Authors: Ata Türkfiliz*
Jurisdiction: | Topics: |
The Devas-Antrix saga stands as one of the most significant international space disputes, raising essential questions about sovereign immunity, international arbitration, and the enforcement of arbitral awards. It involves the Indian government, a private Indian corporation, and its Mauritius-based shareholders. Since 2011, it has led to several important developments, including an ICC commercial arbitration award, a PCA investment treaty arbitration award, and several annulment and enforcement proceedings globally. Recently, two prominent international arbitration scholars, Prof. Dr. Andrea Bjorklund (McGill University, Faculty of Law) and Prof. Dr. Franco Ferrari (New York University, School of Law), submitted an amici curiae brief in support of petitioners seeking reversal of a Ninth Circuit ruling. This blog post will explore the procedural history of the dispute and discuss the main arguments raised in the amici curiae brief.
Procedural History
A. The Arbitral Award (ICC Award)
Devas Multimedia Private Ltd., an Indian telecommunications company, and Antrix Corp. Ltd., the commercial division of India’s Department of Space, entered into a space and satellite industry contract in 2005 to build, launch, and manage telecommunication satellites. In 2011, foreign investors in Devas initiated an ICC arbitration after Antrix’s termination of the agreement. At first, Antrix declined to appoint an arbitrator and participate in the arbitral proceedings, but the tribunal proceeded nonetheless. In 2015, the ICC tribunal awarded Devas U.S. $562.5 million plus interest, concluding that Antrix had unlawfully terminated the agreement. Antrix then filed a petition to have the award set aside in an entirely distinct Indian court, while Devas sought to enforce the award in New Delhi.
B. Involvement of the U.S. Courts
Devas petitioned the District Court for the Western District of Washington, where Antrix has business relationships, to confirm the award while the proceedings in India were still ongoing. While both parties agreed that Antrix qualified as a “foreign state” under the Foreign Sovereign Immunities Act (FSIA) and that the arbitration exception to immunity applied, Antrix challenged personal jurisdiction. It argued that the FSIA’s requirements should be supplemented by the Fifth Amendment’s Due Process Clause.
On October 27, 2020, the District Court upheld the arbitral award and dismissed Antrix’s claims of personal jurisdiction, ruling that the Due Process Clause did not apply because Antrix is entirely owned and controlled by a foreign state and that statutory personal jurisdiction under FSIA is sufficient. Additionally, it stated that even if Antrix had been entitled to due process protection, it would still have had personal jurisdiction because it had the necessary “minimum contacts” with the United States and had “purposefully availed itself of the privilege of conducting business activities in the United States” through its long-term agreements with a consulting firm based in Virginia that led to the establishment of Devas and the party’s agreement being carried out. On the merits, the District Court confirmed the $562.5 million award plus pre- and post-award interest, finding no reason to deny recognition under the New York Convention. Antrix appealed the decision to the Ninth Circuit.
On August 1, 2023, the Ninth Circuit overturned the District Court’s decisions, concluding that the District Court had mistakenly determined that personal jurisdiction over a foreign state may be exercised without a minimum contacts analysis. The Ninth Circuit’s 1980 decision in Thomas P. Gonzalez Corp. v. Consejo Nacional De Produccion De Costa Rica, which maintained that personal jurisdiction under the FSIA necessitates satisfaction of the conventional minimum contacts test, was deemed to bind the District Court.[1]
The Ninth Circuit also found that the District Court erred in determining that Antrix had the necessary minimum contacts with the U.S. It concluded that Antrix’s series of meetings in the U.S. were inadequate because they were not purposeful but rather “random, isolated, or fortuitous.”[2] Additionally, the relevant agreement was negotiated outside the U.S., executed in India, and did not require Antrix to conduct any activities or establish ongoing obligations within the U.S.
Interestingly, the award was revoked in India between the District Court’s decisions and the Ninth Circuit’s judgement. Because U.S. courts generally refuse to enforce a foreign arbitral judgment that was set aside by a court of competent jurisdiction unless the party seeking enforcement can show significant flaws in the underlying set-aside procedure, this fact could have settled the case. The Ninth Circuit decided to review the appeal, overturned the District Court’s decision on the grounds of personal jurisdiction, and rejected the remand request as moot, despite Antrix’s petition for limited remand to give the District Court time to resolve the set-aside.
