USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 1 of 26
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`ORAL ARGUMENT NOT YET SCHEDULED
`
`No. 23-7031
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`NEXTERA ENERGY GLOBAL HOLDINGS B.V., ET AL.,
`Petitioners-Appellees,
`
`v.
`
`KINGDOM OF SPAIN,
`
`Respondent-Appellant.
`
`On Appeal from the United States District Court for the District of Columbia,
`No. 1:19-cv-01618-TSC, Hon. Tanya S. Chutkan, United States District Judge
`
`FINAL BRIEF IN SUPPORT OF APPELLANT THE KINGDOM OF SPAIN
`FOR VACATUR OF THE PRELIMINARY INJUNCTION BY AMICUS
`CURIAE THE GOVERNMENT OF THE KINGDOM OF THE
`NETHERLANDS
`
`
`
`
`
`
`
`
`
`
`
`Dated: August 10, 2023
`
`Donald I. Baker
`W. Todd Miller
`Counsel of Record
`Erin Glavich
`BAKER & MILLER PLLC
`2401 Pennsylvania Ave., NW Suite 300
`Washington, DC 20037
`Tel: 202-663-7820
`Fax: 202-663-7849
`tmiller@bakerandmiller.com
`
`Counsel for Amicus Curiae the
`Government of the Kingdom of
`the Netherlands
`
`
`
`

`

`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 2 of 26
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`DISCLOSURE STATEMENT
`
`
`
`As a sovereign government, the Government of the Kingdom of the
`
`Netherlands (“the Netherlands”) is not subject to the disclosure statement
`
`requirements set forth in Fed. R. App. P. 26.1 or D.C. Circuit Rule 26.1.
`
`CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
`
`Pursuant to D.C. Circuit Rule 28(a)(1), amicus curiae the Netherlands submits
`
`this certificate as to parties, rulings, and related cases.
`
`I.
`
`PARTIES AND AMICI
`
`The Netherlands seeks leave to appear as amicus curiae before this Court.
`
`The Netherlands understands the European Commission intends to participate as
`
`amicus curiae. As both amici will speak on separate issues, separate briefs are
`
`necessary. To the knowledge of the undersigned, all other parties, intervenors, and
`
`amici appearing before the district court and in this Court are listed in the Brief for
`
`Appellant the Kingdom of Spain (“Spain”).
`
`II. RULINGS UNDER REVIEW
`
`Reference to the rulings at issue in No. 23-7031 appear in the Brief for
`
`Appellant Spain.
`
`III. RELATED CASES
`
`The Netherlands seeks leave to participate as an amicus curiae in case
`
`No. 23-7031. No. 23-7031 was previously before the district court as NextEra
`
`i
`
`

`

`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 3 of 26
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`Energy Global Holdings B.V. v. Kingdom of Spain, No. 19-cv-01618. No. 23-7032
`
`is a related case and was previously before the district court as 9Ren Holding
`
`S.A.R.L. v. Kingdom of Spain, No. 19-cv-01871. Neither case has previously been
`
`before this Court.
`
`To the knowledge of the undersigned, Spain has identified additional cases
`
`that present similar issues and involve the Kingdom of Spain in its Appellant Brief.
`
`
`
`/s/ W. Todd Miller
`W. Todd Miller
`Counsel for Amicus Curiae the
`Government of the Kingdom of
`the Netherlands
`
`ii
`
`

