Case Note: A Friendly Preference? The Amicus Curiae Brief in the Nextera Case

This paper examines the arguments put forth in an amicus curiae brief submitted in the US in NextEra Energy (Netherlands) v. Kingdom of Spain regarding the enforcement of an intra-EU ICSID arbitration award. The author argues that the brief promotes an uncompromising reading of ICSID members’ obligations that overlooks legitimate complexities at the intersection of investment law and EU law. In doing so, it encapsulates a view increasingly prevalent within the international arbitration community that privileges maintaining arbitration as the favoured mechanism for resolving investor-state disputes over reconciling potential tensions with regional economic frameworks like the EU legal order. However, a critical analysis finds the brief presents authorities selectively and minimizes complexities at the intersection of investment law and EU law.