In Laker Airways, we considered dueling requests for
injunctions, much like the ones at issue here. There, some
defendants in an antitrust case in the United States successfully
halted the proceedings against them by securing an anti-suit
injunction in the United Kingdom. In response, the plaintiff
obtained an “anti-anti-suit injunction” from the district court to
prevent the remaining defendants from joining the U.K.
litigation to secure similar injunctions that would have impeded
the U.S. antitrust case. See Laker Airways, 731 F.2d at 918;
Maj. Op. 30–32. We upheld the anti-anti-suit injunction,
reasoning that “where the foreign proceeding is not following
a parallel track but attempts to carve out exclusive jurisdiction
over concurrent actions, an injunction may be necessary to
avoid the possibility of losing validly invoked jurisdiction” and
to protect “the court’s ability to render a just and final
judgment.” Laker Airways, 731 F.2d at 930. In reaching that
conclusion, we considered the defendants’ “strenuous[]”
argument “that the district court’s injunction violates the
crucial principles of comity that regulate and moderate the
social and economic intercourse between independent
nations.” Id. at 937. But we held that “the obligation of comity
expires when the strong public policies of the forum are vitiated
by the foreign act.” Id.
We considered three factors important in upholding the
district court’s anti-suit injunction: (1) the foreign lawsuit was
brought with “the sole purpose . . . [of] terminat[ing] the
American action,” Laker Airways, 731 F.2d at 930 (emphasis
in original); (2) defendants sought to “evade culpability under
statutes of admitted [] importance to the United States which
[were] specifically applicable . . . and upon which [the
plaintiff] may have legitimately relied,” id. at 932; and (3) any

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10
comity concerns were a product of defendants’ own efforts “to
generate interference with the American courts,” id. at 939–40.
Here, the district court appropriately weighed the factors
that we identified in Laker Airways. First, it considered the
type of foreign suit to be enjoined: Spain’s requested relief in
the Dutch and Luxembourgish courts was specifically targeted
to interfere with the enforcement of the arbitral awards by the
district court. The district court recognized that Spain filed its
foreign lawsuits with the sole intention of depriving a U.S.
court of jurisdiction to provide justice to parties that were
properly before it. See NextEra, 656 F. Supp. 3d at 215–16.
The nature of the competing foreign action weighed strongly in
favor of issuing an anti-suit injunction under Laker Airways.
Second, the district court considered other interests of the
United States, specifically “encouraging arbitration and the
enforcement of international arbitration law as an efficient
means of settling disputes.” NextEra, 656 F. Supp. 3d at 221
(internal quotations omitted). Although Laker Airways gave
weight to the district court’s obligation to enforce U.S. antitrust
laws — and such purely domestic laws are not at issue here —
there is a strong analogous U.S. interest in enforcing the ICSID
Convention, an international arbitration treaty that the United
States ratified, and that Congress enacted into federal law. See
Laker Airways, 731 F.2d at 932 (upholding the anti-suit
injunction that “properly prevented appellants from attempting
to escape application of [governing] laws”). We have a
statutory obligation to enforce ICSID awards with “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). Moreover, the United States benefits
from its membership in ICSID because American companies
also enforce arbitral awards issued pursuant to the ICSID
Convention. In fact, there have been at least 150 ICSID

