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Last week, in Kingdom of Spain v. Blasket Renewable Investments LLC, the Solicitor General (SG) weighed in<\/a> on whether U.S. courts have jurisdiction to enforce arbitral awards arising from disputes between European investors and EU Member States\u2014so-called \u201cintra-EU\u201d investment arbitrations. These awards have generated significant controversy around the world following landmark rulings by the Court of Justice of the European Union (CJEU) holding that arbitration of such disputes is incompatible with EU law. In the United States, a key question that has emerged as creditors of these awards have sought enforcement in U.S. courts is whether courts possess jurisdiction under the arbitration exception in the Foreign Sovereign Immunities Act<\/a> (FSIA) to enforce them, or whether, as Spain has contended, that exception cannot apply because no valid \u201cagreement to arbitrate\u201d can exist between EU parties. In his brief, the Solicitor General agreed with Spain that the D.C. Circuit did not adequately evaluate whether this issue meant that there was no \u201cagreement to arbitrate\u201d as required by the exception. He nonetheless recommended denying cert because even under the appropriate analysis, Spain would be unlikely to succeed on its jurisdictional objection.<\/p>\n The SG reached the right bottom line, but the brief\u2019s analysis of the arbitration exception appears flawed and blurs the FSIA jurisdictional analysis with the underlying question of the awards\u2019 enforceability. If adopted, the brief\u2019s approach could create significant additional hurdles to the enforcement of awards against foreign sovereigns, including by allowing a second bite at issues already resolved in arbitration.<\/p>\n Background: The D.C. Circuit Resolves a District Court Split Over \u201cIntra-EU\u201d FSIA Challenges<\/p>\n Since the CJEU decided the landmark cases Slovak Republic v. Achmea BV<\/a> (2018) and Republic of Moldova v. Komstroy LLC<\/a> (2021), the enforcement of intra-EU awards has been uncertain. Courts in several EU Member States have set aside and refused to enforce such awards on the basis that the Achmea and Komstroy decisions bar arbitration between European investors and EU Member States. This trend, however, has largely been limited to the EU, with courts in the United Kingdom, Australia, and Singapore<\/a> all enforcing<\/a> awards notwithstanding intra-EU objections.<\/p>\n Enter the U.S. courts. In recent years, European investors have brought numerous cases seeking enforcement of intra-EU awards in the U.S. District Court for the District of Columbia, including approximately a dozen against Spain. Spain has challenged these actions by arguing that because intra-EU arbitration is incompatible with EU law under Achmea and Komstroy, it did not validly agree to arbitrate with the investors and therefore there is no \u201cagreement to arbitrate\u201d for purposes of the FSIA arbitration exception. A split has emerged among the district courts over that issue.<\/p>\n In August 2024, the D.C. Circuit resolved that split in a consolidated appeal<\/a> of enforcement actions brought by Blasket Renewable Investments, 9REN Holding, and NextEra Energy Global Holdings against Spain. The panel explained that, under circuit precedent, the FSIA arbitration exception, \u00a7\u00a01605(a)(6), requires the establishment of three jurisdictional facts: \u201c(1) an arbitration agreement, (2) an arbitration award, and (3) a treaty potentially governing award enforcement.\u201d Interpreting \u00a7\u00a01605(a)(6), the court held that with respect to the first requirement, courts must specifically find \u201c\u2018an agreement made by the foreign state\u2019\u2014either \u2018with\u2019 or \u2018for the benefit\u2019 of a private party\u2014to submit certain disputes to arbitration.\u201d It concluded that the Energy Charter Treaty<\/a> (ECT), an investment treaty, satisfied the latter requirement as it provides an agreement to arbitrate with a class of investors and is \u201cfor the benefit of\u201d those investors. On that basis, the panel declined to determine whether the ECT excludes arbitration with EU investors, reasoning that that issue pertained to the scope of the ECT, not the existence of an arbitration agreement for FSIA purposes.<\/p>\n Relatedly, the panel did not reach the unresolved question of whether parties waive immunity by agreeing to arbitration under the New York Convention<\/a> or the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID or Washington Convention<\/a>). Resolving this issue in favor of the investors would have provided a simpler route to finding jurisdiction under the FSIA, as courts<\/a> in other countries have found in relation to ICSID awards in similar intra-EU cases, including one involving Blasket in the Federal Court<\/a> of Australia. Whether parties waive immunity under the New York Convention has remained more contested.<\/p>\n In May 2025, Spain asked<\/a> the Supreme Court to review and reverse, and the Court called for the views of the Solicitor General in October 2025.<\/p>\n The Solicitor General\u2019s Brief<\/p>\n Although the Solicitor General\u2019s brief generally aligns with the position<\/a> taken by the U.S. government in the consolidated appeal below\u2014and in that respect is not entirely surprising\u2014three key points stand out.<\/p>\n First, and most importantly, the SG argues that the D.C. Circuit \u201cerred in holding that arbitrators rather than courts should decide whether Spain has an arbitration agreement that is \u2018with or for the benefit of\u2019 respondents.