Hulley Enterprises Ltd. v. Russian Federation

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 18, 2024 Decided August 5, 2025
No. 23-7174
HULLEY ENTERPRISES LTD., ET AL.,
APPELLEES
v.
RUSSIAN FEDERATION,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-01996)
David Riesenberg argued the cause and filed the briefs for
appellant.
Steven M. Shepard argued the cause and filed the brief for
appellees. Zachary Savage entered an appearance.
Before: SRINIVASAN, Chief Judge, WILKINS and RAO,
Circuit Judges.
Opinion for the Court filed by Circuit Judge RAO.
Concurring opinion filed by Circuit Judge WILKINS.

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RAO, Circuit Judge: From 2003 to 2004, Russia
expropriated the most valuable assets of OAO Yukos Oil
Company (“Yukos”), at the time the largest private oil
company in the Russian Federation. Shareholders of Yukos
challenged the expropriation in arbitration and secured a $50
billion award, which they seek to enforce in federal court.
Russia asserts that sovereign immunity bars the suit and that
the arbitration exception to the Foreign Sovereign Immunities
Act (“FSIA”) does not apply. The district court held it had
jurisdiction under the FSIA, in part because it was bound by
the arbitral tribunal’s conclusion that an arbitration agreement
existed between Russia and the Shareholders.
Whether an arbitration agreement exists is a jurisdictional
fact under the FSIA that must be independently evaluated by
the district court. Because the district court gave binding effect
to the arbitral tribunal’s determination of this jurisdictional
fact, we vacate the judgment. On remand, the district court
must independently consider whether the FSIA’s arbitration
exception to sovereign immunity applies.
I.
The Yukos Shareholders are several companies organized
under the laws of Cyprus and the Isle of Man: Hulley
Enterprises Ltd., Yukos Universal Ltd., and Veteran Petroleum
Ltd. In February 2005, the Shareholders initiated arbitration
proceedings alleging that Russia expropriated Yukos’s assets
in violation of the Energy Charter Treaty (“Treaty”).
Designed to promote international cooperation and
investment in the energy sector, the Treaty generally prohibits
signatory countries from expropriating investments held by
investors from other signatories. See Energy Charter Treaty art.

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13, Dec. 17, 1994, 2080 U.N.T.S. 95. If disagreements arise,
investors may submit the dispute to arbitration. Id. art. 26(3)(a).
The Treaty requires a country to comply with its terms from the
moment of signature, even before the Treaty is ratified, “to the
extent that such provisional application is not inconsistent with
[the signatory’s] constitution, laws or regulations.” Id. art.
45(1). The Vice Prime Minister of Russia signed the Treaty on
December 17, 1994, but the Russian Parliament never ratified
it. Russia withdrew from the Treaty in 2009.
The arbitration proceedings between Russia and the
Shareholders at The Hague lasted nearly a decade. Russia
consented to the jurisdiction of the arbitral tribunal
(“Tribunal”) to determine arbitrability but maintained
throughout the proceedings that the Tribunal lacked
jurisdiction over the dispute. Russia argued it was not required
to provisionally apply the arbitration clause of the Treaty
because to do so would be inconsistent with Russian law.
Russia also maintained the Shareholders were not investors
within the meaning of the Treaty because the companies are
controlled by Russian citizens and so do not qualify as
investors from another state.
In November 2009, the Tribunal entered interim awards
rejecting Russia’s challenge to its jurisdiction. The Tribunal
concluded that the Shareholders qualified as investors under
the Treaty and that Russia had agreed to arbitrate because the
arbitration clause applied provisionally in Russia at the time of
the expropriation. The Tribunal issued final awards in July
2014, finding that Russia had violated the Treaty and awarding
the Shareholders over $50 billion in damages.
Following the Tribunal’s decision, the dispute continued,
this time in the courts. Russia asked the Hague District Court
(a national Dutch court) to set aside both the interim and final