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arbitrations brought by American investors. See Int’l Scholars
Amicus Br. 19 n.14.
Third, the district court recognized the importance of
comity: It understood that Spain’s status as a sovereign nation
weighed in favor of restraint. See NextEra, 656 F. Supp. 3d at
216–17 (recognizing that “[c]onsiderations of comity” are
“deserving [of] substantial respect,” but rejecting the argument
that “‘comity compels us to recognize a decision by a foreign
government that this court shall not apply its own laws’”
(quoting Laker Airways, 731 F.2d at 939) (emphasis in
original)). Here, Spain’s claim to comity is greatly diminished
by its own disregard for the comity due to the U.S. district
court, which properly exercised its jurisdiction to hear the
Investors’ facially valid claims. See id. at 217. It was Spain
that filed the first requests for anti-suit injunctions in the
Netherlands and Luxembourg, in a bold attempt to interfere
with the Investors’ cases before the district court. In short,
Spain is in a weak position to demand comity when it declines
to practice what it preaches.
Fourth, the district court properly weighed the prospect of
irreparable harm to the Investors. The district court
emphasized that “[i]f Spain receives the relief it seeks in the
[foreign] action[s], [the Investors] will be permanently
enjoined from enforcing the Award[s], both in this court and
around the world.” NextEra, 656 F. Supp. 3d at 220. The court
found that this was “precisely the kind of irreparable harm
identified by the district court, and affirmed by the D.C.
Circuit, in Laker Airways[.]” Id. It was well within the district
court’s discretion to consider the harm to the Investors caused
by Spain’s actions, and to find that the balance of equities
“strongly” favored the Investors. Id.

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B.
Despite the district court’s careful application of Laker
Airways, and the equities that strongly favor granting relief to
the Investors, the majority opinion holds that the district court
abused its discretion in issuing anti-suit injunctions that “run
against a foreign sovereign,” rather than a private litigant. Maj.
Op. 34. The majority opinion states that “comity concerns [are]
near their peak,” id. at 38, and the “only domestic interest the
district court identified here is a public interest in encouraging
arbitration,” which does not involve the enforcement of
American laws or affect the interests of American creditors or
consumers, see id. Moreover, the majority opinion asserts that
the district court “did not address the fact that the anti-suit
injunctions run against a foreign sovereign,” and “failed to
identify domestic interests strong enough to warrant the anti-
suit injunctions.” Id. at 34, 38. Thus, the majority opinion
emphasizes the factors that it believes are most important,
performs its own weighing of interests, and reaches a different
conclusion from that of the district court. I disagree with the
majority’s approach to reviewing the district court’s exercise
of discretion.
The majority opinion’s independent balancing of factors
understandably gives great weight to respecting the
sovereignty of other nations. Its analysis, however, overlooks
the narrow scope of the anti-suit injunctions issued by the
district court. The majority opinion states that the injunctions
“impinge on the sovereignty of both the Spanish government
to litigate and the Dutch and Luxembourgish courts to decide
an issue that Spain and the European Union view as an
important question of European Union law.” Maj. Op. 35
(cleaned up). But the district court tailored its injunctions to
allow Spain to obtain a ruling on that issue of EU law from the
foreign courts: The district court enjoined Spain only from

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seeking relief from the foreign courts that would require the
Investors to “suspend, hold in abeyance, or withdraw” their
actions before the district court — i.e., Spain could still litigate
its claims in the Netherlands and Luxembourg to seek
declaratory relief. NextEra, 656 F. Supp. 3d at 217, 222
(preserving Spain’s ability to seek a declaration from Dutch
and Luxembourgish courts “vindicating its interpretation of EU
law”). In effect, the district court’s injunctions impinged only
on Spain’s efforts to block the district court from hearing the
Investors’ claims. As a result, the injunctions at issue here are
far less intrusive than the ones described in other cases cited by
the majority opinion. See Republic of Philippines v.
Westinghouse Elec. Co., 43 F.3d 65, 73 (3d Cir. 1994)
(vacating injunction that “purport[ed] to supervise and control
the law enforcement activities of a foreign sovereign nation
against its own citizens on its own soil”); BAE, 884 F.3d at 480
(upholding denial of permanent injunction against South Korea
in part because “comity concerns are far greater where an
injunction would bar a foreign sovereign . . . from litigating a
dispute in its own courts”). Indeed, it is questionable whether
Spain’s interference with a lawsuit in the United States can
even be considered a “sovereign” prerogative.
The majority faults the district court for not paying enough
attention to the two factors that the majority finds most
compelling. But the district court properly considered both
Spain’s status as a foreign sovereign and the interests of the
United States, which are not limited to purely “domestic”
concerns. First, the district court recognized that only
“sufficiently unusual circumstances” would warrant “a
preliminary, anti-suit injunction against a foreign sovereign,”
NextEra, 656 F. Supp. 3d at 214 (emphasis added): The district
court plainly was aware that Spain is a sovereign nation and
that Spain’s sovereignty raised serious comity concerns.
Second, the district court understood that the facts before it

