Infrastructure Services Luxembourg S.A.R.L. v. Kingdom of Spain

At a glance

Parties

Infrastructure Services Luxembourg S.A.R.L. (Luxembourg) and Energia Termosolar B.V. (Netherlands) v. Kingdom of Spain

Case no.

Civil Action No. 18-1753 (LLA), U.S. District Court for the District of Columbia

Court

United States District Court for the District of Columbia, Judge Loren L. Alikhan

Underlying award(s)

ICSID award of June 2018 under the Energy Charter Treaty, amended by a rectification decision in February 2019; Spain's annulment application was denied by an ICSID committee in July 2021

Forum and rules

Petition to enforce an ICSID award under 22 U.S.C. § 1650a; jurisdiction under the Foreign Sovereign Immunities Act (FSIA)

Treaty

Energy Charter Treaty; ICSID Convention

Sector

Renewable energy (solar power)

Outcome

Spain's motion to dismiss was denied (12 August 2025). The court held that it has jurisdiction, that the award is entitled to full faith and credit, and that the foreign sovereign compulsion doctrine does not bar enforcement.

Amount

Investment: about EUR 139.5 million. Award: EUR 112 million in damages plus interest and costs, amended on rectification to EUR 101 million.

The dispute

The petitioners, a Luxembourg company and a Netherlands company, invested about EUR 139.5 million in solar power projects in Spain under legislation that offered financial incentives for renewable energy. Spain later withdrew those incentives. The petitioners claimed that this breached the Energy Charter Treaty. In June 2018 an ICSID tribunal found a breach of Article 10 of the ECT and awarded damages, later amended to EUR 101 million. The petitioners asked the U.S. District Court to enforce the award. Spain moved to dismiss on three grounds: it argued that it was immune under the FSIA because, under EU law and the Komstroy judgment, there was no valid intra-EU arbitration agreement; that the award was not owed full faith and credit because the arbitrators lacked jurisdiction and had awarded state aid; and that the foreign sovereign compulsion doctrine and comity barred enforcement.

Key holdings

1. The FSIA's arbitration exception (28 U.S.C. § 1605(a)(6)) applies. Following NextEra, the court held that the Energy Charter Treaty itself is an arbitration agreement made for the benefit of Spain's investors. Spain's argument under EU law and Komstroy is foreclosed, and Spain conceded the effect of NextEra. Personal jurisdiction follows because service was proper. pp. 7–9
2. The award is entitled to full faith and credit under 22 U.S.C. § 1650a(a). The court may not review the merits or the tribunal's jurisdiction. The ICSID tribunal had fully and fairly litigated and rejected Spain's jurisdictional objections. The authenticity of the award was not disputed, and the enforcement order can track the award. pp. 9–11
3. Spain argued that full faith and credit covers only the pecuniary obligations of the award, not the tribunal's ruling on its own jurisdiction. Spain forfeited this argument because it first raised it in supplemental briefing, not in the motion to dismiss. The argument also fails on its own terms: giving full faith and credit to a pecuniary award necessarily covers the jurisdictional holding on which it rests. p. 10 n. 5
4. The foreign sovereign compulsion doctrine and comity do not bar enforcement. Comity favours enforcing an award from a forum to which Spain voluntarily submitted, under a treaty that makes awards binding (ICSID Convention Art. 53(1)). The risk of European Commission state aid sanctions is speculative, and the Commission's amicus brief did not suggest that Spain would be sanctioned. pp. 11–14
5. The motion to dismiss was denied. The parties were directed to file a joint status report proposing next steps by 9 September 2025. p. 14

Procedural history

1. June 2018ICSID tribunal issues its award against Spain for breach of Article 10 of the ECT: EUR 112 million plus interest and costs.
2. July 2018Petition to confirm the award is filed in the District Court. Spain requests rectification of the award for clerical errors.
3. February 2019Rectification decision amends the award to EUR 101 million.
4. May 2019Spain applies for annulment of the award. The District Court (Judge Sullivan) stays the case.
5. July 2021ICSID committee denies Spain's annulment application.
6. January 2022Stay in the District Court ends.
7. 13 September 2023Magistrate Judge Upadhyaya stays the case pending the D.C. Circuit's decision in NextEra.
8. 27 January 2025Court lifts the stay and orders supplemental briefing on NextEra. It later accepts an amicus brief from the European Commission.
9. 12 August 2025Memorandum Opinion and Order denies Spain's motion to dismiss.

Tribunal, counsel and experts

Decided by

• Loren L. Alikhan Judge, United States District Court for the District of Columbia

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Keywords

• ICSID award enforcement
• 22 U.S.C. § 1650a
• Foreign Sovereign Immunities Act
• arbitration exception
• full faith and credit
• intra-EU objection
• Komstroy
• NextEra
• Energy Charter Treaty
• foreign sovereign compulsion
• international comity
• EU state aid
• European Commission amicus
• renewable energy
• solar power
• Spain renewables
• forfeiture

Summary generated with AI from the published documents — refer to the award for the authoritative text.