Russia Renews Crimea Award Challenge After Supreme Court Declines Review
Article by: Matthew Saliman, Associate
Russia has renewed its challenge to enforcement of a major arbitral award arising from the seizure of Ukrainian energy assets in Crimea, this time shifting its arguments from sovereign immunity to the merits of confirmation.
The latest filing follows the U.S. Supreme Court’s June 29, 2026 denial of Russia’s petition for certiorari. That petition sought review of a D.C. Circuit decision holding that the arbitration exception to the Foreign Sovereign Immunities Act (“FSIA) permitted U.S. courts to exercise jurisdiction without first determining whether Russia had specifically agreed to arbitrate with the particular Ukrainian claimants. The D.C. Circuit characterized Russia’s claimant-specific consent argument as a merits defense that could be addressed later in the enforcement proceeding.
Read our prior analysis here.
From Jurisdiction to Enforcement
Russia has now presented that argument to the district court at the merits stage. Its central position is that the Russia-Ukraine bilateral investment treaty extended arbitration rights only to Ukrainian investors who made investments in Russian territory. Because DTEK Krymenergo made its investments in Crimea while Crimea was internationally recognized as Ukrainian territory, Russia argues that DTEK was never capable of accepting Russia’s treaty-based offer to arbitrate.
Russia alternatively argues that the dispute falls outside the scope of any arbitration agreement under Article V(1)(c) of the New York Convention. Relying in part on the D.C. Circuit’s recent decision in Deutsche Telekom v. Republic of India, Russia contends that the treaty did not clearly and unmistakably assign final authority over arbitrability to the tribunal and that the district court must independently assess the treaty’s scope.
The brief also raises several additional defenses. Russia asserts that much of the investment involved Soviet-era assets predating the treaty’s January 1, 1992 cutoff, that the treaty became suspended or inoperative during armed conflict, and that the tribunal’s interpretation failed to draw its essence from the treaty.
Public Policy and Discovery
Russia further invokes the New York Convention’s public-policy exception. It alleges that DTEK’s beneficial owner obtained his interest through corruption or criminal conduct and asks the court to permit limited discovery into those allegations.
Russia separately argues that enforcing the award would conflict with the Executive Branch’s exclusive authority to recognize foreign territory because the award allegedly rests on treating Crimea as Russian territory for purposes of the investment treaty.
Key Takeaways
The Supreme Court’s denial leaves the D.C. Circuit’s relatively low FSIA jurisdictional threshold intact. But jurisdiction does not guarantee enforcement. The same consent, territorial-scope, and treaty-coverage disputes that failed to defeat jurisdiction may still determine whether the award is ultimately confirmed.
For contractors and investors dealing with foreign sovereigns, the case underscores the importance of precise treaty language, the distinction between jurisdiction and arbitrability, and the potential for public-policy defenses to transform an ordinarily summary confirmation proceeding into a more fact-intensive dispute.