Originally from Investment Treaty Arbitration and International Law - Volume 18

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Surely all of you are familiar with the nursery rhyme “Three Blind Mice,” that according to Wikipedia was originated in the year 1609:

Three blind mice. Three blind mice. See how they run. See how they run. They all ran after the farmer’s wife, who cut off their tails with a carving knife. Did you ever see such a sight in your life as three blind mice?

I intend now to address the “three blind mice” of investment treaty arbitration, one good, one bad, and one a bit confusing.
The first blind mouse is the fact that non-EU member state courts are repeatedly ignoring as much as possible the EU law, established in the Achmea and Komstoy judgments of the CJEU, in the course of confirming and enforcing awards that are unlawful under EU law.

I begin with the United States Court of Appeals for the District of Columbia Circuit’s Judgment of August 16, 2024 in Nextera Energy Global Holdings B.V. and Nextera Energy Spain Holdings B.V. v. Kingdom of Spain, in which Dutch and Luxembourgish energy companies had won awards against Spain under the Energy Charter Treaty. Spain had defended on the grounds that under the United States Foreign Sovereign Immunities Act (FSIA) it enjoys sovereign immunity, to which the companies responded by relying on that statute’s waiver and arbitration exceptions. In the end, the D.C. Circuit held “that the district courts have jurisdiction under the FSIA’s arbitration exception to confirm these arbitration awards against Spain” and remanded “for further proceedings.”