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awards. The Dutch Supreme Court ultimately held for the
Shareholders on nearly all issues. It affirmed that the Tribunal
had jurisdiction over the dispute, that provisional application
of the arbitration clause was consistent with Russian law, and
that the Shareholders were investors within the meaning of the
Treaty.
While proceedings were pending in the Dutch courts, the
Shareholders brought suit in the United States District Court
for the District of Columbia to confirm and enforce the final
awards. Russia moved to dismiss the Shareholders’
enforcement suit for lack of subject matter jurisdiction. Russia
asserted sovereign immunity and argued that none of the
FSIA’s exceptions to sovereign immunity applied. In
particular, Russia maintained the arbitration exception did not
apply because there was no valid arbitration agreement
between Russia and the Shareholders. Russia offered the same
arguments it raised before the Tribunal, namely that it was not
required to provisionally apply the arbitration clause and that
the Shareholders were not investors within the meaning of the
Treaty because they were “mere shell companies owned and
controlled by … [Russian] nationals.”
After the Dutch Supreme Court’s decision, the district
court denied Russia’s motion to dismiss. The court concluded
it had subject matter jurisdiction because the FSIA’s arbitration
exception applied. See Hulley Enters. Ltd. v. Russian
Federation, No. 14-cv-1996, 2023 WL 8005099, at *12
(D.D.C. Nov. 17, 2023). The district court explained the “terms
of the [Treaty]” demonstrated “the existence of an agreement
to arbitrate.” Id. at *13. But if there were doubt as to this fact,
the Tribunal’s determination that an arbitration agreement
existed between Russia and the Shareholders was “binding” on
the court. Id. at *16. The district court likewise treated as

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binding the Tribunal’s holding that Russia was required to
apply the entire treaty provisionally. Id. at *21.
Russia timely appealed. We have jurisdiction under the
collateral order doctrine to review the denial of Russia’s claim
of sovereign immunity. See Process & Indus. Devs. Ltd. v.
Federal Republic of Nigeria, 962 F.3d 576, 581 (D.C. Cir.
2020). We review the district court’s jurisdictional
determination de novo. See Kilburn v. Socialist People’s
Libyan Arab Jamahiriya, 376 F.3d 1123, 1127 (D.C. Cir.
2004).
II.
For the Shareholders to enforce these arbitral awards in
United States courts, Russia “must not enjoy sovereign
immunity from such an enforcement action.”1 Creighton Ltd.
v. Government of the State of Qatar, 181 F.3d 118, 121 (D.C.
Cir. 1999). Foreign sovereigns are “presumptively immune
from the jurisdiction of United States courts.” Saudi Arabia v.
Nelson, 507 U.S. 349, 355 (1993). The FSIA is “the sole basis
for obtaining jurisdiction over a foreign state in the courts of
this country.” Argentine Republic v. Amerada Hess Shipping
1 To enforce an arbitration award in federal court against a foreign
sovereign, there must also “be a basis upon which a court in the
United States may enforce a foreign arbitral award.” Creighton Ltd.
v. Government of the State of Qatar, 181 F.3d 118, 121 (D.C. Cir.
1999). Russia does not dispute that the New York Convention
provides a basis for enforcing these arbitral awards. See 9
U.S.C. § 207; Convention on the Recognition and Enforcement of
Foreign Arbitral Awards art. I, opened for signature June 10, 1958,
21 U.S.T. 2517, 330 U.N.T.S. 3; LLC SPC Stileks v. Republic of
Moldova, 985 F.3d 871, 877 n.2 (D.C. Cir. 2021) (recognizing the
New York Convention provides a basis for enforcing arbitral awards
in the federal courts).

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Corp., 488 U.S. 428, 443 (1989). Unless a plaintiff’s case falls
within one of the nine exceptions enumerated in the FSIA, the
federal courts lack subject matter jurisdiction. See Verlinden
B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488–89 (1983).
The Shareholders maintain the FSIA’s arbitration
exception applies to this case. That exception provides:
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 action is
brought, either to enforce an [arbitration]
agreement made by the foreign state with or for
the benefit of a private party … 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).
Before concluding the arbitration exception to sovereign
immunity applies, a federal court must independently confirm
three jurisdictional facts: (1) the existence of an arbitration
agreement; (2) an arbitration award; and (3) a treaty that may
govern the award. See Chevron Corp. v. Republic of Ecuador,
795 F.3d 200, 204 (D.C. Cir. 2015); LLC SPC Stileks v.
Republic of Moldova, 985 F.3d 871, 877 (D.C. Cir. 2021). This
Circuit applies a burden-shifting framework to evaluate
whether jurisdiction has been established.2 When asserting the
2 The United States has repeatedly argued that this framework is
incompatible with the jurisdictional nature of the FSIA. See Brief for
the United States as Amicus Curiae at 9 n.2, NextEra Energy Glob.

