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 following an Indian government policy decision, Devas initiated 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 ruled that Antrix lacked sufficient minimum contacts with the United States, but the Supreme Court reversed, holding that the Foreign Sovereign Immunities Act does not impose a minimum-contacts requirement beyond the contacts required by its enumerated immunity exceptions. On remand, the Ninth Circuit considered Antrix’s remaining challenges to subject-matter jurisdiction, personal jurisdiction, and the district court’s refusal to dismiss for 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 commercial dispute underlying the arbitration to have a nexus with the United States. Because the action sought confirmation of an award made under an arbitration agreement governed by the New York Convention, and no federal law barred arbitration of the dispute’s subject matter, the statutory requirements were satisfied.
The court also held that exercising personal jurisdiction over Antrix comported with the Fifth Amendment, assuming without deciding that Antrix was a “person” protected by the Due Process Clause and that a reasonableness inquiry was required. Jurisdiction was reasonable because the United States had a substantial interest in enforcing its treaty obligations, Antrix was a sophisticated state-owned entity that identified no undue litigation hardship, and Devas had a substantial interest in obtaining relief against assets in the United States.
Finally, the court held that forum non conveniens does not apply to proceedings to confirm foreign arbitral awards under the New York Convention. The Convention mandates recognition and enforcement unless an enumerated defense applies, and inconvenience of the forum is not among those defenses. Moreover, an Indian court could not attach Antrix’s assets located in the United States and therefore was not an adequate alternative forum. The panel affirmed the district court on these three issues; a concurrently filed memorandum addressed confirmation, judgment registration, intervenor standing, and the Indian courts’ later set-aside of the award.
Key Takeaways
- The FSIA’s arbitration exception does not require the underlying foreign commercial transaction to have a separate nexus with the United States.
- Personal jurisdiction over Antrix was reasonable under the Fifth Amendment even assuming Antrix was constitutionally entitled to due-process protection.
- Forum non conveniens is unavailable in a New York Convention confirmation proceeding because it is not an enumerated ground for refusing enforcement and a foreign court cannot reach assets located in the United States.
Why It Matters
The decision clarifies that foreign sovereigns and their instrumentalities may be subject to U.S. jurisdiction in New York Convention enforcement proceedings even when the underlying transaction and arbitration were foreign. The FSIA’s arbitration exception, rather than a separate U.S.-commerce nexus, supplies the necessary jurisdictional basis.
The ruling also removes forum non conveniens as a defense to confirmation under the Convention in the Ninth Circuit. Award creditors seeking assets in the United States therefore cannot be redirected to a foreign court that lacks authority to attach those assets.