`

`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 4 of 26
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`TABLE OF CONTENTS
`
`
`TABLE OF AUTHORITIES ................................................................................... iv
`
`GLOSSARY OF ABBREVIATIONS ..................................................................... vi
`
`QUESTION PRESENTED ........................................................................................ 1
`
`INTEREST OF THE AMICUS CURIAE ................................................................... 2
`
`SUMMARY OF ARGUMENT ................................................................................. 4
`
`ARGUMENT ............................................................................................................. 5
`
`I. Sovereignty and comity are fundamental concepts for U.S. and international
`law. ................................................................................................................... 5
`
`II. Concern about comity is at its peak when the party enjoined is a foreign
`sovereign. ......................................................................................................... 7
`
`III. Foreign anti-suit injunctions are a sensitive subject internationally because
`they interfere with a foreign sovereign’s ability to exercise its own
`jurisdiction. ...................................................................................................... 9
`
`IV. The Netherlands’ strong interests and its obligations in adjudicating the
`Dutch action cannot be realized in the U.S. action and are put in conflict by
`the injunction. ................................................................................................12
`
`V. The district court fundamentally erred when it failed to seriously consider
`international comity in this sensitive case. ....................................................15
`
`CONCLUSION ........................................................................................................16
`
`CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION .....18
`
`CERTIFICATE OF SERVICE ................................................................................. 19
`
`
`
`
`
`
`
`iii
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`

`

`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 5 of 26
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`TABLE OF AUTHORITIES
`
`Cases
`
`Allendale Mut. Ins. Co. v. Bull Data Sys., Inc.,
`
`
`
`10 F.3d 425 (7th Cir. 1993) .............................................................................. 8
`
`The Antelope,
`
`
`
`23 U.S. (10 Wheat.) 66 (1825) ........................................................................ 5
`
`*BAE Sys. Tech. Sol. & Servs., Inc. v. Republic of Korea’s Def. Acquisition Program
`
`Admin., 884 F.3d 463 (4th Cir. 2018) ............................................ 7, 11, 12, 15
`
`BAE Sys. Tech. Sol. & Servs., Inc. v. Republic of Korea’s Def. Acquisition Program
`
`Admin., 195 F. Supp. 3d 776 (D. Md. 2016) ................................................. 15
`
`Berizzi Bros. Co. v. S.S. Pesaro,
`
`
`
`271 U.S. 562 (1926)......................................................................................... 6
`
`Canadian Filters (Harwich) Ltd. v. Lear-Siegler,
`
`
`
`412 F.2d 577 (1st Cir. 1969) .......................................................................... 10
`
`Doe v. Mattis,
`
`
`
`928 F.3d 1 (D.C. Cir. 2019) ............................................................................. 8
`
`E. & J. Gallo Winery v. Andina Licores S.A.,
`
`
`
`446 F.3d 984 (9th Cir. 2006) .......................................................................... 10
`
`FTC v. Compagnie de Saint-Gobain-Pont-A-Mousson,
`
`
`
`636 F.2d 1300 (D.C. Cir. 1980) ..................................................................... 11
`
`Hartford Fire Ins. Co., v. California,
`
`
`
`509 U.S. 764 (1993)................................................................................. 11, 15
`
`Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara,
`
`
`
`500 F.3d 111 (2d Cir. 2007) (“Karaha Bodas II”) .......................................... 9
`
`Karaha Bodas Co. v. Negara,
`
`
`
`335 F.3d 357 (5th Cir. 2003) (“Karaha Bodas I”) .............................. 9, 12, 15
`iv
`
`

