In a closely watched decision, the U.S. Supreme Court clarified the scope of “personal jurisdiction” over foreign states under the Foreign Sovereign Immunities Act (FSIA). The Supreme Court of the United States held that personal jurisdiction over a foreign sovereign exists where two conditions under FSIA are met i.e., an exception to sovereign immunity applies (as in the present case being arbitration), and service of process is properly effected. The Court overturned the Ninth Circuit’s decision and resolved the circuit split.
Background facts
In January 2005, Antrix Corporation Ltd. (“Antrix”), a state-owned Indian entity, entered into an agreement with Devas Multimedia Pvt. Ltd. (“Devas”), a private company backed by former ISRO employees and U.S. investors, to deliver telecommunications services in India using S-band transponders on two ISRO satellites. Over the next few years, Antrix obtained regulatory approvals, including from the International Telecommunication Union, while Devas secured licenses, raised funds, and paid the required fees. The parties also conducted successful service trials. In February 2011, shortly before the satellite launches, the Indian government revised its policy, reserving the S-band for governmental use. Antrix, invoking force majeure, terminated the agreement, citing impossibility of performance in view of the new policy.
Legal Proceedings
Following the termination of the agreement, Devas initiated ICC arbitration, arguing that the alleged force majeure was self-induced. On September 14, 2015, the three-member tribunal unanimously ruled in Devas’ favour, holding that Antrix had wrongfully terminated the contract and awarded Devas $562.5 million in damages, plus interest.
Following the award, both parties filed competing petitions in Indian courts – Devas to enforce and Antrix to set aside. Subsequently, Devas commenced enforcement proceedings in multiple jurisdictions, including the United Kingdom and France.
U.S. District Court Proceedings
In 2018, Devas filed a petition before the U.S. District Court for the Western District of Washington to confirm the ICC arbitral award against Antrix. The objective was to convert the award into a U.S. judgment, thereby enabling Devas to pursue Antrix’s assets in the United States. This process – referred to as “recognition” or “confirmation” – is a prerequisite to enforcement, which involves collection of assets to satisfy the judgment.
Ordinarily, a dispute between two private Indian entities would not meet the requirements for federal subject matter jurisdiction and would be heard in a state court. However, Antrix, being the commercial arm of ISRO, is funded and overseen by the Indian government, and its leadership is government-appointed. Consequently, Antrix is treated as a foreign state under the Foreign Sovereign Immunities Act (FSIA).
While the FSIA generally grants immunity to foreign sovereigns, the statute provides an arbitration exception. Because this matter arose from an arbitration agreement and valid service of process was effected, the arbitration exception applied.
Antrix moved to dismiss, contending that even if the FSIA exception was met, the U.S. Constitution required a showing of “minimum contacts” to establish personal jurisdiction. It argued that Devas failed to show such contacts, that ISRO’s U.S. ties could not be attributed to Antrix, and that the dispute had no material connection to the United States.
The District Court rejected Antrix’s arguments, holding that the Due Process Clause does not apply to foreign sovereigns, which are not considered “persons” under the Fifth Amendment. Relying on precedent, the court further noted that even if due process were applicable, Antrix had sufficient minimum contacts with the U.S., including extensive negotiations with a Virginia-based consulting firm (Forge Advisors), involvement of U.S. stakeholders in Devas, and various meetings and business dealings in the U.S. related to the agreement. It concluded that Antrix had purposefully availed itself of the U.S. forum, and that asserting jurisdiction would not violate traditional notions of fair play and substantial justice.
Notably, Several U.S. Courts of Appeals, including the Second, Seventh, Eleventh, and D.C. Circuits, have similarly held that minimum contacts are not required under the FSIA, as foreign states are not entitled to constitutional due process protections.
The District Court confirmed the award and entered judgment in favour of Devas for $1.293 billion, including pre and post-award interest. Antrix subsequently appealed the decision to the U.S. Court of Appeals for the Ninth Circuit.
Developments in India
While the Ninth Circuit appeal was pending the Delhi High Court set aside the arbitral award on 29 August 2022, holding that the same “(s)uffers from patent illegalities and fraud and is in conflict with the Public Policy of India”.
