UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

NEXTERA ENERGY GLOBAL 

HOLDINGS B.V., et al., 

 

)

)

)

 Petitioners, )

)

 v. )

)

Civil Action No. 19-cv-01618 (TSC)

KINGDOM OF SPAIN, )

)

 Respondent. )

)

MEMORANDUM OPINION

Petitioners NextEra Energy Global Holdings B.V. and NextEra Energy Spain Holdings 

B.V. (NextEra) seek to enforce a € 290 million arbitral award issued by the International Centre 

for Settlement of Investment Disputes (ICSID) against Respondent, the Kingdom of Spain. 

Spain moves to dismiss or stay the proceedings until the ICSID Tribunal decides on its petition 

to annul. (ECF No. 15.) This court agrees with other courts in this district that “it is wiser to . . . 

stay these proceedings pending the opinion of the ICSID regarding Spain’s petition to annul.” 

See Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, 397 F. Supp. 3d 34, 36 

(D.D.C. 2019).

For the reasons stated below, the court finds that a temporary stay is warranted, and will

therefore GRANT Spain’s motion to stay and deny, without prejudice, Spain’s motion to 

dismiss.

I. BACKGROUND

NextEra is an investor in solar power incorporated in the Netherlands. (ECF No. 1, 

Petition ¶¶ 4, 12.) In 2007, it invested approximately € 750 million in two concentrated solar 

energy projects in Spain to capitalize on Spain’s guaranteed tariffs for renewable energy 
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producers. (Id. ¶ 13.) Spain later changed its regulations and “fundamentally and radically 

changed the investment regime” on which NextEra relied. (Id. ¶ 14.) These regulatory changes 

allegedly caused NextEra significant harm, and the company sought to arbitrate the dispute with 

Spain under the Energy Charter Treaty (ECT). (Id. ¶ 18.) 

The ECT is a multilateral treaty signed by fifty-four nations and organizations, including 

Spain and the Netherlands, and is intended to promote international cooperation in the energy 

sector. (ECF No. 1-6, ECT.) Article 26 of the ECT provides that “[d]isputes between a 

Contracting Party and an Investor of another Contracting Party relating to an Investment of the 

latter in the Area of the former” may be submitted to arbitration. (Id. at 53–57.) 

In 2014, NextEra initiated arbitral proceedings against Spain in front of a three-member

ICSID1 tribunal, claiming that the changes Spain made to its regulations violated Article 10(1) of 

the ECT, which obligates contracting states to provide investors with “fair and equitable 

treatment.” (Petition ¶¶ 18–20.) The tribunal found Spain liable for breaching Article 10(1) and 

ordered Spain to pay over € 290 million in damages. (Id. ¶¶ 20–21.) 

While ICSID awards cannot be appealed, a party may apply to the ICSID annulment 

committee to annul the award on limited grounds. Spain applied to annul the award, triggering 

an automatic, provisional stay of enforcement of the award. (ECF No. 15-2 at 2.) Recently, the

annulment committee terminated the stay of enforcement because Spain had not “recognize[d]

the Award rendered by the Tribunal as final and binding” and did not agree to “unconditionally 

and irrevocably pay” the award within ninety days of a final decision by the annulment 

 

1 The ICSID Convention is a multilateral treaty created to facilitate foreign investments to which 

the United States, Spain, and the Netherlands are parties. It provides a mechanism for the 

resolution of investment disputes in front of an independent arbitral tribunal. (ECF No. 1-5, 

ICSID Convention, at 22.)
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committee. (ECF 32-1 at 5–7.) In deciding to lift the stay, the annulment committee did not 

consider the merits of Spain’s application and the final decision on the annulment of the award is 

still pending. (Id.) 