`

`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 6 of 26
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`*Laker Airways Ltd. v. Sabena, Belgian World Airlines,
`
`
`
`731 F.2d 909 (D.C. Cir. 1984) ................................................... 6, 7, 10, 11, 16
`
`Munaf v. Geren,
`
`
`
`553 U.S. 674 (2008)......................................................................................... 6
`
`Pursuing Am.’s Greatness v. FEC,
`
`
`
`831 F.3d 500 (D.C. Cir. 2016) ......................................................................... 8
`
`Romero v. Int’l Terminal Operating Co.,
`
`
`
`358 U.S. 354 (1959)......................................................................................... 7
`
`Republic of the Philippines v. Westinghouse Elec. Corp.,
`
`
`
`43 F.3d 65 (3d Cir. 1994) ............................................................... 7, 11, 12, 15
`
`The Schooner Exchange v. McFaddon,
`
`
`
`11 U.S. (7 Cranch) 116 (1812) ........................................................................ 5
`
`Seattle Totems Hockey Club, Inc. v. Nat’l Hockey League,
`
`
`
`652 F.2d 852 (9th Cir. 1981) .......................................................................... 10
`
`United States v. Davis,
`
`
`
`767 F.2d 1025 (2d Cir. 1985) ............................................................... 9, 10, 11
`
`Treaties
`
`*Consolidated Versions of the Treaty on European Union and the Treaty on the
`
`Functioning of the European Union,
`
`
`
`June 7, 2016, 2016 O.J. (C 202) 13, 47. ........................................................ 13
`
`Other Authorities
`
`Joseph Story, Commentaries on the Conflict of Laws §38 (1834) ............................. 6
`
`Restatement (Third) of the Foreign Relations of Law of the United States,
`
`
`
`§206(a), cmt. B (Am. Law Inst. 1987) ............................................................ 5
`
`*Authorities upon which amicus curiae chiefly relies are marked with an asterisk.
`
`v
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`

`

`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 7 of 26
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`GLOSSARY OF ABBREVIATIONS
`
`
`
`
`
`CJEU
`
`Court of Justice of the European Union
`
`ECT
`
`EU
`
`Energy Charter Treaty
`
`European Union
`
`NextEra
`
`Appellees NextEra Energy Global Holdings B.V. and NextEra
`
`Energy Spain Holdings B.V.
`
`vi
`
`

`

`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 8 of 26
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`QUESTION PRESENTED
`
`
`
`Whether the district court failed to give serious consideration to international
`
`law and the doctrine of international comity when it granted an anti-suit injunction
`
`enjoining the Kingdom of Spain from pursuing certain claims for relief against a
`
`Dutch subject before the courts of the Kingdom of the Netherlands on questions of
`
`foreign law.
`
`
`
`
`
`1
`
`

`

`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 9 of 26
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`INTEREST OF THE AMICUS CURIAE
`THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS1
`
`The Government of the Kingdom of the Netherlands (“the Netherlands”) is
`
`committed to the proper application of international law and to the appropriate use
`
`of the doctrine of international comity.
`
`In prior amicus briefs in U.S. courts, the Netherlands has regularly criticized
`
`broad assertions of extraterritorial jurisdiction that were inconsistent with
`
`international law.2 These prior briefs have been submitted when plaintiffs were
`
`seeking to have a United States-based court assert jurisdiction over alien parties
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`concerning foreign conduct involving little or no connection to the United States.
`
`
`
`1 Statement of Authorship and Financial Contributions: Pursuant to D.C. Cir. Rule
`29(a)(4)(E), no person, party, or party’s counsel, outside the amicus curiae or its
`counsel, authored any part of this brief or contributed money that was intended to
`fund preparing or submitting this brief.
`
`2 See Brief of the Government of the Kingdom of the Netherlands as Amicus Curiae
`in Support of the Petitioners in its petition for a writ of Certiorari, OBB
`Personenverkehr AG v. Sachs, 136 S. Ct. 390 (2015) (No. 13-1067), 2014 U.S. S.
`Ct. Briefs LEXIS 1441; Brief of the Governments of the Kingdom of the Netherlands
`and the Swiss Confederation as Amici Curiae in Support of the Petitioner, OBB
`Personenverkehr AG v. Sachs, 136 S. Ct. 390 (2015) (No. 13-1067), 2015 U.S. S.
`Ct. Briefs LEXIS 1655; Brief of the Governments of the United Kingdom of Great
`Britain and Northern Ireland and the Kingdom of the Netherlands as Amici Curiae
`in Support of the Respondents, Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct.
`1659 (2013) (No. 10-1491), 2012 U.S. S. Ct. Briefs LEXIS 519; and Brief of the
`Governments of the United Kingdom of Great Britain and Northern Ireland and the
`Kingdom of the Netherlands as Amici Curiae in Support of Neither Party, Kiobel v.
`Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) (No. 10-1491), 2012 U.S. S. Ct.
`Briefs LEXIS 2651.
`
`2
`
`