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implicated both domestic and international interests of the
United States — it expressly noted the importance of
international arbitration, as well as the fact that Congress has
passed a statute codifying key terms of the ICSID Convention,
which assures prompt confirmation of arbitral awards. See id.
at 217, 221 (recognizing the “public interest in encouraging
arbitration and the enforcement of international arbitration law
as an efficient means of settling disputes,” as well as “an
expectation on the part of Congress that actions to enforce
ICSID awards [will] not be protracted, much less permanently
halted by collateral attacks in foreign courts” (cleaned up)). In
sum, the district court did not “fail[] to consider” either of the
factors singled out by the majority opinion — the majority
simply disagrees with the weight that the district court assigned
to them. Maj. Op. 33 (district court abuses its discretion when
it “fails to consider a relevant factor” (emphasis added)
(cleaned up)). Nor did the district court make a “clear error of
judgment” when it performed the requisite balancing — the
evident disagreement among members of this panel
demonstrates that if there was error, it was not “clear.” Id.
(district court abuses its discretion when it “commits a clear
error of judgment” (emphasis added) (cleaned up)).
The majority opinion relies most heavily on “international
comity” and is influenced by amicus briefs filed in this court
by the United States and the Netherlands. See Maj. Op. 30, 35–
37.2 But the positions expressed by those amici were not before
2 The majority opinion notes that (1) the Netherlands and the
United States “stress[]” the theme of international comity, Maj.
Op. 30 (citing amicus briefs of the Netherlands and the United
States); (2) the United States “warns that the injunctions here ‘have
the potential to cause significant harm to the United States,’” id. at 35
(quoting amicus brief of the United States) (cleaned up); (3) the
views of the United States “are important, to be sure,” id. at 37; (4)

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the district court when the anti-suit injunctions were litigated
and therefore should not be considered here. When applying
an abuse-of-discretion standard of review, it is a
“commonsense notion” that we should “only examine those
parts of the record that were properly before the decisionmaker
at the time the question was considered.” See Sanderlin v.
United States, 794 F.2d 727, 734 (D.C. Cir. 1986). Thus, if the
views of the United States and the Netherlands are important
to the analysis at hand, we should remand for the district court
to consider them in the first instance. Indeed, the cited amicus
briefs provide us with the official positions of the United States
and the Netherlands, and the interests of those nations are
directly relevant to the weighing of international comity. That
those amici feel strongly about how this case should be
resolved is a fact that might have swayed the district court, just
as it has swayed the majority. On appeal, our task is to
determine “whether, in light of the particular factual
circumstances, the trial court erred in applying or weighing the
factors limiting its discretion.” Edwards & Elliott, Federal
Standards of Review: Review of District Court Decisions and
Agency Actions 72 (3d ed., 2023 Update) (emphasis added).
Because the positions of the United States and the Netherlands
were never put before the district court and thus could play no
role in that court’s exercise of discretion, I believe that the
the United States “tells us th[e] interests [in upholding the ICSID
Convention] ‘are far outweighed by the interests in allowing the
foreign litigation to proceed,’” id. at 39 (quoting amicus brief of the
United States); (5) the Netherlands has not only declined to refer
Spain to the International Court of Justice, but it “urges us to vacate
the injunctions,” id. at 39–40 (citing amicus brief of the
Netherlands); and (6) it “bears emphasis” that the Netherlands and
Luxembourg likely “agree with Spain” in the underlying legal
dispute, id. at 40.