\u201d While the panel did not expressly hold as much, the SG refers to the implicit distinction drawn by the panel between the question of the \u201cexistence\u201d of the arbitral agreement, which the panel answered by reference to the ECT, and the intra-EU law question, which the panel held was a \u201cscope\u201d or \u201cmerits\u201d question delegated to the arbitrators under the applicable UNCITRAL and ICSID rules.<\/p>\n Second, the SG argues, in line with Spain\u2019s interpretation of \u00a7\u00a01605(a)(6), that \u201c\u2018an agreement made by the foreign state with or for the benefit of a private party\u2019 is best read to mean an agreement with or for the benefit of the FSIA plaintiff.\u201d On that view, courts must determine whether the agreement provided for arbitration with the particular parties before the enforcement court.<\/p>\n Third, the SG recommends that although the D.C. Circuit erred by failing to analyze whether the agreement was for the benefit of the FSIA plaintiff, the Supreme Court should deny cert because Spain is unlikely to prevail on the substance of its intra-EU arguments. Relying on Articles 27 and 46(1) of the Vienna Convention<\/a> on the Law of Treaties, the SG correctly explains that EU Member States may not invoke EU law to avoid their treaty obligations under the ECT. That approach aligns with approaches taken by courts in Australia<\/a> and the United Kingdom<\/a>, among others.<\/p>\n Interpreting the \u201cAgreement to Arbitrate\u201d Requirement <\/p>\n While the SG ultimately reached the right bottom line, the brief\u2019s reasoning on the first part of the analysis\u2014what must be shown to establish an agreement to arbitrate under \u00a7\u00a01605(a)(6)\u2014warrants scrutiny. Most notably, the SG does not clearly explain why courts must find an agreement to arbitrate with specific parties when \u00a7\u00a01605(a)(6) provides two distinct routes to jurisdiction: agreements \u201cmade by the foreign state\u00a0with\u201d a particular party, or agreements \u201cfor the benefit of\u201d a private party. That there are two routes is clear in the text of the complete provision, which requires \u201can 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.\u201d The latter phrasing\u2014\u201cfor the benefit of\u201d\u2014is uniquely relevant to investment treaties, like the ECT, which extend a standing offer to arbitrate to a class of investors. The SG\u2019s analogy of the intra-EU issue to \u201cvalidity\u201d issues in arbitration, which typically must be decided by courts, is accordingly less convincing because the authorities relied on for that point do not address the FSIA\u2019s \u201cfor the benefit of\u201d language.<\/p>\n The SG\u2019s interpretation of \u201cprivate party\u201d to mean \u201cFSIA plaintiff\u201d is also strained. Section 1605(a)(6) distinguishes between \u201cthe foreign state\u201d and \u201ca private party,\u201d which is in line with reading \u201cfor the benefit of\u201d as referring to a class of investors protected by the relevant treaty, not only specifically identified parties. The phrase \u201cdifferences . . . between the parties\u201d likewise appears to refer to the parties in the arbitration, not the parties before the enforcement court because that clause merely describes the requisite arbitration agreement in the earlier part of the sentence.<\/p>\n The SG\u2019s \u201cFSIA plaintiff\u201d reading is also at odds with the frequent practice of assigning awards. Indeed, in this very case, one of the parties seeking enforcement\u2014Blasket\u2014is the successor in interest to an original award creditor. Accordingly, on the SG\u2019s interpretation\u2014yet contrary to his conclusion\u2014there would be no jurisdiction over Blasket\u2019s enforcement action because Spain never made an \u201cagreement\u201d to arbitrate with Blasket, specifically.<\/p>\n The Right Outcome, But for (Some of) the Wrong Reasons<\/p>\n Stepping back, the SG\u2019s position could also have significant repercussions for award enforcement. As the D.C. Circuit recently put it<\/a> in Stabil v. Russian Federation<\/a> (2026), requiring more than the \u201cexistence\u201d of an arbitration agreement \u201ccollapses two questions that our caselaw keeps distinct\u201d\u2014namely, questions of arbitrability and FSIA jurisdiction. That distinction is especially important when parties have already had the opportunity to address arbitrability issues both in arbitration and before courts in post-award set-aside or annulment actions. Spain, for example, already raised its intra-EU objection before the relevant arbitral tribunals and pursued set-aside and annulment. The ICSID Convention and its enabling statute<\/a>, 22 U.S.C. \u00a7\u00a01650a, also provide that ICSID awards are final and not subject to any appeal or other remedy and must be enforced as if a final domestic judgment, which is in tension with additional substantive review under the FSIA.<\/p>\n Of course, it\u2019s possible to debate when exactly an arbitration agreement is sufficiently \u201crelated<\/a>\u201d to the party initiating arbitration to satisfy the arbitration exception. But in attempting to address that concern, the SG\u2019s approach may well create larger problems. If courts are required to independently determine whether an agreement has been made with a particular party under an investment treaty\u2014a question the D.C. Circuit labeled a \u201cscope\u201d issue\u2014then the same logic would seem to extend to other requirements of the arbitration exception.<\/p>\n