`

`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 10 of 26
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`This brief reflects the same fundamental concern about extraterritorial
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`exercise of U.S. judicial authority over non-U.S. parties and conduct. Here, the U.S.
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`court has directly enjoined a sovereign nation from pursuing relief under foreign law
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`in another foreign sovereign’s courts against a private party subject to the jurisdiction
`
`of that sovereign, without due consideration to the heightened international comity
`
`concerns raised. The fact that the injunction at issue denies access to the Dutch
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`courts and seems to create a conflict of law further enhances the Netherlands’
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`legitimate interest in this appeal.
`
`
`
`
`
`3
`
`

`

`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 11 of 26
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`SUMMARY OF ARGUMENT
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`This case involves significant international comity issues. It involves U.S.
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`judicial interference with the conduct of two foreign sovereigns. The district court
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`enjoined the actions of a sovereign nation in the court of yet a third sovereign,
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`effectively restricting two sovereign nations from managing their respective legal
`
`interests.
`
`This appears to be the first time a court of this Circuit has imposed an anti-
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`suit injunction directly on a foreign sovereign, and only the second time any U.S.
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`court has attempted to do so. The district court’s opinion does not demonstrate
`
`recognition of the rarity of imposing this already extraordinary remedy on what is
`
`in essence two foreign sovereigns, nor does it demonstrate serious analysis of the
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`heightened considerations of international law and comity raised. There is no
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`mention of the comity implications of the U.S. court’s interference in the judicial
`
`process of the Netherlands. Such assertions of authority without careful considera-
`
`tion of sovereignty, comity, and international law create a substantial risk of
`
`jurisdictional and diplomatic conflict. In this case, Spain’s legal proceedings against
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`NextEra, a Dutch subject, brought in the courts of the Netherlands triggered an
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`obligation for the Dutch courts to apply EU law proprio motu under its EU treaty
`
`obligations.
`
`4
`
`

`

`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 12 of 26
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`The Netherlands respectfully urges this Court to require a particularly
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`thorough analysis of issues of sovereignty and comity before a district court can
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`enjoin a foreign sovereign from pursuing relief in a foreign court under foreign law.
`
`ARGUMENT
`
`I. SOVEREIGNTY AND COMITY ARE FUNDAMENTAL CONCEPTS
`FOR U.S. AND INTERNATIONAL LAW.
`
`A foundational principle of international law is that each sovereign nation is
`
`equal, and no other nation may impose its rule upon another. The Antelope, 23 U.S.
`
`(10 Wheat.) 66, 122 (1825). As Chief Justice Marshall held in The Schooner
`
`Exchange v. McFaddon, a sovereign’s jurisdiction within its own territory is exclu-
`
`sive and absolute:
`
`The jurisdiction of the nation within its own territory is
`necessarily exclusive and absolute. It is susceptible of no
`limitation not imposed by itself. Any restriction upon it,
`deriving validity from an external source, would imply a
`diminution of its sovereignty to the extent of the
`restriction, and an investment of that sovereignty to the
`same extent in that power which could impose such
`restriction.
`
`Id., 11 U.S. (7 Cranch) 116, 136 (1812).
`
`U.S. and international law recognize that a sovereign nation, as a co-equal,
`
`has the exclusive right to prescribe, adjudicate, and enforce its laws and the claims
`
`of persons within the nation’s territory. Restatement (Third) of the Foreign Relations
`
`of Law of the United States, §206(a), cmt. B (Am. Law Inst. 1987) (“As used here,
`
`5
`
`

