Overview
First Tuesday Update is our monthly take on current issues in commercial disputes, international arbitration, and judgment enforcement. This month, we review developments from the DC Circuit and the Ninth Circuit regarding due process and personal jurisdiction following the Supreme Court's 2025 decision in Fuld v. Palestine Liberation Organization, in which the Court held that the Fifth Amendment's due process limits on federal authority are distinct from the Fourteenth Amendment's "minimum contacts" limits placed on individual states. We also consider statute of limitations issues regarding enforcement of ICSID awards in US courts. We covered Fuld, CC/Devas, and the Argentine limitations fight in our 2025 Year in Review.
Post-Fuld Personal Jurisdiction: Akhmetshin (DC Circuit) and Devas (Ninth Circuit)
In Akhmetshin v. Browder, the DC Circuit held that Fuld stands for the proposition that the personal jurisdiction framework derived from International Shoe is specific to the Fourteenth Amendment, which binds the states, and should not be imported into the Fifth Amendment, which binds the federal government. Because the District of Columbia is a federal enclave, it is thus constrained by the Fifth Amendment, not the Fourteenth.
While an important decision for practitioners in the District of Columbia, Akhmetshin should not significantly alter Fuld's "more flexible" construction of the Fifth Amendment in many of the contexts discussed in our updates (e.g., cases arising under federal statutes against foreign sovereigns). In particular, Akhmetshin—a defamation case—does not deal with a federal statute that authorizes service of process under federal law. Under Fuld, the Court held that Rules 4(k)(1) and 4(k)(2) are adequate to support personal jurisdiction so long as jurisdiction comports with the Fifth Amendment's notion of due process. In a case against a sovereign where Congress has enacted legislation that directly implicates important federal policies aimed at protecting American citizens abroad, the governing inquiry is the Fifth Amendment due process standards discussed in Fuld rather than the traditional standards of the Fourteenth Amendment/International Shoe that controlled in Akhmetshin.
By way of background, the statute at issue in Fuld was the Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA), which amended the Anti-Terrorism Act (ATA). The ATA gives US nationals injured or killed "by reason of an act of international terrorism" a federal civil damages action. The PSJVTA names the PLO and the Palestinian Authority and deems them to have consented to personal jurisdiction in ATA suits if they either make payments to imprisoned terrorists or to the families of deceased terrorists who harmed Americans, or conduct activities on US soil. Writing for a unanimous Court, Chief Justice Roberts upheld that deemed-consent regime, reasoning that Congress had tied jurisdiction to conduct that touches the United States and implicates foreign policy committed to the political branches.
Akhmetshin is a defamation case governed by DC law; service arose under DC law; and the DC federal court follows whatever rules the DC local court follows. For due process purposes the issue is therefore whether the DC local court should be treated as a federal court or as more akin to a state court. Akhmetshin's unremarkable holding is that the territorial courts of DC have limited territorial jurisdiction and are more like state courts; there is no reason to treat them any differently than any other state court. Thus, because a federal court proceeding under Rule 4(k)(1)(A) borrows the jurisdictional reach of the local DC courts, the DC Circuit applied the traditional minimum-contacts framework associated with International Shoe and the Fourteenth Amendment. The Helms-Burton Act, a statute we have covered in prior updates, serves as a useful contrast presenting the kinds of federal interests Fuld identified as relevant to the Fifth Amendment analysis: Congress expressly created the Helms-Burton cause of action, authorized service through federal law, and legislated in an area implicating foreign affairs and the protection of US nationals.
The Ninth Circuit also weighed in on this post-Fuld personal jurisdiction issue in the Devas case decided two weeks ago. Devas is the long-running saga between an investor and Antrix Corporation, an Indian state-owned enterprise in which Devas sought to confirm an ICC award under the New York Convention. Previously, the Ninth Circuit held that in a Foreign Sovereign Immunities Act (FSIA) case, the claimant needed to satisfy the International Shoe standard of minimum contacts. That ruling was criticized, and the case went to the Supreme Court (see our discussion of CC/Devas here). In a unanimous 2025 opinion, the Court held that personal jurisdiction under the FSIA requires only an applicable statutory exception to immunity and proper service of process. The ruling reversed the Ninth Circuit's decision, which had thrown out a massive judgment against Antrix by insisting that plaintiffs also satisfy the traditional International Shoe minimum contacts. The Court sent the case back to the lower courts to resolve remaining questions, leaving open whether the Fifth Amendment's Due Process Clause independently mandates any minimum contacts for foreign state instrumentalities.
