La Sentencia de la US Court of Appeals For the District of Columbia Circuit, 16 agosto 2024 (Nextera Energy Global Holdings B.V. and Nextera Energy Spain Holdings B.V. v. Kingdom of Spain) (ponente Juez Pillard) declara que los tribunales de distrito de EE UU son competentes en virtud de la excepción de arbitraje de la Foreign Sovereign Immunities Act para confirmar los laudos arbitrales contra España, pero devuelve el caso para un nuevo procedimiento

Antecedentes

Un grupo de empresas energéticas neerlandesas y luxemburguesas invirtieron en proyectos de energía solar en España, confiando en las subvenciones económicas prometidas. Tras la crisis financiera de 2008, España retiró estas subvenciones, lo que llevó a las empresas a impugnar las acciones de España mediante arbitraje en virtud del Tratado sobre la Carta de la Energía (ETC). Las empresas ganaron laudos multimillonarios en el arbitraje. Sin embargo, la Unión Europea alegó que la disposición sobre arbitraje del ETC no se aplica a los litigios entre Estados miembros de la UE, lo que invalida los laudos con arreglo a la legislación de la UE. Las empresas solicitaron la ejecución de los laudos en Estados Unidos, invocando el Convenio del CIADI y la Convención de Nueva York.

El Tribunal de Distrito de los Estados Unidos para el Distrito de Columbia revisó los casos. En los casos NextEra Energy Global Holdings B.V. c. Reino de España y REN Holding S.A.R.L. c. Reino de España, el tribunal se declaró competente en virtud de la excepción de arbitraje de la Foreign Sovereign Immunities Act (FSIA) y denegó la petición de desestimación de España. El tribunal también concedió medidas cautelares contra la demanda para impedir que España solicitara medidas cautelares contra la demanda en tribunales extranjeros. Por el contrario, en el caso Blasket Renewable Investments LLC contra el Reino de España, el tribunal de distrito declaró a España inmune en virtud de la FSIA y desestimó el caso, denegando la medida cautelar solicitada por considerarla discutible.

En la presente decisión el Tribunal de Apelación de los Estados Unidos para el Circuito del Distrito de Columbia revisó los casos sosteniendo que los tribunales de distrito eran competentes en virtud de la excepción de arbitraje de la FSIA para confirmar los laudos arbitrales contra España. Sin embargo, considera que el tribunal de distrito en los casos NextEra y REN había abusado de su discrecionalidad al prohibir a España presentar demandas contra España ante los tribunales holandeses y luxemburgueses. El tribunal de apelación confirmó en parte y revocó en parte en el caso NextEra, revocó en los casos 9REN y Blasket, y devuelve el caso para un nuevo procedimiento, afirmando que el tribunal de distrito abusó de su discrecionalidad al dictar las medidas cautelares contra la demanda

Esta decisión cuesta con el voto disidente del Juez Pan.

Apreciaciones del Tribunal

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We now consider the propriety of the district court’s antisuit injunctions in NextEra and 9REN. After asserting jurisdiction over the disputes, the district court preliminarily enjoined Spain from pursuing relief in the Netherlands or 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 antisuit 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 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 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 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.

First, the district court did not address the fact that the antisuit 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 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 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 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 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 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 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.

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.

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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.