The Ninth Circuit Court Proceedings
On appeal, the Ninth Circuit reversed the District Court decision, relying on its precedent in Thomas P. Gonzalez Corp. v. Consejo Nacional de Producción de Costa Rica (1980), which required minimum contacts for personal jurisdiction under FSIA. According to the Court the district court was bound to apply the minimum contacts analysis set by Gonzalez, which decision had not been contradicted by the US Supreme Court. The Ninth Circuit thus held that based on Gonzalez, that even when an FSIA exception applies and service is proper, plaintiffs must additionally show that the foreign state has sufficient minimum contacts with the United States to establish personal jurisdiction.
Following the Ninth Circuit appeal, Devas entered liquidation in India. Several shareholders, including those of its U.S. subsidiary, intervened in the District Court proceedings and were granted leave to conduct post-judgment discovery. Such discovery is intended to help judgment creditors identify assets that may be used to satisfy a judgment. During the process, the intervenors uncovered a claim held by Antrix in a bankruptcy proceeding in the Eastern District of Virginia. They subsequently obtained permission to register the judgment in Virginia, enabling them to seek garnishment of Antrix’s bankruptcy claim. Both Antrix and Devas (under the control of a liquidator) appealed the order granting them leave to register the judgment.
The Ninth Circuit found Devas had not established such contacts, and thus the court lacked personal jurisdiction over Antrix. On the facts relating to minimum contacts, the Court concluded that Antrix’s series of meetings in the U.S. were inadequate because they were not purposeful but rather “random, isolated, or fortuitous”. 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.
En Banc Rehearing
Devas petitioned for a rehearing en banc, seeking to have the full Ninth Circuit reconsider its precedent requiring foreign sovereigns to satisfy the “minimum contacts” standard under the FSIA.
Notably, both the concurring and dissenting opinions criticized the reasoning in Gonzalez, arguing that it relied too heavily on legislative history and misinterpreted the FSIA’s statutory text. Despite these criticisms, the Court did not find grounds presented sufficient to grant a re-hearing.
Supreme Court proceeding and decision
In October 2024, the U.S. Supreme Court granted certiorari to resolve a circuit split and clarify the requirements for personal jurisdiction under the FSIA.
Renowned scholars Andrea Bjorklund and Franco Ferrari filed an amici brief arguing that applying a “minimum contacts” test to foreign sovereigns in the enforcement of arbitral awards is both “improper and problematic”. They contended it is inconsistent with the text and purpose of the FSIA, contrary to international arbitration treaties, and risks placing the U.S. in violation of the New York and ICSID Conventions. The brief urged the Court to reverse the Ninth Circuit’s decision, asserting that by agreeing to arbitration under the New York Convention, sovereigns consent to personal jurisdiction in related enforcement proceedings.
Notably, several U.S. district courts have held that by signing the New York and ICSID Conventions, a state waives its sovereign immunity.
On June 5, 2025, the U.S. Supreme Court unanimously held that personal jurisdiction under the FSIA requires only a statutory exception to sovereign immunity and proper service. The FSIA’s text does not mention, nor does it require, proof of “minimum contacts”, and imposing this additional requirement would be contrary to the clear language of the statute and Congress’s intent to establish a comprehensive and predictable framework.
The arbitration exception under FSIA removes immunity for foreign states and their instrumentalities for actions to confirm arbitral awards governed by treaties such as the New York Convention, and that the District Court had correctly found this exception applicable. While some FSIA exceptions inherently require a connection to the U.S. (such as commercial activity with a direct effect in the U.S.), this connection is satisfied by the statute itself, not by a separate constitutional analysis.
Accordingly, the matter was remanded to the Ninth Circuit for further proceedings.
During the earlier Ninth Circuit appeal, Antrix had argued that the award was no longer enforceable, having been set aside by an Indian court. Since the annulment occurred while the appeal was pending, Antrix sought a limited remand for the District Court to reconsider its ruling. While the U.S. Supreme Court’s decision marks a setback for Antrix, the door is not yet closed. The key question now is whether the lower courts will enforce an award that has already been annulled.
This article was first published by Bar & Bench on 27.06.2025. You can view the original article by following the link –
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