`

`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 13 of 26
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`[sovereignty] implies a state’s lawful control over its [own] territory generally to the
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`exclusion of other states, authority to govern in that territory, and authority to apply
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`law there.”); Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909,
`
`921 (D.C. Cir. 1984) (“The prerogative of a nation to control and regulate activities
`
`within its boundaries is an essential, definitional element of sovereignty. Every
`
`country has a right to dictate laws governing the conduct of its inhabitants.”).
`
`The doctrine of comity under U.S. law gives effect to and governs the
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`international law principles of sovereignty and extraterritorial jurisdiction. It is the
`
`recognition that the interests of a nation sometimes spill outside its territorial
`
`boundaries, and that a nation needs the help of other nations to preserve and pursue
`
`those interests. Laker Airways, 731 F.2d at 937. Comity is both a fundamental
`
`respect for the sovereignty of another nation and, in recognition of interdependence,
`
`a degree of deference to the acts of a foreign nation in a nation’s domestic realm.
`
`Id.; see also Berizzi Bros. Co. v. S.S. Pesaro, 271 U.S. 562, 575 (1926).
`
`As stated by Joseph Story in his Conflict of Laws, “[i]t is not comity of the
`
`courts, but the comity of the nation which is administered and ascertained in the
`
`same way and guided by the same reasoning, by which all other principles of the
`
`municipal law are ascertained and guided.” Joseph Story, Commentaries on the
`
`Conflict of Laws §38 (1834). Consequently, U.S. law recognizes that courts must
`
`carefully weigh comity implications where these interests arise. See Munaf v. Geren,
`
`6
`
`

`

`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 14 of 26
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`553 U.S. 674, 689 (2008) (“‘[C]ircumspection [is] appropriate when [a] [c]ourt is
`
`adjudicating issues inevitably entangled in the conduct of our international
`
`relations.’” (quoting Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 383
`
`(1959))); see also Laker Airways, 731 F.2d at 937–38.
`
`II. CONCERN ABOUT COMITY IS AT ITS PEAK WHEN THE PARTY
`ENJOINED IS A FOREIGN SOVEREIGN.
`
`The principles of sovereignty and comity alter the standard calculus of an
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`injunction. See Republic of the Philippines v. Westinghouse Elec. Corp., 43 F.3d 65,
`
`72–73 (3d Cir. 1994) (“[A] district court’s power to sanction or exercise other forms
`
`of judicial control over a foreign sovereign is not coterminous with its power to
`
`regulate or punish other litigants.”). As recognized by the Fourth Circuit, the only
`
`court of appeals to consider an anti-suit injunction imposed directly on a foreign
`
`sovereign, comity concerns are paramount when the party to be enjoined is a foreign
`
`sovereign. As the Fourth Circuit stated:
`
`International comity counsels us to give effect, if possible,
`to the judgments of foreign courts in order to strengthen
`international cooperation. Here, these comity concerns are
`near their peak. . . . Indeed, an anti-suit injunction here
`would impinge on the sovereignty of the Korean courts (to
`hear the case) and the Korean government to litigate it.
`
`BAE Sys. Tech. Sol. & Servs., Inc. v. Republic of Korea’s Def. Acquisition Program
`
`Admin., 884 F.3d 463, 480 (4th Cir. 2018) (internal citations omitted).
`
`7
`
`

`

`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 15 of 26
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`Where an injunction is sought against the U.S. government, this Circuit
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`recognizes that the required balancing of various interests should be done differently
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`from a case involving only private parties. Doe v. Mattis, 928 F.3d 1, 23 (D.C. Cir.
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`2019) (“[W]hen a private party seeks injunctive relief against the government, the
`
`final two injunction factors – the balance of the equities and the public interest –
`
`generally call for weighing the benefits to the private party from obtaining an
`
`injunction against the harms to the government and the public from being
`
`enjoined.”); see also Pursuing Am.’s Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir.
`
`2016) (“[T]he [government]’s harm and the public interest are one and the same,
`
`because the government’s interest is the public interest.”). The underlying rationale
`
`is equally applicable to assess a preliminary injunction that restrains foreign
`
`sovereigns, particularly one that impacts both a sovereign as a party and a sovereign
`
`as a forum in which relief is sought against that sovereign’s subjects.
`
`These heightened comity concerns are apparent in the three decisions that
`
`considered the application of anti-suit injunctions against companies owned by
`
`foreign states. In the two cases in which the courts affirmed the anti-suit injunctions,
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`each court found a degree of separation between the entity on which the injunction
`
`was imposed and its controlling foreign state. See Allendale Mut. Ins. Co. v. Bull
`
`Data Sys., Inc., 10 F.3d 425, 428 (7th Cir. 1993) (setting aside the French
`
`government’s ownership structure because the government played only a passive
`
`8
`
`

