Summary

QUESTIONS PRESENTED

The Energy Charter Treaty ("ECT") is an international investment treaty. In Article 26, "each Contracting Party" gave "unconditional consent to the submission of a dispute to international arbitration" with "an Investor of another Contracting Party relating to an Investment of the latter in the Area of the former."

The arbitration exception of the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605(a)(6), refers to "an agreement made by the foreign state with or for the benefit of a private party to submit to arbitration," and it provides that a sovereign "shall not be immune" from an action "to confirm an award made pursuant to such an agreement to arbitrate."

This case is an action by respondents to confirm three Arbitral Awards that were made pursuant to Article 26 of the ECT. Petitioner claims that it is immune under the FSIA.

1. The first question presented is whether Article 26 of the ECT satisfies the FSIA's arbitration exception because it is "an agreement to arbitrate" that was "made by the foreign state. . . for the benefit of" private investors. 28 U.S.C. § 1605(a)(6).

2. The second question presented is whether the doctrine of issue preclusion bars petitioner from re-litigating whether respondents are "Investor[s] of another Contracting Party"--an issue that petitioner raised and lost in its failed attempt to persuade the Dutch courts to "set aside" the Awards.