USA Trends and Developments Contributed by: Matthew Kirtland, Denton Nichols and Courtney Hikawa, Norton Rose Fulbright US LLP
and awards in most circumstances, including in the international context, and will likely continue to do so. In this vein, the Supreme Court considered in a 2020 case ( GE Energy v Outokumpu ) whether the New York Convention’s mandate to enforce international arbitra - tion agreements made “in writing” means that only the parties who actually signed the written agreement may enforce it ( GE Energy Power Conversion France SAS , Corp . v Outokumpu Stainless USA , LLC , 590 U.S. 432 (2020)). The Court said no, holding that the Convention allows US courts to apply state-law doc - trines that allow even those parties who did not sign the agreement to enforce it, as US courts have long done in the context of domestic arbitration (ibid, 432, 440-42 (2020)). Enforcement of Arbitral Awards Against Foreign Sovereigns and State-Owned Enterprises The United States is widely regarded as a preferred jurisdiction for the enforcement of arbitral awards against foreign sovereigns and their state-owned enterprises. A unique constellation of structural advan - tages and legal tools has made the US an effective forum for converting “paper awards” against award debtors – including sovereign ones – into tangible recovery. Recent cases have solidified this reputation. For legal background to these cases, a comprehen - sive federal statute – the Foreign Sovereign Immu - nities Act (FSIA) – sets the framework for when for - eign governments and their state-owned entities are accorded claim sovereign immunity in US courts (28 U.S.C. § 1602 et seq). As a general rule, the FSIA shields foreign governments from lawsuits, both juris - dictionally and in respect of their assets (28 U.S.C. § 1604). However, the statute also carves out a number of exceptions where that immunity does not apply as a matter of US law. One important exception exists for actions to enforce international arbitration agreements with sovereigns or their state-owned enterprises, or to confirm arbitral awards entered against them (28 U.S.C. § 1605 (a)(6)). Several FSIA-related court rulings in recent years have confirmed that the US remains an effective forum for enforcing arbitral awards against foreign sovereigns.
• In CC / Devas ( Mauritius ) Ltd . v Antrix Corp . Ltd . (2025), the US Supreme Court issued a unanimous decision removing a potential hurdle to enforc - ing international arbitral awards against sovereign parties in the US. In that case, the court below had ruled that sovereign parties could invoke the FSIA to block US jurisdiction by showing that the underlying dispute and arbitration had no mean - ingful connection to the US forum – a requirement known as “minimum contacts” that in most cases must be met before a court may assert jurisdiction over a defendant ( Devas Multimedia Priv . Ltd . v Antrix Corp ., No. 20-36024, 2023 WL 4884882, at *2 (9th Cir. 1 August 2023), holding that “a foreign state is... entitled to a minimum contacts analysis through our reading of the FSIA”). In Devas , how- ever, the Supreme Court concluded that the FSIA did not require any sort of “minimum contacts” analysis for sovereign parties. It held that, for pur - poses of the FSIA, US courts automatically have the power to hear a case against a sovereign party whenever any of the FSIA’s exceptions to sover - eign immunity applies and the sovereign party was properly served with process. Thus, the fact that the underlying dispute and arbitration may have nothing to do with the US is no bar to attempt - ing to enforce an international arbitration award against a sovereign party in the US. • In NextEra Energy Global Holdings B . V . v Kingdom of Spain (2024), the DC Circuit tackled the “intra- EU objection” that has paralysed award enforce - ment efforts across Europe brought by European Union (EU) investors holding arbitral awards against EU member states. Spain had argued that after the European Court of Justice’s rulings in Achmea (2018) and Komstroy (2021), which had invalidated intra-EU treaty arbitrations as a mat - ter of EU law, no valid agreement to arbitrate can ever be formed between an EU investor and an EU state, and therefore the FSIA’s arbitration excep - tion could not strip Spain of its sovereign immunity before US courts ( NextEra Energy Global Holdings B . V . v Kingdom of Spain , 112 F.4th 1088, 1102 (DC Cir. 2024)). The DC Circuit rejected this argu - ment. It held that the FSIA’s arbitration exception to sovereign immunity turns on the simple existence of a foreign state’s standing offer to arbitrate in the treaty text – this requirement was readily satisfied
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