How has the US judiciary treated sovereign immunity defenses in enforcement of ICSID awards against Venezuela since 2019?

1. FSIA is the gatekeeper — U.S. courts require FSIA analysis for ICSID enforcement

U.S. federal courts have taken the position that the FSIA provides the exclusive framework for subject‑matter jurisdiction when petitioners seek recognition and enforcement of ICSID awards in U.S. courts, meaning sovereign‑immunity defenses must be tested under that statute rather than on ad hoc comity grounds ^{[1] [2]}. The statute implementing the ICSID Convention (Section 1650a) requires U.S. courts to treat an ICSID award like a state court judgment but it does not erase the FSIA’s immunity framework; courts therefore treat enforcement claims as subject to the FSIA’s exceptions and procedural rules ^[2].

2. Doctrinal tools: FSIA exceptions, Section 1650a, and alter‑ego/attachment theories

Judges enforcing ICSID awards against Venezuela have used a suite of legal doctrines: the commercial‑activity and waiver exceptions to FSIA where applicable, Section 1650a’s directive to give awards full‑faith‑and‑credit status in enforcement, and Bancec‑style alter‑ego analysis to reach state instrumentalities such as PDVSA when the corporate veil would otherwise frustrate recovery ^{[2] [3] [4]}. Where claimants can show extensive governmental control or that failing to disregard corporate form would work a fraud or injustice, courts have concluded they may attach non‑immune assets of state entities to satisfy awards ^{[5] [6]}.

3. Recent litigation trajectory — Third Circuit’s ConocoPhillips decision and district‑court practice

Most prominently, the Third Circuit in ConocoPhillips (Dec. 2024) affirmed registraton and enforcement steps and upheld a district court’s ability to issue writs of attachment against PDVSA shares after finding the extensive‑control/core‑agency (Bancec) test satisfied — a decision that illustrates U.S. courts’ willingness to pierce separateness to make ICSID awards meaningful in practice ^{[6] [5]}. That line of authority follows earlier decisions that treated U.S. courts as an important enforcement forum and that enforced U.S. judgments derived from ICSID awards subject to FSIA limits ^{[2] [7]}.

4. Not uniform globally — contrasts with other national courts and remaining legal frictions

The U.S. approach sits alongside growing international divergence: some foreign courts (notably recent Colombian rulings) have denied recognition or emphasized immunity from execution as a bar, while English appellate courts have at times rejected sovereign‑immunity objections to registering ICSID awards — reflecting different domestic balances between treaty obligations under ICSID and local immunity doctrines ^{[8] [9]}. These divergences underscore that a U.S. judgment recognizing an ICSID award is a powerful tool but not a global automatic execution ticket, and other jurisdictions may protect sovereign assets more robustly ^{[7] [3]}.

5. Practical consequences and outstanding questions — enforcement vs. execution, and the Supreme Court’s possible role

Practically, U.S. rulings since 2019 have made enforcement of ICSID awards against Venezuela more feasible by treating FSIA as the exclusive test and by allowing veil‑piercing where control is shown, but significant limits remain: immunity from execution can still shield particular classes of assets, discovery and asset‑tracing remain necessary, and the contours of alter‑ego and specific FSIA exceptions continue to invite appeals — including the possibility of Supreme Court review in high‑stakes cases ^{[3] [4] [7]}. Where U.S. courts have allowed attachments, they have not declared carte blanche to seize any Venezuelan property worldwide; rather they have specified legal predicates that claimants must satisfy under FSIA and precedent to reach assets tied to state instrumentalities ^{[5] [6]}.