Summary

SUPPLEMENTAL BRIEF FOR RESPONDENTS

The United States' brief confirms that the Court should deny review. Its reasoning also confirms that if the Court nonetheless grants cert, it should grant review of the additional questions presented in NextEra and 9REN's brief in opposition, too--whether Spain agreed to arbitrate with investors from other Energy Charter Treaty (ECT) member states and cannot use European Union law to renege on that agreement; and whether members of 1965 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID Convention) "waived. .. immunity either explicitly or by implication" to ICSID-award-enforcement suits under the Foreign Sovereign Immunities Act's (FSIA) waiver exception, 28 U.S.C. § 1605(a)(1).

Although Respondents and the United States disagree on the merits of Spain's questions presented, they agree that "the court of appeals' holding does not warrant further review" because the questions presented are academic and further review "is unlikely to make a difference in this case." U.S. Br. 3. If Spain prevails on its question presented on the FSIA's arbitration exception, that would mean only that the courts would need to ask the next question--whether Spain agreed to arbitrate with or for the benefit of NextEra and 9REN. See id. And the United States' brief confirms that "[e]ven on de novo review," the clear answer to that question is yes. See id. That's because the ECT's "language is unequivocal: Spain gave its 'unconditional consent' to arbitrate disputes with investors" of all other ECT member states. Id. That question isn't difficult. As the United States observes, "Spain does not contest that the Treaty itself is best read to establish an arbitration agreement with or for the benefit of all investors."

Spain's intra-European-Union-law argument doesn't present a hard question, either...