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arbitration exception applies, a plaintiff must initially satisfy “a
burden of production” as to these facts. Chevron, 795 F.3d at
204 (cleaned up). The burden then shifts to the foreign
sovereign to demonstrate “the absence of the factual basis by a
preponderance of the evidence.” Id. (cleaned up).
Jurisdictional questions must be independently analyzed
by the court. See generally Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94 (1998) (explaining “the court is bound
to ask and answer for itself” the question of jurisdiction).
Determining whether we have jurisdiction over a foreign
sovereign under the FSIA is no exception. Accordingly, when
faced with questions about sovereign immunity, we must
independently “resolve any disputed issues of fact” relevant to
jurisdiction. Phoenix Consulting, Inc. v. Republic of Angola,
216 F.3d 36, 40 (D.C. Cir. 2000). Federal courts may not defer
to an arbitral tribunal or otherwise outsource the obligation to
determine jurisdictional facts that go to the waiver of sovereign
immunity under the FSIA.
III.
On appeal, Russia maintains the district court erred in
deferring to the Tribunal’s conclusions about jurisdictional
Holdings B.V. v. Kingdom of Spain, 112 F.4th 1088 (D.C. Cir. 2024)
(arguing that because a foreign state is presumptively immune from
suit, there is “no justification for placing the ultimate ‘burden of
persuasion’ on the foreign state”); Brief for the United States as
Amicus Curiae Supporting Petitioners at 10, Republic of Hungary v.
Simon, 145 S. Ct. 480 (2025) (“The FSIA’s text makes clear that
sovereign immunity is jurisdictional, and the burden of establishing
subject-matter jurisdiction always rests with the party asserting
jurisdiction.”). In Republic of Hungary v. Simon, the Supreme Court
explicitly declined to reach this issue, thereby leaving our framework
undisturbed. 145 S. Ct. 480, 490 n.1 (2025).

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facts. Russia contends that it retains sovereign immunity
because there was no valid arbitration agreement triggering a
waiver of immunity under the FSIA.3 Russia advances two
primary arguments in support. First, Russia claims it did not
make an offer to arbitrate because provisional application of
the Treaty’s arbitration clause would have been inconsistent
with Russian law. Second, even if Russia were required to
apply the arbitration clause provisionally such that it
constituted a standing offer to arbitrate, the Shareholders were
not investors within the meaning of the Treaty.
At the outset, we must evaluate whether Russia’s
arguments challenge the existence or validity of an arbitration
agreement or instead merely challenge the scope of an
arbitration agreement. When a party challenges the existence
or validity of an arbitration agreement, that question goes to the
applicability of an exception to sovereign immunity and
therefore is jurisdictional. See Belize Soc. Dev. Ltd. v.
Government of Belize (“Belize”), 794 F.3d 99, 102–03 (D.C.
Cir. 2015) (treating as jurisdictional the question of whether a
country’s Prime Minister had authority to enter an arbitration
agreement).
By contrast, questions about whether an arbitration
agreement covers a particular investment pertain to the scope
of the agreement and are not jurisdictional. See Chevron, 795
F.3d at 205–06 (holding that whether certain lawsuits were
“investments” within the meaning of an arbitration agreement
was not a jurisdictional question); Stileks, 985 F.3d at 878
3 The other jurisdictional prerequisites are easily satisfied, as the
district court held and the parties do not contest. The Tribunal
awarded the Shareholders $50 billion in damages, and the awards are
governed by the New York Convention. See Creighton, 181 F.3d at
123–24.

