Supreme Court Hears Foreign Sovereign Immunities Act-Arbitration Argument in Devas v. Antrix

By Elliot Friedman, David Y. Livshiz & Christian Vandergeest

The U.S. Supreme Court heard oral argument on Monday in Devas Multimedia Private Limited v. Antrix Corp. Ltd., No. 23-1201.

Devas, a Mauritius-based company, seeks to enforce an arbitral award against Antrix, a corporation owned by the Republic of India. The oral argument questioning suggested that the Supreme Court is inclined to reverse the decision below, from the Ninth U.S. Circuit Court of Appeals, which held that the Foreign Sovereign Immunities Act (“FSIA”) requires that a petitioner satisfy the traditional minimum contacts standard when seeking to enforce an arbitral award against a foreign state. Devas Multimedia Private Ltd. v. Antrix Corp., No. 20-36024 (9th Cir. Aug. 1, 2023) (available at https://bit.ly/4ijygSM).

The Supreme Court seems likely to rule that the FSIA contains no such statutory requirement.

The underlying dispute originated in India, where Devas and Antrix entered into a contract for telecommunications services. When Antrix cancelled the contract, Devas initiated an ICC arbitration (among other actions), prevailed, and was awarded $500 million in damages.

Antrix then moved to confirm the award in the U.S. District Court for the Western District of Washington. The district court confirmed the award, but the Ninth Circuit reversed, ruling that the award could not be confirmed because Antrix did not have minimum contacts with the United States.

According to the Ninth Circuit, notwithstanding the text of 28 U.S.C. § 1330(b)—which says that “[p]ersonal jurisdiction over a foreign state shall exist” when a foreign state or its agency is not entitled to immunity under the FSIA—the legislative history of the FSIA demonstrates that the application of the minimum contacts test is also required.

This differs from decisions in other circuits, including the Second and D.C. Circuits, where courts have held that any minimum contacts requirement stems from constitutional due process, rather than a statutory requirement in the FSIA.

At the Supreme Court, the justices appeared to have concluded that the Ninth Circuit erred. And rather than defending the Ninth Circuit’s reasoning, Antrix pointed to arguments that the Ninth Circuit did not address, including that the requirement for constitutional due process applies to foreign sovereigns—in other words, that the Constitution, not the FSIA, requires application of the minimum contacts test here.

The Supreme Court seemed uninterested in considering these new questions, with several justices suggesting that they should simply reverse and remand for the Ninth Circuit to address them in the first instance. The U.S. Solicitor General argued as amicus curiae in support of Devas, and similarly suggested that the Court should pass on the constitutional questions and remand for the Ninth Circuit to take the case forward.

It appears likely that the Supreme Court will reverse the Ninth Circuit, in a decision that rejects the conclusion that the FSIA requires minimum contacts over a foreign sovereign. This means that Antrix’s constitutional questions will likely need to wait for another day. On April 1, the Court will hear argument in Fuld v. Palestine Liberation Organization, No. 24-20, which will present another opportunity for the Court to delve into questions of personal jurisdiction.

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The transcript for the oral argument in Devas Multimedia Private Limited v. Antrix Corp. Ltd. is available here on the Supreme Court’s website; the audio can be found here.

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Friedman heads Freshfields US LLP’s international arbitration practice in the Americas, and is based in the firm’s New York office. Livshiz is a New York-based partner who works on complex commercial disputes, criminal and civil fraud actions, and bankruptcy litigation. Vandergeest is a senior associate in Freshfields’ disputes group, also based in the firm’s New York office.

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