`

`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 16 of 26
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`investment role and there were no assertions of government involvement); Karaha
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`Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 500 F.3d
`
`111, 116 (2d Cir. 2007) (hereafter “Karaha Bodas II”) (enjoining an oil company
`
`owned and controlled by Indonesia from filing post-judgment foreign litigation to
`
`offset a U.S. judgment where the company and not the State was liable for payment).
`
`In contrast, the Fifth Circuit refused to impose a pre-judgment anti-suit injunction
`
`on the same oil company owned and controlled by Indonesia as in the Second Circuit
`
`case, in part on comity grounds because the injunction would more directly impact
`
`Indonesia’s sovereign actions. See Karaha Bodas Co. v. Negara, 335 F.3d 357, 372–
`
`73 (5th Cir. 2003) (hereafter “Karaha Bodas I”) (finding that enjoining parallel
`
`litigation to annul an arbitration award by Indonesia in its home courts would
`
`impinge upon Indonesia’s sovereignty “to determine its own jurisdiction and grant
`
`kinds of relief it deems appropriate”).
`
`III. FOREIGN ANTI-SUIT INJUNCTIONS ARE A SENSITIVE SUBJECT
`INTERNATIONALLY BECAUSE THEY INTERFERE WITH A
`FOREIGN SOVEREIGN’S ABILITY TO EXERCISE ITS OWN
`JURISDICTION.
`
`All sovereign nations “have a substantial interest in regulating the progress of
`
`litigation in [their] own courts.” United States v. Davis, 767 F.2d 1025, 1038 (2d
`
`Cir. 1985). Foreign anti-suit injunctions interfere with this sovereign interest. By
`
`their nature, foreign anti-suit injunctions extend U.S. judicial authority extraterritori-
`
`9
`
`

`

`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 17 of 26
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`ally thereby implicating questions of sovereignty and comity vis-à-vis any foreign
`
`forum that it is being barred from being used. See id.; E. & J. Gallo Winery v. Andina
`
`Licores S.A., 446 F.3d 984, 989 (9th Cir. 2006) (noting that despite a court’s power
`
`to enjoin the parties before it in a foreign proceeding, “‘the power should be used
`
`sparingly. The issue is not one of jurisdiction, but one of comity.’” (quoting Seattle
`
`Totems Hockey Club, Inc. v. Nat’l Hockey League, 652 F.2d 852, 855 (9th Cir. 1981))).
`
`
`
`Because of this inherent conflict between the U.S. courts and the courts of
`
`another sovereign nation, the Laker Airways Court cautioned that courts should use
`
`extreme care in imposing anti-suit injunctions impacting non-U.S. fora:
`
`The mere filing of a suit in one forum does not cut off the
`preexisting right of an independent forum to regulate
`matters subject to its prescriptive jurisdiction. For this
`reason, injunctions restraining litigants from proceeding in
`courts of independent countries are rarely issued.
`
`A second reason cautioning against exercise of the
`power is avoiding the impedance of the foreign jurisdic-
`tion. Injunctions operate only on the parties within the
`personal jurisdiction of the courts. However, they effec-
`tively restrict the foreign court’s ability to exercise its
`jurisdiction. If the foreign court reacts with a similar
`injunction, no party may be able to obtain any remedy.
`Thus, only in the most compelling circumstances does a
`court have discretion to issue an anti-suit injunction.
`
`Id. at 927 (emphasis added); see also Canadian Filters (Harwich) Ltd. v. Lear-
`
`Siegler, 412 F.2d 577, 578 (1st Cir. 1969) (“[T]he direct effect of the district court’s
`
`10
`
`

