9th Circuit issues first-of-its-kind ruling in international arbitration dispute

The 9th U.S. Circuit Court of Appeals handed Devas Multimedia Private Ltd. another victory Wednesday in its long-running effort to enforce an international arbitration award against an Indian government-owned space company, rejecting a series of jurisdictional challenges and establishing new circuit precedent governing enforcement of foreign arbitral awards.

This ruling sets an important precedent that will promote US enforcement of awards resulting from agreements to engage in international arbitration," said Aaron Streett, the chair of the Supreme Court and Constitutional Law practice at Baker Botts LLP, who represents Devas. "The Court correctly rejected various impediments to enforcement that had no basis in the Foreign Sovereign Immunities Act or the New York Convention."

The published decision in Devas Multimedia Private Ltd. v. Antrix Corp. Ltd. comes after the U.S. Supreme Court reversed an earlier 9th Circuit ruling in the case last year. Baker Botts said the arbitration award, originally $562.5 million, has grown to more than $2 billion with accrued interest.

Writing for a three-judge panel, Circuit Judge Lucy H. Koh held that the arbitration exception to the Foreign Sovereign Immunities Act provides federal subject matter jurisdiction over the enforcement proceeding without requiring the underlying commercial dispute to have a connection to U.S. commerce. The court also concluded that exercising personal jurisdiction over Antrix Corp. is consistent with the Fifth Amendment.

In a question of first impression in the circuit, the panel further held that the doctrine of forum non conveniens does not apply to proceedings seeking confirmation of foreign arbitration awards under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as the New York Convention.

The dispute dates to a 2005 agreement between Devas, an Indian corporation, and Antrix, a corporation wholly owned by India that acts as a commercial arm of the Indian Department of Space and Indian Space Research Organisation.

Under the agreement, Antrix was to build, launch and operate two satellites and lease Devas 70 MHz of India's S-band spectrum. In 2011, Antrix terminated the agreement after the Indian government made a policy decision against providing S-band orbital capacity for commercial activities.

Devas initiated arbitration before the International Chamber of Commerce, and a three-member tribunal ruled in 2015 that Antrix had wrongfully repudiated the agreement. The tribunal awarded Devas $562.5 million.

Devas sought to confirm the award in the Western District of Washington in 2018. The district court confirmed it, but the 9th Circuit initially reversed after concluding that the FSIA required a traditional minimum-contacts analysis and that Antrix lacked sufficient contacts with the United States.

The Supreme Court reversed in 2025, holding that the FSIA does not require plaintiffs to establish minimum contacts beyond the requirements contained in the statute's enumerated exceptions to foreign sovereign immunity. It returned the case to the 9th Circuit to address Antrix's remaining arguments.

On remand, Antrix argued that the FSIA's arbitration exception could not provide jurisdiction because the underlying transaction involved "purely foreign commerce" and lacked a sufficient nexus to the United States.

The 9th Circuit disagreed.

The arbitration exception contains "no requirement that the underlying commerce that is the subject of the arbitration have a nexus with the United States," Koh wrote. The panel noted that Congress expressly imposed U.S.-commerce requirements elsewhere in the FSIA but omitted comparable language from the arbitration exception.

The court also rejected Antrix's constitutional challenge to personal jurisdiction. Without deciding whether the government-owned corporation qualifies as a "person" protected by the Fifth Amendment's Due Process Clause, the panel held that jurisdiction was reasonable even assuming those protections applied.

The United States has a substantial interest in fulfilling its treaty obligations under the New York Convention, the panel said, while Antrix is a sophisticated entity with substantial resources. Devas also has a significant interest in U.S. proceedings because courts outside the country cannot attach Antrix assets located in the United States.

The panel's treatment of forum non conveniens could have broader consequences for international arbitration enforcement cases in the western United States.

Antrix argued that the litigation should be dismissed in favor of proceedings in India. But Koh wrote that the New York Convention requires contracting nations to recognize and enforce covered awards unless one of the treaty's enumerated defenses applies. The inconvenience of the forum is not one of those defenses.

Allowing courts to decline enforcement on that basis "would add a defense the treaty does not envision," the panel said.

The court independently concluded that India could not constitute an adequate alternative forum because an Indian court cannot attach commercial assets belonging to Antrix that are located in the United States.

The 9th Circuit affirmed the district court's rulings on subject matter jurisdiction, personal jurisdiction and forum non conveniens. In a concurrently issued memorandum disposition, the court also affirmed confirmation of the award, according to the opinion, but reversed and vacated portions of the judgment concerning the standing of shareholder intervenors to register it.

The litigation is not over. Indian courts subsequently set aside the arbitration award, and the 9th Circuit remanded for the district court to determine in the first instance what effect those proceedings should have on enforcement.

Baker Botts attorneys Christopher E. Tutunjian and Streett represent Devas. Antrix is represented by lawyers from Crowell & Moring LLP, Curtis Mallet-Prevost Colt & Mosle LLP and Sidley Austin LLP, according to the opinion. Other intervenors are represented by King & Spalding LLP, Gibson Dunn & Crutcher LLP and McNaul Ebel Nawrot & Helgren PLLC.