Devas asked for the Ninth Circuit’s personal jurisdiction ruling to be reheard. The Ninth Circuit ruled on February 6, 2024 that it would not consider any more petitions for rehearing and denied to rehear the case without giving a reason. The court was far from unanimous in its support of the Gonzalez ruling, even while the rehearing petition did not “receive a majority vote of the non-recused active judges in favor of en banc consideration.” Six judges did, in fact, oppose the ruling, stating that the court should reverse the Gonzalez precedent, in which the panel rewrote the FSIA to add a minimum contacts requirement. The dissent emphasized that the FSIA’s text does not call for minimum contacts and that nothing in the Due Process Clause mandates such an interpretation. On October 4, 2024, the petition for a writ of certiorari was granted by the Supreme Court.
A. Overview
On December 11, 2024, two of the most important figures in international arbitration, namely Prof. Dr. Andrea Bjorklund and Prof. Dr. Franco Ferrari, submitted an amici curiae brief in the pending case before the U.S. Supreme Court. An analogy can be drawn between their amici curiae and the Skywalker Saga, with Luke Skywalker’s emergence as a new hope. By challenging the Ninth Circuit’s imposition of a “minimum contacts” requirement for establishing jurisdiction over foreign states, the leading scholars aim to protect and enhance the U.S.’s commitment to international arbitration.
The Ninth Circuit’s decision, according to the amici curiae, incorrectly adds a “minimum contacts” requirement to the FSIA’s statutory conferral of personal jurisdiction. This decision could potentially put the United States in violation of its obligations under the New York Convention and the ICSID Convention.[3] This approach erodes the enforcement of international arbitration awards—including those made on behalf of American award creditors—against foreign governments in U.S. federal and state courts.[4] Therefore, they argued that the Court ought to overturn the Ninth Circuit’s ruling, at least insofar as it would mandate that parties attempting to have an award recognized under the New York Convention and the ICSID Convention (collectively, the “International Arbitration Treaties”) prove that the respondent foreign state and the U.S. have the minimum contacts as a jurisdictional precondition for recognition.[5]
B. The Need for a Consistent Interpretation of the FSIA in Line with the International Arbitration Treaties to Which the United States Has Acceded
With specific reference to the International Arbitration Treaties that may be applicable to the arbitral award, the FSIA offers a comprehensive response to the question of when jurisdiction—personal and subject matter—exists to enforce an international arbitral award against a foreign sovereign. The Ninth Circuit’s decision jeopardizes the United States’ ability to fulfill its commitments under the International Arbitration Treaties by imposing a minimum contacts requirement on top of that explicit statutory criteria.[6]
As the amici curiae touched upon, the U.S. is fully committed to the New York Convention and ICSID Convention.[7] The U.S. is also a key jurisdiction for the enforcement of foreign arbitral awards.[8] In addition, acts taken to uphold an arbitral award rendered in accordance with an arbitration agreement in which the foreign state is a party are exempt from jurisdictional immunity under the FSIA.[9] Section 1605(a)(6) of the FSIA explicitly removes sovereign immunity for foreign states in actions concerning the enforcement of arbitration agreements and arbitral awards governed by treaties recognizing such awards, including the New York and ICSID Conventions. This exception ensures that foreign states cannot evade their obligations under international arbitration agreements by invoking immunity, reinforcing the reliability of the U.S. as an enforcement jurisdiction. Any interpretation that imposes additional jurisdictional hurdles, such as the Ninth Circuit’s minimum contacts requirement, undermines this statutory framework and risks creating uncertainty in the enforcement of arbitral awards against sovereigns.
C. The Incompatibility of the Ninth Circuit’s Minimum Contacts Analysis with the United States’ Treaty Obligations Under International Arbitration Treaties
The Ninth Circuit’s application of the minimum contacts test to foreign sovereigns in the context of arbitral award enforcement is incorrect and troublesome, as the amici curiae have clearly pointed out. In addition to conflicting with the FSIA’s text and purpose, it also contradicts the United States’ international obligations under the International Arbitration Treaties. The Ninth Circuit’s decision is incompatible with the ICSID Convention[10] and the New York Convention as it unlawfully adds a condition against recognition of arbitral awards[11] and imposes an enforcement condition on ICSID awards that does not exist for state court judgments.[12]
D. A Foreign State’s Agreement to Engage in Arbitration Under International Arbitration Treaties as Consent to Personal Jurisdiction in Actions to Enforce an Award Resulting from That Agreement
The amici curiae argue that the Supreme Court should decide that a foreign state’s consent to arbitrate a matter covered by one of the International Arbitration Treaties constitutes consent to personal jurisdiction in any action to enforce that award in the U.S. under the International Arbitration Treaties, even if it were to concur that the FSIA’s statutory grant of personal jurisdiction is restricted by a minimum contacts requirement—which it shouldn’t.[13]
In fact, in the context of sovereign immunity, a number of lower courts have held that a foreign state’s ratification of the New York Convention or the ICSID Convention constitutes a waiver of sovereign immunity for the purposes of actions to enforce arbitration awards covered by either treaty.[14]
Conclusion
The Devas-Antrix saga is a landmark case in dispute resolution due to the procedural complexities it has generated. The recent amici curiae brief marks an important development in the case. The Supreme Court’s approach to this brief will be crucial, as it might eventually shape the future of the U.S.’s role in global arbitration, potentially reaffirming the country’s commitment to enforcing international arbitral awards without additional jurisdictional challenges.