Following remand, the Ninth Circuit assumed for the sake of argument that Antrix was entitled to Fifth Amendment due process protections and held that the exercise of jurisdiction was reasonable under the Fifth Amendment. The court relied on the federal interests embodied in the governing statutory framework, the limited burden on Antrix, and the plaintiff's interest in obtaining relief. The Ninth Circuit cited Fuld in highlighting the United States' "substantial interest" as the forum state in an FSIA case as it applied the three traditional Fifth Amendment "reasonableness" factors: (i) the interests of the forum state, (ii) the burden on the defendant, and (iii) the plaintiff's interest in obtaining relief—found them to be satisfied as against Antrix.
The panel also rejected Antrix's argument that the arbitration exception reaches only disputes with a US commercial nexus, holding that an award governed by the New York Convention concerns a subject matter capable of settlement by arbitration under US law wherever the underlying commerce occurred. It further held, as the DC Circuit has, that forum non conveniens is unavailable in an action to confirm a New York Convention award. There are, however, two important caveats. The panel assumed without deciding that Antrix is a ‘person' entitled to Fifth Amendment protection, and it remanded for the district court to weigh whether the Indian courts' set-aside of the award (the Delhi High Court vacated it for fraud, and India's Supreme Court affirmed) bars confirmation.
Statute of Limitations for ICSID Enforcement Affirmed
As to the statute of limitations issue, as we previously reported here, in an investor dispute with Argentina, a federal court in the District of Columbia decided in 2024 that the District's twelve-year statute of limitations (as borrowed from DC Code § 15-101, the statute governing enforcement of money judgments) applied to an action to enforce an ICSID award. Titan Consortium 1 LLC v. Argentine Republic, No. 21-CV-2250, 2024 WL 3858821 (D.D.C. Aug. 19, 2024). This is an important issue for US practitioners to consider because there is no statute of limitations under the ICSID Convention or the US enabling statute and most jurisdictions do not have a statute of limitations for recognition actions. Argentina was seeking to impose the very strict three-year statute of limitations from the Federal Arbitration Act that otherwise applies to actions in the United States to recognize domestic and international arbitration awards.
In July of this year, the DC Circuit affirmed. The relevant DC statute "treat[ed] covered judgments as if they were state court judgments subject to full faith and credit as a matter of statutory and constitutional law," and the Washington Convention recognized that most arbitration pursuant to that Convention would take place at the World Bank's headquarters in DC. Thus, the DC Circuit concluded that Congress had not "intended in Section 1650a to preclude the tribunal awards' enforcement in the very jurisdiction where they are issued," but instead provided "a legal measure of the judicial respect that must be accorded tribunal judgments and the full and faithful enforcement to be granted to them." Last week, the DC Circuit denied Argentina's bid for rehearing.
Spain's Defenses Unsuccessful
Finally, a note on NextEra Energy Global Holdings B.V. v. Kingdom of Spain, where the DC Circuit held that the FSIA's arbitration exception turns on the existence, not the scope, of an arbitration agreement. Accordingly, US courts have jurisdiction to enforce intra-EU awards rendered under the Energy Charter Treaty despite Spain's Achmea/Komstroy objections. On June 29, 2026, the Supreme Court denied Spain's petition for certiorari, leaving that ruling in place. In late August, the DC Circuit declined to revisit the threshold issues in five consolidated appeals to enforce awards worth more than $400 million, including the forum non conveniens question now answered the same way in the DC and Ninth Circuits. Together with Devas, these orders confirm that sovereign debtors have little room left to contest jurisdiction or forum at the threshold in the DC Circuit.
