Background
Devas Multimedia Private Limited and Antrix Corp. Ltd., a corporation wholly owned by India, entered a 2005 agreement under which Antrix would build and operate two satellites and lease S-band spectrum capacity to Devas. After Antrix terminated the agreement in 2011 following an Indian government policy decision, Devas commenced arbitration before the International Chamber of Commerce. In 2015, the tribunal found that Antrix had wrongfully repudiated the agreement and awarded Devas $562.5 million.
Devas petitioned the Western District of Washington to confirm the award under the New York Convention. The district court confirmed it, and Antrix appealed. The Ninth Circuit initially reversed for lack of minimum contacts, but the Supreme Court held that the Foreign Sovereign Immunities Act does not impose a separate minimum-contacts requirement beyond the statute’s enumerated immunity exceptions. On remand, the Ninth Circuit considered Antrix’s remaining challenges involving subject-matter jurisdiction, Fifth Amendment due process, and forum non conveniens.
The Court’s Holding
The Ninth Circuit held that the FSIA’s arbitration exception supplied subject-matter jurisdiction. The exception did not require the underlying commercial transaction to have a nexus to the United States. Because the action sought confirmation of an award governed by the New York Convention and no federal law barred arbitration of the dispute, the statutory requirements were satisfied.
Assuming without deciding that Antrix was a “person” protected by the Fifth Amendment and that due process required a reasonableness inquiry, the panel held that exercising personal jurisdiction was reasonable. The United States had a substantial interest in fulfilling its treaty obligations, Antrix was a sophisticated and well-resourced entity, and Devas had a substantial interest in obtaining relief from U.S.-based assets. The court also held that forum non conveniens does not apply to New York Convention confirmation proceedings because the Convention permits refusal only on enumerated grounds and a foreign court cannot attach assets located in the United States. The panel affirmed on these three issues; a concurrent memorandum disposition addressed confirmation, judgment registration, intervenor standing, and the later Indian set-aside proceedings.
Key Takeaways
- The FSIA’s arbitration exception does not require a commercial nexus between the underlying dispute and the United States.
- Personal jurisdiction over Antrix was reasonable under the Fifth Amendment even assuming that Antrix possessed due-process rights and that a reasonableness inquiry applied.
- Forum non conveniens is unavailable in an action to confirm a foreign arbitral award under the New York Convention, particularly because only a U.S. court can reach assets located in the United States.
Why It Matters
The decision confirms that foreign sovereigns and their instrumentalities may face award-confirmation proceedings in U.S. courts when the FSIA’s arbitration exception applies, even if the underlying transaction occurred abroad and lacked a commercial connection to the United States.
It also establishes in the Ninth Circuit that courts may not use forum non conveniens to decline New York Convention enforcement. Award creditors may therefore seek confirmation where a sovereign’s assets are located, subject to the Convention’s defenses and the FSIA’s restrictions on attachment and execution.