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(holding that whether a foreign sovereign “agreed to arbitrate
[a] particular dispute” was not jurisdictional). Arguments
about scope are arguments about arbitrability. See Henry
Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 527
(2019). And when parties delegate questions of arbitrability to
an arbitral tribunal, this court is bound by the tribunal’s
determinations. See id. at 528; First Options of Chicago, Inc.
v. Kaplan, 514 U.S. 938, 943 (1995) (explaining “a court must
defer to an arbitrator’s arbitrability decision when the parties
submitted that matter to arbitration”); Stileks, 985 F.3d at 878
(applying First Options in the FSIA context).
A.
Russia first argues the Treaty was not an offer to arbitrate
“with anybody or about anything.” This argument challenges
the existence of an arbitration agreement and therefore relates
to the jurisdictional question of whether Russia has sovereign
immunity for these claims. The district court was required to
evaluate this argument independently and erred in giving
binding effect to the determinations of the Tribunal on this
question.
“[A]n arbitration provision in an investment treaty
can … constitute an agreement for the benefit of a private
party” that “operates as a unilateral offer to arbitrate” and may
become an arbitration agreement with a private party when the
private party accepts the offer. NextEra Energy Glob. Holdings
B.V. v. Kingdom of Spain, 112 F.4th 1088, 1101–02 (D.C. Cir.
2024) (cleaned up).
Russia maintains that it never made a standing offer to
arbitrate. Because the Russian Parliament did not ratify the
Treaty, Russia committed only to applying the Treaty
provisionally. And the Treaty by its terms provides for
provisional application only “to the extent that such provisional

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application is not inconsistent with [the signatory’s]
constitution, laws or regulations.” Treaty art. 45(1). Russia
contends that its law does not permit arbitration of “public law
disputes,” including “most disputes involving the government”
and “government contracts.” As a result, Russia was not
provisionally bound to the Treaty’s arbitration clause.4
This argument pertains to our jurisdiction under the
FSIA’s arbitration exception to sovereign immunity. In this
context, an arbitration agreement between Russia and the
Shareholders would exist only if Russia had made a standing
offer to arbitrate through provisional application of the Treaty.
See NextEra, 112 F.4th at 1101–02. Russia denies it extended
any such offer, because it was not required to apply the Treaty’s
arbitration clause provisionally. Russia’s argument therefore
goes to the existence of an arbitration agreement and is
jurisdictional.5
Because the existence of an arbitration agreement is a
jurisdictional fact under the FSIA, the district court was
4 Russia also claims the Vice Prime Minister who signed the Treaty
“lacked authority to enter the agreement to arbitrate without
Parliament’s approval” because “the text, purpose, and context” of
the Treaty and “a detailed analysis of Russian judicial practice”
demonstrate that provisional application of the arbitration clause is
inconsistent with Russian law. This “lack of authority” framing is not
an independent argument but merely another way of saying that
Russia did not make a standing offer to arbitrate because it was not
bound to provisionally apply the Treaty’s arbitration clause.
5 This is consistent with the general principle that when the formation
of an arbitration agreement is contested, “the court must resolve the
disagreement.” Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S.
287, 299–300 (2010) (cleaned up).

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required to decide Russia’s claim de novo, without deferring to
the Tribunal’s conclusions about Russian law.
The district court declined to undertake this inquiry,
concluding that it was bound to follow the Tribunal’s
determinations as to the existence of an arbitration agreement.
In doing so, the district court mistakenly relied on the
deferential standard applied to disputes over the scope of an
arbitration agreement. Hulley Enters., 2023 WL 8005099, at
*21 n.20, *16 (citing First Options, 514 U.S. at 942–43; Stileks,
985 F.3d at 878–79). But in Stileks, the parties did not contest
the existence of an arbitration agreement. Rather, the dispute
was over arbitrability, which may be conclusively determined
by an arbitral tribunal when the parties so delegate. 985 F.3d at
878. In First Options, the Supreme Court likewise addressed
arbitrability, not the existence of an arbitration agreement. 514
U.S. at 943.
We reiterate that the existence of an arbitration agreement
is a jurisdictional question under the FSIA that must be
independently determined by the court. On remand, the district
court must decide whether provisional application of the
Treaty’s arbitration clause is consistent with Russian law.
B.
Russia also argues that even if it did make a standing offer
to arbitrate by signing the Treaty, the Shareholders are not
proper beneficiaries of the arbitration clause. The arbitration
clause provides for settlement of disputes “between a
Contracting Party and an Investor of another Contracting
Party.” Treaty art. 26. Russia contends that the Shareholder
companies, although formally organized under the laws of
Cyprus and the Isle of Man, are controlled by Russian citizens
and therefore are not investors “of another Contracting Party.”