*Ata Türkfiliz is a doctoral scholarship holder in the field of judicial law and extrajudicial conflict resolution at the University of Antwerp, Faculty of Law, Law Enforcement Research Group. He is currently writing his PhD dissertation on the resolution of space disputes. He is also a registered attorney at the Istanbul Bar, Union of Turkish Bar Associations, and a researcher in the International Institute of Space Law Working Group on the Future of the Moon Agreement. He is a graduate of the Europa-Institut at Saarland University (LLM in European and International Law, specializing in “International Dispute Resolution” and “Foreign Trade and Investment,” 2024), Istanbul University (LLM, 2024), and Bilkent University (Bachelor of Laws, 2021). Additionally, he serves as the Chief Legal Officer of Space for Climate and Secretary General of the International Maritime Law Students Association (IMLSA).
[1] The plaintiff in the 1980 decision invoked the commercial activity exception to sovereign immunity, which rejects sovereign immunity when the action is founded on an act committed outside of U.S. territory in connection with a foreign state’s commercial activity elsewhere and that act has a direct effect on the U.S. The Ninth Circuit determined that the minimum contacts test was necessary because the phrase “direct effect” has been understood to incorporate the minimum contacts requirement, which includes the defendant purposefully availing himself or herself of the privilege of conducting business within the forum. Additionally, the Ninth Circuit concluded that the FSIA’s reach is limited by the International Shoe line of cases, which define the minimum contacts requirements. This is because the FSIA’s legislative history cites International Shoe Co. v. Washington, 326 U.S. 310 (1945), and states that the requirements of minimum jurisdictional contacts and adequate notice are embodied in [28 U.S.C. § 1330(b)].
[2] “Opinion of the United States Court of Appeals for the Ninth Circuit”, ¶ 10.
[3] Brief for Andrea K. Bjorklund & Franco Ferrari as Amici Curiae Supporting Petitioners at 1, CC/Devas (Mauritius) Ltd. v. Antrix Corp., Ltd., Nos. 23-1201 & 24-17 (U.S. 2025).
[4] Id. at 1-2.
[5] Id. at 2.
[6] Id. at 5.
[7] Id. at 7-12.
[8] Id. at 12-14.
[9] Id. at 15.
[10] ICSID Convention, Art. 54 para. 1: “Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State.”
[11] Brief for Andrea K. Bjorklund & Franco Ferrari as Amici Curiae Supporting Petitioners at 17, CC/Devas (Mauritius) Ltd. v. Antrix Corp., Ltd., Nos. 23-1201 & 24-17 (U.S. 2025).
[12] Id at 18.
[13] Id at 24.
[14] In Tatneft v. Ukraine, 771 Fed. App’x 9 (D.C. Cir. 2019), cert. denied, 140 S. Ct. 901 (2020), the court held that signing the New York Convention waives immunity. Similarly, in Blue Ridge Investments, LLC v. Republic of Argentina, 735 F.3d 72 (2d Cir. 2013), agreements to arbitrate under the ICSID were deemed waivers of jurisdictional immunity. Seetransport Wiking Trader v. Navimpex Centrala, 989 F.2d 572, 578–79 (2d Cir. 1993), held that an agreement to submit a dispute under the New York Convention constitutes a waiver of jurisdictional immunity in related proceedings. The D.C. Circuit affirmed the reasoning of the Seetransport in Creighton Ltd. v. Gov’t of the State of Qatar, 181 F.3d 118 (D.C. Cir. 1999). In NextEra Energy Glob. Holdings B.V. v. Kingdom of Spain, 112 F.4th 1088 (D.C. Cir. 2024), the court chose not to formally adopt Seetransport and instead based jurisdiction on the FSIA’s arbitration exception. In NextEra Energy, the court acknowledged Seetransport but explicitly declined to formally adopt its reasoning. Instead, the court based jurisdiction on the FSIA’s arbitration exception (Section 1605(a)(6)), which provides an independent basis for overriding immunity in arbitration-related cases. The court refrained from deciding whether signing the New York Convention alone constitutes a waiver of immunity.