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majority opinion errs in relying on those amicus briefs — the
information they provide simply is not in the record on review.
The majority opinion insists that the views of the United
States “were before the district court” because Spain, in its
briefing below, quoted an amicus brief filed in 2018 by the
United States in an unrelated and factually distinguishable
case. Maj. Op. 36–37 (emphasis in original) (relying on
Spain’s citation and quotation of Brief for the United States as
Amicus Curiae, BAE, 884 F.3d 463 (No. 17-1070) 2018 WL
551803, at *2).3 Of course, Spain had no authority to speak for
the United States and certainly could not do so by citing a brief
from a different case that is on Westlaw. Only the United
States itself could state its position regarding the unique
circumstances presented here. Moreover, the majority states
that “[i]f the interests of the United States were not clear to the
district court, it could have invited the United States to file an
amicus brief to clarify its position.” Maj. Op. 37. That
statement expresses how the majority would have liked to see
the district court handle this case but does not identify any
3 The dispute in BAE had nothing to do with arbitration, ICSID,
or an anti-suit injunction instigated by a foreign sovereign to deprive
a U.S. court of its statutorily conferred jurisdiction. Thus, the United
States took no position on any of those interests in the amicus brief
it filed in that case. BAE involved a contract dispute between a
defense contractor and the Republic of Korea, where the defense
contractor sought an anti-suit injunction barring Korea from pursuing
a parallel contract suit in Korean courts. See BAE, 884 F.3d at 467.
Indeed, the language that the majority opinion quotes from the
United States’ amicus brief in BAE demonstrates how that case is
inapposite: It characterizes as “extraordinary” “an antisuit injunction
barring a foreign sovereign from invoking the jurisdiction of its own
courts.” Maj. Op. 37 (emphasis added) (quoting Brief for the United
States as Amicus Curiae, BAE, 884 F.3d 463 (No. 17-1070) 2018 WL
551803, at *2). Here, the anti-suit injunctions do not interfere with
Spain’s invocation of the jurisdiction of its own (Spanish) courts.

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abuse of discretion: The district court was not required to
invite the United States to file an amicus brief and therefore
acted within its range of choices when it did not do so. The
district court was allowed to consider the United States’
interests without that formal input.
In my view, the majority opinion errs by focusing only on
the factors that it deems most important while failing to address
or glossing over several important considerations relied upon
by the district court. The majority opinion overlooks important
aspects of the district court’s ruling and cites no authority to
support its incomplete review of the district court’s reasoning.
First, the majority opinion seems to give insufficient
weight to the United States’ obligation to uphold the ICSID
Convention and its strong interests in doing so. See supra
at 10–11. Importantly, Spain’s strategy of interfering with the
Investors’ ability to confirm their awards undermines the whole
process envisioned by the ICSID Convention and the ECT.
Both of those treaties facilitate foreign investments by
guaranteeing investors a neutral arbiter in disputes with
sovereign nations. Spain turns the framework on its head by
forcing the Investors to litigate in forums of the sovereign’s
choice. Moreover, if Spain succeeds in blocking enforcement
actions under the ICSID Convention by obtaining anti-suit
injunctions in foreign jurisdictions that are friendly to it, other
signatory states can follow the same playbook, thereby
threatening the viability of the entire ICSID framework.
Today’s majority opinion makes the United States an
inhospitable forum for enforcing ICSID awards: It permits a
foreign sovereign with assets in the United States who does not
wish to honor an ICSID award to stymie any U.S. enforcement
proceeding by filing for an anti-suit injunction in another
nation. In this case, Spain chose to litigate in the Investors’