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Unlike Russia’s other argument, this one is not
jurisdictional. Whether the Shareholders are investors within
the meaning of the arbitration clause “is an argument regarding
the scope of the Energy Charter Treaty, not its existence.”
NextEra, 112 F.4th at 1103. Our decision in NextEra squarely
forecloses Russia’s argument. In Chevron, we similarly
rejected Ecuador’s attempt to recharacterize as jurisdictional
questions about whether certain claims were arbitrable. 795
F.3d at 205. And in Stileks, we held that a claim about which
investments were covered by the treaty went to arbitrability,
not jurisdiction. 985 F.3d at 878. Like the sovereigns’
arguments in Chevron and Stileks, Russia’s argument that the
Shareholders do not qualify as investors within the meaning of
the Treaty pertains to arbitrability and so is not jurisdictional,
as the district court correctly held.6
* * *
The district court was required to independently determine
the jurisdictional facts regarding Russia’s sovereign immunity
and whether the FSIA’s arbitration exception applies to allow
the Shareholders’ suit. On remand, the district court must
assess whether provisional application of the Treaty’s
arbitration clause was consistent with Russian law.
IV.
The Shareholders also maintain this suit may go forward
because the Dutch courts determined that Russia had agreed to
arbitrate this dispute, and therefore issue preclusion bars Russia
from relitigating the existence of an arbitration agreement. The
6 Because this issue is not jurisdictional, the denial of jurisdictional
discovery was not an abuse of discretion. See Aljabri v. bin Salman,
106 F.4th 1157, 1163 (D.C. Cir. 2024).

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district court declined to address this argument because it had
already deferred to the Tribunal’s determination of this
jurisdictional question.
Even on the required independent review of jurisdictional
facts, the decisions of the Dutch courts may control the factual
questions that the district court must answer. Given the
numerous threshold issues necessary to resolve before giving
preclusive effect to foreign judgments, it is appropriate to
remand for the district court to address this issue in the first
instance. We will, however, provide “some guidance for the
task to be tackled on remand.” Doraleh Container Terminal SA
v. Republic of Djibouti, 109 F.4th 608, 617 (D.C. Cir. 2024)
(cleaned up).
The first question the district court must consider is
whether issue preclusion applies to jurisdictional questions
under the FSIA. Issue preclusion is a judicial doctrine
providing that a prior judgment may “foreclos[e] successive
litigation of an issue of fact or law actually litigated and
resolved in a valid court determination essential to the prior
judgment.” New Hampshire v. Maine, 532 U.S. 742, 748–49
(2001). It is well established that, in general, “[i]ssue
preclusion applies to threshold jurisdictional issues.” Nat’l
Ass’n of Home Builders v. EPA, 786 F.3d 34, 41 (D.C Cir.
2015). And sovereign immunity is a jurisdictional issue. Other
courts have given preclusive effect to jurisdictional
determinations by domestic courts when analyzing subject
matter jurisdiction under the FSIA.7 This court has not
7 See Gupta v. Thai Airways Int’l, Ltd., 487 F.3d 759, 765–67 (9th
Cir. 2007) (giving preclusive effect to a previous state court decision
that the court lacked subject matter jurisdiction under the FSIA);
Biton v. Palestinian Interim Self-Government Auth., 412 F. Supp. 2d
1, 4–5 (D.D.C. 2005) (holding that “collateral estoppel preclude[d]
re-litigation of the issue[]” of whether certain foreign organizations

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previously addressed the issue and so the district court should
evaluate whether issue preclusion applies in this context.
If the district court determines that issue preclusion applies
to jurisdictional questions under the FSIA, it must also assess
whether preclusion extends to foreign judgments. This, too,
appears to be a novel question. We are aware of no case, and
the parties point to no case, in which a court has given
preclusive effect to a foreign judgment in order to exercise
jurisdiction over a foreign sovereign under the FSIA. That said,
United States courts have long accorded respect to, and often
enforced, judgments of foreign courts. As Chief Justice
Marshall explained, “[I]n the courts of England,” the judgment
“of a foreign court is conclusive with respect to what it
professes to decide,” so long as the court “has, in the given
case, jurisdiction of the subject-matter.” Rose v. Himely, 8 U.S.
(4 Cranch) 241, 270 (1808). The Supreme Court viewed the
English approach “as the uniform practice of civilized nations”
and adopted it. Id. at 271.
Later, in the seminal case Hilton v. Guyot, the Supreme
Court explained that recognition of foreign judgments is a
matter of international comity. 159 U.S. 113, 163–67 (1895).
And the Court set forth a series of factors for determining
whether such recognition is appropriate in a particular case. Id.
at 202–03. Since Hilton, the federal courts have extended
comity to foreign judgments that comport with the standard
expounded by the Court. See Tahan v. Hodgson, 662 F.2d 862,
“[met] the definition of ‘foreign state’ under the [FSIA],” and were
therefore immune from suit, because the issue had been “fully and
carefully examined” by two other domestic courts); Mortimer Off
Shore Servs., Ltd. v. Federal Republic of Germany, No. 10-cv-11551,
2012 WL 1067648, at *10–11 (D. Mass. Mar. 28, 2012) (giving
preclusive effect to the Second Circuit’s decision that the dispute did
not fall within the commercial exception to the FSIA).