II. DISCUSSION

A. Jurisdiction

Spain moves to dismiss on several grounds, including forum non conveniens and lack of 

subject-matter jurisdiction under the Foreign Sovereign Immunities Act because no arbitration 

agreement exists. (ECF No. 15, Resp. Br. at 19–30.) Neither side challenges the court’s power 

to enter a stay. Nonetheless, courts “have an independent obligation to determine whether 

subject-matter jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh 

v. Y&H Corp., 546 U.S. 500, 514 (2006). Notwithstanding this obligation, a court may decide 

“certain non-merits, nonjurisdictional issues . . . because ‘[j]urisdiction is vital only if the court 

proposes to issue a judgment on the merits.’” Pub. Citizen v. U.S. Dist. Court for D.C., 486 F.3d 

1342, 1348 (D.C. Cir. 2007) (quoting Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 

U.S. 422, 431 (2007) (internal quotation marks and citation omitted)). When confronted with 

such a non-merits, nonjurisdictional threshold issue, and “when considerations of convenience, 

fairness, and judicial economy so warrant,” a district court can “bypass[] questions of subjectmatter and personal jurisdiction.” Sinochem Int’l Co., 549 U.S. at 432. 

Courts in this district have held that stays are a threshold, non-merits issue which a court 

may consider before resolving jurisdictional issues. See Gretton Ltd. v. Republic of Uzbekistan, 

No. 18-cv-1755, 2019 WL 464793, at *2–3 (D.D.C. Feb. 6, 2019) (staying petition to enforce an 

arbitral award before determining subject-matter jurisdiction); Hulley Enters. Ltd. v. Russian 

Federation, 211 F. Supp. 3d 269, 277–80 (D.D.C. 2016) (same) (“A stay of proceedings in this 
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case is exactly the type of nonmerits action the Sinochem decision contemplates.”); Seneca 

Nation of Indians v. U.S. Dep’t of Health & Human Servs., 144 F. Supp. 3d 115, 118–19 (D.D.C. 

2015) (staying an action before agency decision and before determining subject-matter 

jurisdiction). Accordingly, the court will resolve the threshold stay issue before the thornier 

jurisdictional issues, which involve sovereign immunity and international treaties. 

B. Stay

“[T]he power to stay proceedings is incidental to the power inherent in every court to 

control the disposition of the causes on its docket with economy of time and effort for itself, for 

counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). District courts 

“have broad discretion” in deciding whether to stay proceedings “pending the resolution of 

independent legal proceedings.” Marsh v. Johnson, 263 F. Supp. 2d 49, 52 (D.D.C.2003) (citing 

Landis, 299 U.S. at 254). In considering a stay, courts must “‘weigh competing interests and 

maintain an even balance’ between the court’s interests in judicial economy and any possible 

hardship to the parties.” Belize Soc. Dev. Ltd. v. Government of Belize, 668 F.3d 724, 732–33 

(D.C. Cir. 2012) (quoting Landis, 299 U.S. at 254–55). The party seeking the stay bears the 

burden and “must make out a clear case of hardship or inequity in being required to go forward, 

if there is even a fair possibility that the stay for which he prays will work damage to some one 

else.” Philipp v. Federal Republic of Germany, 253 F. Supp. 3d 84, 88 (D.D.C. 2017) (quoting 

Landis, 299 U.S. at 255) (internal quotation marks omitted). And, as here, when a party seeks an 

indefinite stay, the stay “must be supported by ‘a balanced finding that such need overrides the 

injury to the party being stayed.’” Belize Soc. Dev., 668 F.3d at 732. A court may not “order[] a 

stay ‘of indefinite duration in the absence of a pressing need.’” Id. (quoting Landis, 299 U.S. at 

255). 
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Here, the court’s interest in judicial economy favors a stay. “Litigating essentially the 

same issues in two separate forums is not in the interest of judicial economy or in the parties’ 

best interests.” Naegele v. Albers, 355 F. Supp. 2d 129, 141 (D.D.C. 2005) (quoting Nat’l 

Shopmen Pension Fund v. Folger Adam Sec., 274 B.R. 1, 3 (D.D.C. 2002)). Because Spain’s 

response to NextEra’s petition raises many of the same arguments already before the arbitral 

tribunal, the outcome of the annulment proceedings “may affect this Court’s determinations, at a 

minimum, by virtue of the[ir] persuasive value.” Hulley Enters. Ltd., 211 F. Supp. 3d at 284; cf. 