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home countries, but nothing stops a foreign sovereign from
requesting an anti-suit injunction from one of its own national
courts — exactly the type of situation that the ECT and the
ICSID Convention guard against. The majority opinion
appears to greenlight such tactics. See Maj. Op. 38 (stating that
the United States is not required to “remove obstacles in other
countries that might make it harder for foreign investors to find
their way to our courts”). The majority’s suggestion that the
Investors could instead rely on the Netherlands and
Luxembourg to refer “Spain’s treatment of their nationals” to
the International Court of Justice, see id. at 39, misses the
point: The Investors should not have to seek such a
cumbersome remedy that affords them no immediate monetary
compensation when the ICSID Convention and U.S. law give
them a streamlined way to enforce their multi-million-euro
arbitral awards in the United States.
Next, the majority opinion overlooks Spain’s own lack of
comity: As the district court pointed out, it is Spain that
precipitated a clash of international interests by “seeking to
frustrate the operation of U.S. law.” NextEra, 656 F. Supp. 3d
at 217; supra at 11. Indeed, a strong case can be made that
Spain has acted in bad faith and that the district court made a
finding to that effect. Spain attempts to bully the Investors into
withdrawing their legitimate lawsuits in the United States by
requesting fines against them of EUR 30,000 or 100,000 per
day; and it seeks foreign injunctions that plainly are intended
to disrupt and hamper the cases before the district court. See
Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991) (“[A] party
shows bad faith by delaying or disrupting the litigation or by
hampering enforcement of a court order.” (cleaned up)).
Although the district court did not use the words “bad faith,” it
criticized Spain’s conduct and emphasized Spain’s attempt to
“virtually eliminate[] the court’s effective jurisdiction” without
“any prior notice.” See NextEra, 656 F. Supp. 3d at 216

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(quoting Laker Airways, 731 F.2d at 930–31); see also id. at
217, 221 (noting Spain’s “hypocrisy” and that Spain’s
representations “verge on disingenuous”). Thus, the facts in
the record speak for themselves and the district court both
referred to and relied on Spain’s arguably bad-faith actions.
See LaPrade v. Kidder Peabody & Co., 146 F.3d 899, 906
(D.C. Cir. 1998) (It is “an empty formalism to find an abuse of
discretion simply because the district court failed to invoke the
magic words ‘bad faith.’”). Spain’s lack of comity and
arguable bad faith support the anti-suit injunctions issued by
the district court but are not addressed by the majority opinion.
Furthermore, the majority opinion does not mention the
district court’s finding that the anti-suit injunctions were
necessary to prevent irreparable harm to the Investors. See
supra at 11. The lawsuits that Spain brought in the Netherlands
and Luxembourg seek to block the Investors from enforcing
their arbitral awards in any forum in the world. And to be clear,
NextEra and 9REN are the injured parties here. They invested
in Spain’s energy sector after Spain promised to provide energy
subsidies and that the Investors would be guaranteed a neutral
arbitral forum if any disputes with Spain arose. When Spain
breached its commitments, the Investors dutifully followed the
procedures prescribed by the ECT and the ICSID Convention.
Spain has fought them every step of the way. Thus, the
Investors have expended substantial time and resources to
participate in lengthy arbitration proceedings and to defend
their sizeable arbitral awards in ICSID’s internal appeal
process. They now seek only to confirm and enforce the
awards in U.S. courts, as they are entitled to do under the ICSID
Convention and U.S. law. Allowing Spain to extinguish the
Investors’ rights and claims by obtaining foreign injunctions
that forbid the Investors from ever confirming their awards is
manifestly unfair. But the majority appears to conclude that