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864–68 (D.C. Cir. 1981) (applying the Hilton factors and
concluding that enforcement of an Israeli judgment was
required); Donnelly v. FAA, 411 F.3d 267, 270–71 (D.C. Cir.
2005) (upholding, as consistent with Hilton, a federal agency’s
use of a foreign criminal conviction as evidence in an
adjudication); see also Phillips USA v. Allflex USA, Inc., 77
F.3d 354, 359–61 (10th Cir. 1996); Cunard S.S. Co. v. Salen
Reefer Servs. AB, 773 F.2d 452, 456–60 (2d Cir. 1985); Hurst
v. Socialist People’s Libyan Arab Jamahiriya, 474 F. Supp. 2d
19, 34–36 (D.D.C. 2007).
If issue preclusion applies to jurisdictional facts under the
FSIA, the district court must apply the Hilton factors to
determine whether principles of comity counsel in favor of
recognizing the Dutch judgments. See Tahan, 662 F.2d at 864
(explaining Hilton’s relevance for the enforcement of foreign
judgments). The court should also consider how the Hilton
factors intersect with the ordinary standard for assessing
collateral estoppel. See, e.g., Hurst, 474 F. Supp. 2d at 33–34
(analyzing whether a foreign judgment met the Hilton factors
and the ordinary collateral estoppel standard); Alfadda v. Fenn,
966 F. Supp. 1317, 1325–32 (S.D.N.Y. 1997) (applying the
Hilton comity factors and issue preclusion standards
sequentially). The parties dispute whether the elements of issue
preclusion are met here, in particular whether the Dutch
proceedings were “full and fair.” See Hilton, 159 U.S. at 202.
We leave these questions for the district court to consider in the
first instance.
Whether to apply issue preclusion to foreign judgments
with respect to determinations of foreign sovereign immunity
is a novel question that may implicate foreign relations and
international law. Accordingly, the district court should invite
the United States to express the government’s position on this

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issue, through a Statement of Interest pursuant to 28 U.S.C.
§ 517, or any other appropriate mechanism.
* * *
For the foregoing reasons, we vacate the judgment and
remand for the district court to determine whether Russia is
entitled to sovereign immunity or if the arbitration exception to
the FSIA applies. In making this jurisdictional determination,
the district court should also consider whether the Dutch
courts’ judgments on this question are entitled to preclusive
effect.
So ordered.

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WILKINS, Circuit Judge, concurring:
I join in full the Court’s opinion. I write separately to
emphasize the limits of our decision. We do not hold that every
time a sovereign claims it lacked authority or capacity to agree
to arbitrate, it necessarily raises a jurisdictional attack under the
Foreign Sovereign Immunities Act. Not all such arguments are
jurisdictional. Compare Brief for Appellant at 40, NextEra
Energy Glob. Holdings B.V. v. Kingdom of Spain, 112 F.4th
1088 (D.C. Cir. 2024) (Nos. 23-7031, 23-7032), Dkt. No.
2011894 (claiming a “lack[]” of “capacity” to agree to
arbitrate), with NextEra, 112 F.4th at 1103 (determining the
argument went to the agreement’s scope and not its existence).
Rather, Russia’s specific argument here, given the text of
Article 45 of the Treaty and the basis Russia identifies for
limiting its provisional application of the Treaty, plainly goes
to the existence of any arbitration agreement. District Courts
should carefully consider the justification for any “lack of
authority” claim, along with the details of the contested
arbitration agreement, in resolving these jurisdictional
disputes.

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