Summary

SUPPLEMENTAL BRIEF FOR PETITIONER

INTRODUCTION

The United States largely confirms that the FSIA question warrants this Court's review. The government acknowledges that the decision below is in tension with other circuits' decisions and that further percolation is unlikely. It recognizes that the immunity question is tremendously important to foreign sovereigns, as reflected in the numerous amicus briefs from those sovereigns in support of Spain's petition. And it agrees that Spain is entitled to have a court "decide for itself de novo" whether a valid arbitration agreement exists.

Despite all that, the government's punchline is that review should be denied because Spain's underlying immunity defense might not prevail on remand.

(Never mind that--as the government acknowledges--the only court to consider that defense de novo agreed with Spain and dismissed.) In short, the government asks this Court to leave in place a concededly wrong decision, consigning Spain and other foreign sovereigns to a concededly wrong jurisdictional inquiry that "will permit withdrawal of [their] sovereign immunity without a federal court's ever determining" whether they consented to arbitrate at all, id.--all based on two pages of analysis that breezes past Spain's lead argument below and ignores the rationale of the one court to evaluate Spain's immunity defense under the government's own standard.

The Court should decline that invitation. The government's vehicle objection is unsound, but even if the government were right, the Court should recognize that the petition more than satisfies the criteria for certiorari. That is especially so in light of the important foreign-relations implications of this case.

While the Executive Branch is apparently content to live with those implications for the time being, the federal judiciary may not be. The decision below both encourages more cross-border disputes to be filed in the United States and requires that they consume more judicial and party resources. That alone is a compelling reason for further review, notwithstanding the government's bottom-line suggestion.

The Court should also review the forum non conveniens question. Here too, the government concedes that the circuits are split, the issue is important, and the D.C. Circuit is wrong. Then, in the final paragraph of its brief, the government halfheartedly announces that the "current record" makes this a poor vehicle because it's "unclear" whether Spain has "attachable assets" in an adequate alternative forum. But it's hard to take that argument seriously when respondents haven't raised it-because all three are busy suing Spain elsewhere.

The Court should grant the petition, reverse the D.C. Circuit, and leave remand questions for remand.

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