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the district court’s finding of irreparable harm to the Investors
is irrelevant.4
I also believe that the majority opinion goes astray by
focusing on the parties’ “underlying disputes” and on matters
related to the interpretation or implementation of European
law. See, e.g., Maj. Op. 38–39. Although the “underlying
disputes” between Spain and the Investors do involve EU law,
those disputes already have been resolved by ICSID arbitral
panels. As a result, all that remains in the cases before us is the
straightforward confirmation of the ICSID arbitral awards. In
such cases, the district court’s scope of review is “below even
the ‘extremely limited’ review available under the [Federal
Arbitration Act],” and the district court may not consider the
merits of the parties’ positions before the arbitral tribunal. See
Valores, 87 F.4th at 520; see id. at 515 (“Contracting states’
courts are [] not permitted to examine an ICSID award’s merits,
4 In each of the two cases before us, the district court issued an
injunction that relied on both the Laker Airways discussion of anti-
suit injunctions and traditional preliminary-injunction factors. See
NextEra, 656 F. Supp. 3d at 214–21. In other words, the district court
applied two sets of factors in issuing a single injunction. Thus, both
parts of the district court’s analysis are relevant to our evaluation of
how the district court exercised its discretion to issue each injunction.
Indeed, the district court undoubtedly relied on its findings of
irreparable harm when it issued the injunctions at issue. See id. at
220. But the majority opinion appears to limit its review to the anti-
suit injunction factors discussed in Laker Airways, leaving its
analysis incomplete. The majority opinion apparently takes this
approach because the majority believes that it need not decide in this
case whether a district court is required to consider the “four
traditional injunction factors” in this context. Maj. Op. 33 n.1. Yet,
even if we need not address whether the preliminary-injunction
factors must be analyzed under the circumstances presented, we still
are obligated to review what the district court actually did in this
case.

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its compliance with international law, or the ICSID tribunal’s
jurisdiction to render the award.” (cleaned up)). “Under the
[ICSID] Convention’s terms, [the district court] may do no
more than examine the judgment’s authenticity and enforce the
obligations imposed by the award.” Id. Thus, we need not
dwell on the “complex international puzzle” described by the
majority opinion. See Maj. Op. 40. Rather, we should keep
our eye on the ball and simply uphold the treaty obligation and
the U.S. statute that require the district court to enforce any
ICSID arbitration award as if the award “were a final judgment
of a court in [the United States].” See ICSID Convention,
art. 54; 22 U.S.C. § 1650a(a) (ICSID awards are entitled to “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.”).
Unlike the majority, I am unable to reconcile our
obligation to give full faith and credit to ICSID awards and to
enforce them like final judgments with a ruling that allows
Spain to block access to U.S. courts in a gambit to prevent the
confirmation and enforcement of those very same awards. See
Maj. Op. 38 (“[T]he United States must open the doors of its
courthouses to foreign investors seeking to enforce such
awards. But neither the treaty nor the statute requires the
United States to remove obstacles in other countries that might
make it harder for foreign investors to find their way to our
courts.”). Our affirmance of the district court’s jurisdictional
rulings is a hollow victory for the Investors if they nevertheless
will be enjoined by foreign courts from ever confirming their
hard-won awards.
For the foregoing reasons, I cannot agree with the
majority’s approach or analysis in vacating the anti-suit
injunctions. But whether my arguments are persuasive or not,
the conflicting views expressed by members of this panel
demonstrate that there is no objectively correct answer to the

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question of whether those injunctions should have been
granted. Because there is more than one reasonable way to
resolve these cases, the abuse-of-discretion standard requires
us to affirm the choices made by the district court. See
Morrissey, 17 F.4th at 1156 (“The abuse of discretion standard
means that the district court has a range of choice, and that its
decision will not be disturbed as long as it stays within that
range and is not influenced by any mistake of law.” (cleaned
up)); Morley, 894 F.3d at 391 (“[I]t will be the rare case when
we can reverse a district court’s balancing of [] factors.”).
* * *
Even though the district court did not take the path
preferred by the majority, it acted well within its discretion
when it evaluated the equities in the way that it did. The
majority opinion does not identify any relevant factor that the
district court failed to consider or any mistake of law that it
made. Instead, the majority disagrees with the district court’s
weighing of interests and substitutes its own judgments for
those of the district court. Because the majority opinion
misapplies the required standard of review, I respectfully
dissent as to Part II.B of the court’s opinion.

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