Clientron Corp. v. Devon IT, Inc., No. 13-cv-05634, 2014 WL 940406, at *5 (E.D. Pa. Mar. 10, 

2014) (explaining a stay was not warranted where the result of the foreign proceedings would 

have no effect on the confirmation proceedings). A hasty resolution resulting in inconsistent 

rulings is not in the interest of judicial economy. 

In addition, the international stakes in this action favor a stay. Spain’s request for a stay

“is premised on the need for further clarity from the European Union and the European legal 

system” regarding the arbitral tribunal’s jurisdiction. (ECF No. 33 at 3.) This court is “loath to 

wade into this territory unnecessarily,” and agrees the more prudent course is to refrain from 

delving into determinations on EU law at this stage. Masdar, 397 F. Supp. 3d at 40 (noting in a 

case against Spain raising similar issues that “considerations of comity are particularly resonant 

here, given that resolving this case mandates addressing a conflict between decades-old treaties 

and newly minted EU case law”). 

NextEra contends that because the annulment committee lifted its stay on enforcing the 

award, this court should not stay this case, even though no decision has been issued on the 

annulment petition’s merits. (ECF No. 21, Pet. Br. at 43; ECF No. 32, Not. Supp. Authority, at 

4.) Indeed, NextEra appears to contend that this court’s inherent authority to stay cases is limited 
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by the ICSID’s determination to lift the stay. (Not. Supp. Authority at 4.) NextEra cites no 

caselaw to support this contention. (Id.) And courts in this district have issued stays, even where 

the ICSID lifted its stay on enforcing an award before issuing a decision in annulment 

proceedings. See Minute Order, Infrastructure Servs. Lux. S.A.R.L. and Energia Termosolar 

B.V. v. Kingdom of Spain, No. 1:18-cv-01753 (D.D.C. July 15, 2020) (order continuing stay on 

proceedings despite the ICSID lifting its provisional stay); Unión Fenosa Gas, S.A. v. Arab 

Republic of Egypt, No. 18-cv-2395, 2020 WL 2996085, at *3–4 (D.D.C. June 4, 2020) (staying 

proceedings pending annulment proceedings before the ICSID, despite the annulment committee 

terminating its stay). 

Finally, balancing the hardships to each party also favors a stay. Spain would be 

burdened by having to litigate the validity of arbitral awards in two forums. Moreover, the risk 

of premature enforcement could result in Spain trying to recover assets seized during this action 

if it were to prevail in the annulment proceedings. See In re Arbitration of Certain Controversies 

Between Getma Int’l & Republic of Guinea, 142 F. Supp. 3d 110, 118 (D.D.C. 2015). NextEra 

contends that the annulment committee will consider this risk in making its decision, and that it 

will suffer prejudice from continued delay in recovering its award. (Pet. Br. at 54.) But if 

NextEra ultimately prevails it will likely be compensated for any delay because the award 

includes interest. (Petition ¶ 21.) Thus, the hardship to Spain, which could be significant, 

outweighs the hardship to NextEra.

In sum, Spain has met its burden to show a “pressing need” for a stay pending the 

outcome of the annulment proceedings. However, in an effort to ensure that the proceedings 

before this court are not unduly delayed, the court, by separate order, will provide for prompt and 
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regular review of the ongoing proceedings before the ICSID and, if NextEra prevails in those 

proceedings, will promptly address the merits in this case. 

III. CONCLUSION

For the reasons stated, the court will GRANT Respondent’s motion to stay and 

proceedings are stayed until resolution of the current annulment proceedings before the ad hoc 

committee. The court will also deny, without prejudice, the pending motion to dismiss. A 

corresponding Order will issue separately. 

Date: September 30, 2020

Tanya S. Chutkan 

TANYA S. CHUTKAN

United States District Judge