`

`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 18 of 26
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`action on the jurisdiction of a foreign sovereign requires that such action be taken
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`only with care and great restraint.”).
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`Consequently, the necessity and reach of the injunction must be carefully
`
`considered to avoid undue interference. See Davis, 767 F.2d at 1038 (“Indeed,
`
`because an order enjoining a litigant from continuing a foreign action is facially
`
`obstructive, international comity demands that this extraordinary remedy be used
`
`only after other means of redressing the injury sought to be avoided have been
`
`explored.” (citing Laker Airways, 731 F.2d at 933, n.81)); BAE, 884 F.3d at 480; see
`
`also Republic of the Philippines, 43 F.3d at 75 (vacating a preliminary injunction for
`
`exceeding the district court’s authority and noting “while it is true that principles of
`
`comity cannot compel a domestic court to uphold foreign interests at the expense of
`
`the public policies of the forum state, it can — and does — force courts in the United
`
`States to tailor their remedies carefully to avoid undue interference with the domestic
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`activities of other sovereign nations.”). Cf. Hartford Fire Ins. Co., v. California, 509
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`U.S. 764, 798 (1993) (finding that international comity should be considered in
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`exercising jurisdiction where “a true conflict between domestic and foreign law”
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`arises); FTC v. Compagnie de Saint-Gobain-Pont-A-Mousson, 636 F.2d 1300, 1327
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`(D.C. Cir. 1980) (“[W]e note simply that where two constructions of a statute are
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`possible, the one less likely to conflict directly with regulations of other nations
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`should be chosen.”).
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`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 19 of 26
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`Comity and international law are therefore necessary considerations under the
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`balance of equities and public interest factors of the preliminary injunction and anti-
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`suit injunction tests. See Karaha Bodas I, 335 F.3d at 366 (“When a preliminary
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`injunction takes the form of a foreign antisuit injunction, we are required to balance
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`domestic judicial interests against concerns of international comity.”). A court
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`cannot decline to weigh comity solely because an important domestic interest has
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`been identified. See Republic of the Philippines, 43 F.3d at 77–78 (“Thus, what we
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`recognized in Compagnie des Bauxites, like the courts in Davis and Laker Airways,
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`is that the exercise of a power to prescribe and enforce requires a balancing in each
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`case. The domestic court’s purpose in protecting a particular interest must be
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`set against the interests of any other sovereign that might exercise authority over
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`the same conduct.”); BAE, 884 F.3d at 480 (finding the fact that foreign parallel
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`proceedings may threaten national security interests is not enough alone to impose
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`an anti-suit injunction “because it ignores international comity concerns that must
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`always be considered in determining whether to issue an anti-suit injunction”).
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`IV. THE NETHERLANDS’ STRONG INTERESTS AND ITS OBLIGA-
`TIONS IN ADJUDICATING THE DUTCH ACTION CANNOT BE
`REALIZED IN THE U.S. ACTION AND ARE PUT IN CONFLICT BY
`THE INJUNCTION.
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`Spain’s Appellant Brief sets forth the legal foundations of the European Union
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`(“EU”) and the law regarding the underlying arbitration, which the Netherlands will
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`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 20 of 26
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`not repeat.3 However, the Netherlands suggests that the legal structure of the EU is
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`an important consideration in applying the doctrine of comity, one that the district
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`court failed to consider in issuing its injunction.
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`Spain’s legal proceedings against NextEra, a Dutch subject, brought in the
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`courts of the Netherlands, triggered an independent obligation for the Dutch courts
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`to apply EU law under its EU treaty obligations. Under the treaties establishing and
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`governing the EU, the courts and tribunals of the Netherlands, as a Member State of
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`the EU, must apply EU law as interpreted by the Court of Justice of the European
