A Deep Legal Rift: Sovereign Immunity vs. Arbitration Consent
At the heart of the dispute lies a crucial legal divide over the Foreign Sovereign Immunities Act (FSIA) — specifically, whether its arbitration exception applies before determining if a country agreed to arbitrate with the claimant.
Spain contends that federal appeals courts are split on this issue, calling it a matter of “critical importance” for diplomatic relations and international arbitration.
The FSIA’s arbitration exception grants U.S. courts jurisdiction over foreign states that have agreed to arbitration, but Spain says the D.C. Circuit jumped the gun by asserting jurisdiction without first proving consent.
Investors Say Arbitration Consent Was Clear
In their opposition, NextEra and 9REN argue that the ICSID Convention — the World Bank–affiliated framework governing their arbitration — explicitly empowers arbitral tribunals to decide questions of consent.
They maintain that the ICSID tribunal had already confirmed Spain’s participation and thus, the enforcement should stand unchallenged.
Meanwhile, Blasket Renewable Investments countered that Spain’s claim of a “circuit split” was misleading, noting its own award was decided under UNCITRAL rules in Switzerland, independent of the ICSID system.
