Summary

BRIEF IN OPPOSITION

QUESTION PRESENTED

The 1998 Agreement between the Government of the Russian Federation and the Cabinet of Ministers of Ukraine on the Encouragement and Mutual Protection of Investments (the "Investment Treaty") is a bilateral investment treaty between the Russian Federation and Ukraine. In Article 9, Russia and Ukraine agreed that "any dispute between one Contracting Party and an investor of the other Contracting Party arising in connection with investments" may be submitted to arbitration, including arbitration under the United Nations Commission on International Trade Law ("UNCITRAL") Rules.

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 provides that a foreign state "shall not be immune" in an action "to confirm an award made pursuant to such an agreement to arbitrate," where the agreement or award is or may be governed by a treaty in force for the United States calling for the recognition and enforcement of arbitral awards.

Respondents in this case are arbitral award-creditors seeking to confirm awards rendered pursuant to Article 9 of the Investment Treaty and governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention"). Russia claims it is immune under the FSIA, contending that no arbitration agreement was made "with or for the benefit of"

Respondents because Respondents' investments were initially made in Crimea when it was indisputably part of Ukraine.

The question presented is:

Whether Section 1605(a)(6) requires a court to determine--at the threshold jurisdictional stage-whether a foreign state consented to arbitrate with the particular plaintiff seeking to enforce an arbitral award, or whether it is sufficient that the foreign state entered an agreement to arbitrate "with or for the benefit of a private party" and that an award was rendered pursuant to that agreement.