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`Union (“CJEU"), the judicial branch of the EU, which has exclusive jurisdiction to
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`definitively interpret EU law. See Consolidated Versions of the Treaty on European
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`Union and the Treaty on the Functioning of the European Union, June 7, 2016, 2016
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`O.J. (C 202) 13, 47. The Netherlands and Spain, as Member States, and NextEra, as a
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`Dutch subject and EU citizen, are bound by EU law as interpreted by the CJEU.
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`Spain’s suit against NextEra asked the Dutch courts to determine whether
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`NextEra’s enforcement of the Energy Charter Treaty (“ECT”) arbitration provision
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`and resulting award was in contravention to or circumventing EU law, including
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`3 The Netherlands incorporates by reference Spain’s explanation of the EU legal
`order and law regarding the arbitration provision, as set forth in Spain’s Appellant
`Brief at pp. 6-16, as background information. The Netherlands understands the
`European Commission intends to submit an amicus curiae brief on the EU legal
`order and EU law, which the Netherlands also incorporates by reference as
`background information.
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`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 21 of 26
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`whether enforcement of an award in non-EU countries violates EU law. See NextEra
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`J.A. 794-96. The Dutch court is the proper court to hear these questions because the
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`defendant is Dutch and the Dutch court is required to exercise its jurisdiction under
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`EU law. Based on consistent jurisprudence of the CJEU, the Netherlands considers
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`that EU investors such as NextEra cannot rely — in case of a dispute with an EU
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`Member State — on Article 26 of the ECT as a valid arbitration agreement. In
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`contrast, the U.S. district court did not, cannot, and will not hear these questions.
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`See NextEra J.A. 823-25. Rather, U.S. jurisdiction is limited to the confirmation of
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`the arbitration award upon meeting the statutory requirements.
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`Herein lies the conflict: the U.S. court’s injunction to protect its jurisdiction
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`to confirm an arbitration award prevents the Dutch courts from applying EU law as
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`obligated by the EU treaties on questions the U.S. court will not hear. This forces
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`the Dutch courts to either accept this limitation on the Netherlands’ sovereignty to
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`adjudicate its laws within its exclusive domain, in contravention to its treaty obliga-
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`tions, or refuse to respect the U.S. court’s decision. The district court, without due
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`consideration, created a direct conflict between its order directed to the Kingdom of
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`Spain and the law of the Kingdom of the Netherlands and raised potential risks to
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`political, diplomatic, and international relations. U.S. law counsels courts to carefully
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`consider comity to avoid such risks and undue interference in another sovereign’s
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`USCA Case #23-7031 Document #2011670 Filed: 08/10/2023 Page 22 of 26
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`activities. See, e.g., BAE, 884 F.3d at 480; Karaha Bodas I, 335 F.3d at 366; Republic
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`of the Philippines, 43 F.3d at 77–78; cf. Hartford Fire, 509 U.S. at 798.
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`V. THE DISTRICT COURT FUNDAMENTALLY ERRED WHEN IT
`FAILED TO SERIOUSLY CONSIDER INTERNATIONAL COMITY
`IN THIS SENSITIVE CASE.
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`This case appears to be only the second time a U.S. court has attempted to
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`impose an anti-suit injunction directly on a foreign sovereign and to be a case of first
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`impression in this Circuit.4 But the district court’s opinion does not reflect how
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`extraordinary the relief is nor give it the level of analysis such a remedy requires.
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`The district court briefly mentioned principles of comity in its opinion, but it
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`did so without considering or balancing the implications on the sovereignty of Spain
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`or the Netherlands nor the impact of the injunction on the broader principles of
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`4 The only court to have imposed an anti-suit injunction directly on a foreign
`sovereign was the district court in earlier proceedings in the Fourt