Novenergia II - Energy & Environment (Sca) v. Kingdom of Spain

At a glance

Parties

Novenergia II – Energy & Environment (SCA) and the Foresight companies (Foresight Luxembourg Solar 1 and 2, GWM Renewable Energy I and II, Greentech Energy Systems), v. the Kingdom of Spain. Foresight Fund Managers Ltd. has been substituted as petitioner in both cases.

Court

US District Court for the District of Columbia, Judge Tanya S. Chutkan

Case no.

Civil Action Nos. 18-1148 and 20-925 (TSC) (consolidated)

Underlying awards

Two Stockholm Chamber of Commerce (SCC) awards under Article 26 of the Energy Charter Treaty: Novenergia (15 February 2018) and Foresight (14 November 2018)

Sector

Renewable energy (solar)

Outcome

Spain's motion to dismiss denied (Memorandum Opinion of 28 September 2026). The enforcement petitions go forward.

Amount at stake

EUR 53.3 million (Novenergia) and EUR 39 million (Foresight), plus costs and interest

The dispute

Two groups of investors won SCC awards under the Energy Charter Treaty against Spain. The tribunals rejected Spain's argument that intra-EU disputes could not be arbitrated. After the EU Court of Justice's Komstroy judgment, Sweden's Svea Court of Appeal invalidated the Novenergia award (December 2022), and the Swedish Supreme Court refused review in July 2023. The Svea Court then annulled the Foresight award (June 2024). The investors had meanwhile asked the US courts to enforce the awards under the New York Convention. Spain moved to dismiss, arguing sovereign immunity, the preclusive effect of the Swedish judgments, and defective service.

Key holdings

1. The FSIA's arbitration exception applies. Following NextEra v. Spain (D.C. Cir. 2024), Article 26 of the ECT is an arbitration agreement as a matter of US law, and Spain's intra-EU and Komstroy arguments go to its scope, not its existence. A later June 2024 interpretive agreement among EU states does not change this. Mem. Op. Part III.A.1.i.a
2. The awards exist for FSIA purposes even though they were annulled at the seat. Whether an award was made is a factual question, and the petitioners met their burden by producing the awards. The New York Convention also plausibly governs. Mem. Op. Part III.A.1.i.b–c
3. The Swedish judgments have no issue-preclusive effect. They applied Swedish and EU law, which does not draw the D.C. Circuit's distinction between the scope and the existence of an arbitration agreement. Because the legal standards differ, the issues differ. Mem. Op. Part III.A.1.ii
4. Service on Spain in the Foresight case was initially defective, because it was sent to the Attorney General's office rather than Spain's Central Authority. It was cured when Foresight served through the Central Authority under the Hague Service Convention (certificate filed in April 2026). Mem. Op. Part III.B
5. No dismissal for the six-year delay in requesting a summons. The court was concerned that no good cause was shown, but Spain suffered no prejudice. Mem. Op. Part III.B

Procedural history

1. 15 February 2018SCC award for Novenergia: EUR 53.3 million plus costs and interest.
2. May 2018Novenergia petitions the D.D.C. to confirm and enforce its award (No. 18-1148).
3. 14 November 2018SCC award for the Foresight companies: EUR 39 million plus costs and interest.
4. December 2018Foresight petitions in New York state court. The case is removed and, in April 2020, transferred to the D.D.C. (No. 20-925).
5. January and September 2020The D.D.C. stays both cases pending the Swedish set-aside proceedings and consolidates them.
6. December 2022The Svea Court of Appeal invalidates the Novenergia award, applying Komstroy. The Swedish Supreme Court refuses review in July 2023.
7. June 2024The Svea Court of Appeal annuls the Foresight award.
8. May 2025The stays are lifted. Spain moves to dismiss in October 2025.
9. 24 August 2026Foresight Fund Managers Ltd., as assignee, is substituted for Novenergia.
10. 28 September 2026Memorandum Opinion: Spain's motion to dismiss is denied.

Keywords

• Spain
• renewable energy
• solar
• Energy Charter Treaty
• intra-EU
• Komstroy
• enforcement
• New York Convention
• FSIA
• arbitration exception
• sovereign immunity
• NextEra
• annulled award
• Svea Court of Appeal
• issue preclusion
• Hague Service Convention
• SCC
• Foresight

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